21-001467 Department Of Children And Families vs. It's A Small World Academy, Inc., D/B/A It's A Small World Academy, Inc. Status: Closed Recommended Order on Tuesday, August 17, 2021.

Summary: DCF failed to prove by clear and convincing evidence that Petitioner submitted its renewal application late when it was mailed a week before the deadline. Accordingly, the Administrative Complaint should be dismissed and no fine is appropriate.

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. 21 - 146 7

I T ' S A S MALL W ORLD A CADEMY , I NC . ,

Respondent .

/

R ECOMMENDED O RDER

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

Administrative Law Judge (ÑALJÒ) M ary Li Creasy by Zoom conference on

Ju ly 20 , 2021.

A PPEARANCES

For Petitioner: Aaron Feuer, Esquire

Department of Children and Families

401 Northwest 2nd Avenue , Suite N1014

Miami, Florida 33128 - 1740

For Respondent: Marcia Esther Martorell , pro se

It's A Small World Academy , Inc.

2990 Northwest 81st Terrace

Miami, Florida 33147

S TATEMENT OF T HE I SSUE S

Whether RespondentÔs application for renewal of its child care facility

license was untimely submitted ; and , if so, what is the appropriate penalty.

P RELIMINARY S TATEMENT

Petitioner , Department of Children and Families ("DCF"), by

Administrative Complaint dated February 1, 2021, notified Respondent that

it was imposing a civ il penalty in the amount of $50.00 for the late filing of its

child care license renewal application. Respondent , ItÔ s a Small World

Academy, Inc. (" Small World "), timely requested an administrative hearing

challenging DCF's penalty . DCF referred the matte r to the Division of

Administrative Hearings ("DOAH") to conduct a hearing pursuant to

s ections 120.569 and 120.57(1), Florida Statutes.

After a continuance granted at the request of both parties, t he final

hearing was conducted as scheduled on July 20, 2021 . Petitioner presented

the testimony of Susan Freem a n, DCF S ecretary A ssistant, and Alexis

Stevens, former DCF F amily S ervices C ounselor . Petitioner submitted

Exhibits A and B , which were admitted into evidence without objection .

Respondent presented the testimony of its owner, Marcia Martorell, and her

daughter and business partner , Marcy Martorell .

The parties chose not to order the transcript . Both parties timely filed

proposed recommended orders, which were taken into consideration in the

drafting of this Recommended Order. Unless otherwise indicated, citations to

the Florida Statutes refer to the version in effect at the time of the

application denial.

F INDINGS OF F ACT

1. DCF is the state agency that licenses and regulate s child care facilities

i n Florida.

2. Small World is a licensed child care facility in Miami, Florida, that has

been doing business at this location for at least several years. As a licensed

child care facility, Small World undergoes at least three routine inspection

visits a yea r by DCF.

3 . During its second routine evaluation in the summer of 2020, Small

World was reminded by Alexis Stevens, former DCF F amily S ervices

C ounselor , that its renewal application was due to be submitted to DCF at

least 45 days prior to its license ex piration on November 23, 2020.

Ms. Stevens provided this courtesy reminder to prevent Small World from

incurring a penalty for a late filing. Ms. Stevens, who had been Small WorldÔs

point of contact at DCF for several years , had no concern that Small Worl d

would be late because , in the past, Small World was never late, and it

consistently filed all materials needed for renewal of its license.

4 . At the beginning of October 2020, Ms. Stevens advised Small W orld

that DCFÔs Miami office was closed to the publ ic due to C OVID - 19 and

directed Small World to mail its renewal application rather than hand -

delivering it as it had done in the past. The owners of Small World were

aware the renewal application needed to be submitted to DCF on or before

October 9, 2020.

5. Small W orldÔs owner, Marcia Martorell, completed the renewal

application packet on October 1, 2020 . On the next day, her daughter mailed

the application packet from the Miami post office to DCFÔs Miami office by

certified, return receipt requested , mail . They reasonably anticipated that , at

most, delivery would occur within a few days and in plenty of time to avoid

the October 9, 2020, deadline.

6. According to the United States Postal Service (ÑUSPSÒ) tracking record,

t he application package was signed for by an individual at the DCF Miami

office on October 13, 2020. However, the actual Ñgreen cardÒ receipt bears no

signature , and instead is marked ÑCO19Ò (presumably for C OVID - 19) on

October 15, 2020.

7. DCF S ecretary A ssistant, Susan Freeman , received t he package on

October 13, 2020, from the DCF mailroom and date - stamped each page .

Ms. Freeman does not know on what date the package arrived in the

mailroom. Ms. Freeman testified that although the office was closed to the

public, most days the staff came to the office to complete their assigned

duties, including receiving checks and other mail, including license renewal

packages. However, she also recalled that the office was completely closed to

personnel for several days due to riots in Miami.

C ONCLUSI ONS OF L AW

8 . DOAH has jurisdiction over the parties to, and subject matter of, this

proceeding pursuant to sections 120.569 and 120.57(1).

9 . This is a disciplinary proceeding against Respondent's child care facility

license, pursuant to section 402.310(1 ), Florida Statutes. Petitioner bears the

burden, by clear and convincing evidence, to establish the grounds for

discipline against Respondent's license. Dep't of Banking & 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).

