19-006727 Department Of Children And Families vs. Spellman Prep School Status: Closed Recommended Order on Monday, March 2, 2020.

Summary: Department did not prove Respondent maintained or administered discipline that would be considered severe, humiliating, or frightening; or that it failed to maintain required personnel paperwork on site.

on three occasions ; and if so, what sanction should be assessed against

Respondent.

P RELIMINARY S TATEMENT

On November 13, 2019 , Petitioner, the Department of Children and

Families (the Department) , served Respondent, Spe llman Prep School

(School ) , with an Administrative Complaint (Complaint). The Complaint

sought to impose fines for three alleged violations as summarized below .

(1) A violation of Florida Administrative Code Rule

65C - 22.001 (2019) 1 and section 2.8 of th e Child

Care Facility Handbook (Handbook) , when a

method of discipline was used at t he School that

was severe, humiliating , or frightening to children.

($250 fine).

(2) A violation of r ule 65C - 22.001 and section

3. 12 .D of the Handbook , for failing to pro vide a

resilient surface beneath and within the fall zone

for playground equipment. ($50 fine). 2

(3) A violation of section 402.305(1) , Florida

Statutes , r ule 65C - 22.006 , and section 7.4.C of the

Handbook, for failing to maintain a Form dur ing

Department inspections on October 9, 2019, July 6,

2018, and June 1, 2018. ( $25 fine).

The School contested the Complaint and submitted an undated letter

requesting a formal administrative hearing . The Department referred the

matter to DOAH on December 19, 2019, and it was assigned to an

Administrative Law Judge for hearing.

1 All references to the Florida Statutes and Florida Administrative Code are to the 2019

versions which were in effect on the date of the alleged violations. See McCloskey v. Dep’t of

Fin. Servs. , 115 So. 3d 441 (Fla. 5th DCA 2013).

2 The Department withdrew the second alleged violation related to the surfacing under and

arou nd the playground equipment at the close of its case at the final hearing. As such, no

findings of fact s or conclusions of law are made regarding this alleged violation.

A prehearing telephone conference was duly noticed and held on

January 24, 2020. No representative from t he School call ed into the

telephone conference, and noth ing substan tive was discussed . 3

At the final hearing, the De partment presented the testimony of three

witnesses : Willette Tisdale (a Department licensing c ounselor), Allen Young

( a Department child protective i nvestigator ) , and Christopher Vereen (a

Department licensing c ounselor). Pet itioner's Exhibits A through C were

admitted into evidence without objection. Respondent presented the

testimony of its owner and director, Sharon Swann . Respondent 's exhibit was

not admitted into evidence. 4

The hearing was recorded by a court re porter. At the conclusion of the

hearing, t he parties we re instructed they must file proposed recommended

orders with DOAH within ten days, unless the trans cript of the proceedings

was ordered and neither party indicated it was ordering a copy of the

transcript. T herefore, the proposed recommended orders were due on or

before February 11, 2020. The Department submitted an untimely proposed

recommended order on F ebruary 20, 2020, and the School did not file a

proposed recommended order. For the sake of thoroughness, the

Department's proposed recommended order has been reviewed.

3 The notice for the January 24, 2020, prehearing telephone conference was sent to t he

School 's address of record and was not retu rned to DOAH as undeliverable. Moreover, at the

time and date of the prehearing telephone conference , DOAH staff attempted to reac h the

School at the phone number of record to determine if it would be participa ting , but was

unable to reach anyone.

4 Respondent offered one document, to which the Department objected. The document was

not admitted into evidence because it was not disclosed to the Department prior to the hearing, was not provided to the undersigne d, and was deemed irrelevant.

F INDINGS OF F ACT

1. The Department is responsible for licensing and enfo rcing regulations

to maintain health, safety , and sanitary condit ions at child care facilities. See

§ 402.305, Fla. Sta t. and Fla. Adm. Code. R . 65C - 22.010 .

2. The School is licensed by the Department to operate as a child care

facil ity (License ID number C09OR 0879 ) a t 6844 Silver Star R oad in

Orlando, Florida. The School offers day and evening child care s ervices.

Sharon Swann has been the director and owner of t he School since 1983.

3. S.P.W. was an eight - year - old male who attended t he School in the

summer of 2019 . 5

Complaint and Investigation

4 . On July 31, 2019, S.P.W.'s mot her contacted the Department to report

that S.P.W. was upset because Ms. Swann pulled his hair, screamed at him,

and called him stupid.

