20-004010 Department Of Children And Families vs. Ladybird Academy Of St. Cloud Status: Closed Recommended Order on Monday, November 30, 2020.

Summary: DCF proved Class I violation in forcefully putting child on cot. Fine limited to $100 because no proof that violation could cause death or serious harm.

P RELIMINARY S TATEMENT

Petitioner, Department of Children and Families (Department) , issued an

Administrative Complaint to Ladybird on June 1, 2020. Ladybird disputed

the charges of the Administrative Complaint and requested a hearing. The Department referred the dispute to the Division on September 4, 2020, for

conduct of the hearing. Th e undersigned scheduled the hearing to begin

November 4, 2020. The hearing was conducted as scheduled.

The Department presented testimony from Shquyla Gully, Michendy

Joseph, Jheneal McDuffie, and Tracy McDuffie. Department Exhibits A

through F were admi tted into evidence. Ladybird presented the testimony of

Patricia Peralta. Ladybird Exhibits A through E were accepted into evidence.

The parties did not order a transcript. The parties timely filed P roposed

R ecommended O rders. They have been considered in the preparation of the

Recommended Order.

F INDINGS OF F ACT

1. The Department is the state agency charged with licensing child care

facilities.

2. Ladybird holds a child care facility license from the Department,

authorizing it to operate a child care facility. Ms. Peralta was the director of

Ladybird at all times material to this matter. The Department had never sanctioned Ladybird.

3. In February 2020, Ladybird was providing child care for N.M., a two -

year - old at the time.

4. The events that are the subject of this proceeding occurred on

February 5, 2020. The incident upon which the Department bases its charges

was video recorded.

5. N.M. and the other children at Ladybird had small cots, elevated

slightly off the floor. The cots are made of a slig ht metal frame with fabric

stretched across it. The frames are lightly padded.

6. On February 5, 2020, a Ladybird caregiver, Jennifer Montes , was

having difficulty getting N.M. to lay down for a nap. She was sitting on the

floor beside the cot. Each time M s. Montes placed N.M. on the cot, N.M.

resisted and tried to get back up. This happened several times.

7. After struggling to get N.M. to stay on the cot, Ms. Montes shoved him

down onto the cot from her sitting position. During her attempts to force

N.M. to remain on the cot, Ms. Montes did not lift N.M. up into the air.

During these attempts , N.M.'s head hit the cot frame hard enough to bruise

N.M.'s cheek.

8. When N.M. came home, N.M.'s mother noticed a small mark on N.M.'s

cheek. It had not been there in the morning when she left N.M. at Ladybird.

By the next evening , the mark was a visible bruise. On Friday, February 7,

2020, N.M.'s mother showed Ms. Peralta a photograph of the bruise and

asked her to investigate.

9. Ms. Montes had not reported the in cident to Ms. Peralta. Over the

weekend , Ms. Peralta reviewed the video recordings of the preceding week

and identified the incident causing the bruise. On Monday, Ms. Peralta told N.M.'s mother what she learned and showed her the recording. She also

discharged Ms. Montes.

10. The evidence does not prove that the bruise required medical care or

created a risk of death or serious harm.

C ONCLUSIONS OF LAW

11. Sections 120.569 and 120.57(1), Florida Statutes (2020), grant the

Division jurisdiction over the parties to and the subject matter of this

proceeding.

12. The Legislature has charged the Department with the responsibility of

licensing child care facilities. §§ 402.301 - 402.319, Fla. Stat. (20 19 ). 1 This

includes responsibility for imposing sanctio ns for violations of statutes or

rules. § 402.310, Fla. Stat.

13. The Department must prove the grounds for sanctioning Ladybird by

clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern &

Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turling ton , 510 So. 2d 292 (Fla.

1987); Coke v. Dep't of Child. & Fam. Servs. , 704 So. 2d 726 (Fla. 5th DCA

1998).

