20-000100 Department Of Children And Families vs. Chappell Schools, Llc, D/B/A Chappell Schools Deerwood Status: Closed Recommended Order on Thursday, May 14, 2020.

Summary: Department did not demonstrate by clear and convincing evidence that childcare facility failed to follow its own disciplinary policies.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF C HILDREN A ND

F AMILIES ,

Petitioner ,

vs. Case No. 20 - 0100

C HAPPELL S CHOOLS , LLC, D/B/A

C HAPPELL S CHOOLS D EERWOOD ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was conducted in this case on

March 12 , 2020, in Jacksonville , Florida, before Lawrence P. Stevenson, a

duly - design ated Administrative Law Judge (Ñ ALJ Ò ) of the Division of

A dministrative Hearings.

A PPEARANCES

For Petitioner: David G regory Tucker, Esquire

Department of Children and Families

5920 Arlington Expressway

Jacksonville, Florida 32 231 - 0083

For Respondent: Jesse N olan Dreicer, Esquire

Tassone, Dreicer & Hill

1833 Atlantic Boulevard

Jacksonville, Florida 32207

S TATEMENT OF T HE I SSUE S

At issue is whe ther Respondent committed the Class II violation alleged

in the Administrative Complaint and, if so, what is the appropriate penalty.

P RELIMINARY S TATEMENT

On December 19, 2019, the Department of Children and Families (the

Ñ Department Ò ) filed a one - count Administrative Complaint (the Ñ Complaint Ò )

against Chappell Schools, LLC, d/b/a Chappell Schools Deerwood

(ÑChappellÒ) . The Complaint stated that during a complaint investigation on

October 10, 2019 , Department Licensing Counselor Gretrell Marshall

observe d the following:

A staff member did not comply with the facility's

written disciplinary and expulsion policies.

Counselor reviewed the facility's discipline and

expulsion policy and observed that the director D.T.

did not comply with the policy. Counselor reviewed

accident/incident reports and observed that a child

E.W. bit another child A.H. five (5) times in one (1)

week and at least twice in one (1) day during that

week. There were other reports that showed the

child had bitten other children several tim es within

a two (2) month period. Per director D. T. the child

was suspended for one (1) day. According to the

facility's Child Management Behavior protocol:

After two (2) incidents in one (1) week, the child

will be suspended for one (1) day; after five ( 5)

incidents the child will be suspended for one (1)

week. The child E.W. mother K.W. arrived at the

center for a meeting due to another biting attempt

and to discuss a course of action with director.

The Complaint stated that this was a Class II violati on of child care

licensing standards. It was the facilityÔs third Class II violation within a two -

year period. The Complaint stated that the fine imposed for this violation

would be $60.00 and revocation of ChappellÔs Gold Seal Quality Care

designation .

C happell timely filed with the Department a letter that challenged the

factual allegations of the Complaint and requested a formal administrative

hearing. On January 10, 2020, the Department forwarded Chappell's request

to the Division of Administrative Hea rings for the scheduling and conduct of

a formal hearing. The case was set for hearing on March 12, 2020, on which

date it was convened and completed.

At the hearing, the Department presented the testimony of its Licensing

Counselor, Gretrell Marshall. Th e DepartmentÔs Exhibits A and B were

admitted into evidence. Chappell presented the testimony of its Chief

Executive Officer, Nancy Dreicer. ChappellÔs Exhibits A through C were

admitted into evidence.

The one - volume Transcript of the hearing was filed at the Division of

Administrative Hearings on April 14, 2020. At the close of the hearing, the

parties agreed that they would file their proposed recommended orders

within 20 days of the filing of the transcript. In any event, both parties timely

filed their Proposed Recommended Orders on April 17, 2020.

All references to the Florida Statutes are to the 2019 edition, unless

otherwise noted.

