21-002081 Department Of Children And Families vs. A To Z For Kids, D/B/A A To Z For Kids Status: Closed Recommended Order on Tuesday, November 9, 2021.

Summary: Petitioner proved, by clear and convincing evidence, that Respondent committed three Class II violations within a two-year period. Pursuant to rule, Petitioner should impose a $100 fine.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF C HILDREN A ND

F AMILIES ,

Petitioner ,

Case No. 2 1 - 2081

vs.

A T O Z F OR K IDS , D/B/A A T O Z F OR K IDS ,

Respondent .

/

R ECOMMENDED O RDER

A hearing was con ducted in this case pursuant to sections 120.569 and

120.57(1), Florida Statutes (202 1 ), before Cathy M. Sellers, an

Administrative Law Judge of the Division of Administrative Hearings

( " DOAH " ) , on Augus t 23 and 31, 2021, by Zoom conference at sites in Miami

and Tallahassee, Florida.

A PPEARANCES

For Petitioner: Aaron Feuer, Esquire

Department of Children and Families

Suite N1014

401 N orthwest Second Avenue

Miami, F lorida 33128 - 1740

For Respondent: Beatrice Chaves - Velando

A to Z for Kids

6450 Collins Avenu e , # 504

Miami Beach, F lorida 33141

S TATEMENT OF T HE I SSUE S

The issues in this case are : (1) Whether Respondent committed three

violations of Standard #17 - 02 of Petitioner's Child Care Facility Handbook

within a two - year period; and (2) if so, the penalty that should be imposed.

P RELIMINARY S TATEMENT

On June 2, 2021, Petitioner, Department of Children and Families, served

Respondent, A to Z for K ids, with an Administrative Complaint , alleging that

Respondent violated standard #17 - 02 of the Child Care Facility Handbook on

three separate occasions . Petitioner proposed to impose a $100.00 fine,

p ursuant to section 402.310, Florida Statutes, 1 and Flor ida Administrative

Code R ules 65C - 20.012 and 65C - 22.010 . On June 9, 2021, Respondent

timely filed a request for administrative hearing involving disputed issues of

material fact . On June 24, 2021, Petitioner referred this proceeding to DOAH

to conduct an administrative hearing pursuant to sections 120.569 and

120.57(1).

The final hearing initially was set for August 23, 2021, but due to

technical difficulties with the Zoom c onference, was continued to August 31,

2021. The final hearing was held on A ugust 31, 2021. Petitioner presented

the testimony of Rodresia Smiley and Eddy Vi e l o t , and PetitionerÔs Exhibits

A through G were admitted into evidence without objection . Beatrice Chavez -

Velando testified on behalf of Respondent , and RespondentÔs Composit e

Exhibit A was admitted into evidence without objection .

A final hearing transcript was not filed at DOAH. The parties were given

until September 10, 2021 , to file their p roposed r ecommended o rders .

1 All references to chapter 402 are to the 2020 version, which was in effect at the time of the

alleged violations.

On September 3, 2021, Respondent filed a le tter that constitutes her

p roposed r ecommended o rder. Also o n September 3, 2021, Petitioner filed a

Motion for Enlargement of Time to Submit Proposed Recommendation ,

requesting that the deadline for the parties to file their proposed

recommended orders be extended to September 20, 2021. On September 7,

2021, the undersigned entered an Order Granting Extension of Time until

September 20, 2021 , for the parties to fil e their proposed recommended

orders . Petitioner filed its P roposed R ecommended O rder o n Septem ber 20,

2021. On September 29, 2021, Respondent filed a reply letter to PetitionerÔs

P roposed R ecommended O rder . B ecause replies to proposed recommended

orders are not authorized under Florida Administrative Code R ule

28 - 106.215 , Respondent's reply letter was not considered in preparing this

Recommended Order .

The parties' proposed recommended orders were duly considered in

preparing this Recommended Order.

F INDINGS OF F ACT

I. The Parties

1. P etitioner is the state agency responsible for licensing, inspecting, and

monitoring child care facilities pursuant to chapter 402.

2. Respondent is a child care facility licensed by Petitioner, operating

under License No. C11MD0802. RespondentÔs facility is located at

1343 Alton Road, Miami Beach, Florida 33 139. Beatrice Chaves - Velando is

the Director.

I I. Allegations in the Administrative Complaint

3 . The Administrative Complaint states that t his is an administrative

action to impose a total penalty of $100.00 for violations of applicable child

care fa cility standards, pursuant to section 402.310 and r ules 65C - 22.010 and

65C - 20.012 . 2

4 . During PetitionerÔs three separate inspection s of RespondentÔs child

care facility , conducted on January 12, February 17, and March 4, 2021,

Respondent was cited for violating Standard #17 - 02 , dealing with the

condition of the outdoo r play area and fencing for the facility.

5. Under Petitioner's rules, violating Standard #17 - 02 constitutes a

Class II violation.

6 . Petitioner proposes to impose a fine in the amount of $50.00 for the

second violation, identified on February 17, 2021, and another fine of $50.00

for the third violation, identified on March 4, 2021, for a total fine of $100.00.

III. Evidence Adduced at the Final Hearing

7 . Rodresia Smiley , a Family Service s Counselor with Petitioner,

conducted inspections of RespondentÔs facility child care facility on

January 1 2, February 17, and March 4, 2021 .

