19-005807 Dr. D.D. Brown Christian Academy Of Hope vs. Department Of Children And Families Status: Closed Recommended Order on Wednesday, September 2, 2020.

Summary: Petitioner proved that cook who provided meals for both daycare and private K-12 school was "child care personnel" subject to background screening requirements; Petitioner did not prove same with respect to member of board of directors.

A PPEARANCES

For the Department of Children and Families :

Ste f anie Beach Camfield, Esquire

Department of Children and Families

Building 2, Suite 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

For Dr. D.D. Brown Christian Academy of Hope :

Erroll Washington, pro se

Dr. D.D. Brown Christian Academy of Hope

907 Southwest 3rd Street

Ocala, Florida 34471

S TATEMENT OF T HE I SSUE

Whether Respondent’s 1 religious exemption from licensure as a child care

facili ty, pursuant to section 402.316, Florida Statutes, should be revoked as

alleged in the Administrative Complaint dated March 18, 2019.

P RELIMINARY S TATEMENT

On March 18, 2019, the Departmen t of Children and Families

(“Petitioner” or “Department”), issued an Administrative Complaint

(“Complaint”) notifying the Dr. D.D. Brown Christian Academy of Hope

(“Respondent” or “ the Academy” ), it intended to revoke Respondent’s religious

exemption for a child care facility based on Respondent’s failure to comply with required background screenings of child care personnel. Respondent

timely requested an administrative hearing to contest the revocation.

Respondent subsequently notified the Department that it intended to

operate as a child care facility under the religio us exemption provision; and,

1 Re ferences herein to Petitioner are to the Department of Children and Families, and

references to Respondent are to Dr. D.D. Brown Christian Academy of Hope.

on May 23, 2019, the Department issued to Respondent a Notice of Denial of

said notification, based on the pending prior Complaint. On June 14, 2019,

Respondent requested an administrative hearing to contest the denial.

On Oct ober 30, 2019, the Department referred both cases to the Division

of Administrative Hearings (“Division”) to conduct an administrative hearing.

The cases were assigned to the undersigned, who entered an Order of

Consolidation of the two cases on November 1 3, 2019. The final hearing was

scheduled for March 12, 2020, but was subsequently rescheduled to April 14,

2020, at the request of Respondent. The final hearing was heard, in part, on

April 14, 2020, and was continued to, and concluded on, June 11, 2020, v ia

Zoom Conference.

At the final hearing, the Department presented the testimony of Shelley

Tinney and Barbara Brinkley. Department Exhibits A through D and G were

admitted into evidence. Respondent presented the testimony of Erroll Washington. The unders igned held the record of the proceeding open for

submittal of Respondent’s Composite Exhibit 1, which was timely received,

and the record was closed on June 18, 2020.

The final hearing was recorded and the Department ordered the

Transcript. A Notice of Fi ling Transcript was filed on June 30, 2020. On

July 10, 2020, the Department filed an Unopposed Motion for Extension of

time for the parties to file p roposed recommended orders (“PRO s”), which was

gra nted and the filing date for PRO s was set for July 30, 2 020. On July 30,

2020, the Department filed a second Unopposed Motion for Extension of Time to fil e PRO s, which was granted.

2

2 In the Motion, the Department represented that Respondent had not received the

Transcript, which was filed on June 30, 2020, until July 29, 2020. The M otion did not contain

a reason for the delay .

Petitioner timely filed a PRO on August 20, 2020, which has been

considered by the undersigned in preparation of this Recommended Order.

Respondent did not timely file a PRO .

Except as otherwise noted, all statutory references are to the 2018

codification of the Florida Statutes, which was in effect when the Complaint

was filed.

F INDINGS OF F ACT

1. The Department is the state agen cy responsible for licensing and

disciplining “child care facilities,” as that term is defined in section 402.302, Florida Statutes (2020).

2. Respondent is an entity which operates both a Pre - K through 12th

grade private school (“the school”) and a child care facility, Dr. D.D. Brown

Christian Academy of Hope Early Learning Center (“the daycare”), in Ocala,

Florida.

3. The daycare is a “child care facility” as defined by section 402.302.

4. The daycare is exempt from licensure by the Department as a facil ity

“which is an integral part of a church,” pursuant to section 4 02.316 . The

Department has issued to the Academy child care license exemption number

X05MA0214 for the daycare.

5. All child care facilities with a religious exemption are subject to the

bac kground screening requirements, set forth in sections 402.305 and

402.3055, for all child care personnel. “Failure by a facility to comply with such screening requirements shall result in the loss of the facility’s exemption

from licensure.” § 402.316, Fla . Stat.

6. Exempt facilities are also subject to “school readiness inspections”

performed by the Department for child care facilities which receive public

school readiness funding.