5. As a result of the complaint, the next day the D epartment initiated a

visit to the School by a child protective investigator, Alan Young, and a

l icensi ng c oun selor , Willette Tisdale. Mr. Young interviewed S.P.W.,

Ms. Swann, another facility worker (Whitney Lawrence), and another child

who attended the School . Ms. Tisdale observed the interviews.

6. As a result of the interviews, the Department prepared a "Inv estigative

Summary Child Institutional Investigation (without Reporter Informa tion)"

(Summary) . The unsigned and undated copy of the Summary offered into

evidence indicates the investigation into the July 31 incident involving

S.P.W. was closed on Septembe r 4, 2019.

5 M inors shall be referred to by their initials to protect their identities.

Incident on July 31, 2019

7. O n July 31, 2019, Ms. Swann was watching over the children during

naptime . She noticed S.P.W. had his cellphone out on the mat and was

distracting other children from napping.

8. Ms. Swann had previously allowe d S.P.W. to use his phone when he

co uld not sleep but had warned him about distracting the other kids during

naptime . O n this occasion , she took the cellphone away from him.

9 . When Ms. Swann attempted to talk to him, S.P.W. turned around on

his mat, and would not look at her . T he Department alleges Ms. Swann then

pulled S.P.W.'s hair as punishment. Ms. Swann admitted she tugged S.P.W.'s

ponytail and demonstrated her actions at the hearing. She denie d , however,

that the tugging w as done in anger or as a f orm of discipline. R ather , she

claimed she was trying to get his attention to get him to turn around and f ace

her.

10. At this point, S.P.W. became angry, " puffed up , " and acted as if he was

going to stand up and fight . Ms . Swann told S.P.W. something to the effect of

"don't think about fighting me, because I'll put you down like Mike Tyson."

S.P.W. calmed down and remained on his mat. Ms. Swann admitted she

made the statement regarding Mike Tyson but stated she was not serious

and did not intend to hit S. P.W. Based on Ms. Swann's appearance and

demeanor at the hearing, the undersigned finds her testimony credible.

11. The Department alleges another School staff member suggested to

Ms. Swann that S.P.W. read a book since he was having trouble napping, and

M s. Swann allegedly replied that he was too stupid to read. The Department

also alleges S.P.W. w as crying after the encounter with Ms. Swann .

Ms. Swann denie d that she called S.P.W. stupid, or that he was upset after

this encounter.

12. The other School sta ff member who was interviewed by Mr. Y oung

also did not corroborate the Department's allegations that Ms. Swann called

the child stupid or that he was crying . These allegations were not proven at

the hearing and were based entirely on hearsay testimony and statements in

the Summary.

13. Even if the Summary was the type of document generally admissible

under a hearsay exception, this particular Summary is unreliable. For

example, the "Complaint Form" notes the complaint was filed by a parent on

July 31, 2019 , for an incident that occurred on July 30, 2019, but the

Summary states the incident occurred the same day S.P.W.'s mother made

the complaint (July 31, 2019) . T here are also i nconsistencies between the

Department witness es ' testimony regarding the intervi ew s and what was in

the Summary . For instance, Ms. Tisdale referred to the other child

interviewed by Mr. Young as " J. " in her hearing testimony , but this child is

referred to as " K. " i n the Summary. Moreover, in the Summary , there is no

reference that S.P .W. cried as a result of Ms. Swann's actions.

14. The Department failed to offer credible evidence establishing the

allegations that Ms. Swann was imposing discipline or that she called S.P.W.

stupid or dumb. The undersigned also finds the Department had no non -

hearsay evidence rebutting Ms. Swann's credible version of events .

Incident on October 9, 2019

15 . On or about October 9, 2019, Ms. Tisdale returned to the School to

conduct a follow - up inspection unrelated to the July 31 incident . D uring that

ins p ection, Ms. Tisdale discovered the School did not have a signed Form for

one of its employees in that employee's personnel file. Ms. Tisd ale inquired

about the missing F orm, but Ms. S wann was unable to immediately locate it .

Before Ms. Tisdale left the Sc hool , however, Ms. Swann produced a signed

copy of the F orm.

16. Ms. Swann admitted the signed F orm was not in the employee's

personnel file but testified she found it in a pile of papers on her desk . There

is no dispute the signed Form was provided to M s. Tisdale on the same day of

the inspection.

17. Ms. Tisdale testified she did not accept the F orm on October 9 during

the inspection because she suspected at the time that Ms. Swann forged the

signat ur e of the employee on the Form. At the hearing , howe ver, Ms. Tisdale

refused to state Ms. Swann had committed fraud or that the documentation

was false . Instead, she stated she did not accept the signed Form because she

had already reported the violation when Ms. Swann produced the document

and she believed it was a violation of the record - keeping standards if the

Form was not in the personnel file.

