21-001687 Department Of Children And Families vs. Jill Johnson, D/B/A A To Z Child Development Center Status: Closed Recommended Order on Monday, August 30, 2021.

Summary: Petitioner did not meet its burden to prove that Respondent failed to comply with the handbook.

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 - 1687

J ILL J OHNSON , d/b/a A T O Z C HILD

D EVELOPMENT C ENTER ,

Respondent .

/

R ECOMMENDED O RDER

On July 15, 2021, p ursuant to notice, a final hearing was conducted in

this case via Zoom teleconference, before Yolonda Y. Green , a duly - design ated

Administrative Law Judge (ALJ ) of the Divisi on of Administrative Hearings

(DOAH ).

A PPEARANCES

For Petitioner: David Gregory Tucker, Esquire

Department of Children and Families

5920 Arlington Expressway

Jacksonville, F lorida 32211

For Respondent: Jill Johnson , pro se

A to Z Child Development C enter

1049 East 8th Street

Jacksonville, F lorida 32206

S TATEMENT OF T HE I SSUE S

The issue s in this matter are whether Respondent, the owner of a child

care facility, committed the violations alleged in the Administrative

Complaint; and , if so, what is the appropriate sanction for the violation.

P RELIMINARY S TATEMENT

On April 27 , 2021, Petitioner, Depart ment of Children and Families

( Petiti oner or DCF ), issued a one - count Administrative Complaint against

Respondent, Jill Johnson d/b/a A to Z Ch ild Development Center (Respondent

or Jill Johnson) . The Administrative Complaint alleged that a background

screening had not been completed after a 90 - day break in employment for

staff member E.L. If proven, the alleged conduct would constitute a Class II

violation of the child care facilit y standards classifications . The

Administrative Complaint proposed a civil penalty of $50.00 based on the

allegation that this would be RespondentÔs second Class II violation .

Respondent timely contested the Administra tive Complaint, which

resulted in this proceeding. On May 25, 2021, this matter was referred to

DOAH for a final hearing.

The undersigned scheduled this case for a hearing on July 15, 2021, and it

commenced as scheduled. PetitionerÔs Exhibits A through C were admitted

into evidence. Petitioner als o presented the testimony of Gre trell Marshall

(DCF licensing counselor) . RespondentÔs Composite Exhibit 1 was admitted

into evidence, and Respondent presented the testimony of Crystal McMillion.

The one - volume T ranscript of the hear ing was filed at DOAH on July 30,

2021. Petitioner timely filed its Propose d Recommended Order on July 30,

2021, and it was considered in preparation of this Recommended Order.

Respondent did not file a post - hearing submittal.

The eve nt s related to the issues in this proceeding occurred in April 2021.

This proceeding is governed by the law in effect at the time of the commission

of the acts alleged to warrant discipline. See McCloskey v. DepÔt of Fin. Servs. ,

115 So. 3d 441 (Fla. 5th D CA 2013). Thus, u nless otherwise noted, all

statutory and regulatory references shall be to the 20 20 versions.

F INDINGS OF F ACT

Based on the evidence adduced at hearing, and the complete record, the

following Findings of Fact are made:

1. DCF is authoriz ed to regulate child care facilities pursuant to sections

402.301 through 402.319 , Florida Statutes . Section 402.310 authorizes DCF

to take disciplinary action against child care facilities for violations of

sections 402.301 through 402.319.

2. A to Z Chil d Development Center (A to Z) is a child care facility owned

and operated by Jill Johnson at 1049 East 8th St reet , Jacksonv ille, Florida.

The license number is C04DU1409.

3. It is undisputed that on December 20, 2020, Respondent received a

citation for em ploying a person for which she had not conducted a

background screening fol lowing a 90 - day break in employment .

4 . At all times material to this matter, E.L. wa s a child care provider

working at A to Z. She began working with the facility on February 2, 20 21.

E.L. had been cleared and found ÑeligibleÒ to work as a child care provider on

April 6, 2017, at a different child care facility.

5 . O n April 22, 2021, Gretrell Marshall, a DCF licensing counselor,

conducted a routine inspection of the child care facil ity .

