19-000136 Department Of Children And Families vs. L.O.T. Early Learning Center, Llc, D/B/A Little Innovators Status: Closed Recommended Order on Friday, June 7, 2019.

Summary: Respondent, a licensed child care facility, did not commit a Class I Violation, as Petitioner alleged, because unattended children did not leave the facility premises.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 19 - 0136

L.O.T. Early Learning Center,

LLC, d/b/a Little Innovators ,

Respondent.

_______________________________/

RECOMMENDED ORDE R

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

March 14 , 201 9 , at sites in Tallahassee and Miami , Florida.

APPEARANCES

For Petitioner: Carlos A . Garcia , Esquire

Depar tment of Children and Famil i es

401 Northwes t Second Avenue , Suite N - 1014

Miami , Florida 33128

For Respondent: Eric B. Epstein, Esquire

Law Office of Eric B. Epstein , P.A.

5645 Coral Ridge Drive , Suite 250

Coral Springs , Florida 33 076

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, a licensed

child care facility , committed a Class I Violation by allowing

two children to leave the facility premises, unattended, as

Petitioner alleges; and , if so , whether the license e should be

assessed a fine of $100.00.

PRELIMINARY STATEMENT

On December 4, 2018, Petitioner Department of Children and

Families issued an Administrative Complaint against Respondent

L.O.T. Early Learning Center, LLC, d/b/a Little Inn ovators,

charging the licensed day care provider with a Class I Violation

of " Standard #4 - 3, Child Left Premises ÏÏ Staff Unaware. "

The licensee timely exercised its right to be heard in a

formal administrative proceeding. On January 8 , 201 9 , the

agency refe rred the matter to the Division of Administrative

Hearings, where the case was assigned to an Administrative Law

Judge.

The final hearing took place, after a brief, unopposed

continuance, on March 14, 2019, with both parties present.

Petitioner called two witness: Marie Christine Ebbe, f amily

s ervices c ounselor; and Godswill Mbadiwe, c hild p rotective

i nvestigator. Petitioner's Exhibits 1 through 12 were received

in evidence without objection. Respondent presented the

testimony of its e xecutive d irector, Shemiah Hale, together

with that of Theodore J. D avid, a professional surveyor.

Respondent's Exhibits 1 through 3 4 were admitted into evidence

without objection.

The final hearing transcript was filed on April 24, 2019.

Each side submitted a P roposed R ecommended O rder on or before

the deadline established a t the conclusion of the hearing , which

was May 6, 2019.

Unless otherwise indicated, citations to the official

statute law of the s tate of Florida refer to Florida Statutes

201 8 , except that all references to statutes or rules defining

disciplinable offenses or prescribing penalties for committing

such offenses are to the versions that were in effect at the

time of the alleged wrongful act s .

FINDINGS OF FACT

1. Respondent L.O.T. Early Learning Ce nter, LLC, d/b/a

Little Innovators ( " LOT " ) , hold s a l icense, numbered C11MD1611 ,

which authorizes the company to operate a child care facility in

Miami Gardens , Florida . As the operator of a licensed child

care facility , LOT falls under the regulatory jurisdiction of

Petitioner De partment of Children and Families ( " DCF " ).

2 . On the morning of September 20, 2018, a group of

children in the care of LOT were on the playground, which is

located outdoors, on the east side of the school buildi ng . Two

teachers supervised this playtime. Somehow, two children, both

about two years old, slipped away from the group, unnoticed.

3. The little explorers walked around the back of the

building (its south side), turned right at the southwest corner,

and headed towards the front of the daycare center, traveling

north along a sidewalk on the west side of the facility. A

fence should have stopped the children from actually reaching

the front of the building, but they managed to squeeze through

the gate. Once through the gate, the children could have

continued to walk, unimpeded, off the facility premises and into

potentially dangerous places, such as the road.

4. Fortunately, however, they never got that far . Indeed,

the two children probably never even made it off the sidewalk

adjacent to the school. Their excursion was cut short by a G ood

Samaritan who came along at the right time and escorted the

unattended wanderers back inside . T here is no clear and

co nvincing evidence that the children ever left the facility

premises .

