19-002343 Department Of Children And Families vs. A Child's World Childcare And Preschool, Inc. Status: Closed Recommended Order on Tuesday, September 3, 2019.

Summary: AHCA failed to prove by clear and convincing evidence that incident posed an imminent threat to child which could or did result in death or serious harm. Recommended dismissal of Administrative Complaint alleging Class I violation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 19 - 2343

A CHILD ' S WORLD CHILDCARE AND

PRESCHOOL, INC.,

Respondent.

_______________________________/

RECOMMENDED ORD ER

This case came before Administrative Law Judge Darren A.

Schwartz of the Division of Administrative Hearings ( " DOAH " ) for

final hearing by video teleconference on July 15, 2019, at sites

in Tallahassee and Fort Pierce, Florida.

APPEARANCES

For Pet itioner: Laurel Hopper, Esquire

Department of Children and Families

337 North U.S. Highway 1, Suite A

Fort Pierce, Florida 34950

For Respondent: Mark J. Stempler, Esquire

Becker & Poliakoff, P.A.

625 North Flagler Drive, 7th Floor

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Petitioner, Department of Children and Families

( " Department " ), established by clear and convin c ing evidence

that Respondent, A Child ' s World Childcare and Preschool, Inc.

( " A Child ' s World " ), committed a Class I violation; and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

On March 27, 2019, the Department issued an Administrative

Com plaint against A Child ' s World, alleging that the day care

facility committed a Class I violation of the Child Care

Facility Handbook, s ection 2.4.1.B., by failing to provide

adequate supervision of a child ( " K.P. " ) at the facility. The

Department seeks t o impose an administrative fine against A

Child ' s Wor ld in the amount of $500.00 and terminate its

Gold Seal Quality Care designation.

On April 23, 2019, A Child ' s World timely filed a Request

for Formal Administrative Hearing. On May 6, 2019, the

Depart ment referred the matter to DOAH to assign an

Administrative Law Judge to con duct the final hearing. On

May 14, 2019, the undersigned set the final hearing for July 15,

2019. On July 3, 2019, the parties filed their Joint Pre -

hearing Stipulation.

The f inal hearing was held on July 15, 2019, with both

parties present. At the hearing, the Department presented the

testimony of Robyn Pomeren and Kathleen Walters. The

Department ' s Exhibits 1 through 5 and 7 through 9 were received

in evidence upon stipulat ion of the parties. A Child ' s World

presented the testimony of Malissa Morgan, Kristin Colburn,

Jocelyn Martinez, and Tom Peer. A Child ' s World ' s Exhibits 1

through 17 were received in evidence upon stipulation of the

parties.

The two - volume final heari ng Transcript was filed on

July 30, 2019. On July 31, 2019, the parties filed a joint

motion to extend the deadline until August 16, 2019, to file

proposed recommended orders. On July 31, 2019, the undersigned

entered an Order granting the motion. The p arties timely filed

proposed recommended orders, which were considered in the

preparation of this Recommended Order.

The facts set forth in the Joint Pre - hearing Stipulation

have been incorporated below. Unless otherwise indicated, all

references to the Florida Statutes and Florida Administrative

Code are to those provisions in effect on the date of the

alleged incident.

FINDING S OF FACT

1. The Department is responsible for the enforcement of

sections 402.301 through 402.319, Florida St atutes , go verning

the regulation of child care facilities in Florida.

2. Since 2003, A Child ' s World has operated continuously

as a licens ed child care facility at 703 Southwest 6th Street,

Okeechobee, Florida.

3. By all accounts, A Child ' s World is an exemplary

facility. A Child ' s World is recognized as a Tier 4 provider by

the Early Learning Coalition, the highest quality indicator in

the community. Since 2004, A Child ' s World has been Gold Seal

accredited.

4. The incident giving rise to the Administrative

Complaint occurred on January 29, 2019, at the child care

facility.

5 . In August 2018, K.P. began attending A Child ' s World

along with her older sister, A.P. On the date of the incident,

K.P. was four years old and A.P. was five years old.

6. During the morning of January 29, 2019, K.P., A.P., and

other children were playing on the outdoor fenced - in playground

at the facility. At that time, all of the children were

supervised by a teacher.

7. Subsequently, Angela Osterman, c ente r d irector for

A Ch ild ' s World, called for A.P to be brought from the

playground to the office for dismissal. When K.P. went to the

office along with A.P., Ms. Osterman brought K.P. back to the

playground and brought her directly to Deion Hayes, the teacher

responsible for the group of children still on the playground.

Subsequently, Ms. Osterman made an intercom announcement to all

staff not to allow K.P. to accompany her sister when only the

sister is called for dismissal.