6 . Ms. Marshall has 20 years working with DCF . She has worked as a

family services counselor for three years and has been trained to inspect child

care fa cilities. Before working with DCF, Ms. Marshall owned a family day

care home for two years and se rved as a director for a child care facility for

seven years.

7 . During her inspection of A to Z, Ms. Marshall reviewed the employment

records for each employee of the facility. Specifically, she reviewed the file for

E.L. and discovered that the backgrou nd screening for E.L. was completed on

April 9, 2021.

8 . This was a concern for Ms. Marshall as child care personnel should

update their background screening if there is more than a 90 - day absence

from working as a child care provider.

9 . Ms. Marshall rev iewed the completed background screening report and

employment history form for E.L. The background screening report dated

February 3, 2021, reflected that E.L. had successfully passed a background

screening on April 6, 2017. The employment history and ref erence form

reflected that E.L . was last employed as an assistant teacher at Nono Ôs Home

Daycare ( Nono Ôs). The employment dates were listed as October 2019 to

Present. Although there is a question regarding whether E.L. had a 90 - break

in employment or work ed at NonoÔs, she was subsequently she was deemed

eligible to work with children.

10 . Ms. Marshall then reviewed the DCF Child Care Administration,

Regulation a nd Enforcement System ( CARES). CARES maintains

employment history information for child care pe rsonnel, including new

employee information, verifying existing employees , and checking

employment history. The information input in the system is reported by

employers. However, employees do not have access to review information in

the system. Ms. Marshal lÔs review of CARES reflected that E.L.Ôs most recent

employer was with T and A Learning Center, which terminated in

February 2020. CARES did not reflect that E.L. worked at Nono Ôs.

11 . After review of E.L. Ô s employee records , Ms. Marshall concluded that

E.L.Ôs background screening should have been completed on February 2,

2021, when E.L. began working at A to Z. Ms. Marshall testified that the

form reflected that Jill Johnson was identified as the person contacted to

verify employment. The evidence of rec or d demonstrated that the person

contacted was actually Nono Johnson (owner of Nono Ôs) instead of

RespondentÔs owner , Jill Johnson.

12 . Ms. Marshall also reviewed the renewal application records for Nono Ôs.

There was no record in the renewal applications that E.L. w as an employee.

13 . Relying upon her review of E.L.Ôs records maintained by Jill Johnson,

the renew al applications for Nono Ôs , and the CARES records , Ms. M arshall

determined that a background screening was warranted for E.L. because it

appeared that she had a 90 - day break in employment .

14 . Ms. Marshall did not interview Nono Johnson and she did not

interview E.L. In addition, neither person testified at the final hearing.

15 . Ms. Marshall testified that a factor in making her decision was that

the employment history form for E.L. did not clearly indicate the person

contacted for employment verification. However, the record reflects that Nono

Johnson was listed as t he person contacted to verify the background

reference check.

16. The threshold i ssue in this matter is whether E.L. worked for Nono Ôs.

If E.L. worked for Nono Ôs , the background screening would not be required.

On the other hand , if E.L. did not work for Nono Ôs, E.L. would be required to

perform the background screening due to the 90 - d ay break in employment .

17 . Ms. Johnson presented the testimony of Crystal McMillion , who

assisted Ms. Johnson with the reference checks. She testified that she spoke

to Nono Johnson and verified th at E.L. worked at Nono Ôs during the dates

provided on the employment history form .

18 . Ms. McMillion testified that she then logged into the background

screening portal and verified that E.L. had previously successfully completed

a background screening in 2017 .

19 . Ms. McMillion was the only witness with direct knowledge of the

employment verification for E.L . Ms. McMillion has experience as a child care

facility operator and understands what is required to conduct employment

verification. The undersigned found her to be credible and truthful. However,

her testi mony was uncorroborated hearsay. 1 S uch evidence may not be

considered by the undersigned as a basis for findings of fact .

20 . Assuming Ms. McMillion made an error in her employment

verification as argued by Petitioner, the question remains whether Nono Ôs

f ailed to properly disclose all its employees and E.L. was in fact an employee .

