19-001113 Department Of Children And Families vs. J And A Joyful Hearts Academy, Inc. Status: Closed Recommended Order on Wednesday, June 19, 2019.

Summary: Petitioner demonstrated 5 Class I violations and 2 Class II violations. Recommend revocation and a fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 19 - 1113

J AND A JOYFUL HEARTS ACADEMY,

INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 2, 2019, Administrative Law Judge Lisa Shearer

Nelson of the Florida Division of Administrative Hearings

conducted a hearing pursuant to section 120.57(1), Florida

Statutes, in Titusville, Florida.

APPEARANCES

For Petitioner: Brian Christopher Meola, Esq uire

Department of Children and Families

Suite S - 1129

400 West Robinson Street

Orlando, Florida 32801

For Respondent: Jenail Martin , pro se

J & A Joyful Hearts Academy

410 South Park Avenue

Titusville, Florida 32780

STATEMENT OF THE ISSUE

Whether Respondent, J & A Joyful Hearts Academy (Joyful

Hearts), violated Florida Administrative Code Rule 65C -

22.010(e)1., resulting in the Class I and Class II violations

alleged in the Administrative Complaint.

PRELIMINAR Y STATEMENT

On January 22, 2019, Petitioner, Department of Children and

Families (the Department or DCF), filed an Administrative

Complaint Revoking FacilityÓs License & Imposing Fine against

Joyful Hearts, seeking to revoke Joyful HeartsÓ license and to

i mpose a $5,100 fine. On February 15, 2019, Joyful Hearts filed

a response that disputed the allegations in the Administrative

Complaint and requested an administrative hearing under section

120.57(1). DCF referred the case to the Division of

Administrati ve Hearings for assignment of an administrative law

judge.

The case was noticed for a hearing to commence on May 2,

2019. Given that Respondent was proceeding without the benefit

of counsel, a telephone prehearing conference was conducted on

April 18, 201 9, in order to explain the process that would take

place at hearing.

The hearing commenced as noticed on May 2, 2019, and

concluded the same day. The proceedings were recorded but not

transcribed. At hearing, the Department presented the testimony

of D etective Lauren Watson of the Titusville Police Department;

Shoshana Amores, a senior case coordinator for the child

protection team (CPT) in Brevard County; Barbara Smith, a child

protection investigator for the Department; Laura Hair, a former

employee a t Joyful Hearts; and Tiffani Brown, a Department

f amily s ervices c oordinator. The Department offered

PetitionerÓs E xhibits numbered 1 through 17 for admission into

evidence: E xhibits 1 through 14 were admitted, and E xhibit 17

was rejected. Respondent te stified on her own behalf and

presented the testimony of Laura Ha i r , Willie Mae Hair, Dawn

Lazzaroni, Ta nisha Whitehead, Angela McCray, and Wanda Taylor.

RespondentÓs Exhibits 5, 7, 8, and 10 were also admitted into

evidence.

PetitionerÓs E xhibits 15 an d 16 are the Forensic Interview

Report of J.M. and the CPT interview, respectively. Pursuant to

the provisions of section 39.202(6), Florida Statutes, counsel

for the Department had provided notice that he would be seeking

to use the report and the interv iew, but had not provided a copy

of the report to Respondent prior to hearing, because he needed

to obtain an order allowing the release of the exhibits. The

Department was ordered at h earing to provide a copy to

Ms. Martin, with the caveat that she could not share it with

anyone. PetitionerÓs Exhibit 15 was also not in the exhibits

provided to the administrative law judge the day of hearing.

Given that Respondent needed the opportunity to carefully review

PetitionerÓs Exhibit 15 before determining wheth er she had an

objection to it, the Department was directed to file the exhibit

with the Division within five days, after which Respondent was

afforded five days in which to file an objection.

DepartmentÓs Exhibit 15 was filed with the Division on

May 10, 2019. 1/ On May 14, 2019, Respondent filed a letter with

the Division. While the letter included information that was

not presented at hearing, and will not be considered in this

Recommended Order, it did not state an objection to the

admission of Petiti onerÓs Exhibits 15 and 16. Accordingly, on

May 20, 2019, a Scheduling Order was issued advising the parties

that PetitionerÓs Exhibits 15 and 16 were admitted into

evidence, and that the deadline for filing proposed recommended

orders was May 30, 2019. T he Department timely filed a Proposed

Recommended Order that has been considered in the preparation of

this Recommended Order. All statutes are the current

codification.

FINDING S OF FACT

1. Joyful Hearts is a licensed daycare facility in

Titusville, Flor ida. Jenail Martin is the director of the

daycare, which has been open for approximately four years.

Prior to the incidents giving rise to this case, Joyful Hearts

had no disciplinary history with respect to its licensure.

2. The Department is the state agency charged with the

licensing and regulation of child care centers in the State of

Florida.

December 3, 2018

3 . At approximately 6:00 a.m., o n December 3, 2018, the

Department received a report from the Florida Abuse Hotline,

indicating that Jenail M artin struck M.H. 2/ in the mouth with a

spatula while M.H. was at Joyful Hearts. The reporting parent

also indicated that a second c hild, J.M., was also hit by

Ms. Martin with a spatula.

4. M.H. was not at the daycare when the investigators went

to Joy ful Hearts, so they located him at his home. M.H. had a

tiny cut on the side of his lip, as well as a pea - sized bruise.

Barbara Smith interviewed M.H. as well as his mother, and based

on statements he made about abuse toward other children, she

interview ed a sampling of other children at Joyful Hearts.

