20-003311 Funhouse Learning Academy, Llc vs. Department Of Children And Families Status: Closed Recommended Order on Wednesday, October 28, 2020.

Summary: The Department properly denied an application for a license to operate a child care facility pursuant to section 402.310(1)(b)3. because of the history of multiple violations committed by the same owner/operator.

Funhouse Learning Academy, LLC (Funhouse), contrary to the Department’s

Notice of Intent to Deny Application, dated March 17, 2020.

P RELIMINARY S TATEMENT

On March 13, 2020, Ms. McGuire - Moore filed an application with the

Department to obtain a child care facility license for Funhouse. On March 17, 2020, the Department issued a Notice of Intent to Deny Application, based upon its assertion that Ms. McGuire - Moore had a history of multiple

violations while operating a previous child care facility known as A Step

Above Christian Academy between 2015 and 2018, which resulted in a

revocation of her license to operate that child care facility.

The undersigned conducted a final hear ing on September 21, 2020.

Funhouse presented the testimony of Ms. McGuire - Moore. The undersigned

admitted into evidence Petitioner’s Exhibit P1. The Department presented

the testimony of Jennifer Overly, the Department’s Supervisor for Child Care

Regulati on. The undersigned admitted into evidence Respondent’s Exhibits

R1 through R4.

The one - volume Transcript was filed with the Division on October 5, 2020.

The Department timely filed a Proposed Recommended Order, which the

undersigned has considered in th e preparation of this Recommended Order.

Funhouse did not file a proposed recommended order or any post - hearing

submittal.

The law in effect at the time the Department takes final agency action on

the statutes and rules are to their current versions, unle ss otherwise noticed.

Lavernia v. Dep’t of Prof’l Reg., 616 So. 2d 53 (Fla 1st DCA 1993).

F INDINGS OF F ACT

1. The Department is the state agency charged with regulating licensed

child care providers in the State of Florida.

2. On March 13, 2020, Ms. McGui re - Moore submitted an “Application for

a License to Operate a Child Care Facility” (Application) with the

Department. The Application identified Funhouse as the name of the facility

to appear on the license.

3. In the Application, Ms. McGuire - Moore disclos ed that she had

previously owned, and served as director of, a licensed child care facility

named “First Steps Learning Academy.” The Application does not reflect

Ms. McGuire - Moore’s ownership of another licensed child care facility named

“A Step Above Ch ristian Academy.” However, the testimony and evidence

presented established that Ms. McGuire - Moore previously owned another

licensed child care facility named “A Step Above Christian Academy.”

4. On March 17, 2020, the Department issued a “Notice of Inten t to Deny

Application,” which denied the Application, and stated:

The denial is based on the following:

As Owner/Director of A Step Above Christian

Academy

April 16, 2018 the license to operate A Step Above

Christian Academy was revoked following the si xth

Class II Violation for standard #3 Sufficient Ratio, in a two - year period.

April 3, 2018 (Complaint Investigation) It was

reported to the licensing office that Ms. McGuire -

Moore had been providing childcare in her home but had asked parents to take th eir children back

to the facility located at 1122 Dr. Mary McLeod Bethune Blvd this week as she would be on vacation. Upon responding to the facility address

counselor did not find children in care. They were

being cared for by an unscreened individual.

Pa rents were contacted and children were sent

home.

December 22, 2017 A Cease and Desist letter was

provided to Ms. McGuire - Moore while awaiting the

final hearing as the facility was again found out of

ratio for the sixth time on December 15, 2017

(Routine Inspection) . The facility was [sic] also

received a fine levied in the amount of $100.00.

September 21, 2017 (Routine Inspection) They

[sic] facility was found out of ratio for the fifth time and the revocation proceedings were initiated.

July 21, 2016 ( Complaint Investigation) The

facility was found out of ratio for the fourth time and placed on a six - month probationary license and

was fined $150.00 (two days out of ratio at $75.00

per day).

June 16, 2016 (Complaint Investigation) The

facility was found out of ratio for the third time and

fined $60.00. Technical Assistance was provided.

March 30, 2016 (Routine Inspection) The

facility was found out of ratio for the second time

and fined $50.00. Technical assistance was provided.

December 17, 2015 (Rout ine Inspection) The

facility was found out of ratio for the first time and

counselor provided technical assistance.