F INDINGS OF F ACT

Based on the evidence adduced at hearing, and the record as a whole, the

following Findings of Fact are made:

1. The Department is authorized to regulate child care facilities pursuant

to sections 402.301 through 402.319, Florida Statutes. Section 402.310

authorizes the Department to take disciplinary action against child care

facilities for violations o f sections 402.301 through 402.319.

2. Chappell operates at eight child care locations in Duval and St. Johns

Counties, admitting children from the ages of six weeks to five years.

Chappell also has an after school program for children ages five to eight, and

a summer camp for children ages five to ten. Chappell is licensed to operate

the Chi ld Care Facility at 8400 Baycenter R oa d, Jacksonville, Florida,

pursuant to License Number C04DU0093. The facility on Baycenter Road is

commonly called ChappellÔs Deerw ood facility.

3. Gretrell Marshall works for the Department as a Licens ing Counselor .

She inspects child care facilities and family daycare homes to ensure they are

not operating in violation of Department standards. She has worked for the

Department for t wo years. Ms. MarshallÔs previous experience includes

operating a family daycare home for two years , and seven years as the owner

and director of a licensed child care facility in Jacksonville. She has worked

as an infant and toddler development specialist and holds a bachelor's degree

in psychology.

4. On October 10, 2019, Ms. Marshall went to Chappell to investigate a

parentÔs complaint that a child at the facility was repeatedly biting other

children.

5. The DepartmentÔs rules require child care faciliti es to document all

accidents and incidents that occur while a child is in the care of program

staff. The incident reports must be completed on the same day the incident

occurs. The documentation of the incident must be shared with the childÔs

parent or gua rdian on the day the incident occurs .

6. ChappellÔs Ñaccident/incident reportÒ form contained spaces for the

name and age of the child, the names of the teachers and other adults

present, and the date and time of the incident. It had multiple choice check -

boxes for location (classroom, playground, bathroom, cafeteria, or ÑotherÒ);

markings (abrasion, bite, bruise, bump, cut/tear, fracture, puncture, red

mark, rug burn, scratch, sprain, or ÑotherÒ); appendage (a list of 26 body

parts); and first aid given (i rrigate, antibacterial soap, bandage, ice pack,

splint, or ÑotherÒ). The form also included space for a narrative description of

the accident or incident , and whether the parent was called.

7 . Ms. Marshall found several accident/incident r eports that stude nt E.W.,

a two - year - old boy, bit other children and a teacher between August 21

and October 4, 2019 .

8 . On August 21, 2019, E.W. bit another student in the back while jostling

for position in a line . T he skin was not broken and the bite did not require

fir st aid. Chappell recorded that the bite left bite marks.

9. An August 27, 2019, incident report described two biting incidents on

the same day. First, E.W. bit another student Ñjust becauseÒ and pulled

another studentÔs hair. Then, E.W. indicated to the te acher that he had to use

the bathroom. The teacher took him to the bathroom but the child just ate

toilet paper and urinated on himself. When the teacher tried to change his

diaper, E.W. bit and kicked the teacher.

10. For the August 27, 2019, incident, Ch appellÔs accident/incident report

form left blank the first aid treatment space. Th e report noted the bites left

bite marks.

11 . On September 11, 2019, E.W. bit another child in the back. Chappell Ôs

accident/incident report recorded that first aid was admi nistered, but did not

specify the form of treatment. The report noted that the bites resulted in bite

marks.

12 . Chappell reported that two biting incidents occurred on September 30,

2019. E.W. bit another student on the back during circle time . Later, whe n

the students went outside to play, E.W. bit another child on the back without

provocation. The teacher talked to him about being gentle with friends. The

accident/incident report left blank the space for reporting first aid.

13. On October 2, 2019, E.W. bit another student in the back. A different

form, called a Ñbehavior incident report,Ò was used by Chappell to record this

incident. This form did not contain the check - boxes of the accident/incident

report but simply provided space for a narrative Ñdescr iption of behavior

incident. Ò The narrative stated that E.W. and other students were on the

castle playhouse in the playground when E.W., Ñunprovoked,Ò bit another

student on the back. Chappell did not record whether this bite left marks or

required first aid.

