18-006498 Department Of Children And Families vs. Terri Hall, D/B/A Children Of Liberty Child Care Center Status: Closed Recommended Order on Wednesday, May 1, 2019.

Summary: Department proved a Class I violation where Respondent transported child to wrong school for voluntary pre-kindergarten classes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 18 - 6498

TERRI HALL, d/b/a CHILDREN OF

LIBERTY CHILD CARE CENTER,

Respondent.

_______________________________/

RECOM MENDED ORDER

On March 6, 2019, a formal administrative hearing in this

case was held in Jacksonville, Florida, before Lawrence P.

Stevenson, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: David Gregory Tu cker, Esquire

Department of Children and Families

5920 Arlington Expressway

Jacksonville, Florida 32211

For Respondent: Terri Hall, pro se

Terri Hall, d/b/a Children of Libert y

Child Care Center

232 East 19th Street

Jacksonville, Florida 32206

STATEMENT OF THE ISSUE S

At issue s are whether Respondent committed the violation

alleged in the Administrative Complaint ; and, if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

On November 13, 2018, the Department of Children and

Families (the "Department") filed a one - count Administrative

Complaint (the "Complaint") against Terri Hall, d/b/a Children

of Liberty Chil d Care Center ("Children of LibertyÑ). The

Complaint stated that during a complain t investigation on

August 28, 2019, Department L icensing C ounselor Josephine Walker

determined that direct supervision of one or more of the

children in care was inadequate, based on the following factual

allegations:

[A] four (4) year old child C.R. was dropped

off at the wrong school (Andrew Robinson)

for at least an hour which posed an imminent

threat to a child and could or did result in

death or serious harm to the healt h, safety

or well - being of a child. The child C.R.

was suppose [sic] to be dropped off at North

Shore Eleme ntary. The owner/operator

[Ms. Hall] admitted to dropping the child

C.R. off at the wrong school (Andrew

Robinson). The child C.R. was at the wron g

school (Andrew Robinson) for at least an

hour before the parent was able to be

contacted and child was re - united with

parent.

The Complaint stated that this was a Class 1 violation of

child care licensing standards. It was the facilityÓs first

Class 1 violation within a two - year period. The Complaint

stated that the fine imposed for this violation would be

$500.00.

Ms. Hall timely 1/ filed with the Department a letter that

challenged the factual allegations of the Complaint and

requested a formal admini strative hearing. On December 10,

2019, the Department forwarded Ms. Hall's request to the

Division of Administrative Hearings for the scheduling and

conduct of a formal hearing. The case was initially set for

hearing on February 6, 2019. A continuance was granted and the

case was rescheduled for hearing on March 6, 2019, on which date

it was convened and completed.

At the hearing, the Department presented the testimony of

L.S., the mother of the child C.R.; Roberto Garcia, a Department

child protective investigator; and Josephine Walker, a

Department child care regulations counselor. Mr. Garcia and

Ms. Walker were recalled as rebuttal witnesses. The

DepartmentÓs Exhibits A through E were admitted into evidence.

Ms. Hall testified on her own behalf and presented the testimony

of Joann Jones, a client of Children of Liberty. Ms. HallÓs

Exhibits 1 through 3 were admitted into evidence.

The one - volume T ranscript of the hearing was filed at the

Division of Administrative Hearings on March 28, 2019. At the

close of the hearing, the parties agreed that they would file

their p roposed r ecommended o rders within 20 days of the filing

of the transcript. The Department timely filed its Proposed

Recommended Order on April 16, 2019. Ms. Hall timely filed her

Prop osed Recommended Order on April 17, 2019.

All references to the Florida Statutes are to the 2018

edition, unless otherwise noted.

FINDING S OF FACT

1. The Department is authorized to regulate child care

facilities pursuant to sections 402.301 - 402.319, Flo rida

Statutes. Section 402.310 authorizes the Department to take

disciplinary action against child care facilities for violations

of sections 402.301 - 402.319.

2. Ms. Hall owns and operates the child care facility

doing business as Children of Lib erty pur suant to License

Number C04DU0101. The facil ity is located at 232 East

19th Street, Jacksonville, Florida. Ms. Hall testified that she

has operated the facility for 21 years.

3. C.R. was born on October 21, 2013. C.R. was four years

old on August 27, 2 018, the date of the event that precipitated

the investigation in this case.

4. L.S. is the mother of C.R. She enrolled C.R. at

Children of Liberty from November 2017 through early August

2018.