7. On March 18, 2019, the Department issued the Complaint against the

Acade my for failure to comply with the background screening requirements

for Erroll Washington and Jeanette Crowell. In the Complaint, the

Department alleged that Mr. Washington was screened on March 8, 2019,

and was determined to be ineligible to work in the f acility. The Complaint

alleged that Ms. Crowell “has not yet been screened.”

The Campus

8. The Academy is owned and operated by the Greater Apostolic Outreach

Holy Church of God, Inc. (“the Church”), a non - profit corporation organized

under Florida law in September 1991. Dr. Deborah Brown - Washington is the

Church President and Registered Agent.

9. The daycare and the school are located on the same grounds as the

physical church building. The property will be hereinafter referred to as “the campus.”

10. The daycare and school are connected by a sidewalk. Entry to the

daycare and the school can be obtained from the sidewalk, independent of the other buildings.

11. A cafeteria is located on the campus between, and connected to both,

the daycare and the school .

12. From the daycare, one can access the cafeteria via a covered

breezeway connecting the two buildings.

13. Access to the school from the cafeteria can be obtained either through

double doors at the back of the cafeteria (which open into the administra tive

offices of the school) or via the sidewalk.

14. The cafeteria is integral to both the daycare and the school because it

is the location in which the students are served meals on a daily basis.

15. The church is freestanding and located across the park ing lot from the

daycare and school.

16. In addition to the Academy, the Church also operates other churches,

at least one of which is located in Texas, and another in Atlanta, as well as

some small businesses. These operations are not located on the camp us and

are not the subject of the Complaint.

Ms. Crowell

17. Jeanette Crowell is a cook employed by the Academy to prepare meals

served to the children enrolled at both the daycare and the school.

18. Barbara Brinkley is employed by the Department as a fam ily services

counselor in the child - regulation unit in Marion County. Ms. Brinkley

conducts annual inspections, school readiness inspections, and complaint

inspections of exempt child care facilities.

19. On or about March 1, 2019, Ms. Brinkley conducted a school readiness

inspection of the daycare, including the cafeteria. Ms. Brinkley observed Ms. Crowell in the kitchen along with several children from the daycare. One

of the children was Ms. Crowell’s granddaughter, who is enrolled at the

daycare.

20. On the date of Ms. Brinkley’s inspection, Ms. Crowell did not have

background screening documentation in her employee file.

21. Ms. Brinkley again visited the facility on April 3, 2019, and observed

Ms. Crowell interacting with children from the day care. On that date,

Ms. Crowell’s employee file again contained no documentation of a required

background screening.

3

22. Ms. Crowell is an employee of the Academy who prepares and serves

meals to children enrolled at the daycare. Because the cafeteria is integral to

the daycare, Ms. Crowell “works in the daycare.”

Mr. Washington

23. During Ms. Brinkley’s March 1, 2019 school readiness inspection of the

daycare, she noted that there was no employee file for Mr. Washington, and

she inquired whether he had been screen ed for employment in child care.

24. Despite the fact that Mr. Washington does not agree that he is

required to undergo background s creening, on March 8, 2019,

3 The record was insufficient to establish whether Ms. Crowell has subsequently undergone

the background screening process and , if so, whether she has been found eligible to work in

child care .

Mr. Washington completed the background screening process and was

determined to be ineligible t o work in child care.

25. Mr. Washington is the Vice President and a member of the Board of

Directors of the Church. He testified that he is an employee of the Church,

rather than the Academy. 4

26. Mr. Washington maintains an office in the administrative offices of the

school.

27. Prior to 2012, the daycare director had unfettered discretion in all

decisions regarding daycare operations.

28. In 2012, following an incident in which a prior daycare director

contracted for services to be provided to the da ycare, without the knowledge

of the Church, and which resulted in a lawsuit against the Church, the

Church authorized Mr. Washington, rather than the daycare director, to sign

all legal documents obligating the Church in any capacity.

29. To that end, Mr. Washington has taken it upon himself to be present,

when possible, for inspections of the daycare by government officials (i.e., the

Early Learning Coalition, the Fire Marshal, and the Department). The stated

purpose of his presence is to keep the Church’s Board of Directors informed of

issues associated with the daycare.

30. In that capacity, Mr. Washington is familiar with the employees of the

daycare and the children enrolled therein. Mr. Washington has knowledge of

the location of employee files at the daycare.

31. Mr. Washington is the signatory on the documents attesting that child

care personnel employed by the daycare have been background screened and found eligible to work in child care.

32. Ms. Brinkley conducted inspections of the daycare in Febru ary, March,

April, May, and June 2019. Each time she arrived at the daycare, she met first with then - director, Joyce Johnson. After her arrival at the daycare,

4 The record is insufficient to establish the business relationship between the Church and the

Academy. Presumably, the Academy is a wholly - owned subsidiary of the Church.