10. In Evans Packing Co mpany v. Department of Agriculture and

Consumer Services , 550 So. 2d 112 (Fla. 1st DCA 1989), the c ourt defined

clear and convincing e vidence 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 witnesses must be lacking i n

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.

Id . at 116 n.5 ( citi ng Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

( DCA 1983 ) ) .

11. 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. See McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA

1995); Goin v. Comm'n on Ethics , 658 So. 2d 1131, 1138 (Fla. 1st DCA 1995);

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

12. Respondent is a child care facility as defined in section 402.302(2) .

Section 402.308(1) requires a child care facility license to be renewed

annually . Pursuant to section 402.305(2)(e) and (10), Petitioner has adopted

rules establishing child care facility licensure requirements .

13. The application for license renewal Ñ must be su bmitted to the licensing

authority at least 45 days prior to the expiration date of the current license to

ensure that a lapse of licensure does not occur. Ò Fl a . Admin . Code R . 65C -

22.001(1)(d) .

1 4 . Florida Administrative Code Rule 65C - 22.010(2) provides:

(c) Failure to submit a completed CF - FSP Form

5017, Application for a License to Operate a Child

Care Facility, which is incorporated by reference in

paragraph 65C - 22.001(1)(a), F.A.C., for renewal of

an annual license at least 45 days prior to the

expirat ion date of the current license constitutes a

licensing violation. The Department shall impose

an administrative fine of $50.00 for the first

occurrence, $100.00 for the second occurrence, and

$200.00 for each subsequent occurrence within a

five year perio d.

15. Notably absent from the pertinent statu t e s and rules is the definition

of the word Ñsubmit.Ò DCF takes the position that submission is equivalent t o

sent to , and receipt by, DCF . Respondent argues that its application was

ÑsubmittedÒ when sent or m ailed .

16. Because the term Ñ submit Ò is not defined by the statutory provision

and is subject to differing interpretations, the statute is ambiguous and, thus,

statutory interpretation is appropriate.

17. Merriam - Webster defines ÑsubmitÒ as : Ñto present or propose to

another for review, consideration, or decision.Ò Merriam - Webster.com ,

https://www.merriam - webster.com/dictionary/submit?src=search - dict - box

( last visited August 13, 2021 ) . This definition fails to shed light on whether

ÑsubmitÒ necessarily enc ompasses the action of receipt.

1 8 . DCF correctly acknowledges that there is no caselaw involving DCF

that directly addresses this issue . It cites to the case of Department of

Children and Families v. North Florida Daycare, Inc., d/b/a Alachua County

Child Care Center , Case No. 10 - 8248 ( DOAH Nov. 18, 2010; DCF Mar. 10,

2011 ), w herein an application due on June 21, 2010 , was considered untimely

when placed in the mail on June 21, 2010 , and received by DCF a week later .

However, in that case, testimony was pr ovided at hearing regarding the

necessity of DCFÔs receipt of the application 45 days prior to the license

expiration . No such testimony was offered in the instant matter.

1 9 . Further, in North Florida Daycare , neither the ALJÔs Recommended

Order , nor DCFÔs Final Order , undertook any analysis of the meaning of the

word Ñsubmit.Ò

20. Fortunately, it is unnecessary in this case to determine whether both

mailing and receipt by DCF are needed to meet the 45 - day submission

requirement.

2 1 . DCF fai led to prove by clear and convincing evidence on what date the

renewal application of Respondent was received . Although Ms. Freeman

date - stamped the document on October 13, 2020, four days after it was due,

she also confirmed that her office experienced cl osures during that timeframe

due to COVID - 19 and riots.

2 2 . The USPS tracking information in this case is of no probative value

regarding receipt . Rather than obtaining a signature upon delivery, the

return receipt was marked ÑCO19Ò on October 15 , 202 0 . No testimony from a

USPS official was presented regarding how this could occur after the

application was date - stamped by DCF two days earlier . This leaves open the

possibility that the renewal application was, in fact, received some time

earlier and not logged in timely due to an office closure or absent staff.

2 3 . The equities in this case lean in favor of Respondent who mailed the

renewal application from Miami to DCF in Miami a week before it was due .

Given the exceptional conditions of the time, it is patently unfair to penalize

Respondent.

R ECOMMENDATION

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

R ECOMMENDED that the Department of Children and Families enter a final

order dismissing the Administrative Complaint.

D ONE A ND E NTERED this 17th day of August, 2021 , in Tallahassee, Leon

County, Florida.

S

M ARY L I C REASY

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 17 th day of August, 2021.

C OPIES F URNISHED :

Marcia Esther Martorell Aaron Feuer, Esquire

It's A Small World Academy Department of Children and Families

2990 Northwest 81st Terrace 401 Northwest 2nd Avenue, Suite N1014

Miami, Florida 33147 Miami, Florida 33128 - 1740

Danielle Thompson, Agency Clerk Javier Enriquez, General Counsel

Department of Children and Families Departme nt of Children and Families

Offic e of the General Counsel Office of the General Counsel

2415 North Monroe Street, Suite 100 2415 North Monroe Street, Suite 100

Tallahassee, Florida 32303 Tallahassee, Florida 32303

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 Re commended Order. Any exceptions to this Recommended

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

case.