17-006871 Department Of Children And Families vs. A Step Above Christian Academy, Llc, D/B/A A Step Above Christian Academy, Llc Status: Closed Recommended Order on Wednesday, March 21, 2018.

Summary: The Department proved by clear and convincing evidence that Respondent's repeated ratio violations merited revocation of its child care license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Cas e No. 17 - 6871

A STEP ABOVE CHRISTIAN ACADEMY,

LLC, d/b/a A STEP ABOVE

CHRISTIAN ACADEMY, LLC,

Respondent.

_______________________________/

RECOMMENDED ORDER

On February 1, 2018, a formal administrative hearing in

this case was held via video teleconference from sites in

Daytona Beach and Tallahassee, before Lawrence P. Stevenson,

Administrative Law Judge, Division of Admini strative Hearings.

APPEARANCES

For Petitioner: Jane Almy - Loewinger, Esquire

Department of Children and Families

210 North Palmetto Avenue, Suite 447

Daytona Beach, Florida 32114

For Respo ndent: Cynthia McGuire - Moore, pro se

A Step Above Christian Academy, LLC

1122 Dr. Mary McLeod Bethune Boulevard

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE S

At issue is whether Re spondent committed the violations

alleged in the Administrative Complaint , and, if so, what

penalties should be imposed.

PRELIMINARY STATEMENT

On September 28, 2017, the Department of Children and

Families (the "Department") filed an Admini strative Complaint

(the "Complaint") against Respondent, A Step Above Christian

Academy, LLC, d/b/a A Step Above Christian Academy, LLC ("A Step

AboveÑ). 1/ The Complaint stated that the Department intended to

impose a $50.00 civil penalty and revoke the f acilityÓs child

care license because of repeated ratio violations at the

facility.

A Step Above filed a Request for Administrative Hearing

("Request") on or about November 16, 2017. In the Request, A

Step Above stated that it received the Complaint on No vember 4,

2017. Though the Department initially determined that A Step

Above had not timely filed its Request, it later reversed that

determination and conceded that the Request was timely filed.

On December 21, 2017, the Department forwarded the Request

to the Division of Administrative Hearings for the scheduling

and conduct of a formal hearing. The case was originally set

for hearing on February 1, 2018, on which date it was convened

and completed.

At the hearing, the Department presented the testimo ny of

Betsy Lewis, a family services counselor supervisor ; and of

Jennifer Overley, a child care regulation licensing counselor.

The Department's Exhibits 1 and 2 were admitted into evidence.

A Step Above was represented by its proprietor, Cynthia

McGuire - Moore, who testified on behalf of the facility. A Step

Above offered no exhibits into evidence.

The one - volume T ranscript of the hearing was filed at the

Division of Administrative Hearings on February 16, 2018. The

Department timely filed its Proposed Recommended Order on

February 22, 2018. Respondent did not file a p roposed

r ecommended o rder or any other form of a post - hearing submittal.

Unless otherwise stated, all statutory references are to

the 2017 edition of the Florida Statutes.

FINDING S OF FAC T

1. The Department is authorized to regulate child care

facilities pursuant to sections 402.301 - 402.319, Florida

Statutes. Section 402.311 authorizes the Department to inspect

licensed child care facilities. Section 402.310 authorizes the

Department to take disciplinary action against child care

facilities for violations of sections 402.301 - 402.319.

2. A Step Above is a child care facility operating

pursuant to License Number C07VO0425. The facility is located

at 1122 Dr. Mary McLeod Bethune Boulevard , Daytona Beach,

Florida 32114. Cynthia McGuire - Moore is the owner of A Step

Above.

3. Jennifer Overley works for the Department as a child

care regulation licensing counselor. At the time of the

hearing, Ms. Overley had worked in this position for two years.

Ms. Overley was assigned to A Step Above as a licensing

counselor. Among her duties was to inspect the facility on a

regular basis to assure that it met the statutory and rule

requirements regarding the ratio of staff to children.

4. Ms. Overley testified that she first discovered a ratio

violation at A Step Above on December 17, 2015. At the time,

there was a requirement of one staff member for each

four children. Ms. Overley observed a ratio of one staff member

to seven children at A Step Abov e on that date.

