20-003754 Department Of Children And Families vs. Starchild Academy Wekiva Status: Closed Recommended Order on Wednesday, May 19, 2021.

Summary: DCF proved Respondent, through the actions of its employee, committed an act of physical punishment as a form of discipline, a class I violation of DCF rules and statutes.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF C HILDREN A ND

F AMILIES ,

Petitioner ,

Case No. 20 - 3754

vs.

S TARCHILD A CADEMY W EKIVA ,

Respondent .

/

R EC OMMENDED O RDER

The final hearing in this matter was conducted before Administrative Law

Judge Jodi - Ann V. Livingstone of the Division of Administrative Hearings

(DOAH), on February 9, 2021, by Zoom Conference.

A PPEARANCES

For Petitioner: Brian Christophe r Meola, Assistant General Counsel

Department of Children and Families

400 West Robinson Street , Suite S - 1129

Orlando, Florida 32801

Javier A. Enriquez, General Counsel

Department of Children and Families

Building 2, R oom 204F

1317 Winewood Boulevard

Tallahassee, Florida 3239 9 - 0700

For Respondent: Lucia C. Pineiro, Esquire

Lucia C. Pineiro & Associates, P.A.

717 Ponce de Leon Boulevard , Suite 309

Coral Gables, Florida 33134

S TATEMENT O F T HE I SSUE S

Whether Respondent, a licensed child care facility, committed two Class I

v iolation s as alleged in the Administrative Complaint ; and, if so, the

appropriate penalty, including whether Petitioner may terminate

Respondent ' s participation in the Gold Seal Quality Care program .

P RELIMINARY S TATEMENT

On July 10, 2020, the Department of Children and Families (Department

or Petitioner) issued an Administrative Complaint against StarChild

Academy Wekiva (StarChild or Respondent) , in which it alleged t hat

StarChild committed two Class I violations of the Child Care Licensing

Standard s , as incorporated by reference in Florida Administrative Code

Rule 65C - 22.010(1)(e) 1. For the alleged violations, the Department sought to

impose a fine of $1 , 000.00.

In a Response to Administrative Complaint and Request for

Administrative Hearing , StarChild timely disputed the allegations and

requested a disputed - fact hearing. The Department transmitted the matter to

DOAH on August 18, 2020 , for the assignment of an admin istrative law

judge.

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

Alexander, Kurt Jones, Meghan Jones, and David Meconitas . The

Department's E xhibits A through D were admitted into evidence , without

objection. StarChild presente d the testimony of David Meconitas , Shelby

Feinberg, Deborah Files, Margarita Diaz, Zuleika Martinez, Ida Lewis ,

Danny King, and Nadia Engwall. StarChild's Exhibits 1 through 18 were

admitted into evidence, without objection.

At the close of the hearing, the parties requested an extended deadline of

30 days following DOAH ' s receipt of the hearing transcript to file post -

hearing submittals. 1 A two - volume Transcript of the final hearing was filed

with DOAH on March 25, 2021 . Both parties timely submitted Pro posed

Recommended Orders , which were duly considered in preparation of this

Recommended Order .

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

otherwise noted . All references to the Florida Administrative Cod e are to the

versions t hat were in effect at the time of the alleged violations .

F INDINGS OF F ACT

1. The Department is the state agency responsible for licensing and

regulating child care facilities in the s tate in Florida.

2. StarChild is a licensed child care facility locate d in Apopka, Florida .

StarChild is d esignated as a Gold Seal Provider and has a contract with the

Early Learning Coalition t o provide school readiness services.

3. As a designated Gold Seal Quality Care Provider, StarChild is subject

to the provisions of s ection 402.281 , Florida Statutes.

4. In order to obtain and maintain a designation as a Gold Seal Quality

Care provider, a child care facility must not have had any Class I violations,

as defined by rule, within the two years preceding its application f or

designation as a Gold Seal Quality Care provider. § 402.281(4)(a), Fla. Stat.