14. The opinion in Evans Packing Company v. Department of Agriculture

and Consumer Services , 550 So. 2d 112, 116 n. 5 (Fla. 1st DCA 1989), defined

clear and convincing evidence 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 evidence must be precise and

explicit and the witne sses 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).

15. Also, in disciplinary proceedings, the statutes and rules for which a

violation is alleged must be strictly construed in favor of a respondent.

Elmariah v. Dep't of Prof'l Reg. , 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v.

Dep't of Prof'l Reg. , 534 So. 2d 782, 784 (Fla. 1st DCA 1988).

16. Sections 402.301 through 402.319 , Florida Statutes, establish general

guidelines for Department regulation of child care facilities. Section

402.305(1)( c) empowers the Department to adopt rules implementing the

standards of sections 402.301 through 402.319.

17. Florida Administrative Code Rule 65C - 22.001(6) incorporates the child

1 References to Florida Statutes are to the 2019 codification unless noted otherwise.

care standards of "The Child Care Facility Handbook (CCFH) ." The CCFH

may be viewed at http://www.flrules.org/Gateway/reference.asp?No=Ref -

11491 . CCFH section 2.8 , F . 1.e prohibits "[r]ough 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; covering a child’s head." The Agency proved by clear and convincing

evidence that Ladybird violated this prohibition.

18. Section 402.310(1)(a) authorizes the Department to administer

disciplinary sanctions. It m ay impose a fine not to exceed $100 per day. If,

however, the violation could or does cause death or serious harm the

Department may impose a fine not exceeding $500 per day. Florida

Administrative Code Rule 22.010( 2 )( d )1. a. states that for a licensee's fi rst

Class I violation the Department, " shall upon applying the factors in section

402.310(1), F.S., impose a fine of not less than $100 nor more than $500 per day for each violation … ." The rule goes on to incorporate by reference a

chart titled "Child Ca re Facility Standards Classification Summary , "

available at http://www.flrules.org/Gateway/reference.asp?No=Ref - 10471.

The chart lists the varied requirements of the CCFH and assigns a violation

class to each. The chart assigns Class I to a violatio n of section 2.8,F.1 of the

CCF H.

19. Ms. Monte s 's actions were rough and harsh handling of N.M. This was

a violation of section 2.8,F.1 . of the CCFH . Therefore , Ladybird committed a

Class I violation.

20. As the Department's rule 65 C - 22.010( 2 )( d )1. requires, the factors

identified in section 402.310(1). must be considered in setting the fine for

Ladybird's violation. Section 402.310( 1 ) ( a ) 1 . permits a fine exceeding $100,

up to $500, only for violations that "could or [do] cause death or serious harm

… ."

21. The evidence does not produce a firm belief, without hesitancy, that

Ms. Montes' s rough treatment and harsh handling of the child did or could

have caused death or serious harm. Therefore the maximum fine the

De partment can impose is $100.00.

R ECOMMEN DATION

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

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

its final order finding that Respondent, Ladybird Academy of St. Cloud, committed a Class I violation of Th e Child Care Facility Handbook, section

2.8,F.1 . , and impos ing a fine of $100.00.

D

ONE A ND E NTERED this 30th day of November , 2020 , in Tallahassee,

Leon County, Florida.

J OHN D. C. N EWTON , II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of November , 2020 .

C OPIES F URNISHED :

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Brian Christopher Meola, Assistant General Counsel

Department of Children and Families

Suite S - 1129

400 West Robinson Street

Orlando, Florida 32801

(eServed)

Patricia Peralta

Ladybird Academy of St. Cloud 3475 Progress Lane

St. Cloud, Florida 34769

Sheila M. Rodriguez - Figueroa, Esquire

Unit 2409

150 East Robinson Street

Orlando, Florida 32801

(eServed)

Javier A. Enriquez, General Counsel

Department of Children and Families

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Chad Poppell, Secretary

The D epartment of C hildren and F amilies

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this case.