5. Ms. Overley testified that, under these circumstances,

the licensing counselor is required to stay at the facility

until the management brings it into ratio compliance. On this

occasion, Ms. McGuire - Moore remedied the situation by ha ving

some parents come in and pick up their children. Because this

was a first violation, Ms. Overley offered technical assistance

and issued an administrative warning letter.

6. Ms. Overley discovered a second ratio violation on

March 30, 2016. She sta ted that Ms. McGuire - Moore was out of

ratio in two rooms. In the first room, the ratio requirement

was one staff person per four children, and the actual ratio was

one staff member per seven children. In the second room, the

required ratio was one staff member per four children and the

actual ratio was one staff member per five children.

7. Ms. McGuire - Moore w as not at the facility when

Ms. Overley first arrived. Ms. McGuire - MooreÓs appearance

restored the required ratio in one of the rooms. Ms. McGu ire -

Moore proceeded to rearrange the children in the second room to

bring it into ratio.

8. Ms. Overley testified that she issued an administrative

letter to Respondent for the second violation. She also

counseled Ms. McGuire - Moore regarding ratio viola tions and how

to stay in ratio.

9. Ms. Overley discovered a third ratio violation on

June 16, 2016. At that time, a ratio of one staff person per

six children was required, and she observed that the ratio was

one staff person to nine children. Before Ms . Overley left the

facility, another staff person arrived to bring it into the

required ratio. The Department issued A Step Above a fine and

another administrative warning letter.

10. Ms. Overley testified that she discovered the

fourth ratio violation o n July 21, 2016. The ratio on that day

was one staff member to ten children when it should have been

one staff member to four children. Ms. Overley stated she

stayed on - site until another staff person arrived. A Step Above

was issued another fine, anoth er administrative action letter ,

and was placed on six - months' probation. The probation period

ran from October 2016 to February 2017. Ms. Overley also stated

that during the probation period, she visited the daycare every

month as required by law, and n oted that A Step Above was in

ratio for the entire term of its probation.

11. Ms. Overley testified that in February 2017, the

facility was placed on a provisional license because

Ms. McGuire - Moore had allowed her directorÓs credential to

lapse. Ms. McGu ire - Moore received her new directorÓs credential

in October 2017 and A Step Above was shortly thereafter returned

to the status of a regular license. At the outset of the

hearing, the Department stipulated that its revocation action

was based only on the facilityÓs repeated ratio violations and

not on Ms. McGuire - MooreÓs lapsed directorÓs license.

12. As to the fifth and final ratio violation that led the

Department to seek revocation of A Step AboveÓs license,

Ms. Overley testified that she we nt to the f acility on

September 21, 2017, to check on the status of Ms. McGuire -

MooreÓs directorÓs credential renewal. While there, Ms. Overley

noted that the facility was once again out of ratio. The

required ratio was one staff person per four children, and

A Ste p Above was at one staff person per twelve children. Some

of the children were infants. Because this was the fifth ratio

violation, the Department began revocation proceedings.

13. Ms. Overley testified that she had several

conversations with Ms. McGuir e - Moore as to the need to remain

within ratio. Ms. Overley suggested that the facility reduce

the need for employees by enrolling older children and declining

to care for infants and one - year - olds, whose care requires more

staffing.

14. Ms. Overley testi fied that she conducted an inspection

of A Step Above on December 15, 2017, while this formal hearing

on revocation was pending. She observed the facility to be out

of ratio yet again, with a ratio o f one staff person per

eight children , when the pro per r atio was one to four.

Ms. Overley was unsure how to proceed, as the revocation process

was already underway and a formal hearing was scheduled. She

consulted her supervisor, and together they determined that a

cease and desist letter should be issued to A Step Above.

15. Ms. Overley delivered the cease and desist letter on

December 22, 2017, with directions that A Step Above should

close its doors by December 29, 2017. Ms. Overley testified

that she has since gone by the facility three times and has

observed no activity.

