18-000644 Department Of Children And Families vs. Su's Creative Corner Preschool No. 2 Status: Closed Recommended Order on Friday, September 7, 2018.

Summary: $100 fine for day care facility that allowed unscreened employee alone with children in care without a screened individual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 18 - 0644

SU'S CREATIVE CORNER PRESCHOOL

NO. 2,

Respondent.

_______________________________/

RECOMMENDED ORDER

On July 3 , 2018 , Robert E. Meale, Administrative Law Judge

of the Division of Administrative Hearings (DOAH), conducted the

final hearing by videoconference in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Patricia E. Salm a n , Esquire

Depar tment of Children and Families

401 Northwest 2nd Avenue , Suite N - 10 1 4

Miami , Florida 3 3128

For Respondent : Lucy C. Piñeiro , Esquire

Lucy C. Piñeiro & Associates, P.A.

717 Ponce de Leon Boulevard, Suite 309

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE S

The issues are whether Respondent allowed an employee

without background scr eening, unaccompanied by a screened

individual , to supervise a class of children in care and, if so,

what pen alty Petitioner should impose.

PRELIMINARY STATEMENT

By Administrative Complaint served on January 8 , 2018,

Petition er alleged that Respondent is licensed to operate a child

care fac ility, holding license C11MD1591 . The Administrative

Complaint alleges that , during a complaint inspection on

October 6, 2017 , Petitioner's inspector observed that a classroom

of children in care were left alone with a person who proved to

be unscreened.

The A dministrative Complaint r elies on several statutes and

rules. Paragraph 1 of the Administrative Complaint states that

"this is an administrative action for imposition of a civil

penalty for known incidents of occurrence as authorized in

secti o n 402.310 . . . and rules 65C - 22.010 and 65C - 22.012."

Paragraphs 3 and 4 of the Administrative Complaint state that

Respondent violated " standard #05 - 13: Supervision; An unscreened

individual was left alone to supervise children in care, a

Class I violation." Paragraph 4 adds that the $100 fine is in

accordance with sections 402.310 and 402.305(2)(f) , Florida

Statutes, and Florida Administrative Code R ules 65C - 22.010

and 65C - 22.003(8)(a). Another paragraph 3 of the Administrative

Complaint states that Petitioner is terminating Respondent's Gold

Seal Quality Care designation due to the Class I violation, as

provided by sectio n 402.281(4)(a).

The subparagraph of section 402.305(2) cited in the

Administrative Complaint, section 402.305(2)(f), concerns the

minimum training of child care personn el in "[s]pecialized

areas," such as computer technology; the purpose of this citation

is unclear and may be erroneous. Although uncited by Petitioner,

section 402.305(2)(a), Florida Statutes (2017) , authorizes

Petitioner to adopt minimum standards for le vel 2 background

screening of child care personnel; perhaps Petitioner meant to

cite this provision.

Section 402.310(1)(a) authorizes Petitioner to impose

discipline upon the holder of a license to operate a child care

facility. Section 402.310(1)(a)1. au thorizes a fine of $100 per

violation per day, but authorizes a fine of $500 per violation

per day for a violation that could or does cause death or serious

harm. Section 402.310(1)(b) requires Petitioner, in setting

discipline, to consider the severity o f the violation, corrective

actions taken by the licensee, and previous violations by the

licensee.

As in effect at the t ime of the inspection, rule 65C -

22.010(1)(d)1. defines a Class I violation as a violation

of any Class I standard identified in CF - FSP, Form 5316,

July 2012. This form is available online at

https://www.flrules.org/Gateway/reference.asp?No=Ref - 03034[,]

and the thirteenth unnumbered section under chapter 5 states that

it is a Class I violation to leave an unscreened individual alon e

to supervise children in care. (This violation has since been

renumbered as S tandard 4 - 18.)

Former rule 65C - 22.003(8)(a) concerns the required

credentials of a director or a child care facility and is

irrelevant to this case.

Section 402.281(4)(a) provi des that the commission of a

Class I vi olation is a ground for termina tion of a Gold Seal

Quality Care designation.

Respondent timely requested a hearing.

At the hearing, Petitioner called two witnesses and offered

into evidence six exhibits: Petitioner E xhibits 1 through 6 .

Respondent called one witness and offered into evidence 1 1

exhibits : Respondent Exhibits 1 through 1 1 . All exhibits were

admitted.

The court reporter filed the transcript on August 9, 2018 .

Both parties filed proposed recommended orders by August 30 ,

2018.

FINDING S OF FACT

1. Respondent is a licensed child care facility operating

at 28834 South Dixie Highway in Homestead . Respondent has not

previously been guilty of any Class I or II violations for a

period of time of not less than two years ; in fact, Respondent

has never been found guilty of a Class I violation at either of

its preschools, which opened in 2003 and 2007.

2. On October 6, 2017 , Petitioner's inspector conducted a

rout ine inspection of Respondent's child care facility . She

found three infants in the classroom for infants up to 12 months

of age and observed that the three infants in care were

supervised by Yerelis Escobar with no other adult present in the

room.

3. T he inspector asked the director for the employees'

personnel files , and, in producing them, the director discovered

that Ms. Escobar's file did not contain documentation of

screening. This was Ms. Escobar's first day on the job.