5. " Commission of a Class I violation shall be grounds for termination of

the designation as a Gold Seal Quality Care provider until the provider has

no Class I violations for a period of two years. " § 402.281(4)(a), Fla . Stat.

1 By agreeing to an extended deadline for post - hearing submissions beyond ten days after the

filing of the transcript, the parties waived the 30 - day timeframe for issuance of the

Recommended Order. See Fla. Admin. Code R. 28 - 106.216.

6. As of the date of the final hearing, StarChild ha d never had a Class I

violation.

The May 5, 202 0 , Incident

7. At all times relevant to this case, CJ was a two - year - old boy who

attended StarChild.

8. On May 5, 2020, CJ, along with several other children and two

teachers , were in a two - year - old classroom at StarChild. The actions of the

children and a teacher, Ms. Crisman, were recorde d by a surveillance camera

mounted in the room. The factual allega tions in the Administrative

Complaint are primarily based on an incident captured on video.

9. In the video, CJ is seen interacting with other children in the room. The

children are all engaged in different activities; some are standing while

others are si tting on the floor. CJ stood near a group of children who were

sitting on the floor in close proximity to Ms. Crisman, who also sat on the

floor.

10. CJ walked up behind another child who sat in front of Ms. Crisman.

CJ placed his hands on the other child 's shoulders. The other child turned his

torso toward CJ, while still sitting, and pushed CJ away from him. This was

by no means a hard push. CJ stumbled into a seated position and then

immediately thereafter laid on his back. CJ remained laying on his bac k for

approximately five to ten seconds, during which he playfully kicked his feet.

11. Ms. Crisman stood up from her seated position, walked over to CJ, and

stood over him. She then grabbed CJ by both wrists and forcefully yanked

him off the ground.

12. It is clear from the video that Ms. Crisman used great force when she

pulled CJ off the floor Ð CJ's feet flew up in the air and his head flew back.

Ms. Crisman then pulled CJ, by his wrists, approximately ten feet across the

room, and placed him in a corne r in timeout. CJ sat in the corner clutching

his arm.

13. Zuleika Martinez (Ms. Martinez) was one of the two teachers assigned

to CJ's classroom. She was not present during the incident, but came back to

see CJ sitting in timeout. Ms. Martinez noticed tha t CJ was favoring one

hand over the other . Approximately 30 minutes after noticing this,

Ms. Martinez notified Deborah Files (Ms. Files).

14. Ms. Files has been employed by StarChild since March 2005 , and has

been serving as the Director of StarChild since April 2020 .

15. Ms. Files walked over to the classroom to check on CJ and speak to

Ms. Martinez. She learned that CJ was holding his arm and he would not use

it for play or to eat.

16. Ms. Files brought CJ into StarChild's front - desk area Ð the area

typica lly used for children who are not feeling well. Ms. File s iced CJ's arm.

17. Shortly thereafter, Ms. Files contacted Shelby Feinberg

(Ms. Feinberg). At the time of the incident, Ms. Feinberg was the Executive

Director of StarChild. Ms. Feinberg was working remotely and, therefore, not

at Star C hild's facility. Ms. Files explained to Ms. Feinberg that CJ appeared

to be having difficulty utilizing one of his arms. Ms. Feinberg advised

Ms. Files to contact CJ's parents.

18. Ms. Files contacted CJ's mother, Megh an Jones, at approximately

11:00 a.m. Ms. Files reported to the mother that CJ was favoring one arm,

and that he was not using the other arm at all. Ms. Files encouraged

Ms. Jones to pick CJ up.

19. At approximately 12:30 p.m., CJ's father, Kurt Jones (Mr . Jones),

arrived at StarChild to pick CJ up. Mr. Jones f ound CJ in the classroom,

lying on the floor. He told CJ to get up . CJ attempted to push himself up off

the floor but was unable to do so . CJ appeared to be in pain and unable to

support his body wei ght on his arm. It was clear to Mr. Jones that his son

was in pain. Mr. Jones had difficulty getting CJ strapped into his car seat.

Mr. Jones drove CJ to their home, which was five minutes away.