5. As of August 9, 2018, L.S. withdrew C.R. from Child ren

of Liberty in order to enroll him in Ðbig boy school,Ñ i.e., the

voluntary pre - kindergarten (ÐVPKÑ) program at North Shore

Elementary School (ÐNorth ShoreÑ).

6. Because of his age, C.R. was not yet eligible to attend

kindergarten in a Florida public s chool. See § 1003.21(1)(a)2.,

Fla. Stat. Therefore, C.R. was not a Ðschool - age childÑ for

purposes of Florida Administrative Code R ule 65C - 22.008, or the

ÐSchool - Age Child Care Licensing HandbookÑ adopted by reference

therein. Supervision of C.R. was go verned by the DepartmentÓs

ÐChild Care Facility Handbook,Ñ adopted by reference in

rule 65C - 22.001(6).

7. L.S. is a full - time nursing student during the week and

works at Panera on the weekends. She testified that her only

support system in Jacksonville is her grandparents, both of whom

are in precarious health. L.S. stated that it would be very

difficult for her to take C.R. to VPK given her school schedule.

She was hesitant to place C.R. on a school bus at his young age.

She had hoped that her grandp arents would be able to help her

get C.R. back and forth from the North Shore VPK program, but

her grandfather told her that he was unsure of their ability to

do so.

8. After discussing the situation with Ms. Hall, L.S. re -

enrolled C.R. at Children of Lib erty because Ms. Hall agreed to

take C.R. to and from his VPK program. L.S. would drop off C.R.

at Children of Liberty at 7:30 a.m. C.R. would be given

breakfast and then be driven to VPK by 8:00 a.m. Ms. Hall then

would pick up C.R. in the afternoon an d keep him at Children of

Liberty until L.S. could pick him up at 4:30 p.m.

9. North Shore requires its students to wear uniforms.

The uniform for North Shore is royal blue, navy blue, or white

shirts, and black, khaki, or navy blue pants. Parents somet imes

send their children to school out of uniform, but the school

sends reminders home to inform the parents of the correct

uniform colors. Children are not sent home for being out of

uniform.

10. C.R.Ós first day of being transported to North Shore

by M s. Hall was August 27, 2018. L.S. brought C.R. to Children

of Liberty that morning. C.R. was dressed in the uniform for

North Shore.

11. L.S. testified that she had made it clear to Ms. Hall

that C.R. was attending North Shore. L.S. was taken aback tha t

morning when Ms. Hall mentioned that C.R. would be attending

Andrew Robinson Elementary School (ÐAndrew RobinsonÑ). L.S.

corrected Ms. Hall, reminding her that C.R. was going to North

Shore. Ms. Hall said, ÐThatÓs right, thatÓs right.Ñ

12. Ms. Hall de nied that any such conversation took place

and denied that L.S. ever told her that C.R. was attending North

Shore. Ms. Hall testified that when L.S. first broached the

subject of C.R.Ós needing school transportation, she told L.S.

that she drove only to A ndrew Robinson. Ms. Hall believed that

L.S. understood that Andrew Robinson was the only option for

transportation from Children of Liberty to school.

13. Ms. Hall testified that on two occasions prior to

August 27, 2018, L.S. asked her to pick C.R. up f rom school in

the afternoon. On both occasions, Ms. Hall drove to Andrew

Robinson and did not find C.R. there. She assumed that C.R.Ós

grandparents had picked him up. Ms. Hall stated that she had no

reason to believe she had driven to the wrong school b ecause she

never heard a complaint from L.S. about her failure to pick up

C.R.

14. C.R.Ós enrollment form at Children of Liberty

indicated ÐAndrew RobinsonÑ as the school attended by the child.

However, this form was completed by L.S. well before she

enr olled the child in VPK. The ÐAndrew RobinsonÑ notation was

made later, apparently by Ms. Hall, and is therefore at best

indicative of Ms. HallÓs state of mind on August 27, 2018. 2/

15. Ms. Hall drove another child, K.A., to Andrew Robinson

every morning. K.A. was born on January 12, 2013. She was five

years old on August 27, 2018, and eligible to attend

kindergarten at a Florida public school. Therefore, K.A. met

the DepartmentÓs definition of a Ðschool - age child.Ñ

16. On the morning of August 27, 201 8, K.A. was wearing

the uniform of Andrew Robinson. The Andrew Robinson uniform

varies depending on the day of the week, but the uniform shirts

are required to bear the schoolÓs logo. However, as with North

Shore, children are not sent home or discipline d for failing to

wear the correct uniform. On this day, the Andrew Robinson

uniform was green or pink shirts with khaki, blue, or black

pants.

