18-001351 Department Of Children And Families vs. Naples Preschool Academy Status: Closed Recommended Order on Thursday, August 23, 2018.

Summary: Respondent's failure to timely notify DCF of a possible child abuse incident is a Class I violation; and Respondent's representative acknowledged Class II and Class III violations. Gold Seal Provider designation should be revoked and fine imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 18 - 1351

NAPLES PRESCHOOL ACADEMY,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was con ducted in this case pursuant to sections

120.569 and 120.57(1), Florida Statutes (2018), 1/ before Lynne A.

Quimby - Pennock, an Administrative Law Judge of the Division of

Administrative Hearings (DOAH), on July 9, 201 8 , in Fort Myers,

Florida.

APPEARANCES

F or Petitioner: George Gardner, Esquire

Department of Children and Families

Post Office Box 60085

Fort Myers, Florida 33906

For Respondent: Sue Rihani , pro se

Naples Preschool Academy

12657 New Brittany Boulevard

Fort Myers, Florida 33907

STATEMENT OF THE ISSUE

Should the Gold Seal Quality Care designation of Respondent,

Naples Preschool Academy, LLC (Academy), be terminated under the

authority of sec tion 402.281(4)(a), Florida Statutes?

PRELIMINARY STATEMENT

On February 12, 2018, Petitioner, Department of Children and

Families (DCF), issued an Administrative Complaint alleg ing the

Academy violated section s 402. 26 - .319 (inclusive of 402. 305(2) ) ,

Florid a Statutes, ÐChapter 65C - 22.003(2) Florida Administrative

CodeÑ [ 2/ ] section 4 of the Child Care Facility Handbook,

incorporated by reference in Florida Administrative Code Rule

65C - 22.00 1 ( 6 ) , and section 8.2.B of the Child Care Facility

Handbook, incorpora ted by reference in Florida Administrative

Code Rule 65C - 22.001(6) . Additionally, p ursuant to section

402.281(4)(a), DCF terminated the AcademyÓs Gold Seal Quality

Care designation and imposed a $525.00 fine. On March 2, 2018,

the Academy filed a request for administrative hearing.

On March 14, 2018, DCF referred this matter to DOAH to

conduct an administrative hearing. The final hearing was set for

May 23, 2018, but pursuant to PetitionerÓs unopposed request for

a continuance, the hearing was reschedule d.

The final hearing was held on July 9, 201 8 . Petitioner

presented the testimony of Shannon Fracek, Tod Mathews, Sue

Rihani, Mary Beth Wehnes, and Carol Wortzman. PetitionerÓs

Exhibits 2 through 16 3/ were admitted into evidence. Respondent

presented th e testimony of Ms. Rihani and Christina J. Rea

(formerly known as Christina Stevens). Respondent did not offer

any exhibits.

The T ranscript was filed with DOAH on July 30, 2018. The

parties were required to file their proposed r ecommended orders

ten days after the transc ript was filed. DCF filed its Proposed

Recommended O rder on August 7, 2018, and it has been considered

in the preparation of this Order. To date, the Academy has not

filed a proposed recommended order.

FINDING S OF FACT

The Parties

1. D CF is the state agency charged with the responsibility

of regulating child care facilities operating in the State of

Florida.

2. At all times material to the allegations of this case,

the Academy operat ed a child care facility under C ertificate

No. C202O 0107. The Academy's facility is located at 1275 Airport

Road South, Naples, Florida. The Academy oper ates as a Gold Seal

Quality Care Provider.

3. Ms. Rihani is the Academy's owner. Ms. Rea was the

AcademyÓs director at the time of the incident. Sam antha McClain

is the current director of the Academy.

