18-005147
Department Of Children And Families vs.
My First Steps Of Bradenton, Inc.
Status: Closed
Recommended Order on Wednesday, May 8, 2019.
Recommended Order on Wednesday, May 8, 2019.
1S TATE OF FLORIDA
5DIVISION OF ADMINISTRATIVE HEARINGS
9DEPARTMENT OF CHILDREN AND
13FAMILIES,
14Petitioner,
15vs. Case No. 18 - 5147
21MY FIRST STEPS OF BRADENTON,
26INC.,
27Respondent.
28_______________________________/
29RECOMMENDED ORDER
31Administ rative Law Judge D . R. Alexander conducted a final
42hearing in this matter by video teleconference on March 25, 2019,
53at sites in Sarasota and Tallahassee, Florida.
60APPEARANCES
61For Petitioner: Lisa E. Ajo, Esquire
67Department of Childr en and Families
73Suite 900
759393 North Florida Avenue
79Tampa, Florida 336 25 - 7907
85For Respondent: Jed Berman, Esquire
90Infantino and Berman
93Post Off ice Box 30
98Winter Park, Florida 32790 - 0030
104Philip J. Lipten, Esquire
108Philip J. Lipten, P.A.
112Post Office Box 141338
116Orlando, Florida 32814 - 1338
121STATEMENT OF THE ISSUE
125The issue is whether Respondent committed a Class I
134violation and should have a $500.00 administrative fine imposed,
143for the reasons given in the Administrative Complaint dated
152August 23, 2018. 1/
156PRELIMINARY STATEMENT
158On August 23 , 2018, the Department of Children and Families
168(Department) notified Respondent, a licensed child care facility,
176that the Department intended to impose a $500.00 administrative
185fine on the ground Respondent's owner used excessive discipline
194on a child in violation of minimum standards for child discipline
205practices. Respondent timely requested a hearing to contest the
214proposed action, and the matter was referred to the Division of
225Administrative Hearings to conduct a formal hearing.
232At the hearing, Petiti oner presented the testimony of four
242witnesses. Also, Department Exhibits 1 through 5 were accepted
251in evidence. 2/ Respondent presented the testimony of two
260witnesses. Respondent's Exhibits A through E were accepted in
269evidence.
270A one - volume Transcrip t of the hearing was prepared.
281Proposed findings of fact and conclusions of law were filed by
292the parties on April 30, 2019, and they have been considered in
304the preparation of this Recommended Order.
310FINDING S OF FACT
3141. The Department is the state agen cy responsible for
324licensing and regulating child care facilities.
3302. Respondent holds license number C12MA0082 issued
337pursuant to chapter 402, Florida Statutes, and Florida
345Administrative Code Chapter 65C - 22. It authorizes Respondent
354to operate a ch ild care facility at 3815 26th Street West,
366Bradenton, Florida. The owner of the facility is Carina Piovera.
3763. First licensed in 1997, the facility provides child care
386for children ranging from the age of one to five. It employs
398five teachers and has a capacity of 35 children. Besides routine
409inspections by the Department every three months, for the last
419ten years, the facility has been inspected periodically by the
429Early Learning Coalition, which provides the facility with
437funding vouchers for famil ies that cannot pay for full child
448care. Prior to this incident, Respondent never has been charged
458with a Class I violation. This class of violation is the most
470serious in nature and is one that could or does result in serious
483harm or death to a child. Fla. Admin. Code R. 65C - 22.010(1)(e)1.
4964. Based on a complaint by a parent that Ms. Piovera used
508excessive discipline on her 18 - month - old son, A.M., the
520Department conducted a two - hour complaint inspection on June 20,
5312018. The inspection resulted in the issuance of an
540Administrative Complaint alleging that Ms. Piovera used
"547inappropriate discipline" on the child, in violation of
555section 2.8A. and F., Child Care Facility Handbook (Handbook),
564incorporated by reference in rule 65C - 22.001(6). The first
574se ction requires generally that a child care facility adopt a
"585discipline policy" that is consistent with section 402.305(12),
593while the second provision enumerates discipline techniques that
601are prohibited.