5. After interviewing M.H. and his mother, Tiffani Brown

and Barbara Smith went to Joyful Hearts. For at least part of

the day, they were accompanied by Lauren Watson, a detective

with the Titusville Po lice Department. Detective Watson was

present because the Titusville Police Department also received a

complaint with respect to M.H.

6 . Upon arrival at Joyful Hearts, Ms. Brown and Ms. Smith

spoke with Ms. Martin, who denied the charges against her. Sh e

claimed that M.H.Ós mother was out to get her, and that M.H. and

his friend were too busy bullying other children to fight each

other.

7. Ms. Smith and Ms. Brown interviewed some of the

children present at the daycare, in order to see if M.H.Ós

injury w as isolated or part of a pattern. Detective Watson was

present during these interviews. Several of the children

indicated that they were hit with a black shoe, a flip flop, or

a belt, and that two of the children had been hit with a

spatula. 3/ All of t he children indicated that J.M. got the brunt

of the physical punishment.

8. Ms. Martin was interviewed by Ms. Brown, Ms. Smith, and

Detective Watson, and was wearing flip flops. She admitted

having a belt and shoe that she kept in the kitchen, but denie d

hitting the children with them at Joyful Hearts. She stated

that she would threaten the children with the belt and shoe, to

keep them in line. She also stated that she sometimes kept J.M.

in her home and claimed that she had permission from his

grandmo ther to ÐpopÑ him when necessary, and did spank J.M., but

that she only did so when keeping him at her home.

9 . Ms. Brown, however, testified that when she interviewed

J.M.Ós grandmother, the gra ndmother denied ever giving

Ms. Martin permission to use c orporal punishment with J.M.

J.M.Ós grandmother did not testify, and the conflicting

statements by Ms. Martin and Ms. Brown regarding J.M.Ós

grandmotherÓs position are hearsay. There is no competent

evidence to demonstrate whether Ms. Martin did or did n ot have

permission to use corporal punishment on J.M., and no finding is

made either way. Even assuming that Ms. Martin in fact had

permission, use of corporal punishment at the daycare would

still be a violation of section 402.305(12)(a)3., Florida

Statu tes, and Department rules.

10 . Shoshana Amores, a senior case coordinator for the CPT

team in Brevard County, also interviewed M.H. and J.M.

Ms. Amores has been trained to conduct interviews with children

in order to e llicit details about what child ren have seen and

experienced. The interviews are designed to establish a rapport

with small children, and Ms. Amores generally spen ds some time

determining whether the children are able to tell the truth, and

to explain the rules. The questions Ms. Amor es asked M.H. and

J.M. were not leading or suggestive, and did not present as

judgmental. The interviews were recorded in both audio and

video form. Only the interview with J.M. is included in the

record in this case.

11. While the Department offered th e video of J.M.Ós

interview as an exhibit in this case, it offered no evidence

regarding J.M . Ós availability to testify at hearing, and no

evidence that requiring him to do so would result in a

substantial likelihood of severe emotional or mental harm.

1 2. Ms. Amores observed that M.H. had a small injury by

his mouth. She reported that he was also examined medically,

but it could not be determined whether the injury occurred as a

result of being hit by a spatula or whether it was a result of

M.H.Ós figh t with J.M.

13. Based upon her interviews of the children, and the

other evidence reviewed, Ms. Amores recommended that the staff

at Joyful Hearts be retrained, and made a verified finding of

abuse by history, in the absence of any observed injury to J.M.

With respect to M.H., she also made a verified finding of abuse

by history.

14 . Ms. Brown advised Ms. Martin to stay away from the

daycare until the investigation was completed. This directive

was not in written form; she was simply advised that Depart ment

staff would call her when the investigation was complete.

15. As a result of the December 3, 2018, visit to the

daycare, Joyful Hearts was issued an Inspection Checklist that

indicated noncompliance with section 2.8B of the CCF Handbook

related to ch ild discipline (section 9, number 4), a C lass II

violation ; and use of corporal punishment at the daycare, in

violation of section 2.8A (section 9, number 2) of the CCF

Handbook, a C lass I violation. The same conduct was also the

basis for a finding of a C lass I violation by Department staff

by the commission of an act that meets the definition of child

abuse or neglect provided in chapter 39 or 827, Florida

Statutes.

16 . Detective Watson also presented a capias to the State

AttorneyÓs Office for child ab use. However, the State

AttorneyÓs Office elected not to file charges.

17 . Ms. Martin acknowledged that she was advised to stay

away, but that she did not. She testified that when she did not

hear from Ms. Brown, she assumed it was all right for her to

return to the daycare, and did so. Ms. MartinÓs belief, while

perhaps sincere, makes no sense in light of the directive to

stay away until she was called and told it was okay to return.

January 4, 2019

18 . Ms. Brown and Ms. Smith returned to Joyful Heart s on

January 4, 2019, and found Ms. Martin working. At that time,

they issued her a Ðrestriction letter,Ñ advising her that she

could not be on the premises of the daycare until the

investigation was complete. 4/ According to Ms. Brown, the letter

restric ted Ms. Martin from being at the facility during working

hours. While by her own admission, Ms. Martin spent time at

Joyful Hearts before and after business hours after issuance of

the restriction letter, there is no persuasive evidence that she

was there after present at Joyful Hearts during working hours.

19 . When Ms. Brown visited the facility that day, Belle

Lewis was working there and appeared to be in charge. Ms. Brown

had received telephone calls stating that a man named Timothy

Watkins was working at the daycare, so she asked Ms. Lewis

whether he had been working there. Mr. Watkins has an extensive

criminal history that would prevent him from working with

children. While Ms. Brown testified that Ms. Lewis told her

that Mr. Watkins had been at the facility picking up trash,

Ms. Lewis did not testify, and her statement to Ms. Brown is

hearsay. No testimony was offered that Ms. Brown or any of the

other Department staff saw Mr. Watkins there, much less saw him

working with any children at Joyful Hea rts.