Events Giving Rise to this Proceeding

4. In this case, DCF alleged the Academy failed to timely

report an incident of possible child abuse as required by Florida

law. On November 29, 2017, D. M., a mi nor child, was dropped off

at the Academy by his father . At some time that morning, D.M.

was observed to have a dark area under one eye and injuries on

his backside. D.M.Ós teacher saw the injuries and took D.M. to

the directorÓs office. The AcademyÓs s taff took photos of D.M.,

showing both his face with the dark area under one eye and

multiple bruises and injuries to his backside. On November 29,

2017, at the end of the day, D.M. was all owed to go home with his

father.

5. Ms. Rea called the Abuse Hot l ine shortly after the

Academy opened on November 30, 2017, to report the suspected

abuse of D.M. DCF sent Ms. Fracek, a Child Protective

Investigator, to the Academy on November 30, 2017. Ms. Fracek

observed significant bruising to multiple parts of D.M .Ós body.

6. Ms. Fracek sheltered D.M. from his father on

November 30, 2017.

7. Ms. Rea maintained that she called the abuse hotline on

November 29, 2017 , but there is no record of the call .

8. T he Academy failed two routine inspections (December 21,

2016 and December 8, 2017), and a renewal inspection (April 3,

2017). All three inspections found the Academy to be out of

compliance with licensing standards, and guilty of either

C lass II or Class III violations. The Academy admitted the

violation s and agreed to pay the financial pe nalty of $25.00 for

the Class II and III violations.

9. As a Gold Seal Quality Care provider, the Academy is

subject to licensing inspections to ensure compliance with all

DCF regulations. After investigating the abu se allegation, the

DCF counselor determined that the Academy failed to timely report

the incident of suspected child abuse. According to Florida

Administrative Code Rule 65C - 22.010, suspected child abuse is to

be reported to the hotline without delay. Th e failure to do so

constitutes a Class I violation of child care licensing

s tandards.

CONCLUSIONS OF LAW

10. DOAH has jurisdiction over the parties and the subject

matter of this proceeding pursuant to sections 120.569 and

120.57(1), Florida Statutes (201 8).

11. In this case, DCF bears the burden of proof to establish

by clear and convincing evidence that the Acad em y committed the

violation alleged. See Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987); and Pou v. DepÓt of Ins. & Treasurer , 707 So. 2d 941 (Fla.

3d DCA 1998).

12. ÐClear and convincingÑ evidence was described by the

court in Evans Packing Company v. Department of Agriculture and

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

as follows:

[C]lear and convincing 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 or 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).

13. Secti on 402.28 1 provides in pertinent part:

Gold Seal Quality Care program.

(1)(a) There is established within the

department the Gold Seal Quality Care

Program.

(b) A child care facility, large family

child care home, or family day care home that

is accredited by a n accrediting association

approved by the department under subsection

(3) and meets all other requirements shall,

upon application to the department, receive a

separate ÐGold Seal Quality CareÑ

designation.

(2) The department shall adopt rules

establishi ng Gold Seal Quality Care

accreditation standards based on the

applicable accrediting standards of the

National Association for the Education of

Young Children (NAEYC), the National

Association of Family Child Care, and the

National Early Childhood Program

Accreditation Commission.

(3)(a) In order to be approved by the

department for participation in the Gold Seal

Quality Care program, an accrediting

association must apply to the department and

demonstrate that it:

1. Is a recognized accrediting associ ation.

2. Has accrediting standards that

substantially meet or exceed the Gold Seal

Quality Care standards adopted by the

department under subsection (2).

(b) In approving accrediting associations,

the department shall consult with the

Department of Ed ucation, the Florida Head

Start Directors Association, the Florida

Association of Child Care Management, the

Florida Family Child Care Home Association,

the Florida ChildrenÓs Forum, the Florida

Association for the Education of the Young,

the Child Develop ment Education Alliance, the

Florida Association of Academic Nonpublic

Schools, the Association of Early Learning

Coalitions, providers receiving exemptions

under s. 402.316, and parents.