6035. The "inappropriate discipline" is described in the
611Administrative Complaint as follows:
615On May 30, 2018, K. Alejandra - Pacheco, a
624child care personnel, worked on an art
631project with one of the children in her care,
640while the other children were climbing up and
648down the chairs and taking off their sho es.
657Ms. Alejandra - Pacheco stated that she is not
666allowed to discipline the children, only the
673facility director, Carina Piovera.
677Ms. Piovera came into the classroom and made
685the children sit down. A.M., a one - year old
695toddler, was one of the chil dren in the
704classroom. In it, Ms. Piovera is seen
711roughly handling A.M. by grabbing him,
717aggressively wiping his nose, having intense
723body language when talking to the child,
730forcefully pushing the child's chair into
736position at the table, and then aggres sively
744put his hands on the table. A.M. is visibly
753afraid and upset, crying throughout his
759interaction with Ms. Piovera, who appears to
766be intimidating to the child. This incident
773was recorded by the facility camera.
7796. The Department employee who cond ucted the inspection did
789not testify at the hearing. However, a Department witness who
799viewed a video of the incident alleges that Ms. Piovera "used
810excessive force during hygiene and behavior redirection," and
818this was "severe, humiliating, or frightenin g to the child."
8287. The alleged incident occurred in the facility's toddler
837room. Six children, ranging in age from one to two years old,
849were in the room, along with a teacher, Ms. Pacheco. A
860surveillance camera, reloaded every 24 hours, is installed in
869each classroom to monitor all activities. The video is erased
879every 30 days by the security company, Swann Communication
888(Swann). If parents wish to wa tch their children in real time or
901within the 24 - hour window before the camera is reloaded, they can
914download an application (app) on their cell phone, view the
924toddler room, and even make copies of the video. Ms. Piovera
935stated that she is "very comfortable" with video cameras in each
946classroom because parents are entrusting their children to her
955care and want to see how the y are being treated.
9668. Although the original surveillance video long since has
975been erased, A.M.'s mother recorded a video of the incident on
986her cell phone using an app provided by a third party and not
999Swann. The video has been accepted in evidence as Department
1009Exhibit 2. The video is fairly clear, is a "little fast," and is
1022the only known recordation of the incident still available .
1032Ms. Piovera testified that she has watched it more than 20 times.
1044The Department's allegat ions are based wholly on its
1053interpretation of the cell phone video. The incident itself
1062lasts less than a minute.
10679. A.M., then 18 months old, and not a one - year - old, as
1082stated in the Administrative Complaint, frequently had allergies
1090or nasal problems, which caused a runny nose or cough. His
1101mother authorized the use of a nebulizer for inhaling
1110medications, but it never was used at the facility. The morning
1121of May 30, 2018, was no different, and A.M. came to the facility
1134that day with a runny nose. A lthough the mother denied her son
1147had allergies, his runny nose was brought to her attention when
1158she brought the child in that morning. She replied that she had
1170been giving him medicine but "nothing was working."
117810. Around 10:21 a.m., and not 11:00 a.m ., as stated in the
1191Administrative Complaint, Ms. Piovera entered the toddler room to
1200assist Ms. Pacheco in redirecting the children to a new activity,
1211i.e., to sing a song and do art work, after efforts by
1223Ms. Pacheco to have the children sit down and keep their shoes on
1236were unsuccessful. Redirection is considered a form of
1244discipline by the Department, but Ms. Piovera considers moving to
1254a new task a routine action in caring for toddlers.
126411. Just before Ms. Piovera entered the room, A.M. and two
1275other children were standing in their chairs and climbing onto
1285the table. When A.M. saw Ms. Piovera enter the room, he
1296immediately sat down in the chair. Ms. Piovera placed him in an
1308upright position, adjusted his pants, and observed that his nose
1318ne eded to be wiped and he had taken one shoe off. His nose had
1333crusted mucous and the discharge was green. The child was crying
1344at this point.
134712. The mother acknowledged that A.M. does not like having
1357his nose wiped. Ms. Piovera needed two swipes with a tissue to
1369clean A.M.'s nose. His feet lifted slightly when his nose was
1380wiped, but this was because A.M. was trying to avoid having his
1392nose cleaned. Ms. Piovera also put his shoe back on. Although
1403A.M. began crying when she first touched him, no unusu al force or
1416pressure was used, and there were no marks or bruises on the
1428child. Within a few seconds after his nose was cleaned, A.M.