20 . Moreover, no evidence was presented that Mr. Watkins

was actually an employee of Joyful Hearts. Ms. Martin testified

credibly that he was an employee of a vendor that she used for

maintenance. Her testimony was corroborated by other witnesses

at hearing.

21 . When Ms. Brown arrived at Joyful Hearts on January 4,

2019, there were three children on the playground on Joyful

HeartsÓ property. These three children were unattended. The

evidence was not clear and convincing, however, that these thr ee

children were children for whom Joyful Hearts had any

responsibility. While Ms. Brown testified that Ms. McCray

claimed they were her grandchildren, Ms. BrownÓs notes in

PetitionerÓs Exhibit 5 indicate that Ms. Lewis, as opposed to

Ms. McCray, stated t hat the three children were her

grandchildren, dropped off by her niece. Moreover, Ms. McCray

denied having any grandchildren. In any event, the evidence as

a whole suggested that these children were school - aged children

as opposed to children attending the daycare, and would not be

part of the ratios the daycare was required to maintain.

22 . There were, however, other problems at Joyful Hearts.

The people present and working with the children on January 4,

2019, were Ms. Lewis and Ms. Angela McCray, as well as

Ms. Martin before she was asked to leave . Ms. Brown asked

Ms. McCray if she had been screened and she indicated that she

had. Ms. Brown could not find any evidence that Ms. McCray had

been screened at the facility, and asked her what she did to get

screened. Ms. McCray responded that she Ðtook a pee test (as

opposed to being fingerprinted).Ñ After checking Department

records, Ms. Brown asked Ms. McCray to leave the daycare because

she had not been screened. Laura Hair, a former employee who

wo uld substitute when needed, came in to replace Ms. McCray.

23 . At hearing, Ms. McCray claimed that she did not

believe she needed to be screened, because she was a Ðboard

memberÑ for Joyful Hearts. She also testified that she was

quite experienced in the daycare area, having owned a daycare in

the past. At the time of hearing, she stated that she had since

been screened. When asked if she was eligible to work, she

stated that she had ÐsomethingÑ from 22 years ago, but her

Ðclearance was in the works.Ñ

2 4 . Ms. McCrayÓs claim that she did not know she needed to

pass a background screening in order to work with children is

not credible. Moreover, Ms. Martin acknowledged that Ms. McCray

had not been screened when Ms. Martin asked her to come and help

out a t the daycare, but claimed that there were extenuating

circumstances. It is found that Ms. McCray had not undergone

background screening and that Ms. Martin asked her to work with

children knowing that she had not undergone screening.

25 . Even assuming t hat both teachers present were properly

screened, Joyful Hearts did not have the proper ratio when

Ms. Brown visited on January 4, 2019. At the time she was

there, there were 11 children in one room, and one of those

children was an infant. The age of th e other children is

unknown. When there is an infant present, the appropriate ratio

is one adult for four children, even if there is only one

infant, requiring at least two properly screened employees to be

present to meet ratio. As is discussed below, M s. Lewis was not

eligible to work with children.

January 11, 2019

26. DCFÓs concerns that Ms. Martin was not complying with

the restriction letter continued. Her car was seen at Joyful

Hearts during the day, so on January 11, 2019, Ms. Brown

returned e arly in the morning before Joyful Hearts opened and

parked across the street from the daycare to see if Ms. Martin

was there. Ms. Brown saw Ms. MartinÓs car and there were lights

on at the facility, but she did not see Ms. Martin. Within the

hour, Belle Lewis came and knocked on the door, and someone let

her inside. Ms. Brown did not see who.

27 . At approximately 7:00 a . m ., children started coming to

the daycare. Among the children present was a child brought by

someone who at that point was identified as ÐAnnie Pittman.Ñ

She went inside with the child, and after a while came outside

with Belle Lewis to Ms. LewisÓs car. Both women coming out of

the building meant that, to the best of Ms. BrownÓs knowledge,

there were no adults left in the daycare to s upervise the

children inside.

28 . Ms. Brown confronted Ms. Lewis and the woman she

believed to be Annie Pittman. ÐMs. Pittman,Ñ who Ms. Brown

believed to be a parent, just smiled and walked across the

street.

29 . At around 9:10 a.m., Ms. Brown went into Joyful Hearts

and checked worker/child ratios. At that time, ÐMs. PittmanÑ

was in the infant room with one infant. Ms. Brown asked

ÐMs. PittmanÑ if she had gone through background screening and

was told that ÐMs. PittmanÑ had been screened in Rockle dge. The

office door for the facility was locked, and records to

substantiate background screening could not be located.

30 . When Ms. Brown checked ratios, there were eight

children of mixed ages with two teachers, including Ms. Lewis.

When Ms. Brown as ked Ms. Lewis who was with the children when

she went outside with ÐMs. Pittman,Ñ Ms. Lewis said she left the

children inside so that she could give ÐMs. PittmanÑ some money

to buy hotdogs to feed the children. When asked if there were

any other adults, M s. Lewis acknowledged that she was alone.

31 . Leaving the children unsupervised meant that there

were ratio violations, with no adults for three children.