17. Ms. Hall testified that she generally pays little

attention to the uniforms the children are wearing. Her

experience is that children often go to school out of uniform.

18. The Children of Libert y transportation log for

August 27, 2018, shows that C.R. and K.A. left the child care

facility at 8:15 a.m. It is undisputed that Ms. Hall was

driving the children in a van.

19. Billing records for Ms. HallÓs cell phone show that

she phoned or attempted to phone L.S. at 8:15 a.m. on August 27,

2018. The call lasted one minute. Ms. Hall phoned or attempted

to phone L.S. again at 8:16 a.m. This call lasted two minu tes.

20. Ms. Hall had no explanation for why she phoned L.S. at

the precise time she was also driving C.R. to school. She

speculated that she must have been returning a call from L.S.,

but produced no documentation to support her theory.

21. The Childr en of Liberty transportation log indicates

that Ms. Hall dropped off C.R. and K.A. at Andrew Robinson at

8:18 a.m. Ms. Hall testified that she pulled up at the front of

the school, made sure that the school patrol and teachers were

at the drop - off point, and dropped off the children. Ms. Hall

stated that C.R. told her that he knew where to go. She did not

personally hand the child off to responsible school personnel at

the drop - off point.

22. Ms. HallÓs practice of dropping off the students was

acceptab le under Department standards for K.A., who was a

school - age child. See Section 2.5.2, ÐDriver Requirements,Ñ of

the School - Age Child Care Licensing Handbook.

23. However, C.R. was not a school - age child. Ms. Hall

was required by Department standards to directly place C.R. into

the care of an authorized individual from the school. See

Section 2.4.1E of the Child Care Facility Handbook.

24. Ms. Hall claimed that Department rules prevented her

from leaving the van to ensure that an authorized individua l

took over supervision of C.R. However, the Department standard

referenced by Ms. Hall requires only that the correct staff - to -

child ratio be maintained during transportation. See Section

2.5.4.C of the Child Care Facility Handbook. Because Ms. Hall

wa s dropping off both of the children in her van, nothing

prevented her from exiting the van to make sure that C.R. was

received by an authorized ind ividual at the school. Had

Ms. Hall escorted C.R. onto the Andrew Robinson campus, she

likely would have le arned the child was not enrolled at that

school.

25. The school patrol at Andrew Robinson realized that

C.R. was not a student there. They brought C.R. to school

staff, who took him to the main office. They looked through the

childÓs backpack and found paperwork indicating C.R. was

enrolled at North Shore. They contacted their counterparts at

North Shore, who in turn contacted C.R.Ós family.

26. L.S. testified that she learned of the situation from

her grandmother, who had received the call from North Shore.

She was n o t sure why they called her grandmother first, but

shortly thereafter she got a call from the principal of North

Shore.

27. L.S. was informed that the school could not undertake

the liability of transporting C.R. and that she would have t o

pick him up at Andrew Robinson and deliver him to North Shore.

She drove to Andrew Robinson and picked up C.R., then headed to

Children of Liberty to find out why Ms. Hall dropped her child

off at the wrong school. C.R. was at the wrong school for at

l east an hour before his mother picked him up.

28. Ms. Hall testified that L.S. cursed and threatened her

bodily harm upon her arrival at Children of Liberty, although no

physical altercation took place. L.S. conceded that she was

very angry and used inap propriate language, though she said much

of her anger was due to Ms. HallÓs refusal to take

responsibility for taking C.R. to the wrong school.

29. L.S. never took C.R. back to Children of Liberty after

August 27, 2018.

30. Ms. Hall testified that she be lieved C.R. was enrolled

at Andrew Robinson. Her phone calls to L.S. during the drive to

the school raise the question of whether she was in doubt about

the matter. Her alteration of C.R.Ós enrollment form , and her

unlikely story about her two attempts t o pick up C.R. at Andrew

Robinson , also call into question her good faith belief that the

child attended Andrew Robinson.

31. As she stated repeatedly, Ms. Hall had no reason to

drop off the child at the wrong school. Nonetheless, Ms. Hall

took on the responsibility for C.R.Ós safe transport to and from

his VPK. Even giving full credit to her good intentions does

not change the fact that she left C.R. at the wrong school and ,

in so doing , failed to supervise the child in accordance with

the standards set forth in the DepartmentÓs rules and Child Care

Facility Handbook.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

33. The Department has the burden of establishing the

grounds for discipline against Respondent's license by clear and

convincing evidence. Dep't of Banking and Fin. v. Osborne Stern

& Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292 (Fla . 1987); C oke v. Dep't of Child. & Fam. Servs. , 704

So. 2d 726 (Fla. 5th DCA 1998) .