21 . The undersigned finds it unlikely, but possible, that E.L. presented

erroneous employment history information. Another possibility is that the

records for Nono Ôs did not ac curately reflect all of its employees and , thus,

such information was not put into CARES. Neither Nono Johnson nor E.L.

testified at the hearing. Likewise, the record does not include any interview

statement made by Nono Johnson or E.L. The only evide nce p resented by

DCF to demonstrate that E.L. had a 90 - day break in employment was the

abs ence of records for Nono Ôs, a facility over which R espondent has no control.

This evidence is not sufficient to meet the clear and convincing evidence

burden in this matte r.

Ultimate Finding of Fact

22 . Based on the evidence presented at the hearing , the undersig ned

finds that there was no clear and convincing evidence to establish that E.L.

had a 90 - day break in employment . As a result, there is no clear and

convincing ev idence to establish that Respondent was required to obtain

background re - screening for E.L.

23 . DCFÔs burden in this case is to prove the facts alleged in the

Administrative Complaint by clear and convincing evidence , and the credible

admissible evidence d id not meet that burden.

1 Because No n o Johnson did not testify during the final hearing, the portion of Ms. McMillionÓs testimony

concerning No n oÓs ver ification of employment is uncorroborated hearsay that cannot support a finding of

fact. See £ 120.57(1)(c), Fla. Stat. (2020)(providing that Ð[h]earsay evidence may be used for the purpose

C ONCLUSIONS OF L AW

2 4 . DOAH has jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

25 . DCF is the state agency granted the responsibility of licensing child

care facil ities. §§ 402.301 - . 319, Fla. Stat. DCFÔs duties include responsibility

for imposing sanctions for violations of statutes or rules. § 402.310, Fla. Stat.

26 . Clear and convincing evidence Ñrequires more proof than a

Ópreponderance of the evidenceÔ but less than Óbeyond and to the exclusion of a

reasonable doubt. Ô Ò In re Graziano , 696 So. 2d 744, 753 (Fla. 1997). The

Florida Supreme Court further enunciated the standard:

This intermediate level of proof entails both a

qualitative and quantitative standard. Th e

evidence must be credible; the memories of the

witnesses must be clear and without confusion; and

the sum total of the evidence must be of sufficient

weight to convince the trier of fact without

hesitancy.

Clear and convincing evidence

requires that th e evidence must be

found to be credible; the facts to which

the witnesses testify must be

distinctly remembered; the testimony

must be precise and lacking in

confusion as to the facts in issue. The

evidence must be of such a weight that

it produces in the mind of the trier of

fact a firm belief or conviction, without

hesitancy, as to the truth of the

allegations 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)). Ñ Al though this standard of proof

may be met where the evidence is in conflict, it seems to precl ude evidence

of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding

unless it would be admissible over objection in civil actions.Ñ)

that is ambiguous.Ò Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 98 6

(Fla. 1st DCA 1991).

27 . Sections 402.301 through 402 .319 establish Ñ stat ewide minimum

standards for the care and protection of children in child care facilities, to

ensure maintenance of these standards, and to approve county

administration and enforcement to regulate conditions in such facilities

through a program of licensin g.Ò £ 402.301(1), Fla. Stat.

28 . Pursuant to its authority under section 402.310, DCF has adopted

Florida Administrative Code Rule 65C - 22, ÑChild Care Standards.Ò Rule 65C -

22.001(6) provides that c hild care programs must follow the standards found

in the Ñ Child Care Facility Handbook Ò (CCFH) , May 2019, incorporated

herein by reference.

29. Section 5.2.C of the CCFH provides:

Child care personnel must be re - screened following

a break in employment in the child care industry

that exceeds 90 days. Child ca re

personnel/individual with a break in service that

exceeds 90 days are considered unscreened child

care personnel/individuals until completion of re -

screening. These child care personnel/individuals

shall not have unsupervised contact with children

in ca re.