14. On October 4, 2019, at 12:40 p.m., E.W. bit another student on the

right shoulder during play time in their classroom. The accident/incident

report recorded that the bite left a bite mark . The space on the form to

indicate whether the bite require d first aid was left blank.

15. A separate accident/incident report completed on October 4, 2019,

documented that E.W. bit another student at 3:15 p.m. , while the children

were lining up at the door of the classroom. The report did not indicate

whether the re were bite marks or whether first aid was required.

16. Chappell intended to suspend E.W. for one day on October 4, 2019.

The school phoned the parents but was unable to get anyone to come in and

pick up E.W. Therefore, the suspension was enforced on the next school day,

October 7, 2019. The school warned the parents that another biting incident

would result in the childÔs permanent removal from Chappell.

17. On October 23, 2019, E.W. bit another child at the school. Chappell

expelled E.W.

18. Nancy Dreic er, the Chief Executive Officer of Chappell, testified that

there is a societal problem with small children being suspended and expelled

from childcare centers. She stated that more children are expelled from child

care centers in the United States than ar e expelled from grade schools and

high schools.

19. Ms. Dreicer testified that disciplinary expulsions were problematic for

multiple reasons. Behaviors such as biting are common among two year olds,

but a child that age learns nothing from being suspended or expelled from

school. The parents are forced to find another child care facility and whatever

behavioral issue is causing the childÔs misbehavior is not addressed. The

problem is merely pushed off onto a new child care facility.

20. Ms. Dreicer testifi ed that in 2019, Chappell received a grant from

Hope Haven ChildrenÔs Hospital and the Community F oundation of

Jacksonville to have a behavioral psychologist at the Deerwood facility to

work with the children and to train the teachers in dealing with behav ior

problems.

21. The psychologist worked with E.W., observing the child in the

classroom, tracking the timing of his misbehavior, and looking for triggers to

his actions. He worked with the teachers on how to identify triggers.

22. Ms. Dreicer pointed o ut that suspending the child would have meant

that the psychologist could not observe him. She noted that nothing

approaching a serious injury had occurred , and added that the school would

not have kept E.W. in the classroom if there was any possibility of his being a

danger to the other students. She believed that E.W.Ôs behavior was

improving, but that biting is such a natural part of a two year oldÔs

development that it was very difficult to stop it completely.

23. The Department has adopted a Child Care Facility Handbook (the

ÑHandbookÒ), intended to be used on conjunction with sections 402.26

through 402.319. The Handbook has been adopted by reference in Florida

Administrative Code R ule 65C - 22.001(6). 1 The Introduction to the Handbook

states, ÑTo protec t the health and welfare of children, it is the intent of the

Legislature to develop a regulatory framework that promotes the growth and

stability of the child care industry and facilitates the safe physical,

intellectual, motor, and social development of the child.Ò

24. Section 2.8 of the Handbook, titled ÑChild Discipline,Ò provides, in

relevant part:

A. The child care facility shall adopt a discipline

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

including standards that prohibit children from

1 The cited rule references the May 2019 edition of the Handbook. However, the version of

the Handbook provided on the DepartmentÔs website and through the hype rlink provided in

the rule as published in the Florida Administrative Register is dated December 2019. To

further complicate matters, the version of the Handbook introduced at the hearing was dated

October 2017. The October 2017 and December 2019 editions are identical in all respects

relevant to the determination in this proceeding, which leads to the inference that the May

2019 edition is likewise identical.

being subjected to discipline which is severe,

humiliating, frightening, or associated with food,

rest, or toileting. Spanking or any other form of

physical punishment is prohibited.

B. The child care facility operators, employees, and

volunteers must comply wi th written disciplinary

and expulsion policies .

C. Verification that the child care facility has

provided the parent or guardian a written copy of

the disciplinary and expulsion policies used by the

program must be documented on the enrollment

form with the signature of the custodial parent or

legal guardian.