32 . After the visit on January 11, 2019, Ms. Brown checked

on the background screening for Belle Le wis. She discovered

that Ms. Lewis had gone through background screening on May 31,

2018, but was declared ineligible on June 5, 2018, because she

had multiple drug offenses from 1993 through 1995 that

disqualified her from working in positions of trust. Ms. Lewis

was notified that she was ineligible on June 5, 2018, and

advised of the process to seek an exemption from

disqualification. She applied for an exemption, but was advised

by letter dated November 2, 2018, that she was ineligible

because court r ecords indicated that she still had outstanding

fees due.

January 14, 2019

33 . In light of the discovery that Ms. Lewis was

ineligible to work with children, Ms. Brown and Ms. Smith,

accompanied by a police officer from the Titusville Police

Department, r eturned to Joyful Hearts on Monday, January 14,

2019, for what had to be one of the most memorable and bizarre

days in their careers.

34. The trio arrived at Joyful Hearts at approximately

8:15 a.m., and they were met by ÐAnnie Pittman,Ñ who was

relucta nt to let them in the building.

35 . ÐMs. PittmanÑ was asked if she was teaching, and she

responded that she was. She was also identified as an employee

of Joyful Hearts by another employee, Willa Ma e Hai r .

ÐMs. PittmanÑ was a lso asked if she was backgro und - screened as

of January 11, 2019, and she stated that she was, but would not

give her date of birth.

36 . The woman identified as Annie Pittman was a young

woman in her twenties. The only person in DCFÓs system with

that name that had been screened was born in 1970.

37 . After being confronted with this information and

having some discussion with the police officer, ÐAnnie PittmanÑ

admitted that her name was actually Mercedes Daughtry. On

February 20, 2017, Ms. Daughtry pled nolo contendere to the

thir d - degree felony of organized fraud to obtain property less

than $20,000, in violation of section 817.034(4)(a)3., Florida

Statutes, in the Eighteenth Judicial Circuit, in and for Brevard

County. Ms. Daughtry was sentenced to 60 months of probation.

This offense disqualifies her from working at a daycare. Upon

discovery of her criminal history, Ms. Daughtry was asked to

leave the facility.

38 . DCF staff also confronted Ms. Lewis, who acknowledged

that she knew she was disqualified from working with child ren.

DCF staff advised her that she could not stay at Joyful Hearts.

Ms. Lewis called Ms. Martin to notify her that she had to leave.

39 . With both Ms. Lewis and Ms. Daughtry gone, no staff

employed by Joyful Hearts was present to take care of the

chi ldren at the facility. Ms. Brown advised Ms. Martin by

telephone that she needed to call the parents and ask them to

pick up the children, as there wa s no one to care for them.

Ms. Martin said that she had someone coming in at 9:00 a.m.

Ms. Brown remind ed her that she would still be out of ratio,

given the number of children present. Ms. Martin said she had

someone coming in the afternoon as well, but even if true, that

would not address the immediate problem of insufficient staff.

40 . At 9:00 a.m., W illa Mae Hair came to Joyful Hearts to

work in the baby room. 5/ She sat down until several of the

parents had picked up their children. When there were only

three children left, Ms. Ha ir stated that she was leaving, and

she would take one of the children with her, leaving the DCF

staff with the other two. Ms. Brown would not allow her to take

the child, because Joyful Hearts is not a transporting facility,

and she did not believe that Ms. Hair was on the list of

approved individuals allowed to pick up th e child.

41 . Tanisha Whitehead, the childÓs mother, came to pick up

the child, but was frustrated that Ms. Hair was not allowed to

bring her home. Ms. Whitehead testified that the list of people

approved to pick up her child could not be found, but that

Ms. Hair was on it. She felt that DCF staff was disrespectful

and would not provide any real explanation of what was going on.

42 . The pick - up list was not offered into evidence by

either party, so whether Ms. Hair was on the list is unknown at

this poin t. It is understandable that parents would be upset at

having to come get their children because the daycare was not

properly staffed. The issue he re, however, is not whether

Ms. Hair was on Ms. WhiteheadÓs list of approved adults for

pick - up, but rather , the fact that her leaving the facility

meant there were no employees there to care for the remaining

children.

43 . Ms. Smith and Ms. Brown prepared lunch for the

children and remained at Joyful Hearts until approximately

11:45, when the last two childre n were picked up for the day.

They checked the facility to make sure that no one remained, and

then left. Joyful Hearts closed as of January 15, 2019, and was

not open as of the date of the hearing.

Ms. MartinÓs Defenses

44 . Ms. Martin testified on her own behalf and her

statements have been carefully considered, given the gravity of

the allegations against Joyful Hearts.

45 . Ms. Martin admitted that she has spanked J.M., but

insists that she has only done so in her home when she has kept

him in the evenings or on weekends. This claim is not credible,

given her admission that she kept a belt and spatula at the

daycare in order to keep the children in line. Moreover, while

the statements of other children have not been considered for

the truth of tho se statements, it is illogical that the other

children would know of any spankings occurring at Ms. MartinÓs

home as opposed to something happening in their presence at the

daycare.

46 . Ms. Martin admitted to going to the daycare before

receiving the re striction letter. She stated that after

receiving the letter, she would go into the daycare before and

after hours to clean up and set things up for the day. Given

that the restriction letter was not offered into evidence, and

Ms. BrownÓs testimony that she could not be there during hours

Joyful Hearts was open, it appear s that Ms. Martin being there

when the daycare was closed would be permissible.

47 . Ms. Martin also admitted that while she was absent,

she kept the door of the office locked, but put th e books with

records in a chair, upside down outside the office. Neither

party offered evidence that DCF staff asked Ms. Martin for the

whereabouts of the records and that she refused to provide them.