Due to the circumstances noted above we are

unable to approve your application to obtain a

Child Care Facility license.

5. In Department o f Children and Families v. A Step Above Christian

Academy, LLC, d/b/a A Step Above Christian Academy, LLC, Case No. 17 -

6871 (Fla. DOAH Mar . 21, 2018; Fla. DCF Apr . 16, 2018), ALJ Lawrence P.

Stevenson recommended, after conducting a final hearing, that the

Department revoke the license for A Step Above Christian Academy, LLC,

based on the incidents ( i.e., numerous ratio violations) referred to in the

Department’s “Notice of Intent to Deny Application” and paragraph 4 above. 1

The Department approved ALJ Stev enson’s recommendation in its Final

Order.

6. Ms. McGuire - Moore testified that A Step Above Christian Academy had

been open for approximately three years before the revocation. She provided

child care for infants through kindergarten.

7. Prior to owning a nd operating A Step Above Christian Academy, she

provided home daycare for eight years, and was also the interim director of

and VPK teacher at Friendship Academy ; another child care facility.

8. Ms. McGuire - Moore testified that she made a “mistake” when operating

A Step Above Christian Academy, and took responsibility for the ratio

violations detailed in DOAH Case N o. 17 - 6871 and the Notice of Intent to

Deny Application.

9. In the approximately two - and - a - half years since the revocation of the

license of A Step Above Christian Academy, LLC, Ms. McGuire - Moore has

worked for the Daytona Beach News Journal, delivering newspapers.

10. Ms. McGuire - Moore testified that if granted another license, she would

maintain the required ratio of children to staff by “do[i ng] a better screening

of my teachers that I hire ... Also, if teachers can’t be on time, then, I would

just have to let them go and hire someone that can be on time.”

11. Ms. Overly was the Department counselor assigned to investigate A

Step Above Christi an Academy from 2016 - 2017, and, in her current position

as supervisor, reviewed the Application.

12. Ms. Overly confirmed that the basis for the Notice of Intent to Deny

Application was the numerous ratio violations involving A Step Above Christian Academy that led to its revocation. She also stated that, when

assigned to investigate A Step Above Christian Academy, she found 52 total

1 A ratio violation occurs when the prescribed ratio of staff to children has not been met. Fla.

Admin. Code R. 65C - 22.001(4).

violations — 21 of which were Class II violations that included the ratio

violations. 2

13. Ms. Overly testified about various violations — other than ratio

violations — that she found when investigating A Step Above Christian

Academy, which included:

a. Employing individuals who had not completed required background

screening;

b. Failing to maintain a clean environment, noting that d uring the final

inspection before revocation, she discovered that five of the six toilets at A

Step Above Christian Academy were backed up and not functioning, that a

sink was backed up and had mold, that the ceiling was in disrepair, and that a fence in t he back of the yard was “down” several months after a previous

inspection; and

c. Receiving a complaint from a parent with a child attending A Step

Above Christian Academy who was informed by Ms. McGuire - Moore that she

was going on vacation, but that a per son named Ms. Lex would fill in for her;

when Ms. Overly investigated the day after receiving this complaint, she

learned that Ms. Lex had not completed required background screening or

the required training to care for children.

14. Ms. Overly also testif ied that she reviewed the history of another child

care facility Ms. McGuire - Moore previously owned — Moore’s Christian

Academy — and found that between 2006 through 2008, the Department

conducted eight inspections and found five ratio violations.

15. Ms. Over ly stated that Ms. McGuire - Moore’s history of owning and

operating child care facilities indicates a long and consistent pattern of ratio

violations.

2 A Class II violation “is an incident of noncompliance with an individual Class II standard as

described on CF - FSP Form 5316.” Fla. Admin. Code R. 65C - 22.010(1)(e)2. “For the fifth and

subsequent violation of the same Class II stan dard, the Department shall suspend, deny, or

revoke the license, and shall also impose an administrative fine of $100.00 per day for each

such violation.” Fla. Admin. Code R. 65C - 22.010(2)(d)2.d.

16. The undersigned finds that the Department established that

Ms. McGuire - Moore’s history of owning and operating child care facilities

includes repeated ratio violations, which culminated in the revocation of the

license for A Step Above Christian Academy, as indicated in the Notice of

Intent to Deny Application.