Ms. Johnson contacted Mr. Washington and requested him to come to the

daycare to meet with Ms. B rinkley. Mr. Washington provided some of the

information sought by Ms. Brinkley during her inspections, accompanied her

on at least one walk through of the daycare, and showed her the location of

employee and student files at the daycare.

33. During one of her inspections, Ms. Brinkley met with Mr. Washington

to review security camera footage. That technical equipment is housed in the

administrative offices of the school, which is located in the building next to

the cafeteria.

34. Ms. Brinkley testified, s everal times, that a determination whether an

individual is child care personnel at a child care facility depends on their interaction with children in the child care facility. Ms. Brinkley explained

that “[t]hose persons who were in contact with children who are in care at a

facility” are required to be background screened.

5 She was emphatic that

employees “have to be interacting with the children to be considered child care personnel.

[ 6 ] ” She confirmed that “[i]f they were not with the children,

they are not required to be background screened. [ 7 ] ”

35. Further, Ms. Brinkley relies upon her personal observations of persons

in the child care facility to make the determination that someone is child care personnel.

36. Ms. Brinkley testified that she observed Mr. Washington in contact

with the children the day she requested to look at employee files at the

daycare. Those files are kept in a small office just off the infant room; thus,

both Ms. Brinkley and Mr. Washington had to enter the infant room of the

dayc are. To the extent this constitutes “contact with the children,” it is incidental.

5 T.50:22 - 25.

6 T.106:5 - 7.

7 T.101:23 - 24.

37. Ms. Brinkley did not testify to any other observation of

Mr. Washington interacting with children at the daycare.

38. Instead, Ms. Brinkley testified that her conclusi o n that

Mr. Washington needed to be background screened was based on her

observations of his role at the daycare, which she characterized as

operational. For example, she noted that he signed the paperwork attesting

to the required background screening of child care personnel employed at the daycare, that daycare staff frequently referred her to Mr. Washington to

answer her questions, and that he reviewed employee files with her and

accompanied her on inspection tours.

39. In her paperwork concerning the da y care, Ms. Brinkley listed

Mr. Washington as the director. However, on all of her visits to the facility,

she met with Ms. Johnson, the now - former director, as well as

Mr. Washington.

40. Following the discovery that Mr. Washington had not passed the

back ground screening process, the Department prepared a safety plan for

consideration by Respondent. The safety plan would allow Respondent to

continue operating the daycare as a religious exempt facility under certain

conditions.

41. Ms. Brinkley visited the campus on either the 29th or 30th of May

2019, to present the safety plan. At that time, she met with Ms. Johnson, as well as Dr. Brown and Mr. Washington.

42. Ms. Brinkley again met with Dr. Brown, Ms. Johnson, and

Mr. Washington on the campus regarding t he safety plan in June 2019.

43. It is Ms. Brinkley’s understanding that Ms. Johnson left the facility as

director in June 2019, presumably after the last meeting relating to the

safety plan.

44. Mr. Washington is not, nor has he ever been, a director of t he facility.

Nor does he instruct, supervise, or otherwise care for, children enrolled at the

facility.

45. No evidence was introduced to suggest that Mr. Washington managed

the day - to - day operations of the daycare, such as processing enrollment

applicatio ns, meeting with parents (prospective or otherwise), billing,

supervising student drop - off and pickup, hiring or disciplining daycare

workers, or scheduling staff days.

C ONCLUSIONS OF L AW

46. The Division has jurisdiction over the parties to and the subje ct

matter of this proceeding. See §§ 120.569 and 120.57(1), Fla. Stat.

47. Petitioner, as the party seeking to remove Respondent’s exemption

from licensure, has the burden to prove the allegations in the Complaint by a

preponderance of the evidence. See § 120.57(1)(j), Fla. Stat.

48. Section 402.316 provides that child care licensing requirements

“ except for the requirements regarding screening of child care personnel,” do

not apply to a child care facility “which is an integral part of church.”

§ 402.316( 1). Fla. Stat. However, exempt facilities “shall meet the screening

requirements pursuant to sections 402.305 and 402.3055.” The statute

concludes that “[f]ailure by a facility to comply with such screening

requirements shall result in the loss of the faci lity’s exemption from

licensure.” Id .

49. Section 402.305 provides that child care personnel must meet

minimum standards, including “good moral ch aracter” established by a

level II background screening process that includes employment history

checks and se arches of criminal history records, sexual predator and sexual

offender registries, and child abuse and neglect registries.

50. Section 402.302 defines “child care personnel” as “all owners,

operators, employees, and volunteers working in a child care f aci lity.”