20. When at home, Mr. Jones noticed that CJ still appeared to be in pain.

Mr. Jones noticed that CJ would not move or touch his arm. He was holding

his arm as if it was in a sling. CJ would periodically cry.

21. Mr. Jones grew worried as his son still appeared to be in pain and did

not seem to be getting better as time passed. Mr. Jones considered taking CJ

to the emergency room but decided against it because of concerns related to

the COVID - 19 pandemic. He could not take CJ to his primary care

pediatrician as there were scheduling difficulties also tied to the COVI D - 19

pandemic. The family's usual after - hours urgent care pediatrics office did not

open until 4:00 p.m.

22. At approximately three or four hours after picking CJ up from

StarChild , Mr. Jones, with few options, searched for help on the internet. He

researc hed possible causes of CJ's pain and why he was holding his arm like

a sling. After watching several videos, he came across a YouTube video made

by a nurse who described a condition called "nursemaid elbow." A nursemaid

elbow is a dislocated elbow. The sym ptoms matched what CJ was

experiencing and Mr. Jones determined CJ had dislocated his elbow. The

video provided instructions on how to correct the nursemaid elbow.

23. Desperate to help his son who was still in pain, he attempted the

procedure to put CJ's elbow back in place . Mr. Jones followed the

instructions . H e heard a "pop" noise, which was to be expected per the

instructions in the video. CJ cried for ten to 15 seconds. Thereafter, CJ

regained full mobility of his arm and no longer appeared to be in pain. CJ

began acting like his typical self.

24. The next day, Mr. and Mrs. Jones took CJ to his pediatrician. CJ was

diagnosed with nursemaid elbow. They were advised that the procedure that

Mr. Jones conduc ted the previous day was the correct one.

25. T he Department conducted an investigation of the incident. As part of

its investigation, t he Department scheduled an examination of CJ by its

Child Protective Team (CPT).

26. Margarita Diaz (Nurse Diaz) is a pediatric nurse practitioner who

works for CPT. She has been with CPT for three years. She has received

extensive training in child abuse. On May 7, 2020, she d id a complete head -

to - toe examination of CJ. She reviewed the history of CJ' s injury provided by

CJ's parents and collateral information which i ncluded the video of the

incident. She diagnosed CJ as having suffered a nursemaid elbow due to child

abuse.

27. Nurse Diaz described a nursemaid elbow as a condition that occurs

when the ligament in the elbow gets trapped between two bones. When a

child ' s arm is pulled away, the tendon slips down . When the arm goes back

into place, the tendon gets stuck between the humerus and the radial bone s .

When this condition happens, it is usually very painful for the child . The

child often presents as protective of the arm and will not move it.

28. Nurse Diaz further testified that t he most common mechanism of

injury is when a child is pulled . Other mechanism s for injury include

swinging or lifting a child by the arm. She testified that a nursemaid elbow is

easy to correct and once corrected, a child is back to normal i n five to ten

minutes.

29. Nurse Diaz testified that her f inding of child abuse was based on her

observations of the actions of the teacher as shown in the video. She

confirmed that the actions of th e teacher in the video were consistent with

the infliction of a nursemaid elbow injury on CJ .

StarChild ' s Response to Incident

30. When Ms. Martinez reported CJ's injury, StarChild took immediate

action to address the situation. They removed CJ from the c lassroom, tended

to his injuries, promptly contacted his parents, and set out to find out the

cause of the injury.

31. StarChild administrators watched video footage of the activity leading

up to CJ's change in behavior. In reviewing the video , StarChild d etermined

that Ms. Crisman used improper form by lifting CJ by his wri s ts when

movin g CJ to the timeout corner . By noon on the same day of the incident,

StarChild terminated Ms. Crisman' s employment. StarChild then contacted

the Department to report the in cident.

32. Mr. Jones made a request to review video footage of the incident.

Danny King, the owner of StarChild, reached out to Mr. Jones personally and

agreed to meet with him and Mrs. Jones to review the video together in

person. The parents were infor med that Ms. Crisman was terminated.