1439became calm, stopped crying, and placed his head on the table.
1450The class then continued with painting activities.
145713. A Department witness acknowledged that there was no
1466hitting, spanking, shaking, slapping, or pushing. However, based
1474on her viewing of the incident, she contends Ms. Piovera "kind of
1486twisted his body," "pulled his arms when she first grabbed him to
1498get him to sit down in his chair," "appeared [to be] squeezing
1510his arms," and "felt" there was "forcing or restricting movement"
1520when she turned the child around. There is less than clear and
1532convincing evidence to support these allegations.
153814. Around 2:15 p.m ., the child was picked up by his
1550mother. Although the mother had viewed the incident on her cell
1561phone as it happened, she did not say anything to Ms. Piovera at
1574that time or contact the Department to discuss any concerns. 3/
1585Notably, when the incident o ccurred, the mother was in a dispute
1597with Ms. Piovera over an unpaid bill ($1,345.00), which
1607Ms. Piovera says still is outstanding. The mother contends the
1617bill has been paid, but Ms. Piovera says the dispute is headed to
1630small claims court.
163315. T he mother withdrew the child from the facility that
1644day without giving any explanation to Ms. Piovera, and he never
1655returned to the facility. On June 13, 2018, A.M.'s mother raised
1666the May 30 incident with Ms. Piovera for the first time in a
1679series of tex t messages. Around the same time, she posted the
1691video in a message on her Facebook page.
169916. On June 20, 2018, or three weeks after the alleged
1710violation, A.M.'s mother reported the incident to the Department.
1719The mother admits she always was behind in her payments, and, on
1731the day she filed her complaint, she was asked by Ms. Piovera to
1744stop by the facility and pay the balance owed.
175317. The Department requested that a child protective
1761investigator (CPI) from the Manatee County Sheriff's Office
1769invest igate whether child abuse occurred. A Department
1777representative and the CPI conducted a joint inspection on
1786June 20, 2018. On July 16, 2018, the CPI issued a finding that
1799the charge was unsubstantiated. Resp. Ex. A.
180618. Notwithstanding the CPI's d etermination, the Department
1814points out that this proceeding involves a violation of Handbook
1824standards, while the CPI was looking for indicators of abuse,
1834which are governed by chapter 39. Thus, it contends that the CPI
1846could have a non - substantiated fin ding in regards to abuse, but
1859Ms. Piovera still could be cited for a rule violation.
1869CONCLUSIONS OF LAW
187219. Bec ause this proceeding is penal in nature, the
1882Department bears the burden of proving by clear and convincing
1892evidence that Respondent is guilty o f the charges in the
1903Administrative Complaint. Dep't of Banking & Fin., Div. of Sec.
1913& Inv. Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla.
19271996).
192820. Section 402.310 provides in part that:
1935(1)(a) The department or local licensing
1941agency may a dminister any of the following
1949disciplinary sanctions for a violation of any
1956provision of ss. 402.301 - 402.319, or the
1964rules adopted thereunder:
19671. Impose an administrative fine not to
1974exceed $100 per violation, per day. However,
1981if the violation could o r does cause death or
1991serious harm, the department or local
1997licensing agency may impose an administrative
2003fine, not to exceed $500 per violation per
2011day in addition to or in lieu of any other
2021disciplinary action imposed under this
2026section.
202721. The Admini strative Complaint alleges that by using an
2037inappropriate discipline technique on a child, Respondent
2044violated section 2.8A. and F. of the Handbook, adopted and
2054incorporated by reference in rule 65C - 22.001(6); and that this
2065conduct constitutes a Class I vi olation, for which a $500.00 fine
2077should be imposed.
208022. Paragraphs 2.8 A. and F. of the Handbook read as
2091follows:
2092A. The child care facility shall adopt a
2100discipline policy consistent with Section
2105402.305(12), F.S., including standards that
2110prohibit chil dren from being subjected to
2117discipline which is severe, humiliating,
2122frightening, or associated with food, rest,
2128or toileting. Spanking or any other form of
2136physical punishment is prohibited.