8. At 11:55 a.m. , the children and teacher ca me inside the

building from the playground. However, K.P. was left outside on

the playground, alone and unsupervised because the teacher who

was responsible for her confused his " head count " of the

children when he brought the children back in the buildin g. 1/

9. K.P. was alone and unsupervised playing on the

playground for approximately 40 minutes.

10. At 12:37 p.m., K.P. exited th e playground by climbing

a five - feet high chain - link fence , which surrounds the perimeter

of the playground. A lmost immediately, facility staff saw K.P.

standing close to the front of the building (approximately three

and one - half to four feet from the building) in front of the

infant room, playing with rocks in a flower bed, at which time

K.P. was retrieved and b rought back inside the building for an

immediate evaluation.

11. K.P. never left the facility premises. A video

recording shows K.P. on the playground, alone; climbing over the

fence at 12:37 p.m.; and being retrieved and brought back inside

th e building almost immediately thereafter.

12. K.P. was not injured or in any distress following the

incident. In fact, K.P. was smiling and in very good spirits

following the incident.

13. Under the particular facts of this case, the Department

failed to prove by clear and convincing evidence that the

inadequate supervision of K.P. posed an imminent threat which

could or did result in her death or serious harm to her health,

safety, or well - being.

14. At 1:12 p.m., Malissa Morgan, the own er of the

facility, self - reported the incident. In addition, K.P. ' s

mother was contacted and came to the school. K.P. ' s mother kept

K.P. in school for the remainder of the day and K.P. returned to

the school the very next day.

15. A Child ' s World fired Mr. Hayes on January 29, 2019.

In addition, the next day, A Child ' s World conducted a full

retraining of its staff and imposed stricter policies regarding

supervision.

16. K.P. continued attending A Child ' s World for months

after the incident and returned after summer vacation. K.P. and

A.P. are currently enrolled for this new school year. 2/

CONCLUSIONS OF LAW

17. DOAH has jurisdiction over the parties and subject

matter of this proceeding pursuant to sections 120.569 and

12 0.57(1), Flor ida Statutes .

18. 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, the Department must prove its allegations again st

A Child ' s World by clear and convincing evidence. Dep ' t of

Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern &

Co. , 670 So. 2d 932, 933 - 34 (Fla. 1996).

19. The " clear and convincing evidence " standard requires

that the evidence must be found credible; the facts to which the

witnesses t estify be distinctly remembered; the testimo ny 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 i n 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 Davey , 645 So.

2d 398, 404 (Fla. 1994); Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983).

20. I n addition, the violations of statutes and rules must

be those specifically alleged in the administrative complaint.

Cottrill v. Dep ' t of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA

1996). Due process prohibits a governmental agency from taking

penal actio n against a licensee based on matters not

specifically alleged in the charging document. Id. ; see also

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 to have been violated. " ).

21. In this case, the October 25, 2017, version of Florida

Administrative Code Rule 65C - 22.010, in effect on January 29,

2019, defines a " Class I Violation " as " an incident of

noncompliance with a Class I standard as described on CF - F SP

Form 5316, October 2017. Child Care Facility Standards

Classification Summary, which is incorporated by reference. "

(emphasis added).

22. In its Proposed Recommended Order, the Department

specifically relies solely on s ection 4.2 of the Child Care

F acility Standards Classification Summary in effect at the time

of the incident.

23. Section 4.2 of the Child Care Facility Standards

Classification Summary, expressly provides as follows:

4.2 One or more children were not

adequately supervised in that [ ], which

posed an imminent threat to a child, and

could or did result in death or serious harm

to the health, safety or well - being of a

child.

24. Thus, to rise to the level of a Class I violation, it

is not enough for the Department to show by clear and convincing

evidence that a child was not adequately supervised. The

Department must specifically allege and establish, by clear and

convincing evidence, that a child was not adequately supervised,

" which posed an imminent threat to a child, and could or did

result in death or serious harm to the health, safety or well -

being of a child. "

25. Because of the penal nature of this proceeding, this

" rule must be construed strictly, in favor of the one against

whom the penalty would be imposed. " Munch v . Dep ' t of Prof ' l

Reg., Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA

1992).

26. In this case, the Administrative Complaint makes no

mention of the Child Care Facility Standards Cla ssification

Summary, let alone s ection 4.2 or any other speci fic licensing

standard in the Child Care Facility Standards Classification

Summary. The Administrative Complaint also fails to allege that

the incident " posed an imminent threat " to K.P. " and could or

did result in death or serious harm to the health, saf ety, or

well - being of a child. " In fact, the word " imminent " is notably

absent from the Administrative Complaint. Although the

Administrative Complaint references " serious risk factors " and

" significant risk of harm, " that is not the same as the

requirem ent to allege an imminent threat. " Imminent " is a term

which encompasses a narrow time frame and means " impending " and

" about to occur. " J.B.M. v. Dep ' t of Child . & Fams . , 870 So. 2d

946, 951 (Fla. 1st DCA 2004). An imminent threat is essential

to a fin ding of a Class I violation. On this ground alone, the

Administrative Complaint should be dismissed.