* * *

E. A copy of the current [ 2 ] disciplinary and

expulsion policies must be available for review by

the parents or legal guardian and the licensing

authority. Providers must have a comprehensive

discipline policy that includes developmentally

appropriate social - emotional and behavioral health

promotion practices, as well as discipline and

intervention procedures that provide specific

guidance on what child care personnel should do to

prevent and respond to challenging behaviors.

Preventive and discipline practices should be used

as learning opportunities to guide childrenÔs

appropriate behavioral development È. ( e mphasis

added) .

25 . Pursuant to section 2.8.A of the Handbook, Chappell has adopted and

implemented a discipline policy , titled ÑChild Management Behavior

Protocol . Ò ChappellÔs policy sets forth the following mission statement:

Chappell recognizes the importance of promoting

acceptable behavior and methods of discipline

within the child c are setting. We believe that all

2 The word ÑcurrentÒ is not in the October 2017 edition of the Handbook. This is the only

relevant difference between section 2.8 in the October 2017 Handbook and section 2.8 in the

December 2019 edition of the Handbook

children have the right to expect positive

approaches to discipline, which foster self - esteem,

respect, tolerance and self - control. Behaviors which

injure people either emotionally or physically or

damage property are real problems to adults/staff

and the other children. These behaviors must be

dealt with in an appropriate manner.

26. After setting forth a catalogue of acceptable and unacceptable methods

of discipline to be applied in specific instances of misbehavior, the Chappell

discipline policy next stated the process to be followed ÑIn The Case of

Persistent Inappropriate BehaviorÒ as follows, in relevant part:

• The childÔs parents/caregivers will be involved

at first hit, kick, thrown toy, etc. The Director

will discus s the situation with the

parents/caregivers in an attempt to find the

possible cause of the behavior.

• The Director and the parents/caregivers will

together develop strategies for dealing with the

unwanted behavior, which could be

implemented at home.

• Sho uld it be necessary and with the consent of

the parent/caregiver, advice and assistance will

be sought from relevant external specialists to

address the matter.

• After two incidences in one week, which caused

or could have caused injury to self or others, the

child will be suspended for one day, and after

five such incidences the child will be suspended

for a week. However, if the Director at any time

feels the behavior is extreme and dangerous to

other children or teachers, the child will be

removed from t he Center. This may be a

temporary or permanent expulsionÈ.

27. There was no question that the Chappell discipline policy meets the

requirements of the Handbook.

28. The Class II violation alleged by the Department is that Chappell

failed to follow its ow n discipline policy in the case of E.W., thereby violating

section 2.8.B of the Handbook, which requires child care facilities to Ñ comply

with written disciplinary and expulsion policies . Ò

29. The Department points out that the Chappell discipline policy

specifies that after two incidences in one week that Ñcaused or could have

caused injury,Ò the child will be suspended for one day , and that five such

instances will result in one weekÔs suspension. The Chappell policy gives the

Director discretion to rem ove a child for extreme or dangerous behavior. The

Department notes that the policy does not give the Director discretion to

waive the stated discipline schedule.

30. Ms. Marshall calculated that under ChappellÔs written policy, E.W.

should have been suspe nded for one day after the two biting incidents on

August 27, 2019, and again following the tw o biting incidents on

September 30, 2019. Chappell did not suspend E.W. on either occasion.

31. Ms. Marshall calculated that in the space of the five days between

September 30 and October 4, 2019, E.W. was involved in five biting incidents.

Ms. Marshall testified that, under ChappellÔs policy, E.W. should have been

suspended for one week. Chappell gave E.W. a one - day suspension on

October 7, 2019.

32. Ms. Dreicer conceded in the abstract that biting is an act that could

cause injury to another child. She did not concede that E.W.Ôs biting was

injurious or threatened actual injury to the other children at the child care

facility. It was a developmental behavior issu e that the facilityÔs staff and a

psychologist were attempting to correct. Chappell ultimately decided that it

had to expel the child, but only after making every effort to correct the biting

behavior.