Given that she was not allowed to be at the facility when the

DCF staff was there, it would be incumbent upon them to inquire

of her where to locate any records that they needed. DCF

presented no evidence that its staff inquired, so Ms. Martin

cannot be faulted for not providing the appropriate records.

48 . Ms. Martin claimed that Mercedes Daughtry was a

volunteer as opposed to an employee, and that she would

volunteer when they were short of staff. This claim is not

credible. Ms. Daughtry was in the daycare at times when no

other adult was present in the room where she was located,

working directly with children. She was identified as an

employee of the daycare by another employee. It is found that

Ms. Daughtry was teaching at Joyful Hearts without proper

screening. Even if she did volunteer when they were short of

staff, she was working unsupervised by a screened employee,

which is impermissible.

49 . Ms. Martin acknowledged that Ms. Lewis was ineligible

to work with children, but claimed that she was hired to be a

cook. Given that on more than one oc casion, she was one of the

only workers present and was clearly supervising children, this

claim is not credible.

50 . With respect to Mr. WatkinsÓ presence at the daycare,

Ms. Martin testified that he was an employee of a vendor that

she used, and was not employed by the daycare. Her testimony is

consistent with others who testified, and moreover, no one

testified seeing Mr. Watkins interacting with children or

working near them. The only testimony placing Mr. Watkins on

the premises of the daycare was h earsay.

51 . Ms. Martin acknowledged that she knew Ms. McCray was

not screened when she asked her to pitch in at Joyful Hearts,

but felt there were extenuating circumstances. She also claimed

that some of her workers did n ot show up for work because

Ms. B rown told them if they came to work, they would go to jail.

However, no person to whom Ms. Brown allegedly made this

extraordinary statement testified, and no one asked Ms. Brown if

she had made such a statement. Without someone with first - hand

knowledge testifying to it, the statement is hearsay that cannot

be considered. Even if true, if there are not enough screened

employees to meet ratios for the care of children, the proper

course of action is not to bring in unscreened people, but to

close until p roperly screened workers can be retained.

CONCLUSIONS OF LAW

52. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to sections 120.569 and 120.57(1). This

proceeding is de novo pursuant to section 120.57(1)(k).

53. The Department is seeking to revoke Joyful HeartsÓ

license to operate a child daycare facility in Florida. It must

demonstrate that the allegations in the Administrative Complaint

are supported by clear and convincing eviden ce. DepÓt of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla.

1996); Ferris v. Turlington , 520 So. 2d 292 (Fla. 1987). As

stated by the Supreme Court of Florida:

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 testimony 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.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

v. Walker , 492 So. 2d 797, 800 (Fla. 4th DCA 1983)) . Accord

Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 988

(Fla. 1st DCA 1991) ("Although this standard of proof may be met

where the evidence is in conflict . . . it seems to preclude

evidence that is ambiguous.").

54 . The Administrative Com plaint charges Respondent with

10 Class I violations and three C lass II violations. There is

no clear definition of what constitutes a C lass I violation as

compared to a C lass III violation. However, Florida

Administrative Code Rule 65C - 22.010(1)(e) prov ides that Class I

violations are the most serious in nature, and Class III are

less serious than either Class I or Class II violations.

Rule 65C - 22.010(2)(a) provides that Ðthe classification of

standard violations within the Child Care Facilities Standar ds

Classification Summary and the progressive disciplinary actions

prescribed for each class by this rule are based on the

provisions of Section 402.310(1)(b), FS.Ñ Section 402.310(1)(b)

provides:

(b) In determining the appropriate

disciplinary action to be taken for a

violation as provided in paragraph (a), the

following factors shall be considered:

1. The severity of the violation,

including the probability that death or

serious harm to the safety of any person

will result or has resulted, the severity

of the actual or potential harm, and the

extent to which the provisions of

ss. 402.301 - 402.319 have been violated.

2. Actions taken by the licensee or

registrant to correct the violation or to

remedy complaints.

3. Any previous violations of the license e

or registrant.

55. Paragraph 4.I(a) of the Administrative Complaint

alleges that on January 4, 2019, Angela Mc Cary , an unscreened

individual, was Ðleft alone to care for children, in violation

of Section 435.06(2)(a), Florida Statutes.Ñ

56. Secti on 435.06(2) provides:

(a) An employer may not hire, select, or

otherwise allow an employee to have contact

with any vulnerable person that would place

the employee in a role that requires

background screening until the screening

process is completed and demonstrates the

absence of any grounds for the denial or

termination of employment. If the

screening process shows any grounds for the

denial or termination of employment, the

employer may not hire, select, or otherwise

allow the employee to have contact with any

vulnerable person that would place the

employee in a role that requires background

screening unless the employee is granted an

exemption from disqualification by the

agency as provided under s. 435.07.

* * *

(c) The employer must terminate the

employment of any of its personnel found to

be in noncompliance with the minimum

standards of this chapter or place the

employee in a position for which no

background screening is required unless the

employee is granted an exemption from

disqualification pursuant to s. 435.07.

(d) An employer may hire an employee to a

position that requires background screening

before the employee completes the screening

process for training and orientation

purposes. However, the employee may not

have direct contact with vulnerable persons

until the screening process is completed

and the employee demonstrates that he or

she exhibits no behaviors that warrant the

denial or termination of employment.

57 . All child care personnel, as defined in section

402.302(3) to inclu de all owners, operators, employees and

volunteers working in a daycare facility, are required to be

screened pursuant to section 402.305(2). Having an unscreened

individual left alone with children in care is identified as a

Class I violation at 4.18 of the Child Care Facility Standards

Classification Summary (Classification Summary), incorporated by

reference into rule 65C - 22.010. 6/

58. The Department proved by clear and convincing evidence

that Angela McCray was not screened on January 4, 2019. Thi s

Class I violation has been proven.