18. According to the unrefuted testimony of Christopher Vereen, the

School had previously been cited on June 1, 2018, and July 6, 2018 , for not

having signed For ms for all of its employees.

U LTIMATE F ACTUAL D ETERMINATION

19 . The School is not guilty of violating section 2.8.A. of the Handbook

because the e vidence failed to establish Ms. Swann's actions could be

considered severe, humiliating, or frightening , wh ich is an essential element

of the disciplinable offense.

20 . The School is not guilty of violating section 7.4.C. of the Handbook

because the evidence establish ed it maintained the signed F orm on - s ite as

required.

C ONCLUSIONS OF L AW

21 . The Division of Administra tive Hearings has jurisdiction. See

§§ 120.569, 120.57(1), and 402.310 (4), Fla. Stat.; and Fla. Adm in . Code R .

65C - 22.010(3).

22 . T his proceeding , in which the Department seeks to impose discipline

upon a license , is penal in nature . Therefore, t he burden of proof is on the

Department to prove the material allegations by clear and convincing evidence. See § 120.57(1)(j); Coke v. Dept. of Child. & Fam. Servs. , 704 So. 2d

726 (Fla 5 th DCA 1998).

23. The "clear and convincing" standard as stated by the Florida Supreme

Court is as follows :

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

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 ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

24 . Florida Administrative Code Rule 65C - 22.001 incorporates the

Handbook by reference . Relevant to these proceedings , the Handbook

provides the following standards :

Section 2.8 .

A. The child care facility shall adopt a discipline

policy consistent with Section 402.305(12), F.S.,

including standards that prohibit children from

being subjected to discipline which is severe,

humiliating, frightening , or associated with food,

r est, or toileting. Spanking or any other form of

physical punishment is prohibited.

* * *

Section 7.4 Personnel Records

Records must be maintained and kept current on

all child care personnel, as defined by Section

402.302(3), F.S. These records shall be on - site ,

available for review by the licensing authority and

must include:

A. A complete employment application with the

required statement pursuant to Section

402.3055(1)(b), F.S.

B. Documentation of position and date of

employment.

C. CF - FSP Form 5 337, Child Abuse & Neglect

Reporting Requirements [Form] , which is

incorporated by reference in 65C - 22.001(7)( l ),

F.A.C., must be signed on or before hire date and

annually thereafter by all child care personnel.

(emphasis added).

25 . The foregoing regul atory provisions "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);

see also , e.g., Griffis v. Fish & Wildlife Conserv. Comm'n , 57 So. 3d 929, 931

(Fla. 1st DCA 2011)( noting statutes imposing a penalty cannot be extended

by construction) .

26 . I n its late - filed proposed recommended order, the Department argues

the hearsay in the Summary and witness testimony may serve as a basis for

finding a violation of s ection 2.8. of the Handbook. See Pet 'r's Proposed

Rec ommended Order (PRO) at p. 6 - 7 . T he Department argues hearsay can be

used to support , supplement , or explain other evidence, citing Florida

Adminis trative Code Rule 28 - 10 6.213.

27. Although " [h] earsay is admissible for limited purpose s in an

administrative action [and] i t may be admitted to supplement or explain

other e vidence, [it] is not sufficient in itself to support a finding unless it would be admissible in a civil action over objection. " Wark v. Home Shopping

Club , 715 So. 2d 323, 324 (Fla. 2d DCA 1998) (citing section 120.57(1)(c), Fla.

Stat.). Here, it is unclear what non - hearsay evidence the Department claims

the h earsay evidence is supporting. Although the evid ence established

Ms. Swann tugged on S.P.W.'s ponytail , there is no non - hearsay evidence

establishing that this action was done as a punishment or that it was " severe,

humiliating, or frightening " as required.

2 8 . T he Department argues the Summary and its witness es ' testimony

regarding the interviews w ith S.P.W. and the other child is admissible

pursuant to a hearsay exception for child victim statements, pursuant to

s ection 90.803(23), Florida Statutes, which provides:

( 23) Hearsay exception; statement of child victim.

(a ) Unless the source of information or the method

or circums tances 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 developm ental age

of 16 or less d escribing 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 penetr ation 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

relati onship 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 c orroborative evidence of the abuse or

offense. Unavailability shall include a finding by the court that the child’s participation in the trial

or proceeding would result in a substantial

likelihood of severe emotional or mental harm, in addition to finding s pursuant to s. 90.804(1).