33. Chappell argued that neither the DepartmentÔs Hand book nor

ChappellÔs policy defines the term Ñinjury.Ò Ms. Marshall believed that a bite

is always an injury. It leaves a mark, however temporary, and requires some

treatment. Chappell noted that none of the bites recorded in its

accident/incident reports b roke the skin of the other child or required

treatment of any kind. Ms. Dreicer and the staff of the Deerwood facility

made a determination that E.W.Ôs behavior presented no danger of injury to

the other children.

34. Chappell argues that, whatever the lit eral language of the written

policy, the d irector of a child care facility must be allowed to exercise

discretion on a case - by - case basis in making disciplinary decisions. Chappell

points to section 2.8.E of the Handbook, with its admonitions that a

compre hensive disciplinary policy must be Ñdevelopmentally appropriateÒ and

that discipline practices Ñshould be used as learning opportunities to guide

childrenÔs appropriate behavioral development.Ò Ms. Dreicer forcefully made

the case that suspending or expel ling a two year old teaches nothing and

abdicates the facilityÔs responsibility to the child.

35. Neither party appeared to take note of another section of the Chappell

disciplinary policy. The undersigned observes that, while the language of the

Chappell policy quoted above appears to prescribe a rigid disciplinary process

admitting no exceptions, another portion of the policy gives Chappell

discretion as to when the disciplinary process commences:

After an incident, our first step:

We will tend to the in jured child to see if medical

attention is needed. We will give the child who hit,

kicked, etc. an opportunity to apologize and provide

comfort. We will notify both sets of parents and

prepare an incident report (Attachment 1). DCF

requires the report be s igned by a parent or

caregiver the day of the incident. If behaviors

persist, Chappell will follow the process

management flow chart . (Attachment 2) [ 3 ]

( e mphasis added) .

3 The referenced attachments were not part of the record. From the context, the undersigned

has inferred that the referenced Ñflow ch artÒ was a graphic representation of the disciplinary

procedure quoted at Finding of Fact 26 above.

36. The underscored language, read together with the title of the

discipline policy, ÑIn The Case of Persistent Inappropriate Behavior,Ò gives

Chappell discretion to determine when the childÔs behaviors have reached the

stage of ÑpersistenceÒ warranting commencement of the disciplinary process.

The Department did not account for this disc retion in finding that Chappell

violated section 2.8.B of the Handbook.

37. Ms. DreicerÔs testimony was consistent with the Chappell disciplinary

policy. Though the facility eventually expelled the child, it exercised the

discretion afforded by the policy to determine whether the childÔs behavior

was potentially injurious and whether the behavior was persistent enough to

warrant invocation of the disciplinary process.

38. Clear and convincing evidence was not presented that Chappell

committed the Class II v iolation alleged by the Department.

C ONCLUSIONS OF L AW

39 . The Division of Administrative Hearings has jurisdiction of the subject

matter of and the parties to this proceeding. §§ 120.569 and 120.57(1) , Fla.

Stat.

40 . The Department has the burden of esta blishing the grounds for

discipline against Respondent's license by clear and convincing evidence.

Dep't of Banking and Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Coke v. Dep't of Child. &

Fam . Servs. , 704 So. 2d 726 (Fla. 5th DCA 1998).