59. Paragraph 4.I(b) of the Administrative Complaint also

alleged a Class I violation for having three children left

unsupervised on the outside playground area. As noted in the

F indings of F act, the evidence was not clear and convincing that

the three children on the playground were children enrolled at

Joyful Hearts or in any way under their care. The greater

weight of the evidence indicated that these children were

school - aged children, as opposed to children four and under.

This violation has not been proven by clear and convincing

evidence.

60 . The third Class I violation, charged at

paragraph 4.I(c), alleges that Belle Lewis had been Ðarrested

for and are awaiting final disposition of, have been found

guilt y of, regardless of adjudication, or entered a plea of nolo

contendere or guilty to any offense noted in Section 435.04,

Florida Statutes, which disqualifies the person employment zÓ ;

that Respondent failed to take appropriate action in that

Ms. Lewis was h ired as a staff member; and that on January 4,

2019, was found to be supervising children at the facility.

61 . Employing a disqualified individual to work with

children is identified as a Class I violation at paragraph 45.3

of the Classification Summary . The Department proved by clear

and convincing evidence that Belle Lewis was an employee working

with children, that she was disqualified from employment with

children by her past criminal conduct, and that her request for

an exemption had been denied be cause she was ineligible. The

Department also proved that Ms. Martin knew of her status and

allowed her to work with children nonetheless. This Class I

violation has been proven by clear and convincing evidence.

62 . The fourth Class I violation in the Administrative

Complaint, identified in paragraph 4.I(d), alleges that Timothy

Watkins, an unscreened individual , cared for children on

January 4, 2019. This allegation was not proven. First, no

competent evidence was presented to demonstrate that Timoth y

Watkins ever cared for children at Joyful Hearts. Second, no

credible evidence was presented to demonstrate that Mr. Watkins

was an employee of Joyful Hearts. The more credible evidence

indicated that Mr. Watkins worked for a vendor Ms. Martin hired

to complete maintenance at the daycare. The Department has

pointed to no statutory or rule provision requiring daycare

facilities to screen the employees of all vendors they employ.

No Class I violation has been d emonstrated with respect to

Mr. Watkins.

6 3 . The fifth Class I violation, charged in paragraph

4.I(e) of the Administrative Complaint, alleges that Belle

Lewis, whose criminal history disqualified her from working with

children, was found to be supervising children on January 11,

2019. As noted previously, employing a disqualified individual

to work with children is identified as a Class I violation at

paragraph 45.3 of the Classification Summary. This violation

was proven by clear and convincing evidence.

64 . Paragraph 4.I(f) alleges a sixth Class I violation and

charges that on January 11, 2019, one or more children were not

adequately supervised in that staff left children alone,

unattended in a room while one child was eating food, which

posed an imminent threat to a child. The evidence sh owed that

on this day, Belle Lewis left three children alone in the

building while she went outside. Leaving children unattended is

identified as a Class I violation at paragraph 4.2 of the

Classification Summary. A Class I violation is supported in

this instance by clear and convincing evidence.

65 . The next alleged Class I violation, found in paragraph

4.I(g) of the Administrative Complaint, involves Mercedes

Daughtry, an unscreened individual, being left alone to care for

children on January 14, 2019 . The facts demonstrated at hearing

revealed that not only was Ms. Daughtry not properly screened,

but she was serving probation for a third - degree felony. This

felony would disqualify her from employment at a daycare

facility.

66. Ms. Martin claimed t hat she did not know about the

felony record, and that Ms. Daughtry only volunteered at Joyful

Hearts. Whether or not Ms. Martin knew about the felony, she

knew that Ms. Daughtry was no t screened. Her claim that

Ms. Daughtry was a volunteer is not suppor ted by the more

persuasive evidence presented at hearing. Moreover, even if she

was a volunteer, she clearly exceeded that role. Section

402.302(3) defines Ðchild care personnelÑ to include Ðall

owners, operators, employees and volunteers working in a ch ild

care facility.Ñ With respect to volunteers, it further provides

that Ð[a] volunteer who assists on an intermittent basis for

less than 10 hours per month is not included in the term

ÐpersonnelÑ for the purposes of screening and training if a

person wh o meets the screening requirement of s. 402.305(2) is

always present and has the volunteer in his or her line of

sight . Ñ (emphasis added:. The evidence in this case indicates

that Ms. Daughtry was in a classroom by herself with children,

at a time when t he only other adult was Belle Lewis, who was

screened but disqualified. This Class I violation was proven by

clear and convincing evidence.

67 . Paragraph 4.I(h) alleges that the owner, Jenail

Martin, Ðstruck M.J. [ who is actually M.H. ] in the face with a

spatula, leaving a bruise.Ñ However, the evidence at hearing

demonstrates that while M.H. had a bruise on his face, it could

not be determined whether Ms. Martin caused the bruise or

whether it resulted from a fight between M.H. and another child,

J.M. While hitting a child with a spatula would be a Class I

violation if proven, there is no clear and convincing evidence

to substantiate this charge.

68. In the alternative, paragraph 4.I(h)(a) alleges that

Ðalternatively, a form of discipline used by sta ff included the

use of spanking or some other form of physical punishment.Ñ

There is not clear and convincing evidence presented

demonstrating that Jenail Martin used corporal punishment in

some form with respect to M.H. For reasons discussed below, the

CPT interview of J.M. cannot be a basis for a finding of fact,

and all of the other evidence presented to demonstrate that

Ms. Martin hit M.H. is hearsay that cannot form the basis for a

finding of fact. § 120.57(1)(c) , Fla. Stat . Accordingly , the

Depart ment did not prove the allegation in paragraph 4.I(h)(a)

by clear and convincing evidence.

