19-004666 Department Of Children And Families vs. Global Learning Of Port Saint Lucie, Inc. Status: Closed Recommended Order on Monday, January 13, 2020.

Summary: Petitioner proved by clear and convincing evidence that Respondent committed a Class I violation by failing to adequately supervise a 5 year-old child who left the classroom during naptime, climbed over a fence and was found later alongside a public road,

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES ,

Petitioner ,

vs. Case No. 19 - 4666

GLOBAL LEARNING OF PORT

SAINT LUCIE, INC. ,

Respondent .

/

RECOMMENDED ORDER

This case came before Administrative Law Judge Robert L.

Kilbride for final hearing by vi deo teleconference, on

November 5, 2019, at sites in Tallahassee and Fort Pierce,

Florida.

APPEARANCES

For Petitioner: Brian Christopher Meola, Esquire

Department of Children and Families

400 West Robinson Street, Suite S - 1129

Orlando, Florida 32801

For Respondent: Eric Benjamin Epstein, Esquire

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

5645 Coral Ridge Drive, Suite 250

Parkland , Florida 33076

STATEMENT OF THE ISSUE S

Whether Respondent, a licensed childcare facility,

committed a Class I violation related to inadequate supervision

of a child as alleged in the Petitioner ' s Amended Complaint ;

and, if so, what is the appropriate penalty.

PRELIMINARY STATEMENT

On July 31, 2019, Petitioner , Department of Children and

Families ( " DCF " ) , iss ued an Administrative Complaint

( " Complaint " ) alleging that Respondent , Global Learning o f

Port Saint Lucie, Inc. ( " Global Learning ") , was in violation of

s ection 2.4.1(B) of the Child Care Facility Handbook. It

further alleged a violation of standard 4.2 found in the Child

Care Facility Standards Classification Summary. Resp . Ex . 16 .

This s temmed from an incident which occurred at its facility on

April 26, 2019.

Respondent requested a formal administrative hearing. On

September 3, 2019, DCF referred the matter to the Division of

Administrative Hearings, and the case was assigned to the

unde rsigned Administrative Law Judge.

DCF subsequently filed a Motion to Amend , which was

accompanied by its Amended Administrative Complaint ( " Amended

Complaint " ). The Amended Complaint alleged again that Global

Learning was in violation of s ection 2.4.1(B) of the Child Care

Facility Handbook, but alleged, i nstead, a violation of

standard 4.3. 1/ The motion was granted, and the hearing

subsequently proceeded under the allegations and violations

outlined in the Amended Complaint.

The final hearing was held on November 5, 2019. DCF called

the following witnesses: Temina Jefferson, family service

counselor; Linda Halpin, child care regular supervisor;

Deanna Lynn Trainor ("Trainor"), child protective investigator;

Jeanette Plesnick ("Plesnick") , a passing moto rist who found the

child; and Kent Kummerfeldt, the young boy ' s father.

Petitioner ' s Exhibits A through G were received in evidence

without objection.

Respondent called the following witness: Janet Higgins

("Higgins") , General Manager of Global Learning . Respondent ' s

Exhibits 1 through 22 were received in evidence without

objection.

Petitioner ordered a T ranscript of the proceeding , which

was filed on December 3, 2019. Both parties submitted proposed

recommended o rders , wh ich were reviewed and given due

consideration in the preparation of this Recommended Order.

Unless otherwise indicated, citations to the Florida

Statutes and rules are to the versions that were in effect at

the time of the alleged wrongful act(s).

FINDING S OF FACT

Based upon the ev idence presented and the record as a

whole, the following Findings of Fact are made:

The parties stipulated to the following facts in their

Joint Pre - He aring Stipulation (paragraphs 1 through 10 below):

1. DCF is a n administrative agency of the s tate of

Florida, charged with the duty to enforce and administer the

provisions of c hapter 402, Florida Statutes , and Florida

Administrative Code Rules 65C - 22.010 and 65C - 20.012 .

2. Global Learning operates a licensed childcare facility

known as Glo bal Learning of Port Saint Lucie, Inc., located at

4333 Southwest Darwin B ou l e v ard, Port Saint Lucie , Florida

34953. The faci lity operates under license/ID No. C19SL0139

issued by DCF with a licensed capacity of 132.

