18-005147 Department Of Children And Families vs. My First Steps Of Bradenton, Inc. Status: Closed Recommended Order on Wednesday, May 8, 2019.

Summary: DCF did not prove by clear and convincing evidence that Respondent's owner used excessive discipline on a child.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 18 - 5147

MY FIRST STEPS OF BRADENTON,

INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administ rative Law Judge D . R. Alexander conducted a final

hearing in this matter by video teleconference on March 25, 2019,

at sites in Sarasota and Tallahassee, Florida.

APPEARANCES

For Petitioner: Lisa E. Ajo, Esquire

Department of Childr en and Families

Suite 900

9393 North Florida Avenue

Tampa, Florida 336 25 - 7907

For Respondent: Jed Berman, Esquire

Infantino and Berman

Post Off ice Box 30

Winter Park, Florida 32790 - 0030

Philip J. Lipten, Esquire

Philip J. Lipten, P.A.

Post Office Box 141338

Orlando, Florida 32814 - 1338

STATEMENT OF THE ISSUE

The issue is whether Respondent committed a Class I

violation and should have a $500.00 administrative fine imposed,

for the reasons given in the Administrative Complaint dated

August 23, 2018. 1/

PRELIMINARY STATEMENT

On August 23 , 2018, the Department of Children and Families

(Department) notified Respondent, a licensed child care facility,

that the Department intended to impose a $500.00 administrative

fine on the ground Respondent's owner used excessive discipline

on a child in violation of minimum standards for child discipline

practices. Respondent timely requested a hearing to contest the

proposed action, and the matter was referred to the Division of

Administrative Hearings to conduct a formal hearing.

At the hearing, Petiti oner presented the testimony of four

witnesses. Also, Department Exhibits 1 through 5 were accepted

in evidence. 2/ Respondent presented the testimony of two

witnesses. Respondent's Exhibits A through E were accepted in

evidence.

A one - volume Transcrip t of the hearing was prepared.

Proposed findings of fact and conclusions of law were filed by

the parties on April 30, 2019, and they have been considered in

the preparation of this Recommended Order.

FINDING S OF FACT

1. The Department is the state agen cy responsible for

licensing and regulating child care facilities.

2. Respondent holds license number C12MA0082 issued

pursuant to chapter 402, Florida Statutes, and Florida

Administrative Code Chapter 65C - 22. It authorizes Respondent

to operate a ch ild care facility at 3815 26th Street West,

Bradenton, Florida. The owner of the facility is Carina Piovera.

3. First licensed in 1997, the facility provides child care

for children ranging from the age of one to five. It employs

five teachers and has a capacity of 35 children. Besides routine

inspections by the Department every three months, for the last

ten years, the facility has been inspected periodically by the

Early Learning Coalition, which provides the facility with

funding vouchers for famil ies that cannot pay for full child

care. Prior to this incident, Respondent never has been charged

with a Class I violation. This class of violation is the most

serious in nature and is one that could or does result in serious

harm or death to a child. Fla. Admin. Code R. 65C - 22.010(1)(e)1.

4. Based on a complaint by a parent that Ms. Piovera used

excessive discipline on her 18 - month - old son, A.M., the

Department conducted a two - hour complaint inspection on June 20,

2018. The inspection resulted in the issuance of an

Administrative Complaint alleging that Ms. Piovera used

"inappropriate discipline" on the child, in violation of

section 2.8A. and F., Child Care Facility Handbook (Handbook),

incorporated by reference in rule 65C - 22.001(6). The first

se ction requires generally that a child care facility adopt a

"discipline policy" that is consistent with section 402.305(12),

while the second provision enumerates discipline techniques that

are prohibited.

5. The "inappropriate discipline" is described in the

Administrative Complaint as follows:

On May 30, 2018, K. Alejandra - Pacheco, a

child care personnel, worked on an art

project with one of the children in her care,

while the other children were climbing up and

down the chairs and taking off their sho es.