Ultimate Factual Determination

5 . LOT is not guilty of violating Standard #4 - 3, Child

Left Premises ÏÏ Staff Unaware, because t he evidence failed to

establish that the children left the sc hool property, which is

an essential element of the disciplinable offense.

CONCLUSIONS OF LAW

6 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 120.569 and 120.57(1), Florida St atutes.

7 . A proceeding, such as this one, to impose discipline

upon a license is penal in nature. State ex rel. Vining v. Fla.

Real Estate Comm'n , 281 So. 2d 487, 491 (Fla. 1973).

Accordingly, DCF must prove the charges against LOT by clear and

convinc ing evidence. Dep't of Banking & Fin., Div. of Sec. &

Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34

(Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292, 294 - 95

(Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg., Bd. of Med. ,

654 So. 2d 205, 207 (Fla. 1st DCA 1995).

8 . Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court

developed a " workable definition of clear and convincing

evidence " and found that of necessity such a definition w ould

need to contain " both qualitative and quantitative standards. "

The court held that:

[C] lear 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

t estimony 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 a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the Slomowitz

court's description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that " [a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous. " Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev. denied , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

9 . Section 402.310 , Florida Statutes, authorizes DCF to

impose discipline against licen sed child care facilities . This

statute provides, in pertinent part, as follows:

[DCF] or [a] local licensing agency may

administer 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 or 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 disci plinary action imposed

under this section.

§ 402.310(1)(a), Fla. Stat.

1 0 . In its Administrative Complaint, DCF alleged that

" [c]hildren managed to exit the [licensee's] facility without

staff knowledge . " O n that basis, DCF brought one charge against

LOT, namely a Class I Violation of " Standard #4 - 3, Child Left

Premises ÏÏ Staff Unaware. "

11. Florida Administrative Code Rule 65C - 22.010(1)(e)1 .

defines a " Class I Violation " as " an incident of noncompliance

with a Class I standa rd as described on CF - FSP Form 5316,

October 2017 . . . , which is incorporated by reference. " The

Form's title is Child Care Facility Standards Classification

Summary (the " Summary " ).

12. The Summary defines licensing standard 4.3 1 / as

follows: " A child was not adequately supervised and left the

facility premises without staff supervision. CCF Handbook,

Section 2.4.1, B . " (Boldface in original; other emphasis

added).

13. Rule 65C - 22.001(6) incorporates, by reference, the

Child Care Facility Han dbook , October 2017 (the " Handbook " ).

Section 2.4.1 of the Handbook provides as follows:

B. Child care personnel must be assigned to

provide direct supervision to a specific

group of children and be with that group of

children at all times. Children mus t never

be left inside or outside the facility, in a

vehicle, or at a field trip location by

themselves.

14. The foregoing statutory and rule provisions " must be

construed strictly, in favor of the one against whom the penalty

would be impo sed. " Munch v. Dep't of Prof'l Reg., Div. of Real

Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v.

Dep't of Bus. & Prof'l Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA

2002); McClung v. Crim. Just. Stds. & Training Comm'n , 458 So.

2d 887, 888 (Fla. 5th DCA 1984)( " [W]here a statute provides for

revocation of a license the grounds must be strictly construed

because the statute is penal in nature. No conduct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the licensee. " );

see also, e.g. , Griffis v. Fish & Wildlife Conserv. Comm'n ,

57 So. 3d 929 , 931 (Fla. 1st DCA 2011)(statutes imposing a

penalty must never be extended by construction).

15 . Further, the grounds proven must be those specifically

alleged in the A dministrative C omplaint. See, e.g. , Cottrill v.

Dep't of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Kinney

v. Dep't of State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987);

Hunter v. D ep't of Prof'l Reg. , 458 So. 2d 842, 844 (Fla. 2d DCA

1984). Due process prohibits an agency from taking disciplinary

action against a licensee based on matters not specifically

alleged in the charging instrument. See § 120.60(5), Fla. Stat.

( " No revoca tion, suspension, annulment, or withdrawal of any

license is lawful unless, prior to the entry of a final order,

the agency has served, by personal service or certified mail,

an administrative complaint which affords reasonable notice to

the licensee of facts or conduct which warrant the intended

action . . . . " ); see also Trevisani v. Dep't of Health , 908 So.