3. At all relevant times, Global Learning was regulated

by DCF according to, inter alia, the following documents:

(i) DCF Child Care Facility Handbook, incorporated by refe rence

in rule 65C - 22.001 ; (ii) CF - FSP Form 5316, Child Care Standards

Classification Summary, Oc tober 2017, rule 65C22.010(1)(e)1. ;

(iii) Florida Department of Children and Families Desk

Reference Guide, updated July 2018; (iv) section 402.281;

(v) s ection 402.305 ; (vi) section 402.310 ;

(vii) section 402.310 ; (viii) rules 65C - 22.001 through 65C -

22.010.

4. As referenced in the Complaint, DCF cited Respondent

with a violation of s tandard 4.2, which states " Class 1

violation; [o] ne or more children were not adequately supervised

in that a child was unsupervised, 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. "

5. As referenced in the Amended Complaint, DCF cited

Respondent with a violation of s tandard 4.3, " Class I

violation; [a] child was not adequately supervis ed and left the

facility premises without child care personnel supervision. "

6. As referenced in the Complaints, DCF imposed a fine

upon Global Learning in the amount of $500.00.

7. As referenced in the Complaints, DCF seeks to revoke

Global Le ar n ing ' s Gold Seal Quality Care designation.

8. At all relevant times, Global Learning held a valid

child care license to provide child care services.

9. At all relevant times, Global Learning possessed a Gold

Seal Quality Care designation.

10. At no time prior to the violation referenced in this

matter did Global Learning ever receive a Class I violation.

Case History a nd Investigation

11. The case began when DCF conducted an investigation into an alleged violation of the Child Care Licensing Standards ,

which occurred on April 26, 2019 , at Gl obal Learning Center in

Port Saint Lucie , Florida.

12. The investigation was prompted after DCF received a

complaint that a young child had left his classroom at the

Global Learning day ca re facility, wandered in the neighborhood

without supervision for some period of time , and was eventually

found by a passing motorist walking on a sidewalk alongside the

road.

13. The assigned DCF investigator visited and inspected

the facility, rev iewed documentation, and conducted interviews

of staff members and other witnesses.

Discovery by a Good Samaritan

14 . The evidence disclosed that a local resident, Jeanette Plesnick, was driving down Kester Street in Port Saint

Lucie , Florida , on the afternoon of April 26, 2019. W hile

driving she spotted a five - year - old child, B.K., walking alone

on the sidewalk with his blanket. The sidewalk ran alongside a

public road.

2 /

15. Out of concern, Plesnick stopped her car and

questioned the child. He was unharmed and in good shape.

Nonetheless, she secured the child and immediately reported the

matter to local law enforcement.

16. Plesnick waited with the boy for law enforcement to

respond . A polic e officer arrived roughly 30 minutes later .

17. Plesnick was familiar with the location of the Global

Learning facility. She estimated that it was a block to a

block - and - a - half away from the location where she found the

young boy.

18 . Plesnick also estimated that it would take her a bout

ten minutes to walk to the day care facility directly from the

location where she found B.K.

19 . The boy ' s father, Kent Kummerfeldt, was notified by

law enforcemen t that his son had left the day care facility.

Kummerfeldt immediately left his job in Palm Beach County and

drove to the day care facility in Port Saint Lucie. His son was

safely back at the day care when he arrived.

20 . Naturally, Kummerfeldt had expected his son to be

educated in a safe environment at Global Learning, and w as

surprised that his son was allowed to leave the facility

unsupervised.

Classroom Incident on April 26, 2019

21 . The essential facts surrounding how, when , and why the

boy departed from his classroom at Global Learning were largely

undisputed.

22 . B.K. told his father that he left the classroom alone

throu gh an exit door , went outside to the children ' s playground ,

and then climbed over the playground fence.

23 . DCF's investigator, Deanna Trainor, interviewed

several of Respondent ' s em ployees, including the classroom

teacher, LaJane James ("James") .