41 . In Evans Packing Co mpany v. Depar t ment of Agric ulture and

Consumer Ser vices , 550 So. 2d 112, 116 n.5 (Fla. 1st DCA 1989), the c ourt

defined clear and convincing evidence as follows:

Clear and convincing e vidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly

remembered; the evidence 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 in the mind

of the trier of fact the firm belief of conviction,

without hesitancy, as to the truth of the allegations

sought to be established. Slomowitz v. Walker , 429

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

42 . Judge Sharp, in her dissenting opinion in Walker v. Dep artment of

Business and Prof essiona l Reg ulation , 705 So. 2d 652, 655 (Fla. 5th DCA

1998) (Sharp, J., dissenting), reviewed recent pronouncements on clear and

convincing evidence:

[C]lear and conv incing evidence requires more

proof than preponderance of evidence, but less than

beyond a reasonable doubt. In re Inquiry

Concerning a Judge in re Graziano , 696 So. 2d 744

(Fla. 1997). It is an intermediate level of proof that

entails both qualitative and quantative [sic]

elements. In re Adoption of Baby E.A.W ., 658 So. 2d

961, 967 (Fla. 1995), cert. denied, 516 U.S. 1051,

116 S. Ct. 719, 133 L. Ed. 2d 672 (1996). The sum

total of evidence must be sufficient to convince the

trier of fact without any hesita ncy. Id. It must

produce in the mind of the factfinder a firm belief

or conviction as to the truth of the allegations

sought to be established. Inquiry Concerning

Davey , 645 So. 2d 398, 404 (Fla. 1994).

43 . At all times material to this case, Respondent was a provider of child

care, pursuant to section 402.302, which provides the following relevant

definition:

(1) Ñ Child care Ò means the care, protection, and

supervision of a chil d, for a period of less than

24 hours a day on a regular basis, which

supple ments parental care, enrichment, and health

supervision for the child, in accordance with his or

her individual needs, and for which a payment, fee,

or grant is made for care.

(2) Ñ Child care facility Ò includes any child care

center or child care arrange ment which provides

child care for more than five children unrelated to

the operator and which receives a payment, fee, or

grant for any of the children receiving care,

wherever operated, and whether or not operated for

profit . . . .

44 . Section 402.305 (1) directs the Department to Ñ establish licensing

standards t hat each licensed child care facility must meet regardless of the

origin or source of the fees used to operate the facility or the type of children

served by the facility. Ò

45 . Section 402.310(1 ) provides, in relevant part:

(c) The department shall adopt rules to:

1. Establish the grounds under which the

department may deny, suspend, or revoke a license

or registration or place a licensee or registrant on

probation status for violations of ss. 402.301 -

402.319.

2. Establish a uniform system of procedures to

impose disciplinary sanctions for violations of

ss. 402.301 - 402.319. The uniform system of

procedures must provide for the consistent

application of disciplinary actions across districts

and a progressively increas ing level of penalties

from pre disciplinary actions, such as efforts to

assist licensees or registrants to correct the

statutory or regulatory violations, and to severe

disciplinary sanctions for actions that jeopardize

the health a nd safety of children, such as for the

deliberate misuse of medications . . .

46 . To implement these statutory directives, the Department has adopted

c hapter 6 5C - 22, ÑChild Care Standards.Ò Rule 65C - 22.001(6) adopts by

reference the Handbook and requires licensed child care facilities to follow

the standards set forth therein.

47 . Rule 65C - 22.010 Ñestablishes the grounds under which the

Department shall issue an administrative fine, deny, suspend, revoke a

license or registration or place a licensee or reg istrant on probation status as

well as uniform system of procedures to impose disciplinary sanctions.Ò

Rule 65C - 22.010(1)(e)2 . defines violations of licensing standards in terms of

their relative severity, as follows:

(e) ÑViolationÒ means noncompliance wi th a

licensing standard as described in an inspection

report resulting from an inspection under Section

402.311, F.S., as follows with regard to Class I,

Class II, and Class III Violations.

1. ÑClass I ViolationÒ is an incident of

noncompliance with a Cla ss I standard as described

on CF - FSP Form 5316, May 2019 Child Care

Facility Standards Classification Summary and

CF - FSP Form 5427, May 2019, School - Age Child

Care Facility Standards Classification Summary,

which are incorporated by reference. Copies of th e

CF - FSP Form 5316 and CF - FSP Form 5427 may be

obtained from the DepartmentÔs website at

www.myflfamilies.com/childcare or from the

following links: http://www.flrules.org/Gateway/

reference.asp?No=Ref - 10471 and http://www.

flrules.org/Gateway/reference.as p?No=Ref - 10473.