30 . Rule 65C - 22.010 provides:

This rule establishes the grounds under which the

Department shall issue an administrative fine,

deny, suspend, revoke a license or registration or

place a licensee or registrant on probation status as

well as uniform sys tem of procedures to impose

disciplinary sanctions.

3 1 . Rule 65C - 22.010(1)(e)2 . defines a class II violation as:

(e) ÑViolationÒ means noncompliance with a

licensing standard as described in an inspection

report resulting from an inspection under Sect ion

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

Class II, and Class III Violation s.

* * *

2. ÑClass II ViolationÒ is an incident of

noncompliance with an individual Class II

standard as described on CF - FSP Form 5316. Class

II violations are less s erious in nature than Class I

violations.

32 . The Licensing Standards Classification ( Licensing Standards )

implements the statutory mandate by setting out the component parts of

each standard. The Licensing Standards classifies the severity of violation s

and repeat violations following criteria DCF has established in rule 65C -

22.010.

33 . The Licensing Standard 45.7.2 references the rule requiring

background screening after a 90 - day break in employment and classifies the

act as a Class II violation.

3 4 . Section 402.310 and rule 65C - 22.010 are penal in nature and must be

strictly construed, with any ambiguity construed against Petitioner. Penal

statutes must be construed in terms of their literal meaning, and words used

by the Legislature may not be exp anded to broaden the application of such

statutes. Beckett v. DepÔt of Fin. Servs. , 982 So. 2d 94, 100 (Fla. 1st DCA

2008); Latham v. Fla. CommÔn on Ethics , 694 So. 2d 83 (Fla. 1st DCA 1997).

35 . The allegations set forth in the Administrative Complaint ar e those

upon which this proceeding is predicated. Trevisani v. DepÔt of Health , 908 So.

2d 1108, 1109 (Fla. 1st DCA 2005); Cottrill v. DepÔt of Ins. , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996). Due process prohibits DCF from taking

disciplinary action again st a licensee based on matters not specifically alleged

in the charging instruments, unless those matters have been tried by

consent. See Shore Vill. Prop. OwnerÔs AssÔn v. DepÔt of Envtl. Prot. , 824 So. 2d

208, 210 (Fla. 4th DCA 2002); Delk v. DepÔt of Pr o . Reg ul . , 595 So. 2d 966, 967

(Fla. 5th DCA 1992) .

36 . The Administrative Complaint allege s Respondent violated the CCFH

by failing to obtain an updated background screening for E.L., in violation of

s ection 5.2 . C. as implemented through Licensing Standar d 45.7.2.

3 7 . If proven, this allegation would constitute a Class I I violation of the

child care licensing standards se t forth in rule 65C - 22.010 (1)(e) 2 . , as it would

be RespondentÔs second similar violation.

3 8 . DCF did not establish by clear and convinc ing evidence that E.L. was

required to be re - screened because she had a 90 - day break in employment

prior to being hired by A to Z.

39. For the reasons set forth in the Findings of Fact above, DCF failed to

carry its burden of proving that Respondent commi tted any acts or omissions

that constitute failure to comply with the CCFH .

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 Adm inistrative Complaint against Jill Johnson d/b/a

A to Z Child Development Center.

D ONE A ND E NTERED this 3 0th day of August , 2021 , in Tallahassee, Leon

County, Florida.

S

Y OLONDA Y. G REEN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Flo rida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3 0th day of August , 2021 .

C OPIES F URNISHED :

Shevaun Harris, Secretary Jill Johnson

Department of Chi ldren and Families A to Z Child Development Center

2415 North Monroe Street , Suite 100 1049 East 8th Street

Tallahassee, Florida 32303 Jacksonville, Florida 32206

David Gregory Tucker, Esquire Danielle Thompson, Agency Clerk

Department of Children and Families Department of C hildren and Families

5920 Arlington Expressway Office of the General Counsel

Jacksonville, Florida 32211 2415 North Monroe Street, Suite 100

Tallahassee, Florida 32303

Javier Enriquez, General Counsel

Department of Chi ldren and Families

Office of the General Counsel

2415 North Monroe Street, Suite 100

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 Recommend ed Order. Any exceptions to this Recommended

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

case.