33. Following the incident, StarChild develop ed a self - imposed Corrective

Action Plan, that include d re - training its entire staff. Ms. Feinberg met with

all members of the staff and conducted in - person training in smal l class

settings. All staff members were provided StarChild 's dis cipline policy and

child interaction policies . Staff members were also required to take a child

abuse and training course . StarChild re - wr ote it s staff h andbook to include

stronger and cleare r language about how children are to be moved and

repositioned in the classroom . Additionally, StarChild implemented

permanent policy changes which required discussions during weekly staff

meetings about behavior and how staff members should positively dea l with

behavior in the classroom. All staff members were also provided with

information on nursemaid elbow, specifically.

34 . StarChild has current plans to bring in guest speakers, such as a

behavior management professional and a CPT speaker , to further e ducate

their staff members.

35. StarChild acted commendably in response to the incident. It took

immediate and comprehensive action to try to reduce the probability of an

incident like that occurring again. It must be noted that complete prevention

is an i mpossibility.

36. CJ continued to attend StarChild after the incident . Indeed, he

attended StarChild the day after the incident and appeared to be in good

spirits. CJ's younger sister was also enrolled at StarChild after the incident,

when she was three - a nd - a - half months old.

C ONCLUSIONS OF L AW

37. DOAH has jurisdiction over the parties and the subject matter of this

cau se pursuant to sections 120.569 and 120.57( 1) , Florida Statutes (2020) .

38 . The Administrative Complaint sets forth allegations that Star Child

committed two Class I violations of rule 65C - 22.010(1)(e)1 ., and seeks to

impose discipline against StarChild' s license .

39. A proceeding to suspend, revoke, or impose other discipline upon a

license is penal in nature. State ex rel. Vining v. Fla. R eal Estate Comm' n ,

281 So. 2d 487, 491 (Fla. 1973). Petitioner therefore bears the burden of

proving the charges against Respondent by clear and convincing evidence .

Fox v. Dep't of Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008) (citing Dep ' t of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996)).

40. The clear and convincing standard of proof has been described by the

Florida Supreme Court as follows:

Clear and convincing evidence requires that

evidence must be found to be cre d ible; the fa cts to

which the wit n esses testify must be distinctly

remembered; the testimony must be precise and

explicit a nd the witnesses must be lacking in

conf usion as to the facts in issue. The evidence

m ust be of such weight that it produces in the mind

of the tr ier of fact a firm belief o r conviction,

without hesitancy, as to the tr u th of the a llegations

sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994 ) (quoting Slomowitz v. Walker , 429

So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Hen son , 913 So. 2d 579,

590 (Fla. 2005). " Although this standard of proof may be met where the

evidence is in conflict, È it seems to preclude evidence that is ambiguous. "

Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 988 (Fla. 1st DCA

1991).

41 . Whether Respondent committed the charged offenses is a question of

ultimate fact to be determined by the trier of fact in the context of each

alleged violation. Holmes v. Turlington , 480 So. 2d 150, 153 (Fla. 1985);

McKinney v. Castor , 66 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v.

Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

42. Here, Respondent has been charged in the Administrative Complaint

with violations based on the following allegations:

3. The Department discovered that StarChild

comm itted two Class One violations of Child Care

Licensing standards during an investigation on

May 6, 2020.

a. The Department received a complaint regarding

the possible violations of childcare standards

committed at StarChild on or about May 6, 2020.

The c omplaint alleged that a child was mistreated

and abused by a staff member while under care.

b. David Meconitas was assigned by the

Department to investigate the complaint.