(4) In order to obtain and maintain a

designation as a Gold Seal Q uality Care

provider, a child care facility, large family

child care home, or family day care home must

meet the following additional criteria:

(a) The child care provider must not have

had any class I violations, as defined by

rule, within the 2 years p receding its

application for designation as a Gold Seal

Quality Care provider. Commission of a

class I violation shall be grounds for

termination of the designation as a Gold Seal

Quality Care provider until the provider has

no class I violations for a p eriod of 2

years.

14. S ection 39.201, Florida Statutes , provides:

Mandatory reports of child abuse,

abandonment, or neglect; mandatory reports of

death; central abuse hotline.

(1)(a) Any person who knows, or has

reasonable cause to suspect, that a chi ld is

abused, abandoned, or neglected by a parent,

legal custodian, caregiver, or other person

responsible for the childÓs welfare, as

defined in this chapter, or that a child is

in need of supervision and care and has no

parent, legal custodian, or respon sible adult

relative immediately known and available to

provide supervision and care shall report

such knowledge or suspicion to the department

in the manner prescribed in subsection (2).

(2)(a) Each report of known or suspected

child abuse, abandonment, or neglect by a

parent, legal custodian, caregiver, or other

person responsible for the childÓs welfare as

defined in this chapter, except those solely

under s. 827.04(3), and each report that a

child is in need of supervision and care and

has no parent, legal custodian, or

responsible adult relative immediately known

and available to provide supervision and care

shall be made immediately to the departmentÓs

central abuse hotline. Such reports may be

made on the single statewide toll - free

telephone number or via fax, web - based chat,

or web - based report. Personnel at the

departmentÓs central abuse hotline shall

determine if the report received meets the

statutory definition of child abuse,

abandonment, or neglect. Any report meeting

one of these definitio ns shall be accepted

for the protective investigation pursuant to

part III of this chapter. Any call received

from a parent or legal custodian seeking

assistance for himself or herself which does

not meet the criteria for being a report of

child abuse, ab andonment, or neglect may be

accepted by the hotline for response to

ameliorate a potential future risk of harm to

a child. If it is determined by a child

welfare professional that a need for

community services exists, the department

shall refer the paren t or legal custodian for

appropriate voluntary community services.

(b) Each report of known or suspected child

abuse by an adult other than a parent, legal

custodian, caregiver, or other person

responsible for the childÓs welfare, as

defined in this chap ter, shall be made

immediately to the departmentÓs central abuse

hotline. Such reports may be made on the

single statewide toll - free telephone number

or via fax, web - based chat, or web - based

report. Such reports or calls shall be

immediately electronical ly transferred to the

appropriate county sheriffÓs office by the

central abuse hotline.

15. Rule 65C - 22.010 provides, in part:

Enforcement.

This rule establishes the grounds under which

the Department shall issue an administrative

fine, deny, suspend, revoke a license or

registration or place a licensee or

registrant on probation status as well as

uniform system of procedures to impose

disciplinary sanctions.

(1) Definitions.

* * *

( a ) ÐStandardsÑ are requirements for the

operation of a li censed facility provided in

statute or in rule.

(b ) ÐTechnical AssistanceÑ means a

Department offer of assistance to a licensee

or registrant to correct the statutory or

regulatory violations.

( c ) ÐViolationÑ means noncompliance with a

licensing stand ard 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

de scribed on CF - FSP Form 5316, October 2017.

Child Care Facility Standards Classification

Summary, which is incorporated by reference.

A copy of the CF - FSP Form 5316 may be

obtained from the DepartmentÓs website at

www.myflfamilies.com/childcare or from th e

following link: http://www.flrules.org/

Gateway/reference.asp?No=Ref - 08739. However,

any violation of a Class II standard that

results in death or serious harm to a child

shall escalate to a Class I violation. The

effective date of a termination of a

providerÓs Gold Seal Quality Care designation

is the date of the DepartmentÓs written

notification to the provider. However, any

violation of a Class II standard that results

in death or serious harm to a child 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 serious in

nature than Class I violations.

3. ÐCla ss III ViolationÑ is an incident of

noncompliance with an individual Class III

standard as described on CF - FSP Form 5316.