2140* * *
2143F. The following discipline te chniques shall
2150be prohibited in the child care facility:
21571. The use of corporal punishment/
2163including, but not limited to:
2168a) Hitting, spanking, shaking, slapping,
2173twisting, pulling, squeezing, or biting;
2178b) Demanding excessive physical exercise,
2183ex cessive rest, or strenuous or bizarre
2190postures;
2191c) Compelling a child to eat or have in
2200his/her mouth soap, food, spices, or foreign
2207substances;
2208d) Exposing a child to extreme temperatures;
2215e) Rough or harsh handling of children,
2222including but not l imited to: lifting or
2230jerking by one or both arms; pushing; forcing
2238or restricting movement; lifting or moving by
2245grasping clothing; covering a child's head.
225123. Section 2.8A. requires a licensee to adopt a discipline
2261policy consistent with section 402. 305(12). Because Respondent
2269is not charged with failing to adopt a policy, this provision
2280cannot form the basis for imposing a sanction on Respondent's
2290license.
229124. A Class I violation "is an incident of noncompliance
2301with a Class I standard as describ ed in CF - FSP Form 5316, October
23162017, Child Care Facility Standards Classification Summary, which
2324is incorporated by reference." Fla. Admin. Code R. 65C -
233422.010(1)(e)1. Appendix A, Glossary, page 298 of the
2342Classification Summary defines a Class I violati on as "the most
2353serious type of noncompliance with child care standards that
2362could result or does result in death or serious harm to the
2374health, safety and well - being of a child and includes overt abuse
2387and negligence related to the operation and maintenan ce of a
2398facility or home."
240125. Further, a "serious injury" is defined in section 1.2
2411of the Handbook as "any injury/incident resulting in death or
2421serious physical or emotional harm to a child."
242926. As previously found, there is less than clear and
2439con vincing evidence that Respondent's owner engaged in a
2448discipline technique that is prohibited by section 2.8F. of the
2458Handbook. To the contrary, the more persuasive evidence shows
2467that Ms. Piovera did not use excessive force, that is, handle
2478A.M. in a rou gh or harsh manner, "jerk" his arms, and push the
2492child in an inappropriate way or unnecessarily restrict his
2501movement. And the evidence does not support a conclusion that
2511the "discipline" administered to the child was severe,
2519humiliating, or frightening.
252227. Assuming for the sake of argument only that
2531Ms. Piovera's interaction with the child constituted a failure to
2541comply with the child discipline standards, her conduct did not
2551rise to the level of a Class I violation. Even if she jerked the
2565c hild's arm, pushed him into position, and restricted his
2575movement while she wiped his noise and placed a shoe back on his
2588foot, this did not and could not result in death or serious
2600physical or emotional harm to A.M., as required by the
2610Department's rules.
2612RECOMMENDATION
2613Based on the foregoing Findings of Fact and Conclusions of
2623Law, it is
2626RECOMMENDED that the Department of Children and Families
2634enter a final order dismissing the Administrative Complaint, with
2643prejudice.
2644DONE AND ENTERED this 8th day of May , 2019 , in Tallahassee,
2655Leon County, Florida.
2658S
2659D. R. ALEXANDER
2662Administrative Law Judge
2665Division of Administrative Hearings
2669The DeSoto Building
26721230 Apalachee Parkway
2675Tallahassee, Florida 32399 - 3060
2680(850) 488 - 9675
2684Fa x Filing (850) 921 - 6847
2691www.doah.state.fl.us
2692Filed with the Clerk of the
2698Division of Administrative Hearings
2702this 8th day of May , 2019 .
2709ENDNOTE S
27111/ The Administrative Complaint is dated August 22, 2017, which
2721the agency concedes is a typographical err or.
27292/ Department Exhibit 5, identified in the record as a "copy of
2741[the mother's] invoice for services rendered to Ms. Piovera," was
2751to be late - filed within seven days after the hearing. However,
2763it was never filed.
27673 / A.M.'s mother watched videos of her son on a regular basis and
2781would telephone Ms. Piovera when she observed anything out of the
2792ordinary. For example, if she saw her son having his diapers
2803changed and he had a diaper rash, she would immediately telephone
2814Ms. Piovera and instruct her t o "go wash his butt, don't do this,
2828don't use any wipes." It is telling that she did not call
2840Ms. Piovera on May 30, 2018.