34. In Evans Packing Co. v. Departmen t of Agric ulture and

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

the Court defined clear and convincing evidence as follows:

Clear and convincing evidence 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 confu sion 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 of

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 S o.

2d 797, 800 (Fla. 4th DCA 1983).

35. Judge Sharp, in her dissenting opinion in Walker v.

Dep artmen t of Bus ines s and Prof essiona l Reg ulation , 705 So. 2d

652, 655 (Fla. 5th DCA 1998) (Sharp, J., dissenting), reviewed

recent pronouncements on clear and c onvincing evidence:

[C]lear and convincing evidence requires

more proof than preponderance of evidence,

but less than beyond a reasonable doubt. In

re Inquiry Concerning a Judge re Graziano ,

696 So. 2d 744 (Fla. 1997). It is an

intermediate level of p roof that entails

both qualitative and quantative [sic]

elements. In re Adoption of Baby E.A.W. ,

658 So. 2d 961, 967 (Fla. 1995), cert.

denied , 516 U.S. 1051, 116 S. Ct. 719, 133

L. Ed. 2d 672 (1996). The sum total of

evidence must be sufficient to convi nce the

trier of fact without any hesitancy. Id.

It must produce in the mind of the

factfinder a firm belief or conviction as to

the truth of the allegations sought to be

established. Inquiry Concerning Davey , 645

So. 2d 398, 404 (Fla. 1994).

36. At a ll times material to this case, Respondent was a

provider of child care, pursuant to section 402.302, which

provides the following relevant definition:

(1) "Child care" means the care,

protection, and supervision of a child, for

a period of less than 24 h ours a day on a

regular basis, which supplements parental

care, enrichment, and health supervision for

the child, in accordance with his or her

individual needs, and for which a payment,

fee, or grant is made for care.

(2) "Child care facility" includes any

child care center or child care arrangement

which provides child care for more than five

children unrelated to the operator and which

receives a payment, fee, or grant for any of

the children receiving care, wherever

operated, and whether or not operat ed for

profit . . . .

37. Section 402.305(1) directs the Department to

"establish licensing standards that each licensed child care

facility must meet regardless of the origin or source of the

fees used to operate the facility or the type of children s erved

by the facility."

38. Section 402.310(1) provides, in relevant part:

(c) The department shall adopt rules to:

1. Establish the grounds under which the

department may deny, suspend, or revoke a

license or registration or place a licensee

or regist rant on probation status for

violations of ss. 402.301 - 402.319.

2. Establish a uniform system of procedures

to impose disciplinary sanctions for

violations of ss. 402.301 - 402.319. The

uniform system of procedures must provide

for the consistent applicat ion of

disciplinary actions across districts and a

progressively increasing level of penalties

from pre - disciplinary actions, such as

efforts to assist licensees or registrants

to correct the statutory or regulatory

violations, and to severe disciplinary

s anctions for actions that jeopardize the

health and safety of children, such as for

the deliberate misuse of medications . . . .

39. Pursuant to section 402.310(1)(c), the Department has

promulgated c hapter 65C - 22, "Child Care Standards."

40. Rule 65C - 22.001(5)(a) provides:

(5) Supervision.

(a) Children that are delivered to a

location offsite from the facility by

someone other than the parent or guardian

become the responsibility of the child care

program at that designated location and time

as agr eed upon by the provider and the

parent/guardian. The provider is

responsible for the supervision of the child

upon the childÓs arrival at the designated

point. If a child is not present at the

time of pick - up, prior to leaving the

designated location, child care personnel

must verify the whereabouts of the child.

41. Rule 65C - 22.010(1)(e) provides:

(1) Definitions.

* * *

(e) ÐViolationÑ means noncompliance with a

licensing standard as described in an

inspection report resulting from an

inspecti on 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

described on CF - FSP Form 5316, October 2017,

Child Care Facility Stan dards 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 the

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

/Gateway/reference.asp?No=R ef - 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

Depa rtmentÓs written notification to the

provider. Ho wever, 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 Violati onÑ 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. ÐClass III ViolationÑ is an incident of

noncompliance with an individ ual 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.