§ 402.302(3), Fla. Stat.

51. Contrary to Ms. Brinkley’s belief, the term is not limited to persons

with direct contact with children. See Dep’t of Child. & Fams. v., GC

Academy, Inc. , Case No. 19 - 0975 (Fla. DO AH June 4, 2019; Fla. DCF

Sept. 13, 201 9); Dep’t of Child. & Fams. v. Royal Academy Preschool , Case

No. 19 - 0158 (Fla. DOAH Apr. 8, 2019; Fla. DCF Aug. 12, 2019) appeal

pending , Royal Academy Preschool v. Dep’t of Child. & Fams . , Fla. 5th DCA

Case No. 19 - 2721. A person employed to perform mainte nance at a daycare

facility while children are present meets the statutory definition of “child care

personnel,” and is required to undergo background screening. See GC

Academy , R.O. at ¶ 37.

52. The Department proved that Ms. Crowell is child care pers onn el: she

is an employee of the Academy who works in the daycare. Thus, Ms. Crowell

is subject to the background screening requirements of section 402.305.

53. Whether Mr. Washington is child care personnel depends, not on

whether he has contact with childre n enrolled at the daycare, but rather on

whether he is (1) an owner, operator, or employee of the daycare; and, if so,

(2) whether he works in the daycare. The determination requires a two - part

analysis.

54. The Department did not prove that Mr. Washington is child care

personnel.

55. Section 402.302(13) defines the “[o]wner” as the person “licensed to

o perate the child care facility. ”

56. In this case, the daycare is not licensed, but the Department has

issued the religious exemption certificate to the Aca demy.

57. Mr. Washington is not the owner of the daycare. According to the

statutory definition, the Academy — in the name of which the exemption is

he ld — is the owner of the daycare.

58. The statute defines “operator” as “any onsite person ultimately

respons ible for the overall operation of a child care facility, whether or not he

or she is the owner or administrator of such facility.” § 402.302(13)

59. The Department did not prove that Mr. Washington is the onsite

person ultimately responsible for the op erat ion of the daycare.

Mr. Washington has many other responsibilities on the campus, as well as

off - campus at other businesses run by the Church. The Academy employs a

daycare director to manage the operation of the daycare. The preponderance

of the evidence demonstrated that the daycare director is responsible for day -

to - day operation of the daycare.

60. The evidence demonstrated that Ms. Johnson was the onsite director

of the facility at the time Ms. Brinkley conducted her inspections of the daycare and when the Complaint was issued. Further, it was Ms. Johnson,

not Mr. Washington, who initially met with Ms. Brinkley when she appeared

for inspections of the daycare.

61. The Department did not establish by a preponderance of the evidence

that Mr. Washington i s onsite at the daycare managing operations thereof

with any regularity.

62. Assuming, arguendo, Mr. Washington is the operator of the daycare,

that fact is insufficient to determine he is child care personnel. The statutory

definition requires a second fi nding — that Mr. Washington “work[s] in the

daycare.”

63. The facts do not support a finding that Mr. Washington works in the

daycare. Mr. Washington’s role with respect to the daycare is limited to authorizing contracts and other instruments obligating the Church

financially and otherwise. Mr. Washington is employed by the Church, and,

in that capacity, has responsibilities for all the entities owned or operated by

the Church, whether in Ocala or Texas.

64. By employing Ms. Crowell without the required backg round screening

and allowing her to work in the daycare, Respondent violated section

402.316. The statute provides that failure of a facility to comply with

background screening requirements, “ shall result in the loss of the facility’s

exemption from licen sure.” § 402.316, Fla. Stat. The statute does not afford

discretion either to the Department or the undersigned. 8

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that Petitioner, Department of Children and Families, enter a

final order revoking the religious exemption for the daycare operated by the

Academy, and not recognize the Academy’s Notice of Child C are Facility

Operation as Religious Exemption.

D ONE A ND E NTERED this 2nd day of September , 2020 , in Ta llahassee,

Leon County, Florida.

S UZANNE V AN W YK

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

Fil ed with the Clerk of the

Division of Administrative Hearings

this 2nd day of September , 2020 .

8 H owever, if Ms. Crowell has subsequently undergone the required background screening

and has been found eligible to work in child care, the Department may consider that fact

when determining how to act on this Recommended Order.

C OPIES F URNISHED :

Stefanie Beach Camfield, Esquire

Department of Children and Families

Building 2, Suite 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Errol Washington Dr. D.D. Brown Christian Academy of Hope

907 Southwest 3rd Street

Ocala, Florida 34471

(eServed)

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallaha ssee, Florida 32399 - 0700

(eServed)

Ivory Avant, Esquire

Department of Children and Families

Building 2, Room 204Q

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Javier A. 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)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.