Ms. Alejandra - Pacheco stated that she is not

allowed to discipline the children, only the

facility director, Carina Piovera.

Ms. Piovera came into the classroom and made

the children sit down. A.M., a one - year old

toddler, was one of the chil dren in the

classroom. In it, Ms. Piovera is seen

roughly handling A.M. by grabbing him,

aggressively wiping his nose, having intense

body language when talking to the child,

forcefully pushing the child's chair into

position at the table, and then aggres sively

put his hands on the table. A.M. is visibly

afraid and upset, crying throughout his

interaction with Ms. Piovera, who appears to

be intimidating to the child. This incident

was recorded by the facility camera.

6. The Department employee who cond ucted the inspection did

not testify at the hearing. However, a Department witness who

viewed a video of the incident alleges that Ms. Piovera "used

excessive force during hygiene and behavior redirection," and

this was "severe, humiliating, or frightenin g to the child."

7. The alleged incident occurred in the facility's toddler

room. Six children, ranging in age from one to two years old,

were in the room, along with a teacher, Ms. Pacheco. A

surveillance camera, reloaded every 24 hours, is installed in

each classroom to monitor all activities. The video is erased

every 30 days by the security company, Swann Communication

(Swann). If parents wish to wa tch their children in real time or

within the 24 - hour window before the camera is reloaded, they can

download an application (app) on their cell phone, view the

toddler room, and even make copies of the video. Ms. Piovera

stated that she is "very comfortable" with video cameras in each

classroom because parents are entrusting their children to her

care and want to see how the y are being treated.

8. Although the original surveillance video long since has

been erased, A.M.'s mother recorded a video of the incident on

her cell phone using an app provided by a third party and not

Swann. The video has been accepted in evidence as Department

Exhibit 2. The video is fairly clear, is a "little fast," and is

the only known recordation of the incident still available .

Ms. Piovera testified that she has watched it more than 20 times.

The Department's allegat ions are based wholly on its

interpretation of the cell phone video. The incident itself

lasts less than a minute.

9. A.M., then 18 months old, and not a one - year - old, as

stated in the Administrative Complaint, frequently had allergies

or nasal problems, which caused a runny nose or cough. His

mother authorized the use of a nebulizer for inhaling

medications, but it never was used at the facility. The morning

of May 30, 2018, was no different, and A.M. came to the facility

that day with a runny nose. A lthough the mother denied her son

had allergies, his runny nose was brought to her attention when

she brought the child in that morning. She replied that she had

been giving him medicine but "nothing was working."

10. Around 10:21 a.m., and not 11:00 a.m ., as stated in the

Administrative Complaint, Ms. Piovera entered the toddler room to

assist Ms. Pacheco in redirecting the children to a new activity,

i.e., to sing a song and do art work, after efforts by

Ms. Pacheco to have the children sit down and keep their shoes on

were unsuccessful. Redirection is considered a form of

discipline by the Department, but Ms. Piovera considers moving to

a new task a routine action in caring for toddlers.

11. Just before Ms. Piovera entered the room, A.M. and two

other children were standing in their chairs and climbing onto

the table. When A.M. saw Ms. Piovera enter the room, he

immediately sat down in the chair. Ms. Piovera placed him in an

upright position, adjusted his pants, and observed that his nose

ne eded to be wiped and he had taken one shoe off. His nose had

crusted mucous and the discharge was green. The child was crying

at this point.

12. The mother acknowledged that A.M. does not like having

his nose wiped. Ms. Piovera needed two swipes with a tissue to

clean A.M.'s nose. His feet lifted slightly when his nose was

wiped, but this was because A.M. was trying to avoid having his

nose cleaned. Ms. Piovera also put his shoe back on. Although

A.M. began crying when she first touched him, no unusu al force or

pressure was used, and there were no marks or bruises on the

child. Within a few seconds after his nose was cleaned, A.M.

became calm, stopped crying, and placed his head on the table.