24 . As the facts developed, it was revealed that James was

the only adult teacher in the classroom when the boy left. It

was clear that for some p eriod of time, James was solely

resp onsible for the super vision of B.K. and the other

21 children who were napping in the classroom.

2 5 . More specifically , another teacher assisting James in

the supervision of the classroom ha d left to eat lunch. This

left James alone to watch the nap ping students. There was also

evidence, which the undersigned credited, that the number of

children in the cl assroom exceeded the allowable one to 20 ratio

of students - to - teacher, while James was alone in the classroom.

26 . James told the investig ator that she started cleaning

up the room after she laid the children down for naps. James

admitted that it must have been during that period of time that

B.K. got up off his sleeping cot and went out the door without

her seeing him. 3 /

27 . In the investigator ' s opinion, the class room had loud

acoustics and the exit door B.K. use d to go out to the

playground was also very loud .

28. From the evidence and pictures submitted, the

classroom was large, open , and the view to the exit door was

unob structed. In fact, the pictures revealed that the teachers '

desk area was immediately next to the exit door used by B.K.

29 . Based on Trainor ' s investigation and inspection of the

exit door and surrounding area, she con cluded that it would have

been " hard to miss " if a child opened the classroom door and

went outside. This conclusion by Trainor is credited and

accepted.

30 . Janet Higgins, was the general manager of Global

Learning on the day of the incident. She offered a good deal of

testimo ny regarding the operations, accreditation, training,

licensing , and credentials of Global Learning . 4/

31 . Higgins acknowledged that B.K. was supposed to be

supervised in the classroom at all times. Higgins was not

present in the classroom when the incident occurred, but related

that at approximately 12:30 p.m., as was the normal practice,

the children would have been laid on their mats or cots for

daily naptime.

32 . Higgins acknowledged that the child made his way

outside the facility she ma naged and was eventually found by a

Good Samaritan down the street.

33 . After the incident, Global Learning took remedial

action and made some physical changes to the exit doors,

installing bells and higher doorknobs.

34 . Not surprisingly, James was terminated by Higgins

shortly after the incident.

35 . After concluding its investigation, DCF ultimately

determined that the allegations were verified. This

determination was followed up by the issuance of an

administrative complaint seeki ng sanctions against Global

Learning.

CONCLUSIONS OF LAW

36 . The Division of Administrative Hearings has

jurisdiction of this proceeding pursuant to sections 120.569 and

120.57(1), Florida Statutes.

37 . A proceeding t o impose discipline upon a license e

like Global Learning is penal in nature. As a result, DCF must

prove the violation against Global Learning by clear and

convincing evidence. See generally Dep ' t of Banking & Fin.,

Div. of Sec. & Inv' r Prot. v. Osborne Stern & Co . , 670 So. 2d

932, 933 - 34 (Fla. 1996) and Reich v. Dep ' t of Health, Bd. o f

Med. , 973 So. 2d 1233(Fla. 4 th DCA 2008) .

38 . It is also worth noting that a proceeding of this

nature is " de novo, " and the undersigned is not bound by the

preliminary decision made by the agency. Fla . De p ' t of Transp .

v. J.W.C . Co. , 396 So. 2d 778 (Fla. 1st DCA 1981) and Bo ca Raton

Artificial Kidney Ct r . , Inc. v. Fla . Dep ' t of HRS , 475 So. 2d 260

(Fla. 1st DCA 1985) .

A pplicable Childcare S tatutes, R ules , and Other Standards

39 . A connected and inter related series of regulatory

statutes, rules , and standards come into play and must be read

and considered collectively in this case. These are outlined

below.

40 . First, s ection 402.310 (1)(a) authorizes DCF to impose

discipline against licensed childcar e 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 p er day in addition to or in lieu

of any other disciplinary action imposed

under this section.

41 . Likewise, a related day care statute ,

section 402.281(4)(a), requires that a licensee ' s Gold Seal

Quality Care designation be termin ated upon commissio n of a

Class I violation. This sanction remains in place until the

pr ovider has cleared a period of two years of having no other

Class I violations.

42 . Several administrative rules are also involved in this

case. For instance, a violation of the Child Care Standards

found in Florida Administrative Code Chapter 65C - 22, was alleged

by DCF. That rule provides , in pertinent part:

(5) Supervision.