Class III violations are less serious in

nature than either Class I or Class II

violations.

(2) Disciplinary Sanctions.

(a) Enforc ement of disciplinary sanctions for

all Class I violations and for repeated

Class II and Class III violations shall be

applied progressively for each standard

violation. The document entitled,

Reconciliation of 2012 and 2017 Child Care

Facility Classific ation Summaries, CF - FSP Form

5420, October 2017, which is incorporated into

this rule, provides an alignment of the 2012

and 2017 Child Care Facility Classification

Summaries for purposes of progressive

enforcement. A copy of the CF - FSP Form 5420

may be o btained from the DepartmentÓs website

or from the following link:

http://www.flrules.org/Gateway/reference.asp?N

o=Ref - 08741. In addition, providers will be

offered technical assistance in conjunction

with all violations. The classification of

standard v iolations within the Child Care

Facility Standards Classification Summary and

the progressive disciplinary actions

prescribed for each class by this rule are

based on the provisions of Section

402.310(1)(b), FS.

* * *

(d) Disciplinary sanctions for licensing

violations shall be progressively enforced as

follows:

1. Class I Violations.

a. For the first and second violation of a

Class I standard, the Department shall, upon

applying the factors in Section 402.310(1),

F.S., impose a fine not less than $100.00 nor

more than $500.00 per day for each violation,

and may impose other disciplinary sanctions in

addition to the fine.

* * *

2. Class II Violations.

a. For the second violation of the same

Class II standard, the Department shall impose

an administrative fine of $50.00 for each such

violation.

* * *

3. Class III Violations.

a. For the third violation of the same

Class III standard, the Department shall

impose an administrative fine of $25.00 for

each such violation.

1 6. Class I violations are the most serious . A facility

that receives the Gold Seal Quality Care designation is held to

the highest standard. In this case, the Academy failed to meet

the Gold Seal Quality Care standard. In addition, the Academy

had othe r repeat violations by failing to meet or maintain

licensure standards.

17. In this case, DCF has established by clear and

convincing evidence that the AcademyÓs personnel failed to timely

report the injuries sustained by D.M. as required by Florida law,

a C lass I violation. This matter should have been immediately

referred to the hotline for investigation and resolution. The

injuries and bruises found on D.M. were consistent with abuse.

Upon seeing the photographs of them , the AcademyÓs director ( and

t he teacher who first observed the injuries) should have

immediately notified the hotline of suspected abuse regarding

D.M. The Academy is no longer qualified for a Gold Seal Quality

Care d esignation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Department of Children

and Families, enter a final order revoking Respondent, the Naples

Preschool Academy, LLCÓs Gold Seal Quality Care designation , and

impos ing a fine of $525.00 .

DONE AND ENTERE D this 23rd day of August, 2018 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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 23rd day of August, 2018 .

ENDNOTE S

1/ All references are to 201 7 Florida Statutes, unless otherwise

noted.

2/ Rule 65C - 22.003(2) was effective August 1, 2013, and repealed

October 25, 2017.

3/ Prior to the hearing , Petitioner filed a Motion for Official

Recognition of its Exhibits 9 through 15. No objection was

offered at hearing, and these six exhibits we re admitted.

COPIES FURNISHED:

Lacey Kantor, Esquire

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

T. Shane DeBoard, Esquire

Department of Children and Families

Suite S - 1129

400 West Robinson Street

Orlando, Florida 32801

(eServed)

Sue Rihani

Naples Preschool Academy

12657 New Brittany Boulevard

Fort Myers, Florida 33907

(eServed)

George Gardner, Esquire

Department of Children and Families

Post Office Box 60085

Fort Myers, Florida 33906

(eServed)

Mike Carroll, Secretary

D epartment of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

John Jackson, Acting General Counsel

Department of Children and Families

Buildi ng 2 , Room 20 4F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed )

NOTICE 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 th is Recommended Order should be filed with the agency that

will issue the Final Order in this case.