C ONCLUSIONS OF L AW

17. The Division has jur isdiction over the subject matter and the parties

to this proceeding in accordance with sections 120.569 and 120.57(1), Florida

Statutes.

18. Funhouse has the ultimate burden of persuasion to prove entitlement

to the license applied for by a preponderance of the evidence. Dep’t of Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981); § 120.57(1)(j), Fla. Stat.

19. However, as the Department has alleged that the license should be

denied based on past violations that resulted in a previous revocation, th e

Department must prove unfitness for the license by a preponderance of the

evidence. See Dep’t of Child. & Fams. v. Davis Fam. Day Care Home, 160 So.

3d 854, 857 (Fla. 2015); Dep’t of Banking & Fin. v. Osborne Stern & Co., 670

So. 2d 932, 934 (Fla. 1996).

3

20. Florida Administrative Code Rule 65C - 22.010(3)(c) provides:

When the Department has reasonable cause to

believe that grounds exist for the denial, suspension, or revocation of a license or registration, the conversion of a license or registration to probation status, or the imposition

of an administrative fine, it shall determine the matter in accordance with procedures prescribed in chapter 120, F.S. Imposition of an administrative

3 In its Proposed Recommended Order , the Department contend s that the clear and

convincing evidence standard applies in this matter, because the Department is seeking to

deny Funhouse a license. However, the Florida Supreme Court, in Davis Family Day Care Home , definitively held, in accord with Osborne Stern , that in license application

proceedings, such as this, the preponderance of the evidence standard applies. See Davis

Fam. Day Care Home, 160 So. 3d at 857 - 58.

fine shall be accomplished through an

administrative complaint. Deni al of a license or

registration or conversion to probationary status

pursuant to section 402.310, F.S., may be

accomplished through an administrative complaint or a notice of intent to deny a pending renewal application.

21. Section 402.310(1)(a)3., Flori da Statutes, provides that the

Department “may administer any of the following disciplinary sanctions for a

violation of any provision of ss. 402.301 - 391, or the rules thereunder … Deny,

suspend, or revoke a license or registration.”

22. Section 402.310(1) (b)3., provides that the Department, when assessing

whether to grant or deny an application for a child care facility lice nse

pursuant to section 402.310 (1)(a)3., may consider any history of previous

violations of the licensee or registrant pursuant to sec tion 402.310(1)(b)3.

23. Based on the Findings of Fact and Conclusions of Law in Department

of Children and Families v. A Step Above Christian Academy, LLC, d/b/a A

Step Above Christian Academy, LLC, Case No. 17 - 6871 (Fla. DOAH

Mar. 21, 2018; Fla. DCF Apr . 16, 2018), which found numerous ratio

violations that resulted in revocation of Ms. McGuire - Moore’s previous

license — which Ms. McGuire - Moore does not contest — as well as the

testimony of Ms. Overly concerning similar violations concerning Moore’s

Christia n Academy, the Department has established, by a preponderance of

the evidence, that Ms. McGuire - Moore is unfit because of the history of

multiple violations Ms. McGuire - Moore committed as a previously - licensed

owner and operator of child care facilities.

2 4. The undersigned further concludes that Funhouse, through

Ms. McGuire - Moore, did not meet its ultimate burden of persuasion to prove

entitlement to a license to own and operate a child care facility.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the

undersigned hereby R ECOMMEND S that the Department of Children and

Families enter a final order denying the application for a child care facility

license that Ms. McGuire - Moore submitted for Funhouse Learning Academy,

LLC.

D ONE A ND E NTERED this 2 8 th day of October, 2020 , in Tallahassee, Leon

County, Florida.

R OBERT J. T ELFER III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 4 88 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28 th day of October, 2020.

C OPIES F URNISHED :

Jane Almy - Loewinger, Esquire

Department of Children and Families

Suite 412

210 Nort h Palmetto Avenue

Daytona Beach, Florida 32114

(eServed)

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Steven R. Robinson, President

Steven R. Rob inson, P.A.

Suite 300

533 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

Javier Enriquez, General Counsel

Department of Children and Families

Building 2, Room 204 F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Chad Poppe ll, Secretary

Department of Children and Families

Building 1 , Room 20 2

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

th e 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.