18-002648 Department Of Children And Families vs. Alberto's Dream Child Care And Learning Center Status: Closed Recommended Order on Tuesday, August 7, 2018.

Summary: One hundred dollar fine and loss of Gold Seal designation for child care operator's allowing unscreened person alone with children in care.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 18 - 2648

MY DREAM CHILD CARE, INC., d/b/a

ALBERTO'S DREAM CHILD CARE AND

LEARNING CENTER,

Respondent.

_______________________________/

RECOMMENDED ORDER

On July 18, 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 Salma n , Esquire

Department of Children and Families

401 Northwest 2nd Avenue , Suite N - 1104

Miami , Florida 3 3128

For Respondent : Juan Mendez Babani , Esquire

Mendez Babani Law

1700 North Treasure Drive

North Bay Village, Florida 33141

STATEMENT OF THE ISSUE S

The issues are whether Respondent allowed a person without

background screening, unaccompanied by another screened adult, to

supervise a class of three - year - old children ; and, if so, the

penalty , including whether Petitioner may terminate Respondent's

participation in the Gold Seal Quality Care program .

PRELIMINARY STATEMENT

By Administrative Complaint served on April 23, 2018,

Petition er alleged that Respondent is licensed to operate a child

care fac ility, holding license C11MD1305 . The Administrative

Complaint alleges that , during a complaint inspection on April 3,

2018 , Petitioner's inspector observed that a classroom of

children were left alone with an unscreene d person. The

Administrative Complaint alleges that this is a Class I

violation, pursuant to sections 402.310 and 402.305(2)(f),

Florida Statutes, and Florid a Administrative Code Rules 65C -

22.010 and 65C - 22.003(8)(a). For this offense, the

Administrative Complaint imposes a $100 fine and, pursuant to

section 402.281(4)(a), terminates Respondent's status as a Gold

Seal Quality Care provider until two years have passed without a

Class I violation.

Respondent requested a hearing.

At the hearing, Petitioner called two witnesses and offered

into evidence ten exhibits: Petitioner Exhibits 1 through 10.

Respondent called no witnesses and offered into evidence no

exhibits. All exhibits were admitted.

Neither party ordered a transcr ipt. Both parties filed

proposed recommended orders on July 31, 2018.

FINDING S OF FACT

1. Respondent is a licensed child care facility .

Respondent has not previously been guilty of any Class I or II

violations for a period of time of not less than two years.

2. In response to a complaint involving the use of an

unscreened person to supervise children, Petitioner's inspector

visited the facility and checked each of the classrooms. She

found that the three - year - old classroom was supervised by Marly

Pac hon with no other adult present in the room. After examining

the personnel record s and other sources , the inspector correctly

determined that Ms. Pachon had not undergone background

screening. The inspector brought this violation to the attention

of the director, who promptly remedied the violation by assuming

responsibility herself to supervise the class, as the director

has successfully completed background screening.

3. After discussing her findings with her supervisor,

Ms. Pachon cited Respondent for a violation of Standard 4 - 18,

which, as described below, is a Class I violation. After

considering the statutory factors listed below, Petitioner

imposed a $100 fine, which resulted in the termination of

Respondent from the Gold Seal Quality Care program.

4. Respondent's defenses are that Ms. Pachon was a

volunteer, not an employee, and the subject children were not

alone with Ms. Pachon because, in an adjoining room, a screened

teacher w as supervising her four - year - old class. However, the

physical dividers between the classes were sufficient to require

the designation of each area as a separate classroom, which was

how Respondent was using the space.

CONCLUSIONS OF LAW

5 . DOAH has jur isdiction. §§ 120.569 and 120.57(1), Fla.

Stat.

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

material allegations by clear and convincing evidence.

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

670 So. 2d 932 (Fla. 1996).

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

screening. § 402.305(2)(a). "Child care personnel" include

volunteers working in a child care facility. § 402.302(3). An

employer is prohibited from allowing an employee to have contact

with a v ulnerable person, such as a child, if such contact

requires background screening, unless the employee has

successfully completed background screening. § 435.06(2)(a).

8. It is a Class I violation to leave an unscreened person

alone to supervise a child in care. Standard 4 - 18, CF - FSP Form

5316, which is incorporated by r ule 65C - 22.010(1)(e)1. A Class I

violation terminates a provider's Gold Seal Quality Care

designati on. Fla. Admin. Code R . 65C - 22.010(1)(e)1.

9. For the first (or second) Class I violation, Petitioner

" 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. " Section 402.310(1)(b) requires

Petitioner to consider the severity of the violation, including

the severity of the actual or potential harm; actions taken by

the licensee to correct the violation; and any previous actions

by the licensee.

10. Petitioner has adequately c onsidered the statutory

factors. Although the potential for harm is considerable for an

offense of this type, no harm occurred, the director quickly

corrected the violation, and Respondent's record has been good.

For these reasons, Petitioner selected a fine at the lowest end

of the authorized range and imposed no other sanction.

11. Respondent invites consideration of the finding of a

violation in light of the lo ss of Respondent's Gold Seal Quality

Care designation, which is conditioned on the absence of Class I

violations for a period of two years. § 402.281(4)(a). The

Administrative Law Judge acknowledges that the loss of this

designation impacts Respondent fi nancially by an amount much

greater than a $100 fine, but the Administrative Law Judge is

unable to justify raising the bar for what Petitioner must prove

to establish a violation when the provider is confronted with the

loss of this designation. The legi slature has enacted rigorous

standards for earning and maintaining this designation, and the

public, which relies on these designations, has every reason to

assume that the designated providers will be held to the same

standards as providers without this d esignation.

RECOMMENDATION

It is

RECOMMENDED that the Department of Children and Families

enter a final order finding Respondent guilty of a Class I

violation for allowing an unscreened person to be alone with

children in care; imposing a $100 fine; and te rminating

Respondent's participation in the Gold Seal Quality Care program

until Respondent requalifies for this designation .

DONE AND ENTERED this 7th day of August , 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 August , 2018 .

COPIES FURNISHED:

Juan Mendez Babani, Esquire

Mendez Babani Law

11900 Biscayne Boulevard, Suite 289

North Miami, Florida 33181

(eServed)

Patricia E. Salman, Esquire

Department of Children and Families

401 Northwest 2nd Avenue, Suite N - 1014

Miami, Florida 33128

(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

Tallahass ee, 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 this Recommended Order should be filed with the agency that

will issue the Final Order in this case.