19-002417 Department Of Children And Families vs. Our Children's Workshop Status: Closed Recommended Order on Friday, October 4, 2019.

Summary: Failure to contest Notice of Violation charging Class I violation results in termination of Gold Seal designation for 2 years from the date of the incident.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES ,

Petitioner,

vs. Case No. 19 - 2417

OUR CHILDREN'S WORKSHOP ,

Respondent.

_______________________________/

RECOMMENDED ORDER

On July 1, 2019 , Robert E. Meale, Administrative Law Judge

of the Division of Administrative Hearings (DOAH), conducted the

final hearing by videoconference in Lauderdale Lakes and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Stefanie Beach Camfield, Esq uire

Department of Children and Families

Building 2, Room 204Z

13 17 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

For Respondent: Mark J. Stempler, Esq uire

Becker & Poliakoff, P.A.

Seventh Floor

625 North Flagler Drive

West Palm Beach, Florida 3340 1

STATEMENT OF THE ISSUE

The issue is whether Petitioner may revoke Respondent's

designation as a Gold Seal Quality Care (Gold Seal) provider of

child care services, pursuant to section 402.281(4)(a) and (5),

Florida Statutes (2017).

PRELIMINARY STATEM ENT

On October 10, 2017, the Broward County Child Care

Licensing and Enforcement Office (County Office) issued to

Respondent a Notice of Violation (NOV) in connection with

Respondent's license to operate a child care facility. The NOV

alleges that, on the same date, 16 children departed from a

12 - passenger van.

The NOV states that Broward County Ordinance (Ordinance)

section 7 - 11.11(g) provides Respondent with the right to request

a hearing within 15 days from receipt of the NOV to contest the

allegations of the NOV. Absent a timely request for a hearing,

the NOV warns that "the [alleged] violation(s) shall be d eemed

to have ex isted and the [R espondent] waives the right to contest

the substantive issues contained in the [NOV] at a later date."

On May 18, 2018, the County Office issued an Administrative

Complaint against Respondent seeking an administrative fine of

$100 for the violation alleged in the NOV . The Administrative

Complaint alleges that Respondent committed a Class I violation

on October 10, 2017, by "having more children in [its] van than

determined acceptable by the manufacturer's designated seating

capacity": sp ecifically, 16 children departed from a vehicle

with a capacity of 12 persons, including the driver, in

violation of Florida Administrative Code Rule 65C - 22.001(6)(d)

and Ordinance section 7 - 11.12(f)(1) and (g)(1).

Respondent never requested a hearing in response to the NOV

or the Administrative Complaint. On November 30, 2018,

Petitioner issued a letter of intent (LOI) to terminate

Respondent's Gold Seal for the Class I violation cited in the

Administrative Complaint. The LOI gives Respondent 21 calend ar

days from receipt for Respondent to request a hearing.

On December 31, 2018, Respondent filed a Request for Formal

Administrative Hearing. The request states that Respondent

received the LOI on December 11. The request claims that the

loss of the Gold Seal would cause the financial failure of

Respondent and contests the allegations concerning the

over - capacity passenger van, claiming that the van contained 15

or 16 seat belts for passengers and another seat belt for the

driver and that only 15 children had occupied the van. The

request contends alternatively that the County Office had

previously approved the van without finding that the

transporting of 15 children in the 15 available seat belts would

constitute a violation of any sort.

Petitioner trans mitted the case to DOAH on May 13, 2019 ,

and t he hearing took place as originally scheduled. Petitioner

called three witnesses and offered into evidence six exhibits:

Petitioner Exhibits C, D, E, G, H, and M. Respondent called one

witness and offered into evidence two exhibits : Respondent

Exhibits 4 and 5. All exhibits were admitted.

The court reporter filed the transcript on Ju ly 19 , 201 9 .

The parties filed proposed recommended orders by August 5, 2019 .

FINDINGS OF FACT

1. For over 20 years , Respondent has operated a licensed

child care facility in Pompano Beach. For several years ,

Respondent has held a Gold Seal designation for this facility .

2. On October 10, 2017, a County Office inspector

observed 16 children exiting a "12 - passenger" van owned and

operated by Respondent for the transport of child ren enrolled in

its day care facility. At the facility, t he inspector prepared

the NOV, which, citing r ule 65C - 22.001(6)(d), characterize s

the offense as a Class I violation and , citing Ordinance

section 7 - 11.11(g) , g ives Respondent 15 days within which to

request a hearing on the alleged violation. The inspector

served the NOV on Respondent on October 10, 2017.