Mr. Meconitas' investigation discovered the

following.

i . A teacher at StarChild reported a concern about

one of the children because the child was not using

his arm and it appeared injured. The teacher's

concern was conveyed to the child's father. The

child is two years old. It appeared that the child's

elbow was dislocated. The child 's father, upon

arrival at the school, was able to set the arm back

into the socket without i ssue.

ii . Mr. Meconitas reviewed StarChild's surveillance

footage of the classroom area to determine if a

cause for the child's dislocated arm could be

determine d. After a review of the footage, it was

discovered that a staff member of StarChild, Kylie

Crisman, improperly and aggressively grabbed the

child by both of his hands and pulled his arms

strongly in an effort to get him on his feet, and then

she dragged t he child by his arms several feet to

another area of the room. The video shows that this

action was strong and sudden, and not in

accordance with StarChild's discipline policy.

iii. A referral was made to the Child Protection

Team, to evaluate the allega tions. CPT Advanced

Practice Registered Nurse (APRN) Margarita Diaz

completed a medical examination of the child and

concluded with positive findings of physical abuse.

APRN Diaz confirmed that the sudden force and

dragging of the child by his arms by Ms. Crisman

caused the child's dislocated arm injury. APRN

Diaz interviewed the mother, and determined that

the child acquired a "nursemaids' elbow," as a

result of Ms. Crisman's actions.

i v. StarChild terminated Ms. Crisman as a result of

this incident.

43 . Section 402.310 authorizes the Department to take disciplinary action

against licensed child care facilities. This statute provides, in pertinent part,

that the Department "may administer ... disciplinary sanctions for a violation

of any provision of ss. 402.301 - 402.319, or the rules adopted thereunder."

§ 402.310(1)(a), Fla. Stat.

44. Section 402.310(1)(c) directs the Department to adopt rules to

effectuate the following:

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 di stricts

and a progressively increasing level of penalties

from predisciplinary 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

t he health and safety of children, such as for the

deliberate misuse of medications.

45. The "uniform system of procedures to impose disciplinary sanctions" is

commonly referred to as the "classification system." This classification system

is set forth in the Child Care Facility Standards Classification Summary

(Classification Summary), which is incorporated by reference in rule 65C -

22.010(1)(e)1. The Department classifies violations as Class I, Class II, or

Class III.

46 . Rule 65C - 22.010(1)( e )1. defines C lass I violations as those that " are

the most serious in nature ." A Class I violation occurs when there is an

incident of noncompliance with the Class I standards set forth in the

Classification Summary.

47 . Pursuant to the mandate of section 402.310(1)(c )1., the Department

created the School - Age Child Care Facility Handbook (Handbook). The

Handbook is incorporated by reference in rule 65C - 22.008 (5) . School - age child

care programs , like StarChild, must follow the standards found in the

Handbook . Fla. Admin . Code R. 65C - 22.008(5) .

48. Respondent was charged with two Class I violations of standards set

forth in the Handbook. The Administrative Complaint states, in pertinent

part:

a. On or about May 6, 2020, a form of discipline used

by staff included the use of spanking or other form

of physical punishment, in violation of CCF

Handbook, Section 2.8 F. 1 . This constitutes a

Class I violation of Child Care Licensing Standard,

CF - FSP Form 5316, 11 - 6, October 2017,

incorporated by reference, 65C22.010(1)(e)1 . , F.A. C.

b. On May 6, 2020, the owner, operator, employee or

substitute, while caring for children, committed an

act or omission that meets the definition of child

abuse or neglect provided in Chapter 39, Florida

Statutes or Chapter 827, Florida Statutes. This

constitutes a Class I violation of Child Care

Licensing Standard, CF - FSP Form 5316, 47 - 2,

October 2017, incorporated by reference, 65C -

22.010(1)(e) 1. , F.A.C.

49. The Department, in its Proposed Recommended Order, clarifies the

violations charged. First, the Department alleges StarChild's employee used

physical punishment as a form of discipline and committed an act of child

abuse , as defined in c hapter 39, Florida Statutes , and that the

aforementioned violations are Class I violations.

Physical Punishmen t as a Form of Discipline

50. Section 2.8, F.1 . of the Handbook provides that t he following discipline

techniques shall be prohibited in a child care facility:

1. The use of corporal punishment/including, but

not limited to:

a) Hitting, spanking, shaking, slapping, twisting,

pulling, squeezing, or biting;

***

e) Rough or harsh handling of children, including

but not limited to: lifting or jerking by one or both

arms; pushing; forcing or restricting movement;

lifting or moving by grasping clothing; coveri ng a

childÔs head.