69. Paragraph 4.I(i) charges Respondent with a Class I

violation for using a form of discipline which Ðincluded the use

of spanking or other form of physical punis hment, in that the

owner, Jenail Martin, struck J.M. with a belt and punched J.M.

in violation of CCF Handbook, Section 2.8, F.1.Ñ

70 . After careful consideration, the Department has not

proven this violation by clear and convincing evidence.

71. Thi s determination requires consideration of two

separate legal concerns, both of which favor Joyful Hearts.

First, a proceeding against a licensee is a penal proceeding,

and is strictly construed in favor of the licensee. Elmariah v.

DepÓt of ProfÓl Reg. , 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor

v. DepÓt of ProfÓl Reg. , 534 So. 2d 782, 784 (Fla. 1st DCA

1988). Moreover, Joyful Hearts can only be found guilty with

what is actually charged in the Administrative Complaint.

Trevisani v. DepÓt of Health , 908 So. 2d 1108 (Fla. 1st DCA

2005); Ghani v. DepÓt of Health , 714 So. 2d 1113 (Fla. 1st DCA

1998); and Willner v. DepÓt of ProfÓl Reg. , 563 So. 2d 805 (Fla.

1st DCA 1990). Here, the Administrative Complain t specifically

alleges that Ms. Martin Ðstruck J.M. with a belt and punched

J.M.Ñ There is no evidence to support a claim that Ms. Martin

punched J.M., even considering her admission that she spanked

him in her home, and the only evidence regarding use of a belt

was her admission that she threatened childr en with a belt to

keep them in line, and the hearsay statements of the children

that she hit them with the belt. While it may be inferred that

Ms. Martin did more than threaten the children with the belt

while at the daycare, that inference is simply not strong enough

to meet the clear and convincing evidence standard. If the

Department had simply alleged that Ms. Martin hit J.M. , as

opposed to punching him, the result might be different, but the

language of the Administrative Complaint controls.

72 . Se cond, after careful consideration of the

requirements of section 90.803(23), Florida Statutes, the

interview of J.M. cannot be used as a basis for a finding of

fact.

73. Section 90.803(23) is very specific and provides in

pertinent part:

(23) HEARSAY EXCEPTION; STATEMENT OF CHILD

VICTIM. Ï

(a) Unless the source of information or the

method or circumstances by which the

statement is reported indicates a lack of

trustworthiness, an out - of - court statement

made by a child victim with a physical,

mental, emotional, or developmental age of

16 or less describing any act of child abuse

or neglect , any act of sexual abuse against

a child, the offense of child abuse, the

offense of aggravated child abuse, or any

offense involving an unlawful sexual act,

contact, intrusion, or penetration performed

in the presence of, with, by, or on the

declarant child, not otherwise admissible,

is admissible in evidence in any civil or

criminal proceeding if:

1. The court finds in a hearing conducted

outside the presence of the jury that the

time, content, and circumstances of the

statement provide sufficient safeguards of

reliability. In making its determination,

the court may consider the mental and

physical age and maturity of the child, the

nature and duration of the abuse or offense,

the relationship of the child to the

offender, the reliability of the assertion,

the reliability of the child victim, and any

other factor deemed appropriate; and

2. The child either:

a. Testifies; or

b. Is unavailable as a witness, provided

that there is other corroborative evidence

of the abuse or offense. Unavailability

shall include a finding by the court that

the childÓs participation in the trial or

proceeding would re sult in a substantial

likelihood of severe emotional or mental

harm, in addition to findings pursuant to

s. 90.80 4 (1). (Emphasis added) .

74 . Section 90.804(1) defines Ðunavailability as a

witnessÑ as meaning that the declarant is exempted by ruling of

a court based upon privilege; the declarant persists in refusing

to testify despite an order to do so; the decla rant has suffered

a lack of memory on the subject matter of his or her statement;

is unable to be present or testify because of death or then -

existing physical illness or infirmity; or is absent from the

hearing, and the proponent of the statement has been unable to

procure his or her attendance by process or other reasonable

means. The Department alleged in its Motion to Allow Child

Victim Hearsay that requiring J.M. to testify would result in

substantial likelihood of severe emotional or mental harm, but

presented no evidence to support this assertion. No evidence to

support a claim of unavailability as defined in section

90.804(1) and specifically required under section 90.803(23) was

offered at hearing. Therefore, while DepartmentÓs Exhibit 16

was adm itted into evidence, it cannot, standing alone, form the

basis for a finding fact. Inasmuch as there is no evidence of

the allegations in the Administrative Complaint that it

corroborates or supplements, the charge alleged at

paragraph 4.I(i) cannot be su stained. 7/

75 . Paragraph 4.I(j) charges Joyful Hearts with a Class I

violation, stating that Ms. Martin Ðstruck J.J. with a black

flip flop, in violation of CCF Handbook, Section 2.8, F.1.Ñ The

only evidence to support this specific violation is the hea rsay

statements of the children and the observation by the

investigator that Ms. Martin was wearing flip flops. This

evidence falls far short of the clear and convincing standard.

76. Of the 10 Class I violations alleged in the

Administrative Complaint, the Department established five by

clear and convincing evidence.

77. Three Class II violations were also charged. The

Department did not address the Class II violations in its

Proposed Recommended Order, but each one will be addressed here.