3. Respondent did not timely request a hearing on the

violation al leged in the NOV .

4 . O n May 20, 2018, the County Office issued the

Administrative Complaint, which propos es an administrative

fine of $10 0. The Administrative Complaint largely tracks

the NOV, except that it contends in the alternative that

rule 65C - 22 .001(6)(d) limits the maximum n u mber of children who

may be transported in the van to the manufacturer's designated

seating capacity or the number of factory - installed seat belts. 1 /

The Administrative Complaint gives Respondent 15 days within

which to request a hearing on the administrative fine.

5 . Again, Respondent took no action other than, a t some

point, to pay the fine.

6 . The present dispute arose when Petitioner issued the

LOI to terminate Respondent's Gold Seal designation , which is

unmentioned in the NOV and Administrative Complaint. Although

the number of children on the van appears not to be in dispute ,

there are substantial disputed questions of fact concerning the

passen ger capacity of the van and the number of seat belts --

factory - installed and otherwise -- present in the van on the date

of the inspection. However, these issues could only have been

addressed in a hearing on the NOV .

7 . Broward County is one of four counti es in Florida to

have entered into a contract with Petitioner to administer and

discipline the licenses of child care providers .

8 . The record fails to reveal why Petitioner did not issue

the LOI for more than one year after the deemed termination of

Re spondent's Gold Seal designation 2 / or why Petitioner did not

transmit the file to DOAH for nearly five months after the

receipt of Respondent's request for hearing in response to the

LOI. It is clear, however, that the responsibility for these

delays does not rest with Respondent. 3 /

CONCLUSIONS OF LAW

9. DOAH ha s jurisdiction. §§ 120.569 and 120.57(1 ) , Fla.

Stat. (2017).

10. As applicable to a Class I violation, a provider is

ineligible for a Gold Seal designation if it has had a Class I

violation " wi th in the 2 years prior to its application. "

§ 402.281(4)(a). Likewise, a commission of a Class I violation

is a ground for termination of a Gold Seal designation "until

the provider has no [C]lass I violations for a period of

2 years." § 402.281(4)(a). The two - year statutory timeframes

are based on violations, not agency determinations of

violations.

11. Respondent complains that the NOV does not warn that a

Class I violation results in the loss of a Gold Seal

designation. This is no defense. It wou ld be untenable for the

law to restrict the consequences of unlawful acts or omissions

by a regulated party only to those consequences of which the

party was aware could be imposed for a particular violation of

law.

12. Appearing to refine its ignorance - o f - the - law argument,

Respondent complains that Petitioner may not impose greater

discipline than that cited in the NOV or Administrative

Complaint, neither of which , as noted above, mentions the

termination of the Goal Seal designation. It is true that due

process prohibits an agency from imposing discipline more severe

than the discipline that it has chosen in the charging document.

Williams v. Turlington , 498 So. 2d 468 (Fla. 3d DCA 1986).

However, Will ia ms is inapplicable to the present case . T he loss

of the Gold Seal designation for a Class I violation within the

preceding two years is not a disciplinary penalty. The loss of

the Gold Seal designation arises by operation of law, not by the

exercise of any discretion vested in Petitioner or the County

Office , which are free only to choose discipline ranging from an

administrative fine to revocation . Respondent's Williams - based

argument thus is merely a variant of its unavailing ignorance - of - the - law defense.

13. Respondent contends that Petiti oner was required to

prosecute the proposed termination of the Gold Seal designation

in the same proceeding as the proposed Class I violation and is

thus barred from prosecuting the proposed termination at this

time . Although Respondent produced a recommended order so

concluding, the obvious flaw in the argument and recommended

order is that the determination of a Class I violation is a

condition precedent to the termination of the Gold Seal

designation . Strictly s peaking, the commencement of a

proceeding to terminate a Gold Seal designation is premature

until the final determination of a Class I violation within the

applicable timeframe. Petitioner routinely choose s to prosecute

both issues in the same proceeding, but t his casual practice

does not imply that , if Petitioner does not prosecut e both

claims in the same proceeding , it is barred from later

prosecuting the Gold Seal termination claim on the ground of

some sort of administrative splitting of a cause of act ion.

14. This case illustrates a second reason why the

prosecution of the Gold Seal termination is not required in the

same proceeding as the prosecution of the underlying violation .

The jurisdiction to prosecute the Class I violation in this case

is ves ted in the County Office, not Petitioner.

15. Section 402 .306(1)(b) authorizes a county whose

licens ing standards meet or exceed state minimum standards to

contract with Petitioner for the county to administer the state

minimum standards. As found above , Broward County and

Petitioner have entered into such a contract.