The class then continued with painting activities.

13. A Department witness acknowledged that there was no

hitting, spanking, shaking, slapping, or pushing. However, based

on her viewing of the incident, she contends Ms. Piovera "kind of

twisted his body," "pulled his arms when she first grabbed him to

get him to sit down in his chair," "appeared [to be] squeezing

his arms," and "felt" there was "forcing or restricting movement"

when she turned the child around. There is less than clear and

convincing evidence to support these allegations.

14. Around 2:15 p.m ., the child was picked up by his

mother. Although the mother had viewed the incident on her cell

phone as it happened, she did not say anything to Ms. Piovera at

that time or contact the Department to discuss any concerns. 3/

Notably, when the incident o ccurred, the mother was in a dispute

with Ms. Piovera over an unpaid bill ($1,345.00), which

Ms. Piovera says still is outstanding. The mother contends the

bill has been paid, but Ms. Piovera says the dispute is headed to

small claims court.

15. T he mother withdrew the child from the facility that

day without giving any explanation to Ms. Piovera, and he never

returned to the facility. On June 13, 2018, A.M.'s mother raised

the May 30 incident with Ms. Piovera for the first time in a

series of tex t messages. Around the same time, she posted the

video in a message on her Facebook page.

16. On June 20, 2018, or three weeks after the alleged

violation, A.M.'s mother reported the incident to the Department.

The mother admits she always was behind in her payments, and, on

the day she filed her complaint, she was asked by Ms. Piovera to

stop by the facility and pay the balance owed.

17. The Department requested that a child protective

investigator (CPI) from the Manatee County Sheriff's Office

invest igate whether child abuse occurred. A Department

representative and the CPI conducted a joint inspection on

June 20, 2018. On July 16, 2018, the CPI issued a finding that

the charge was unsubstantiated. Resp. Ex. A.

18. Notwithstanding the CPI's d etermination, the Department

points out that this proceeding involves a violation of Handbook

standards, while the CPI was looking for indicators of abuse,

which are governed by chapter 39. Thus, it contends that the CPI

could have a non - substantiated fin ding in regards to abuse, but

Ms. Piovera still could be cited for a rule violation.

CONCLUSIONS OF LAW

19. Bec ause this proceeding is penal in nature, the

Department bears the burden of proving by clear and convincing

evidence that Respondent is guilty o f the charges in the

Administrative Complaint. Dep't of Banking & Fin., Div. of Sec.

& Inv. Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla.

1996).

20. Section 402.310 provides in part that:

(1)(a) The department or local licensing

agency may a dminister any of the following

disciplinary sanctions for a violation of any

provision of ss. 402.301 - 402.319, or the

rules adopted thereunder:

1. Impose an administrative fine not to

exceed $100 per violation, per day. However,

if the violation could o r does cause death or

serious harm, the department or local

licensing agency may impose an administrative

fine, not to exceed $500 per violation per

day in addition to or in lieu of any other

disciplinary action imposed under this

section.

21. The Admini strative Complaint alleges that by using an

inappropriate discipline technique on a child, Respondent

violated section 2.8A. and F. of the Handbook, adopted and

incorporated by reference in rule 65C - 22.001(6); and that this

conduct constitutes a Class I vi olation, for which a $500.00 fine

should be imposed.

22. Paragraphs 2.8 A. and F. of the Handbook read as

follows:

A. The child care facility shall adopt a

discipline policy consistent with Section

402.305(12), F.S., including standards that

prohibit chil dren from being subjected to

discipline which is severe, humiliating,

frightening, or associated with food, rest,

or toileting. Spanking or any other form of

physical punishment is prohibited.