(a) Children that are delivered to a

location offsite from the facility by someone

other than the pare nt or guardian become the

responsibility of the child care program at

that designated location and time as agreed

upon by the provider and the parent/guardian.

The provider is responsible for the

supervision of the child upon the child ' s

arrival at the de signated point. If a child

is not present at the time of pick - up, prior

to leaving the designated location, child

care personnel must verify the whereabouts of

the child.

(b) Direct supervision means actively

watching and directing children ' s activities

within the same room or designated outdoor

play area, during transportation, any

activity outside of the facility, and

responding to the needs of each child while

in care. Child care personnel at a facility

must be assigned to provide direct

supervision to a specific group of children,

and be present with that group of children at

all times.

(6) Child Care Standards.

Child care programs must follow the standards

found in the " Child Care Facility Handbook, "

October 2017, incorporated herein by

referenc e. The handbook may be obtained from

the Department ' s website at www.myflfamilies

.com/childcare or from the following link:

http://www.flrules.org/Gateway/reference

.asp?No=Ref - 08747 .

43 . DCF alleged in its Amended Complaint that Global

Learning " viol ate[d] section 2.4.1(B) of the Child Care Facility

Handbook . "

44 . Section 2.4.1(B) of that Handbook provides :

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 t imes. Children must never

be left inside or outside the facility, in a

vehicle, or at a field trip location by

themselves . (e mphasis added) .

45 . Finally, and as th e gravamen of this charge,

the s upervision standards found at section 4.3 of the

" St andards Classification Summary , " General

Requirements, outline that a Class I violation occurs

when:

4.3 A child was not adequately supervised

and left the facility premises without staff

supervision .

C hild C are F acility H andbook, s ection 2.4.1 ( B ).

Othe r Applicable Case Law

46. The p enal statutes and rules must be strictly

construed, in favor of the licensee, Global Learning. Munch v.

Dep ' t of Prof ' l Reg., Div. of Rea l Estate , 592 So. 2d 1136

(Fla. 1st DCA 1992); see also Camejo v. Dep ' t of Bus. & Prof ' l

Reg. , 812 So. 2d 583 (Fla. 3d DCA 2002 ).

47 . In its Amended Complaint , DCF alleged a violation of

s tandard 4.3. by Global Learning. This standard prohibits

conduct where " [a] child was not adequately s upervised and lef t

the facility premises with out staff supervision. " C hild C are

F acility Handbook, s ection 2.4.1 ( B ) .

48 . The allegations of fact set forth in the A mended Complaint are the grounds upon which this proceedi ng is

predicated. Trevisani v. Dep ' t of Health , 908 So. 2d 1108 , 1109

(F la. 1st DCA 2005); see also Cottrill v. Dep ' t of Ins . , 685

So. 2d 1371, 1372 (Fla. 1 st DCA 1996). Thus, the scope of this

proceeding is properly restricted to those matters reasonably

framed by DCF in the Amended Complaint. M.H. v. Dep ' t of Child.

& Fam. Servs . , 977 So. 2d 755, 763 (Fla. 2d DCA 2008).

49 . Disciplinary statutes and rules must also be construed using their literal meaning and the language used may not be

expanded to broaden their application. Beckett v. Dep ' t of Fin.

Servs . , 982 So. 2d 94, 99 - 100 (Fla. 1st DCA 2008); Dyer v. Dep ' t

of Ins. & Treas. , 585 So. 2d 1009, 1013 (Fla. 1s t DCA 1991).

50 . Equally true is that c onduct by a licensee is not

considered a violation of a penal statute unless it is reasonably

proscribed by the la nguage of the statute. Any ambiguities

should be cons trued in favor of the licensee. McClung v. Crim.

Just. Stds. & Training Comm ' n , 458 So. 2d 887, 888 (Fla. 5th DCA

1984); Lester v. Dep' t of Prof ' l & Occupational Reg . , 348 So. 2d

923 (Fla. 1st DCA 1977 ).

51 . Having carefully reviewed the record, DCF's A mended Complai nt is properly drafted and provides Respondent with

reasonable notice of the allegations.