Recommended by another te acher at Respondent's preschool,

Ms. Escobar had recently worked in a local shelter with children

and reportedly had obtained a federal background screening in

connection with her job.

4. As the director handed the file to the inspector, the

director ad mitted that she had no t obtained documentation of

level 2 background screening on Ms. Escobar. The director had

delegated this responsibility to another employee, who had failed

t o discharge this responsibility and has since been terminated.

5 . After confirming the supervision viola tion, the

inspector advised the director that the inspector could not leave

the building until supervision of the infant classroom was

transferred to a screened individual. The director ordered

Ms. Escobar to go ho me and, as a screened individual , assumed the

supervisory responsibilities herself until another screened

teacher from the other preschool was able to take over the

classroom . Ms. Escobar never returned to the facility, and the

director has implemented a double - check system to ensure that all

new hires possess level 2 background screening, if they are to be

left alone with children in care .

6 . After discussing her findings with her supervisor, the

inspector cited Respondent for a Class I violation -- specif ically,

a violation of Standard 5 - 13 . After considering the statutory

factors listed below, Petitioner imposed a $100 fine .

7 . Respondent's supervisor testified that the requirement

of background screening is fundamental and is most important for

the m ost vulnerable children -- namely, infants. The supervisor

testified that he was unaware of Petitioner's declining to

prosecute any provable Class I violation and any Class I penalty

less severe than a $100 fine. This testimony is credited.

8 . Respondent claims that, in prior cases, Petitioner has

elected not to establish a Class I violation , despite facts

establishing such a violation , and instead has imposed a

corrective action plan . The problem in Respondent's proof as to

these other cases is a failure to preclude the possibility that

Petitioner merely has assessed the facts in those cases as

insufficient to support a successful prosecution. The problem in

Respondent's theory is that it essentially seeks to reject as an

abuse of discretion the decision of Petitioner to prosecute a

clear violation of a child - safety rule and impose the smallest

authorized fine.

9 . Respondent is a leading provider of high - quality child

care services in Homestead. For the past eight years, Respondent

has been accredited by the National Association for the Education

of Young Children and is the only preschool ho lding such

accreditation in Homestead . Pursuant to a contract with the

Early Learning Coalition, Respondent's school is monitored twice

monthly. For it s students, 90 percent of whom are at - risk,

Respondent offers enrichment programs, such as dance, as well as

tutoring and mentoring programs. Respondent also provides its

autistic students with daily sessions with a therapist employed

by Applied Behaviora l Analysis.

10 . Respondent is a Gold Seal Quality Care provider. As

noted below, this designation is terminated upon the final

assessment of a Class I violation, which is why Respondent seeks

to avoid this determination by, for instance, the imposition of a

corrective action plan , even with a larger fine. Respondent's

annual gross revenues total about $300,000, but the loss of the

Gold Seal Quality Care designation may reduce Respondent's annu al

gross revenues by as much as $264,000, whic h may result in the

closure of the preschool.

CONCLUSIONS OF LAW

11 . DOAH has jurisdiction. §§ 120.569 , 120.57(1), and

402.310 (2) and (4), Fla. Stat.

12 . The burden of proof is on Petitioner to prove the

material allegations by clear and convincing evidence.

§ 120.57(1)(j) , Fla. Stat. ; Dep't of Banking & Fin. v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996).

13 . "Child care personnel" must undergo level 2 background

screening. § 402.305(2)(a) , Fla. Stat . An employer is

prohibited from allowing an employee to have contact with a

vulnerable person, such as a child, if such contact requires

background screening, unless the employee has successfully

completed background screening. § 435.06(2)(a) , Fla. Stat .

14 . Based on the authority cited above, i t is a Class I

violation to leave an unscreened individual alone to supervise a

child in care, and the proposed $100 fine is appropriate after

consideration of the statutory factors. However, this

determinat ion necessitates the termination of Respondent's Gold

Seal Quality Care designation. The significant financial impact

resulting from the loss of the Gold Seal Quality Care designation

does not justify relaxed enforcement of child - safety laws against

the s uperior day care facilities that have earned this

distinction. The same standards with the same level of

enforcement must apply to all day care facilities for the Gold

Seal Quality Care desi gnation to retain any meaning.

RECOMMENDATION

It is

RECOMMENDED that the Department of Children and Families

enter a final order finding Respondent guilty of allowing an

unscreened employee, in the absence of a screened individual , to

supervise a classroom of children in care ; imposing a $100 fine ;

and term inating Respondent's Gold Seal Quality Care designation .

DONE AND ENTERED this 7th day of September , 2018 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, 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 7th day of September , 2018 .

COPIES FURNISHED:

Patricia E. Salman, Esquire

Department of Children and Families

401 Northwest 2nd Avenue, Suite N - 1014

Miami, Florida 33128

(eServed)

Lucy C. Piñeiro, Esquire

Lucy C. Piñeiro & Associates, P.A.

717 Ponce de Leon Boulevard, Suite 309

Coral Gables, Florida 33134

(eServed)

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

John Jackson, Acting General Counsel

Department of Children and Families

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

NOTIC E OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions 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 th is case.