16. Family services counselor supervisor Betsy Lewis

testified regarding the matrix that the Department follows when

it discovers violations. Ms. Lewis testified that chapter 402

sets forth the Department's enforcement procedures an d

standards. Violations are classified according to their

severity, with Class I being the most severe and Class III being

the least severe. The ratio vi olations in this case are

Class II violations, indicating that there is no imminent danger

to a child , but there is the potential for harm.

17. Ms. Lewis testified that Department rules provide for

progressive discipline for repeated violations. As to Class II

violations, a first violation would result in only a citation

and technical assistance to the daycare. A second Class II

violation results in a $50.00 fine, and a third Class II

violation results in a $60.00 fine. A facility receiving a

fourth Class II violation is us ually placed on probation, as

A Step Above was in this case. A fifth violation requires the

Department to suspend or revoke the daycareÓs license and to

impose a fine of up to $100.00. Under all the circumstances,

the Department chose to seek revocation and a $50.00 fine.

18. Ms. McGuire - Moore testified on behalf of A Step Above.

She did not contest the violations, but also declined to take

responsibility for them. She blamed her employees for not

showing up on time. Ms. McGuire - Moore also stated that she had

been unaware that a daycareÓs license could be revoked for

repeated rat io violations.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2017).

20. The Department has the burden of establishing the

grounds for revocation of Respondent's licensure by clear and

convincing evidence. Dep't of Banking and Fin. v. Osborne Stern

& Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987); C oke v. Dep't of Child. & Fam. Servs. ,

704 So. 2d 726 (Fla. 5th DCA 1998) .

21. In Evans Packing Co. v. Dep artmen t of Agric ulture and

Consumer Serv ices , 550 So. 2d 112, 116 n.5 (Fla. 1st DCA 1989),

the Court defined clear and convincing evidence as follows:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the evidence

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact the firm belief of

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429

So. 2d 797, 800 (Fla. 4th DCA 1983).

22. Judge Shar p, in her dissenting opinion in Walker v.

Departmen t of Bus iness and Prof essiona l Regulation , 705 So. 2d

652, 655 (Fla. 5th DCA 1998) (Sharp, J., dissenting), reviewed

recent pronouncements on clear and convincing evidence:

[C]lear and convincing evidence requires

more proof than preponderance of evidence,

but less than beyond a reasonable doubt. In

re Inquiry Concerning a Judge re Graziano ,

696 So. 2d 744 (Fla. 1997). It is an

intermediate level of proof that entails

both qualitative and quantative [s ic]

elements. In re Adoption of Baby E.A.W. ,

658 So. 2d 961, 967 (Fla. 1995), cert.

denied , 516 U.S. 1051, 116 S. Ct. 719, 133

L. Ed. 2d 672 (1996). The sum total of

evidence must be sufficient to convince the

trier of fact without any hesitancy. Id.

I t must produce in the mind of the

factfinder a firm belief or conviction as to

the truth of the allegations sought to be

established. Inquiry Concerning Davey , 645

So. 2d 398, 404 (Fla. 1994).

23. At all times material to this case, Respondent was a

pro vider of child care, pursuant to section 402.302, which

provides the following relevant definition:

(1) "Child care" means the care,

protection, and supervision of a child, for

a period of less than 24 hours a day on a

regular basis, which supplements par ental

care, enrichment, and health supervision for

the child, in accordance with his or her

individual needs, and for which a payment,

fee, or grant is made for care.

(2) "Child care facility" includes any

child care center or child care arrangement

which provide s child care for more than

five children unrelated to the operator and

which receives a payment, fee, or grant for

any of the children receiving care, wherever

op erated, and whether or not operated for

profit . . . .

24. Section 402.310(1)(c) requires the Department to adopt

rules establishing the grounds under which it may deny, suspend,

or revoke a license and establishing a uniform system of

procedures to impo se disciplinary sanctions for violations of

sections 402.301 - 402.319. Pursuant to this directive, the

Department has adopted Florida Administrative Code R ule 65C -

22.010.

25. Rule 65C - 22.010(1)(e) provides, in relevant part:

(e) ÐViolationÑ means noncomp liance with a

licensing standard as described in an

inspection report resulting from an

inspection under Section 402.311, F.S., as

follows with regard to Class I, Class II,

and Class III Violations.