78 . Th e first one, in paragraph 4.II(a), alleges that Ða

ratio of one staff to four children was required when a ratio of

one staff to six children was observed on November 9, 2018, Ñ in

violation of s ection 402.305(4). No evidence was presented

regarding any ac ti vities taking place on November 9, 2018.

Accordingly, this alleged violation was not proven by clear and

convincing evidence.

79. Paragraph 4.II(b) charges that a ratio of two staff to

13 children was required when a ratio of o ne staff to

13 children was observed on January 4, 2019. The evidence

indicates that there were 11 children in one room, including an

infant.

80 . Section 402.305(4) addresses staff - to - children ratios,

and provides that for children from birth to one year, there

must be one s taff member for every four children; from one year

but under two, one staff member for every six children; from two

years old but under three , one staff member for every

11 children; from three years old but under four, one staff

member for every 15 childr en; and for children five or older,

one staff member for every 25 children. Section 402.305(4)(a)7.

specifies that for children two years of age and older, the

ratio is based on the age group with the largest number of

children within the group. Notably, this rationale does not

apply when infants are included in the group.

81. As applied to the facts of this case, the presence of

an infant required a one - to - four ratio, at least for that child.

Eleven children would have required at least two child care

workers present and eligible to work. Joyful Hearts did not

meet that requirement on January 4, 2019. This violation has

been proven by clear and convincing evidence.

82. Finally, paragraph 4.II.c alleges that a ratio of one

staff member to three chil dren was required on January 11, 2019,

and the staff ratio observed was zero staff members to three

children. Although not well articulated, it appears that this

corresponds to the incident recounted when Belle Lewis left

three children in the building wh ile going out to her car. This

violation is identified in the Cl assification Summary at

Section 3.2 as a Class II violation, and has been proven by

clear and convincing evidence.

83. Section 402.310(1)(b) provides factors to be

considered in imposing di scipline, and charges the Department

with establishing a uniform system of procedures to provide for

the consistent application of disciplinary actions with a view

toward progressive discipline. Rule 65C - 22.010(2)(d) provides

that for the third and subseq uent Class I violations, the

Department shall suspend, deny, or revoke the license. In

addition, it shall impose a fine of $100 to $500 for each of the

first two Class I violations, and may impose an additional fine

in the same amount for any additional C lass I violations. For

Class II violations, the rule provides that for the second

violation of the same Class II standard, the Department shall

impose a fine of $50 for each such violation.

84. The Department proved a total of five Class I

violations, and two Class II violations. The undersigned has

considered the factors identified in section 402.310((1)(b),

namely, the severity of the actions, including the probability

that death or serious harm to the health and safety of any

person; the severity o f the actual or potential harm; the

actions taken by the licensee or registrant to correct or remedy

the complaints; and any previous violations of the licensee.

Here, Joyful Hearts had a clean record before the series of

incidents giving rise to this cas e. However, the deficiencies

identified as a result of this investigation are frightening,

and it is merely fortuitous that no child suffered serious harm.

Parents should be able to rest assured that the people caring

for their children are properly scre ened and eligible to care

for them. That clearly was not happening here.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department enter a f inal o rder

finding Respondent guilty of five Class I v iolations and two

Class II violations. It is further recommended that Respondent

be fined a total of $1,350.00 ($250 for each Class I and $50 for

each Class II), and that its license to operate as a daycare

facility be revoked.

DONE AND ENTERED this 19th day of June , 2019 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 19th day of June , 2019 .

ENDNOTE S

1/ Florida Administrative Code Rule 28 - 106.103 provides in part,

Ð[i]n computing any period of time allowed by this chapter, by

order of a presiding officer, or by any applicable statute, the

day of the act from which the period of time begins to run shall

not be included. . . . When the period of time allowed is less

than 7 days, intermediate S aturdays, Sundays, and legal holidays

shall be excluded in the computation.Ñ

2/ The children that were interviewed in this case are all

approximately four years old and none of them testified at

hearing. T he children and their parents or guardians are

identified by initials in order to protect their identity.

Further, it is noted that one of the victims is referred to in

the Administrative Complain t as M.J. when all evidence related

to this little boy identify him as M.H. There is no indication

that anyone was confused by the wrong initials, and all parties

knew the identity of the child.

3/ These statements are included not for the truth of the matter

asserted, but for the purpose of describing the childrenÓs

claims during the interviews.

4/ The Ðrestriction letterÑ was not offered into evidence by

either party.

5/ Ms. Hai r testified at hearing approximately four and a half

months after this event, and at that time she was heavily

dependent on a walker, and going any distance at all seemed to

be a challenge for her. She had difficulty going from the back

of the courtroom to the witness chair, so she was allowed to

testify from the nearest chair in order to shorten her walk. It

is distressing to imagine anyone with such limited mobility

attempti ng to care for infants.

6/ The Administrative Complaint is replete with references to

the CCF Handbook. However, neither the Handbook nor any

excerpts from the Handbook were offered into evidence.

Similarly, while the Administrative Complaint cites to rule 65C -

22.010, it would have been helpful to include citations to the

specific statutes that the rule implements. However, there is

sufficient detail in the Administrative Complaint to place the

licensee on notice of the charges in this case.

7/ Even assuming that the video could form a basis for a finding

of fact, the video does not include any statement that Jenail

Martin punched J.M.

COPIES FURNISHED:

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

1317 Winewo od Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Jenail Martin

J & A Joyful Hearts Academy

410 South Park Avenue

Titusville, Florida 32780

(eServed)

Brian Christopher Meola, Esquire

Department of Children and Families

Suite S - 1129

400 West Robinson Street

Orlando, Florida 32801

(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 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 exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.