16. Section 402 .310(1)(a) authorizes Petitioner or a local

licensing agency - - here, the County Office -- to impose a range of

discipline, from an administrative fine to revocation, against

the license of a child care provider for a covered violation. 4 /

But t he procedures governing disciplinary proceedings against

the providers of day care facilities are different, depending on

which agency is prosecuting the case.

17. Section 402 .306(2) requires Petitioner to proceed in

accordance with chapter 120 , Florida Statutes . Governed by

chapter 120, Petitioner must proceed with a final order, which,

as required by section 120.52(2), must be in writing and , as

required by section 120.569(1), must advise the nonagency party

of its right to judicial review, absent which a final order

departs from the essential requirements of law and may be

quashed on appeal . 5 / Thus, in a chapter 120 proceeding, the

absence o f a final order determining a Class I violation would

leave unsatisfied a condition precedent to the termination of a

Gold Seal designation.

18. B ut section 402 .306(3) impliedly relieves a local

licensing agency from the burden of compliance with chapte r 120.

Not mentioning chapter 120, s ection 402 .306(3) requires a local

licensing agency only to notify the provider of the grounds for

discipline, and, if the provider fails to request timely a

hearing, "the license shall be deemed denied, suspended, or

r evoked." 6 / Accordingly, Ordinance section 7 - 11.11(c) provides

that, if the County Office finds a Class I violation, it shall

issue a n NOV , and Ordinance section 7 - 11.11(g) adds that the

violation "shall be deemed to have existed" if the provider

fails timely to request a hearing on the NOV.

19. Therefore, u nder the present facts, as of October 26,

2017, the Class I violation on October 10, 2017, was deemed to

exist by operation of law .

20. As noted above, the two - year windows during which a

provider may not file an application for a Gold Seal designation

or a provider's existing designation is terminated run from the

date of the violation, not from any subsequent date, such as a

final order sustaining a n NOV or a LOI. In cases not involving

local licensing agencies, Petitioner may preserve a substantial

portion of the two - year termination period by simultaneously

prosecuting the underlying violation and the termination of the

G old Seal designation . In this case , though , the two - year

periods of termination and ineligibility will have expired

before Petitioner issues its final order.

RECOMMENDATION

It is

RECOMMENDED THAT the Department of Children and Families

enter a final ord er determining that Respondent's Gold Seal

designation was terminated, and it was ineligible to apply for a

new Gold Seal designation, from October 10, 2017, through

October 10, 2019.

DONE AND ENTERED this 4th day of October, 2019 , in

Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 4th day of October , 201 9 .

ENDNOTES

1 / The new, alternative claim about seat belts is inconsistent

with the fact that the first claim about passenger capacity had

been deemed established months earlier.

2 / As explained in the Conclusions of Law, the termination of

the Gold Seal designation runs from the violation, not a

determination of guilt by Petitioner or a local licensing agency

or a later determination by Petitioner that the conditions

pr ecedent for the termination have been satisfied. Thus, any

hearing on a L OI, whenever it may be issued, is a post -

termination hearing. The extent to which such a procedure,

including the failure of Petitioner to issue a L OI promptly,

comports with proced ural due process is a matter left to the

courts, not DOAH or Petitioner.

3 / The administrative law judge bears responsibility for

the delay after July 1, 2019, when he erroneously denied

Petitioner's Motion for Summary Judgment filed on June 24, 2019.

T he administrative law judge recognized that the defenses raised

by Respondent were legally insufficient, but denied the motion

due to the omission of a final order determining the existence

of the alleged Class I violation.

4 / This R ecommended O rder addr esses only Class I violations, but

certain Class II and III violations may also result in the

termination of a Gold Seal designation.

5 / See, e.g. , Denson v. Sang , 491 So. 2d 288 (Fla. 1st DCA 1986)

(per curiam).

6 / If the provider timely requests a hearing, the county

commission shall designate a person to conduct a hearing.

§ 402.310(3). Also, the provider may appeal a decision of the

local licensing agency to the department, which shall appoint

a representative to hear the appeal in accordance with

chapter 120. § 402.310(4).

COPIES FURNISHED:

Stefanie Beach Camfield, Esquire

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Mark J. Stempler, Esquire

Becker & Poliakoff, P.A.

Seventh Floor

625 North Flagler Drive

West Palm Beach, Florida 33401

(eServed)

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

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 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 Rec ommended Order should be filed with the agency that

will issue the Final Order in this case.