2846COPIES FURNISHED:
2848Lacey Kantor, Agency Clerk
2852Department of Children and Families
2857Building 2, Room 204Z
28611317 Winewood Bo ulevard
2865Tallahassee, Florida 32399 - 0700
2870(eServed)
2871Lisa E. Ajo, Esquire
2875Department of Children and Families
2880Suite 900
28829393 North Florida Avenue
2886Tampa, Florida 33625 - 7907
2891(eServed)
2892Jed Berman, Esquire
2895Infantino and Berman
2898Post Office Box 30
2902Winter Park, Florida 32790 - 0030
2908(eServed)
2909Philip J. Lipten, Esquire
2913Philip J. Lipten, P.A.
2917Post Office Box 141338
2921Orlando, Florida 32814 - 1338
2926(eServed)
2927Javier Enriquez, General Counsel
2931Department of Children and Families
2936Building 2, Room 204F
29401317 Winewood Bouleva rd
2944Tallahassee, Florida 32399 - 0700
2949(eServed)
2950Chad Poppell, Secretary
2953Department of Children and Families
2958Building 1, Room 202
29621317 Winewood Boulevard
2965Tallahassee, Florida 32399 - 0700
2970(eServed)
2971NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2977All parties have the right to submit written exceptions within
298715 days from the date of this Recommended Order. Any exceptions
2998to this Recommended Order should be filed with the agency that
3009will issue the Final Order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 10/03/2019
- Proceedings: Verified Application for Award of Attorney's Fees and Costs filed. (DOAH CASE NO. 19-5286F ESTABLISHED)
-
PDF:
- Date: 05/08/2019
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 04/05/2019
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 04/02/2019
- Proceedings: Hearing Transcript filed (not available for viewing). Confidential document; not available for viewing.
- Date: 03/25/2019
- Proceedings: CASE STATUS: Hearing Held.
-
PDF:
- Date: 03/19/2019
- Proceedings: Petitioner's Response to Respondent's Motion for Rehearing of Petitioner's for Sanctions filed.
-
PDF:
- Date: 03/18/2019
- Proceedings: Order on Petitioner's Motion for Additional Hearing Instructions.
- Date: 03/18/2019
- Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
- Date: 03/15/2019
- Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
-
PDF:
- Date: 02/22/2019
- Proceedings: Motion to Strike Respondent's Reply to Petitioner's Amended Motion to Compel Discovery filed.
-
PDF:
- Date: 02/20/2019
- Proceedings: Respondent's Reply to Petitioner's First Amended Motion to Compel Discovery filed.
-
PDF:
- Date: 12/17/2018
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for March 25, 2019; 9:30 a.m.; Sarasota and Tallahassee, FL).
-
PDF:
- Date: 12/12/2018
- Proceedings: Order Granting Unopposed Motion for Continuance (parties to advise status by March 11, 2019).
-
PDF:
- Date: 10/22/2018
- Proceedings: Second Notice of Hearing (hearing set for January 4, 2019; 9:30 a.m.; Bradenton, FL).
-
PDF:
- Date: 10/19/2018
- Proceedings: Order Granting Continuance (parties to advise status by December 26, 2018).
-
PDF:
- Date: 10/15/2018
- Proceedings: Amended Notice of Hearing (hearing set for November 28, 2018; 9:30 a.m.; Bradenton, FL; amended as to Date).
Case Information
- Judge:
- D. R. ALEXANDER
- Date Filed:
- 09/26/2018
- Date Assignment:
- 09/27/2018
- Last Docket Entry:
- 10/03/2019
- Location:
- Sarasota, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO
Counsels
-
Lisa Ajo, Esquire
Suite 900
9393 North Florida Avenue
Tampa, FL 33625
(813) 424-4810 -
Jed Berman, Esquire
Post Office Box 30
Winter Park, FL 32790
(407) 644-4673 -
Lacey Kantor, Esquire
Building 2, Room 204Z
1317 Winewood Boulevard
Tallahassee, FL 323990700
(850) 413-6173 -
Philip J Lipten, Esquire
Post Office Box 141338
Orlando, FL 328141338
(407) 927-8256