27. In any event, as detailed above, the incident did not

pose an imminent threat of harm to K.P. that could or did result

in death or serious harm to her health, safety , or well - being.

K.P. played on the playground for approximately 40 minutes

wi thin the perimeter of the chain - link fence and was retrieved

almost immediately after she climbed over the fence. K.P. was

retrieved just a few feet from the building while playing in a

flower bed and she never left the facility. She was in good

spirts and unharmed.

28. This is not to say that the undersigned condones K.P.

being left unsupervised on the facility premises. The

Department could have charged a lesser offense, one that does

not require proof of imminent harm that could or did result in

deat h or serious harm to the safety or well - being of a child.

However, the Department chose to charge the most serious of

offenses, a Class I violation, which r equires clear and

convincing evidence of inadequate supervision , which posed an

imminent threat to a child, and could or did result in death or

serious harm to the health, safety , or well - being of the child.

The Department failed to meet its heavy burden of establishing a

Class I violation. 3/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion s of

Law, it is RECOMMENDED that the Department of Children and

Families enter a final order finding that A Child ' s World did

not commit a Cla ss I violation and dismissing the Administrative

Complaint.

DONE AND ENTERED this 3rd day of September , 2019 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

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 3rd day of September , 2019 .

ENDNOTE S

1/ De ion Hayes failed to account for K.P. upon exiting the

playground and returning to the building with the ot her

children. Kayla James was A Child ' s World 's teacher , who

relieved Mr. Hayes for his lunch break and took over supervision

of the group o f children on the playground, includin g K.P. Ms.

James relieved Mr. Hayes for his lunch break at noon time and

noticed that K.P. was not present, but she thought K.P. had gone

home earlier when her sister was released.

2/ There is a ditch located approx imately 45 feet from where

K.P. exited the playground. The Department asserts that the

ditch had water in it on th e date of the incident, while

A Child ' s World contends there was no water in the ditch on the

date of the incident. The undersigned conclude s that the ditch

did not have water in it on the date of the incident.

In reaching this conclusion, the undersigned observed the

demeanor and carefully considered the testimony of the witnesses

and evidence presented at hearing. The undersigned was more

persuaded by the evidence and testimony presented by A Child ' s

World than the evidence and testimony presented by the

Department. In any event, K.P. did not walk near the ditch on

the date of the incident.

There is also a road which borders t he facility ' s premises.

During the time period in which the incident occurred , there was

little traffic on the road. In any event , K.P. did not walk

toward the road.

3/ A Class I violation is the most serious type of violation and

would automatically r esult in the termination of A Child ' s

World ' s Gold Se al designation until it has no C lass I violations

for a period of two years. § 402.281(4)(a), Fla. Stat.

Because a Class I violation necessitates a threshold

finding that the inadequate supe rvision " posed an imminent

threat to a child, and could or did result in death or serious

harm to the health, safety or well - being of the child, " and the

undersigned made a factual and dispositive determination that

the inadequate supervision did not pose an imminent threat of

harm to the health, safety, or well - being of K.P., it is

unnecessary for the undersigned to address whether A Child' s

World violated s ection 2.4.1.B. of the Child Care Facility

Handbook.

In any event, section 4.3 of the Child C are Standards

Classification Summary, in effect at the time of the incident,

which references s ection 2.4.1.B of the Child Care Facility

Handbook, states: " A child was not adequately supervised and

left the facility premises without staff supervision. "

s ection 4.10 of the Child Care Standards Classification Summary,

in effect at the time of the incident, further states: " A child

was left behind in a vehicle at the facility, on a field trip,

or an activity away from the facility. " As detailed above, K.P.

never left the facility.

COPIES FURNISHED:

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Ellyn S. Bogdanoff, Esquire

Becker & Poliakoff, P.A.

1 East Broward Boulevard , 18th Floor

Fort Lauderdale, Florida 33301

(eServed)

Laurel Hopper, Esquire

Department of Children and Families

337 North U.S. Highway 1 , Suite A

Fort Pierce, Florida 34950

(eServed)

Mark J. Stempler, Esquire

Becker & Poliakoff, P.A.

625 North Flagler Drive , 7th Floor

West Palm Beach, Florida 33401

(eServed)

Javier Enriquez, General Counsel

D epartment of C hildren and F amilies

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Chad Poppell, Secretary

D epartment of C hildren and F amilies

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the d ate 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.