However, any violation of a Class II standard that

results in death or serious harm to a child shall

escalate to a Class I violation. The effective date of

a termination of a providerÔs Gold Seal Quality

Care designation is the date of the DepartmentÔs

written notification to the provider. However, any

violation of a Class II standard that results in

death or serious harm to a child shall escalate to a

Class I violation. Class I violations are the most

serious in nature.

2. ÑClass II Violat ionÒ is an incident of

noncompliance with an individual Class II

standard as described on CF - FSP Form 5316. Class

II violations are less serious in nature than Class I

violations.

3. ÑClass III ViolationÒ is an incident of

noncompliance with an individual Class III

standard as described on CF - FSP Form 5316.

Class III violations are less serious in nature than

either Class I or Class II violations.

48. The allegation made in the Complaint is that Chappell violated section

2.8.B of the Handbook by failing to comply with its own written disciplinary

and expulsion policies.

49. Section 11.3 of the DepartmentÔs Form CF - FSP 5316, ÑChild Care

Facility Standards Classification Summary,Ò provides that a violation of

section 2.8.B constitutes a Class II violation.

50. The Department did not prove by clear and convincing evidence that

Chappell failed to comply with its own written disciplinary and expulsion

policies.

51. The Department correctly stated that ChappellÔs rules prescribe a

disciplinary procedure to be f ollowed when there is Ñpersistent inappropriate

behaviorÒ that Ñcauses or could cause injury to self or others.Ò The

Department alleges that Chappell did not follow the prescribed disciplinary

procedure in the case of E.W.

52. The DepartmentÔs allegation a ssumes that E.W. engaged in persistent

inappropriate behavior that caused or could have caused injury to others.

53. Whether inappropriate behaviors are Ñpersistent , Ò and whether a

childÔs actions are potentially injurious to others , are judgment calls th at

must be made by the d irector and staff of the child care facility. Chappell

offered the testimony of Ms. Dreicer to demonstrate that the childÔs behavior

posed no danger of injury to others. ChappellÔs contemporaneous

documentation of the biting inciden ts confirmed that E.W.Ôs bites never broke

the skin or necessitated treatment. The Department offered no counterpoint

save for Ms. MarshallÔs assertion that biting is always injurious.

54. No parent wants their child to receive bites at school, and it is

understandable that a parent reported E.W.Ôs biting to the Department,

which is certainly empowered to investigate and evaluate the wisdom of the

facilityÔs judgments. However, the facts demonstrated that ChappellÔs

disciplinary policy provided more discre tion than the Department initially

conceded and that ChappellÔs on - the - ground assessment of the situation was

a reasonable attempt to c orrect a behavior common to two - year - old children.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclu sions of Law, it is

R ECOMMENDED that the Department of Children and Families enter a f inal

o rder dismissing the Administrative Complaint.

D ONE A ND E NTERED this 14th day of May , 2020 , in Tallahassee, Leon

County, Florida.

S

L AWRENCE P. S TEVENSON

Administ rative 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 14th day of May , 2020 .

C OPIES F URNISHED :

Nancy Drier

Chappell Schools, LLC

8400 Baycenter Road

Jacksonville, Florida 32256

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee , Florida 32399 - 0700

(eServed)

David Gregory Tucker, Esquire

Department of Children and Families

5920 Arlington Expressway

Jacksonville, Florida 322 3 1 - 0083

(eServed)

Jesse Nolan Dreicer, Esquire

Tassone, Dreiver & Hill

1833 Atlantic Boulevard

Jacksonvi lle, Florida 32207

(eServed)

Chad Poppell, Secretary

Department of Children and Families

Building 1 , Room 20 2

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Javier Enriquez, General Counsel

Department of Children and Families

Buildin g 2, Room 204 F

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.