* * *

F. The following discipline te chniques shall

be prohibited in the child care facility:

1. The use of corporal punishment/

including, but not limited to:

a) Hitting, spanking, shaking, slapping,

twisting, pulling, squeezing, or biting;

b) Demanding excessive physical exercise,

ex cessive rest, or strenuous or bizarre

postures;

c) Compelling a child to eat or have in

his/her mouth soap, food, spices, or foreign

substances;

d) Exposing a child to extreme temperatures;

e) Rough or harsh handling of children,

including but not l imited to: lifting or

jerking by one or both arms; pushing; forcing

or restricting movement; lifting or moving by

grasping clothing; covering a child's head.

23. Section 2.8A. requires a licensee to adopt a discipline

policy consistent with section 402. 305(12). Because Respondent

is not charged with failing to adopt a policy, this provision

cannot form the basis for imposing a sanction on Respondent's

license.

24. A Class I violation "is an incident of noncompliance

with a Class I standard as describ ed in CF - FSP Form 5316, October

2017, Child Care Facility Standards Classification Summary, which

is incorporated by reference." Fla. Admin. Code R. 65C -

22.010(1)(e)1. Appendix A, Glossary, page 298 of the

Classification Summary defines a Class I violati on as "the most

serious type of noncompliance with child care standards that

could result or does result in death or serious harm to the

health, safety and well - being of a child and includes overt abuse

and negligence related to the operation and maintenan ce of a

facility or home."

25. Further, a "serious injury" is defined in section 1.2

of the Handbook as "any injury/incident resulting in death or

serious physical or emotional harm to a child."

26. As previously found, there is less than clear and

con vincing evidence that Respondent's owner engaged in a

discipline technique that is prohibited by section 2.8F. of the

Handbook. To the contrary, the more persuasive evidence shows

that Ms. Piovera did not use excessive force, that is, handle

A.M. in a rou gh or harsh manner, "jerk" his arms, and push the

child in an inappropriate way or unnecessarily restrict his

movement. And the evidence does not support a conclusion that

the "discipline" administered to the child was severe,

humiliating, or frightening.

27. Assuming for the sake of argument only that

Ms. Piovera's interaction with the child constituted a failure to

comply with the child discipline standards, her conduct did not

rise to the level of a Class I violation. Even if she jerked the

c hild's arm, pushed him into position, and restricted his

movement while she wiped his noise and placed a shoe back on his

foot, this did not and could not result in death or serious

physical or emotional harm to A.M., as required by the

Department's rules.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Children and Families

enter a final order dismissing the Administrative Complaint, with

prejudice.

DONE AND ENTERED this 8th day of May , 2019 , in Tallahassee,

Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of May , 2019 .

ENDNOTE S

1/ The Administrative Complaint is dated August 22, 2017, which

the agency concedes is a typographical err or.

2/ Department Exhibit 5, identified in the record as a "copy of

[the mother's] invoice for services rendered to Ms. Piovera," was

to be late - filed within seven days after the hearing. However,

it was never filed.

3 / A.M.'s mother watched videos of her son on a regular basis and

would telephone Ms. Piovera when she observed anything out of the

ordinary. For example, if she saw her son having his diapers

changed and he had a diaper rash, she would immediately telephone

Ms. Piovera and instruct her t o "go wash his butt, don't do this,

don't use any wipes." It is telling that she did not call

Ms. Piovera on May 30, 2018.

COPIES FURNISHED:

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Bo ulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Lisa E. Ajo, Esquire

Department of Children and Families

Suite 900

9393 North Florida Avenue

Tampa, Florida 33625 - 7907

(eServed)

Jed Berman, Esquire

Infantino and Berman

Post Office Box 30

Winter Park, Florida 32790 - 0030

(eServed)

Philip J. Lipten, Esquire

Philip J. Lipten, P.A.

Post Office Box 141338

Orlando, Florida 32814 - 1338

(eServed)

Javier Enriquez, General Counsel

Department of Children and Families

Building 2, Room 204F

1317 Winewood Bouleva rd

Tallahassee, Florida 32399 - 0700

(eServed)

Chad Poppell, Secretary

Department of Children and Families

Building 1, Room 202

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 this Recommended Order should be filed with the agency that

will issue the Final Order in this case.