2d 1108, 1109 (Fla. 1st DCA 2005)( " A physician may not be

disciplined for an offense not charged in the complaint. " );

Marcelin v. Dep't of Bus. & P rof'l Reg. , 753 So. 2d 745, 746 - 747

(Fla. 3d DCA 2000); Delk v. Dep't of Prof'l Reg. , 595 So. 2d

966, 967 (Fla. 5th DCA 1992)( " [T]he conduct proved must legally

fall within the statute or rule claimed [in the administrative

complaint] to have been violated . " ).

16 . LOT observes, correctly, that licensing standard 4.3,

as described in the Summary , is not a terribly accurate

paraphrase of section 2.4.1 (B) of the Handbook . However,

b ecause the specific charge in the Administrative Complaint is

a Class I Viola tion of licensing standard 4.3; and because

rule 65C - 22.010(1)(e) defines a Class I Violation as

noncompliance with a licensing standard as described in the

Summary , the undersigned looks to the Summary for the operative

statement of the essential elements of the disciplinable

offense.

17. The offense has two elements, one of which is that a

child must have left the facility premises without staff

supervision. The term " facility premises " is not define d, but

it is not ambiguous, either. The noun " facility, " as used in

this term, serves as an adjective; 2 / it modifies the other noun,

" premises. " Clearly, the " facility " in view is the daycare,

whose " premises " comprise the land, building(s), and other

im provements (e.g., the playground, sidewalks, parking lot,

etc.), which, collectively, form the campus of the daycare.

18. DCF argues that " facility premises " refers only to the

daycare building , so that each time a child goes outdoors, he

leaves the facil ity premises, even if he stays within the

daycare property . The undersigned considers this to be an

unnatural reading of the term but acknowledges that it might not

be an impermissible construction. If so, however, the outcome

of this case remains the sa me, because if DCF ' s interpretation

is reasonable, then the term " facility premises, " being

susceptible of more than one permissible reading, is ambiguous.

If " facility premises " is ambiguous, then the law requires that

the term be construed so as to limi t its punitive reach. The

construction that favors the licensee reads " facility premises "

to include not just the building, but the whole daycare campus.

The undersigned considers such construction to be the best, if

not the only, wa y to understand this language.

19. The undersigned has determined that the children

involved in the subject incident of September 20, 2018, never

left LOT's facility premises, because they remained at all times

on school property ÏÏ or, at least, there is no clear and

convincin g evidence that they left the school property. Thus,

an essential element of Child Left Premises Ï Ï Staff Unaware was

not proved.

20 . In conclusion, just t o be clear, the undersigned is

not suggesting or implying that what happened here was compliant

with all licensing standards or that it was somehow " all right "

that the children were roaming around, unsupervised, on the

school property . DCF could have charged a lesser offense

relating to inadequate supervision, one that does not require

proof that the ch ildren left the facility premises for example,

and thereby increased its chances of obtaining a finding of

guilt. As things stand, however, LOT must be found not guilty

as charged .

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 finding LOT not in violation of

licensing standard 4.3, Chi ld Left Premises ÏÏ Staff Unaware .

DONE AND ENTERED this 7th day of June, 2019, in

Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 June, 2019.

EN DNOT ES

1 / LOT contends that the Administrative Complaint charges a

violation of a licensing standard ("Standard #4 - 3") that does

not exist, since the Summary classifies the offense as licensing

standard 4.3. Because it is obvious that four - dash - three is the

same as four - point - three for purposes of identifying the

relevant licensing standard, LOT's pedantic argument is

rejected.

2 / The technical term for a noun that does this is noun adjunct .

COPIES FURNISHED :

Carlos A . Garcia , Esquire

Department of Children and Famil i es

401 Northwest Second Avenue, Suite N - 1014

Miami, Florida 33128

(eSer v ed )

Eric B. Epstein, Esquire

Law Office of Eric B. Epstein, P.A.

5645 Coral Ridge Drive, Suite 250

Coral Springs, Florida 33076

( eSer v ed )

L acey Kantor , Agency Clerk

Department of Children and Families

Building 2, Room 204 Z

1317 Winewood Boulevard

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)

Javier Enriquez , General Counsel

Department of Children and Families

Building 2, Room 204 F

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.