51. In a video recording, StarChild's employee, Ms. Crisman, can clearly

be seen committing several of these prohibited disciplinary techniques.

Ms. Crisman roughly handled CJ by lifting or jerking him off the floor by

both arms. While doing so, Ms. Crisman also pulled and forced CJ's

movement. These actions were clearly the use of improper disciplinary

technique s Ð Ms. Crisman forcefully yanked CJ off the ground and pulled him

into a timeout corner.

52. The Department clearly and convin cingly showed that StarChild,

through the actions of its employee, committed an act of physical punishment

as a form of discipline .

Child Abuse

53. Section 8.2 , A . of the Handbook provides that "[a] cts or omissions that

meet the definition of child abuse o r neglect provided in Chapter 39, F.S. or

Chapter 827, F.S., constitute a violation of the standards i n section 402.301 -

.319, F.S., and will support imposition of a sanction, as provided in Section

402.310, F.S ."

54. Section 39.01(2) defines abuse as "any willful act or threatened act

that results in any physical, mental, or sexual abuse, injury, or harm that

causes or is likely to cause the childÔs physical, mental, or emotional health to

be significantly impaired. "

55. In this case, to prove StarChild co mmitted child abuse, the

Department must show through clear and convincing evidence that : ( 1) the

StarChild employee committed a willful act; ( 2 ) that the willful act resulted

in physical or mental injury/ harm; and that ( 3 ) the physical or mental

injury/ ha rm caused CJ's physical, mental, or emotional health to be

significantly impaired .

56. Section 39.01(3 5 ) (a)4. defines the word "harm" and provides guidance

for determining whether harm has occurred in the context of inappropriate or

excessively harsh disc iplinary action. Although it specifically lists "dislocated

elbow" as an example of when harm has occurred, it provides several factors

to consider when making the determination about whether such harm

amounts to abuse. It provides, in pertinent part:

4. I nappropriate or excessively harsh disciplinary

action that is likely to result in physical injury,

mental injury as defined in this section, or

emotional injury. The significance of any injury

must be evaluated in light of the following factors:

the age of the child; any prior history of injuries to

the child; the location of the injury on the body of

the child; the multiplicity of the injury; and the type

of trauma inflicted. Corporal discipline may be

considered excessive or abusive when it results in

any of the following or other similar injuries:

a. Sprains, dislocations, or cartilage damage.

(emphasis added).

57. It is clear in this case that Ms. Crisman willfully jerked CJ off the floor

by both arms and pulled him into the corner of the room, and tha t her actions

caused physical harm to CJ Ð that is, a dislocated elbow. However, the

Department has not shown that CJ's physical, mental, or emotional health

w as significantly impaired because of the employee's actions. Although it is

clear CJ was physically harmed, there is insufficient clear and convincing

evidence that the physical harm caused CJ's physical, mental, or emotional

health to be significantly impaired. CJ's father was able, through directives

provided by a YouTube video, to fix CJ's arm. CJ at tended StarChild the very

next day and appeared happy and healthy.

5 8 . T he Department failed to prove that StarChild, through the actions of

its employee, committed child abuse. 2

Disciplinary Guidelines

5 9 . Section 402.281 (4)(a) sets out the standards for the Gold Seal Quality

Care Program. It provides as follows:

2 In its Propose d Recommended Order, the Department misplaces its reliance on a

Recommended Order issued by Administrative Law Judge John Newton . See Dep't of Chil d.

& Fam. v . Kiddie Island Acad . , LLC , Case No. 20 - 2100 (Fla. DOAH Oct. 26, 2020 ), adopted

in pertinent part (DCF Feb. 12, 2021). The Department argues that i n Kiddie Island , the

child care facility was found to have committed c hild a buse and the DepartmentÔs

Administrative Complaint was upheld. Further, t he Department argues that Judge Newton

found, and the unde rsigned should follow suit, that the physical injuries the child suffered in

that case amounted to child abuse . The Department mischaracterizes Judge Newton's

findings. In fact, Judge Newton found that the teacher's treatment of the child in that case

"did not amount to 'abuse' as the Legislature has defined it." Moreover, Judge Newton found

that the Department did not prove the charges alleged and recommended dismissal of the

Administrative Complaint. In its Final Order, t he Department adopted these recomm ended

findings and conclusions and dismissed the child abuse charge.