2 9 . This exception is inapplicable for numerous reasons. First, the

Department made no attempts to invoke this hearsay exception at the

hearing . Even if it had, it has not alleged that S.P.W. was a victim of " child

abuse or neg lect, 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, intrus ion, or penetration" as referenced in the

exception. See § 90.803(23)(a), Fla. Stat. On the contrary, the Department

found no signs of abuse.

30 . Second, even if the exception applied, the Department did not attempt

to establish the predicate for admission o f hearsay statements that is

require d by s ection 90.803(23) (a)1 . There was no evidence of the maturity

leve l of S.P.W. or the other child interviewed . T he duration of the offense

(mere seconds) was short and did not rise to the level of corpora l punishment

or abuse. There was no evidence about the relations hip between Ms. Swann

a nd S.P.W., but he and his sibling remained at the School after the incident .

T here wa s also no other evidence of similar behavio r between Ms. Swann and

S.P.W. or any other child at the School. The Department also put on no

evidence of the reliability of th e statements made by S.P.W. or the other

child. Because the Department failed to satisfy the predicate necessary for

the application of the child victim hearsay exception, neither the

Department's witnesses' testimony as to wh at S.P.W. and other child stat ed

or the Summary containing what the children told the Department's investigator can be the basis of any finding of fact.

3 1 . Finally, the Department argues the Summary and hearsay testimony

can be considered because "no objection to the hearsay testimo ny was raised

by the Respondent." PRO at p. 7. Regardless of whether there was an

objection , b ecause S ection 90.803(23) is inapplicable and no proper predicate

was established for this exception, this hearsay evidence cannot alone

support a finding of fact . See § 120.57(1)(c) , Fla. Stat. and Fla. Admin. Code

R. 28 - 106.213(3).

3 2 . Although Ms. Swann's actions in pulling S.P.W.'s ponytail and making

the Mike Tyson comment were not professional, t he D epartment failed to

establish Ms. Swann's conduct was discip line that was " sev ere, humiliating,

or frightening, " nor could Ms. Swann's conduct be considered equivalent to

"[s] panking or any other form of ph ysical punishment." See Handbook at

§ 2.8. Ms. Swann's testimony established she gently pulled on S.P.W.'s

pon ytail to get him to turn his head, and there is no clear and convincing

evidence this harmed, humiliated, or frightened him. As such, the

D epartment failed to prove Count I of the Administrative Complaint. See

generally Dep ' t of Child. & Fam. v . My First S teps of Bradenton, Inc. , Case

No. 18 - 5147 ( Fla. DOAH May 8, 2019; Fla. DCF Aug. 9, 2019) (finding no

violation of section 2.8 . A . of the Handbook where although child " began

crying when she first touched him, no unusual force or pressure was used,

and there were no marks or bruises on the child . . . and w ithin a few seconds

after the contact the child b ecame calm, stopped crying, and placed his head

on the table. " ) .

3 3 . Regarding the third alleged violation of Respondent's failure to

maintain a signed Form , section 7.4 .C. of the Handbook does not require such

F orm be located in the employee's personnel file. Rathe r, it clearly states that

this F orm must be located "on - site." See Handbook at § 7.4 ; c ompare

Handbook at § 7.4.1. C. ( requiring that for a child c are facility waiting for an

out of state background check " the Department's email informing of the

individual’s eligibility for a provisional hire status must be in the personnel

file . " (emphasis added ) ) . The Department failed to prove by clear and

convinc ing evidence that Respondent did not mainta in the Form i n question

"on - site." See McClung v. Crim. Just. Stds. & Training Comm'n , 458 So. 2d

887, 888 (Fla. 5th DCA 1984 ) (" No conduct is to be regarded as included

within a penal statute that is not reasonab ly proscribed by it; if there are any

ambiguities included, they must be constru ed in favor of the licensee.").

R ECOMMENDATION

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

R ECOMMENDED that the Department of Children and Families e nter a final

order dismissing the Administrative Complaint as amended at the final

hearing .

D ONE A ND E NTERED this 2nd day of March , 2020 , in Tallahassee, Leon

County, Florida.

H ETAL D ESAI

Administrative Law Judge

Division of Administrative Hearings

Th e 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 2nd day of March , 2020 .

C OPIES F URNISHED :

L acey Kantor, Esquire

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Brian Christopher Meola, Esquire

Department of Children and Families

Suite S - 1129

400 West Robinson Street

Or lando, Florida 32801 - 1707

(eServed)

Sharon Swann

Spellman Prep School

6844 Silver Star Road

Orlando, Florida 32818

Chad Poppell, Secretary

Department of Children and Families

Building 2, R oom 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)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written ex ceptions 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.