52 . " Adequately super vised " is a phrase not necessarily

defined by statute, DCF rule , or in DCF ' s childcare publications.

53 . However, the phrases found in standard 4.3 -- " not

adequately supervised " and " left the premises without staff

supervision " -- are simple, straightforward , and not ambiguous.

They should be ascribed their normal a nd plain meanings.

54 . The undersigned concludes, that even under a strict

construction of the applicable statutes and rules, there is clear

an d convincing evidence to reasonably conclude that the c hild

involved in the incident o n April 26, 2019 , wa s not " adequately

supervised " and " left the premises without staff supervision . "

55 . Other court cases reinforce this determination. It is

well settled that Global Learning is responsible for the actions

or omissions of its employees.

56 . Fo r instance, in A ll Saints Early Learning & Community

Care Center , Inc. v. Dep artment of Children & Families , 145 So.

3d 974 (Fla. 1st DCA 2014 ) , the court aptly noted:

[ A ] licensed child care facility is

responsible not only for administration of

the facil ities in compliance with the

standards set out by the statute and

administrative rule, but is ultimately

responsible for the care, protection, and

supervision of the children entrusted to it.

It follows that as licensees, they are

subject to administrativ e sanctions for

employees ' lapses in supervision at the

li censed facility which endanger a child.

Id. at 977. This is exactly what happened in this case.

57 . It is worth pointing out that the facts surrounding

B.K.'s roadside discovery by the Good Samaritan, while

significant , are not the most relevant. T he case does not turn

on those facts.

58 . This is primarily because this case does not involve a

violation related to the level of imminent harm to B.K. Nor does

it involve whether deat h o r serious injury to the young boy was

likely after he left the facility and wandered along a public

roadway.

59 . Rather, the most relevant , compelling , and essential

facts involved how, why , and under what circumstances the child

was able to leave t he classroom; the adequacy of the supervision

in the classroom ; and whether he left the facility without staff

supervision. These ultimate facts form the crux of determining

whether a Class I violation occurred.

60 . Among other compelling facts foun d herein, a young

child who slips out of a day care ' s closed classroom, literally

and figuratively -- " under the nose " of his teacher -- is not being

adequately supervised. This is particularly true where the staff

is charged by law to oversee and protect the children under their

care. All Saints , 145 So. 3d at 974 .

61 . Having c arefully considered the facts, the undersigned conclude s that Global Learning committed the alleged Class I

violation outlined in the Amended Complaint by not adequately

supervi sing a child in its care and by allowing B.K. to leave the

facility without staff supervision.

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 orde r: (1 ) Finding that Global

Learning violated Handbook Ru le 2.4.1(B) and, by reference,

standard 4.3.; (2) Imposing a fine i n the amount of $500.00 ;

and (3) Revoking Global Learning ' s Gold Seal Quality Care

Designation, as required by law.

DONE AND ENTE RED this 13 th day of January , 2020 , in

Tallahassee, Leon County, Florida.

ROBERT L. KILBRIDE

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 13 th day of January , 2020 .

ENDNOTE S

1/ Both standards are found in the Child Care Facility Standards

Classif ication Summary issued by DCF. Resp . Ex . 17 .

2/ There were no other adults or staff members with B.K .

3/ James told the police officer a different story and said she

was working at her desk doing planning for the next week w hen

the boy left the classr oom.

4/ Counsel solicited, without objection, a great deal of

evidence regarding these topics and they were given the weight

they deserved. However, as noted infra, the crux of the issue,

and of particular importance to the undersigned, was whether the

clear and convincing evidence proved that Global Learning had

adequately supervis ed B.K. on the day in question.

COPIES FURNISHED:

Eric Benjamin Epstein, Esquire

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

5645 Coral Ridge Drive , Suite 250

Parkland, Florida 33 076

(eServed)

Laurel Hopper, Esquire

Department of Children and Families

337 North U.S. Highway 1 , Suite A

Fort Pierce, Florida 34950

(eServed)

Brian Christopher Meola, Esquire

Department of Children and Families

400 West Robinson Street , Suite S - 1129

O rlando, Florida 32801

(eServed)

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

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)

Chad Poppell , Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGH T 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.