(4) In order to obtain and maintain a designation

as a Gold Seal Quality Care provider, a child care

facility, large family child care home, or family day

care home must meet the following additional

criteria:

(a) The child care provider must not have had an y

class I violations, as defined by rule, within the 2

years preceding its application for designation as a

Gold Seal Quality Care provider. Commission of a

class I violation shall be grounds for termination of

the designation as a Gold Seal Quality Care

p rovider until the provider has no class I violations

for a period of 2 years. (emphasis added).

60 . The statute explicitly provides that the commission of a C lass I

violation shall be grounds to terminate a child care facility's designation as a

Gold Seal Quality Care provider .

6 1 . As set forth above, StarChild is found to have committed an act of

physical punishment as a form of discipline , in violation of s ection 2.8 , F.1. of

the Handbook , which constitutes a Class I violation.

6 2 . Rule 65C - 22.010(2)(d) 1 . provides for progressive discipline when

Class I violations are found , as follows:

1. Class I Violations.

a. For the first and second violation of a Class I

standard, the Department shall, upon applying the

factors in section 402.310(1), F.S., impose a fine not

less than $100.00 nor more than $500.00 per day

for each violation, and may impose other

disciplinary sanctions in addition to the fine.

6 3 . Section 402.310(1) provides, in pertinent part:

(1)(a) The department or local licensing agency

may a dminister any of the following disciplinary

sanctions for a violation of any provision of

ss. 402.301 - 402.319, or the rules adopted

thereunder:

1. Impose an administrative fine not to exceed

$100 per violation, per day. However, if the

violation could or d oes cause death or serious harm,

the department or local licensing agency may

impose an administrative fine, not to exceed $500

per violation per day in addition to or in lieu of any

other disciplinary action imposed under this

section.

***

(b) In determ ining the appropriate disciplinary

action to be taken for a violation as provided in

paragraph (a), the following factors shall be

considered:

1. The severity of the violation, including the

probability that death or serious harm to the health

or safety o f any person will result or has resulted,

the severity of the actual or potential harm, and

the extent to which the provisions of ss. 402.301 -

402.319 have been violated.

2. Actions taken by the licensee or registrant to

correct the violation or to remedy complaints.

3. Any previous violations of the licensee or

registrant.

6 4 . Considering the factors set forth in section 402.310(1)(b) , to include

StarChild's robust response to address the incident, the lowest fine possible is

appropriate. In addition, f o r the found violation, the Department is required

by law to revoke StarChild Ôs Gold Seal Designation.

R ECOMMENDATION

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

R ECOMMENDED that the Department of Children and Familie s impose a fi ne

of $100.00 against StarChild and revoke its designation as a Gold Seal

Quality Care provider .

D ONE A ND E NTERED this 19th day of May , 2021 , in Tallahassee, Leon

County, Florida.

S

J ODI - A NN V. L IVINGSTONE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of May , 2021 .

C OPIES F URNISHED :

Brian Christopher Meola, Assistant Lucia C. Pineiro, Esquire

General Counsel Lucia C. P ineiro & Associates, P.A.

Department of Childre n and Families Suite 309

Suite S - 1129 717 Ponce de Leon Boulevard

400 West Robinson Street Coral Gables, Florida 33134

Orlando, Florida 32801

Javier A. Enriquez, General Counsel

Lacey Kantor, Agency Clerk Department of Children and Families

Department of Children and Families Building 2, Room 204F

Building 2, Room 204Z 1317 Winewood Boulevard

1317 Winewood Boulevard Tallahassee, Florida 32399 - 0700

Tallahassee, Florida 32399 - 0700

N OTICE O F 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

ca se.