42. Section 1.2 of the School - Age Child Care Licensing

Handbook defines ÐSchool - Age ChildÑ as Ða child w ho is at least

5 years of age by September 1st of the beginning of the school

year and who attends grades kindergarten or above.Ñ As of

August 27, 2018, C.R. was not five years of age and was

attending VPK, not kindergarten. Therefore, the transportation

provisions of the Child Care Facility Handbook were applicable

to Ms. HallÓs transport of C.R.

43. Section 1.2 of the Child Care Facility Handbook

includes the following definition:

ÐDirect supervisionÑ means actively watching

and directing childrenÓs ac tivities within

the same room or designated outdoor play

area, during transportation, any activity

outside of the facility, and responding to

the needs of each child while in care.

44. Section 2.4.1E of the Child Care Facility Handbook

provides:

A [child care] program is responsible for

the supervision of a child until an

authorized individual retrieves the child

from the program. A child shall not be

released to any person other than the

person(s) authorized or in the manner

authorized in writing by the custodial

parent or legal guardians. All individuals

authorized to pick up a child must be

identified in writing prior to release by

the custodial parent or legal guardian to

the program, and the program must verify the

individual picking up the child is

authorized by using a picture form of

identification. Each child transported must

be dropped at the designated location as

agreed upon by the provider and the

custodial parent/legal guardian and released

to an authorized individual.

45. The DepartmentÓ s CF - FSP Form 5316, ÐChild Care

Facility Standards Classification Summary,Ñ adopted by reference

in rule 65C - 22.010(1)(e), provides that the failure of a driver

to drop off a child at the appropriate location in accordance

with Section 2.4.1E of the Child Care Facility Handbook is a

Class 1 violation. There is no question as to the serious

potential harm involved in dropping off a four - year - old child to

wander the grounds of a strange school without supervision.

46. Ms. Hall dropped off C.R. at the wrong location.

Ms . Hall should not have Ðdropped offÑ C.R. at all. She was

required to release the child to an authorized individual at the

school.

47. Ms. HallÓs only defense was t o attempt to shift the

blame on to L.S., the mother of C.R. However, even if L.S.

failed to clarify that C.R. was enrolled at North Shore, and

even if Ms. Hall were completely justified in believing C.R. was

enrolled at Andrew Robinson, the child would in all probability

not have been left at the wrong school if Ms. Hall had gotte n

out of her van and sought to place C.R. into the care of an

authorized individual at Andrew Robinson.

48. The Department has established the allegations of the

Complaint by clear and convincing evidence. The inadequate

supervision in this matter cons tituted a Class 1 violation as

specified in CF - FSP Form 5316.

49. This is the first violation found against Ms. Hall in

the 21 years she has operated Children of Liberty. Rule 65C -

22.010(2)(a) provides that enforcement of disciplinary sanctions

for all C lass 1 violations should be progressive. Rule 65C -

22.010(2)(d)1.a. provides that for a first and second violation

of a Class 1 standard, the fine imposed should be not less than

$100.00 nor more than $500.00. Balancing the potential harm of

this offense against Ms. HallÓs long history of compliance with

Department standards, the Department should assess a fine of

$250.00 in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of C hildren and

Families enter a final order finding that Respondent provided

inadequate supervision in violation of Section 2.4.1E of the

Child Care Facility Handbook , and imposing a fine of $250.00

upon Terri Hall, d/b/a Children of Liberty Child Care Center .

DONE AND ENTERED this 1st day of May , 2019 , in Tallahassee,

Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, 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 1st day of May , 2019 .

ENDNOTE S

1/ Ms. HallÓs letter requesting a hearing was undated, but the

D epartment has not contested its timeliness.

2/ The enrollment date on the form was also clumsily altered

from Ð12/12/17Ñ to Ð12/12/18.Ñ There is no explanation as to

why Ms. Hall would attempt to alter C.R.Ós enrollment date, but

the alteration calls in to question whether the ÐAndrew RobinsonÑ

notation was made contemporaneously by Ms. Hall or was added

after this controversy erupted.

COPIES FURNISHED:

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

1317 Winewood B oulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Terri Hall

Terri Hall, d/b/a Children of Liberty Child Care Center

232 East 19th Street

Jacksonville, Florida 32206

David Gregory Tucker, Esquire

Department of Children and Families

5920 Arlington E xpressway

Jacksonville, Florida 32211

(eServed)

Chad Poppell, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Javier Enriquez , General Counsel

Department of Children and Famili es

Building 2, Room 204F

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 excepti ons

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.