1. ÐClass I ViolationÑ is an incident of

noncompliance with a Class I standard as

described on CF - FSP Form 5316, October 2017.

Child Care Facility Standards Classification

Summary, which is incorporated by

reference . . . . [Any violation of a

Class II standard that results in death or

serious harm to a chil d shall escalate to a

Class I violation. Class I violations are

the most serious in nature.

2. ÐClass II ViolationÑ is an incident of

noncompliance with an individual Class II

standard as described on CF - FSP Form 5316.

Class II violations are less seri ous in

nature than Class I violations . . . .

26. CF - FSP Form 5316 provides that a violation of the

ratio standard is a Class II violation.

27. Section 402.305(4)(a) sets forth the staffing ratios

for licensed child care facilities as follows:

(4) STAFF - TO - CHILDREN RATIO. Ï

(a) Minimum standards for the care of

children in a licensed child care facility

as established by rule of the department

must include:

1. For children from birth through 1 year

of age, there must be one child care

personnel for every four children.

2. For children 1 year of age or older, but

under 2 years of age, there must be

one chi ld care personnel for every

six children.

3. For children 2 years of age or older,

but under 3 years of a ge, there must be

one ch ild care pe rsonnel for every

11 children.

4. For children 3 years of age or older,

but under 4 years of age, there must be

one ch ild care personnel for every

15 children.

5. For children 4 years of age or older,

but under 5 years of age, there must be

one ch ild c are personnel for every

20 children.

6. For children 5 years of age or older,

there must be one child care personnel for

every 25 children.

7. When children 2 years of age and older

are in care, the staff - to - children ratio

shall be based on the age gro up with the

largest number of children within the group.

28. The Department proved by clear and convincing evidence

that A Step Above committed the five ratio violations alleged in

the Complaint, and that A Step Above even committed a

sixth violation a fter it was notified of the DepartmentÓs intent

to revoke its license and while this case was pending.

29. Rule 65C - 22.010(2)(d)2. provides the following

standard of progressive enforcement for Class II violations:

2. Class II Violations.

a. For the se cond violation of the same

Class II standard, the Department shall

impose an administrative fine of $50.00 for

each such violation.

b. For the third violation of the same

Class II standard, the Department shall

impose an administrative fine of $60.00 per

day for each such violation .

c. For the fourth violation of the same

Class II standard, the Department shall

place the providerÓs license on probation

status for a period not to exceed

six months , and shall also impose a fine of

$75.00 per day for each such violation.

d. For the fifth and subsequent violation

of the same Class II standard, the

D epartment shall suspend, deny, or revoke

the license, and shall also impose an

administrative fine of $100.00 per day for

each such violation.

30. The quote d rule requires the Department to suspend or

revoke a license for a fifth or subsequent violation of the same

Class II standard. The Department chose to seek revocation

rather than suspension of A Step AboveÓs license. Under the

facts of the case, this w as not an unreasonable exercise of the

DepartmentÓs enforcement discretion. Given that the license is

being revoked, the undersigned concludes that the requested

$50.00 civil penalty would constitute redundant punishment.

RECOMMENDATION

Based on the for egoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Families enter a final order revoking License Number C07VO0425

issued to A Step Above Christian Academy, LLC, d/b/a A Step

Above Christian Academy, LLC.

DONE AND ENTERED this 21st day of March , 2018 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of March , 2018 .

ENDNOTE

1/ No explanation was provide d as to the Ðd/b/aÑ designation

that merely repeats the full name of Respondent. The

designation has been retained on the assumption that it has some

significance to the Department.

COPIES FURNISHED:

Jane Almy - Loewinger, Esquire

Department of Children and Families

Suite 447

210 North Palmetto Avenue

Daytona Beach, Florida 32114

(eServed)

Cynthia McGuire - Moore

A Step Above Christian Academy, LLC

1122 Dr. Mary Mcleod Bethune Boulevard

Daytona Beach, Florida 32114

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399

(eServed)

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServe d)

John Jackson, Acting General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written except ions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.