8 . In the course of each of the se inspection s , Smiley found that

Respondent committed a violation of Standard #17 - 02 , regarding the

condition of the outdoor play area and fencing for the facility.

9. The noncompliance description in the I nspection C hecklist for each of

the three inspections was the same : " 17 - 02 [t] he facilityÔs outdoor play area

contained litter, na ils, glass or other hazards that posed a threat to the

hea l th, safety or well - being of the children. CCF Handbook, Section 3.5 , A. "

The January 12, 2021, Inspection

10. On January 12, 2021, Smiley conducted a license renewal inspection of

RespondentÔs fac ility and completed an inspection report.

2 Florida Administrative Code C hapter 65C - 20 governs family day care homes and large

family child care homes, as those terms are defined in section 402.302(8) and (11). No

evidence was presented that Responde nt's facility constituted either of these types of

facilities, and Petitioner's P roposed R ecommended O rder does not address alleged violations

of chapter 65C - 20. Accordingly, this Recommended Order does not address alleged

noncompliance with chapter 65C - 20 .

11. Smiley testified that in the course of her inspection, she observed a

wooden gate , which she described in the inspection report as a " fence , " 3 that

was in disrepair. The gate, when closed, block ed a sidewalk a long the side of

the building leading to the play area in the back of the building .

12. Smiley testified , and photographic evidence confirms, that the wooden

boards of the gate were being held together by blue tape , and that they would

become loose or fal l off the gate if not supported by the tape. Smiley testified ,

credibly, that there was a loose nail or screw 4 sticking out , and that the

nail/screw fell out of the gate and onto the ground in an area to which the

children may have access.

1 3 . The photogra ph ic evidence show s that the gate is immediately

adjacent to the play area, where children could play Ð and, at the time the

photog raphs were taken, were playing Ð barefoot, such that they could step

on nails or screws that had fallen to the ground due to the gate being in a

state of disrepair.

14. Although Respondent contended that children did not play in the area

where the gate is located, the photographic evidence shows that there is no

barrier separating the play area from the gate , so that children are a ble to

access that area. To th is point, one of the photographs admitted into evidence

show s a soccer ball lying on the sidewalk immediately next to the gate.

1 5 . Smiley cited Respondent for a violation of Standard #17 - 02 , based on

her determination that a child could injure himself/herself on the loose

board s and/or the nail / screw that had f allen to the ground. S he made the

3 The inspection reports describe the structure in disrepair as a " fence. " The structure

consists of a section of wooden fencing that functions as a gate to block access to a sidewalk

along the side of the facility leading from the play area. Whether characterized as a " fence "

or " gate, " the structure, which was depicted in photographs presented by Petitioner and

Respondent, was accessible to children ; was shown to be in a state of disrepair ; and was h eld

together by blue tape .

4 Similarly, i t is imm aterial whether the object sticking out of the gate was a nail or a screw.

The point is, either object , if stepped on, could injure a child.

following comment on the January 12, 2021, Inspection Checklist: " Outdoor

Play Area/Fencing CCF Handbook, Section 3.5. " :

FSC observe d a broken fence on the side of the

playground being held together by blue tape. On

the bottom of the fence where it was loose, there

was a nail hanging out. After pointing it out to the

staff member she removed the nail from the wood.

Technical assistance was provided that staff

members should check the playground daily to

ensure that there are no hazardous items present

that could cause injuries to the children.

1 6 . Smiley provided technical assistance, which is Petitioner's standard

operating procedure when a violation is identified. Specifically, s he explained ,

to Respondent's employee, the nature of the problem and why it constituted a

hazard to the children at the facility .

1 7 . Under Petitioner's progressive enforcement rules , a child care facility

i s given the opportunity to correct the violation before disciplinary sanctions

are imposed. If the violation is not corrected by the third inspection, an

administrative fine is imposed.

1 8 . Because the January 12, 2021, violation was the first for Responde nt's

facility in a two - year period , no fine was imposed for this violation .

1 9 . Chaves - Velando was provided , and signed, a copy of the January 12,

2021 , inspection report.

20 . The stated due date for correcting the violation documented in the

inspection report was : " [c]ompleted at time of inspection. "

The February 17, 2021, Inspection

2 1 . Smiley conducted a reinspection of RespondentÔs facility on

February 17, 2021 .

2 2 . At that time, she completed an other inspection report , documenting

that the violation of Standard #17 - 02 , which previously was identified on

January 12 , 2021, had not been corrected. Specifically, the particular board

that previously had been loose apparently had been repaired, but a different

board on the gate was broken and had become lo ose , again resulting in a

hazard to children due to a nail or screw sticking out of the gate .

2 3 . On t he i nspection c hecklist completed during her February 17

inspection, Smiley noted the facility's continued noncompliance under

paragraph 17, " Outdoor Pl ay Area/Fencing CCF Handbook, Section 3.5 . " She

commented that : " FSC observed the fence on the side of the playground still

broken and loose. A screw is sticking out of the fence and appears to need to

be replaced. Technical assistance provided below. "

2 4 . During the re inspection, Smiley again spoke with an employee at

Respondent's facility, who acknowledged that the gate needed to be repaired .

2 5 . The February 17, 2021 , inspection report established a March 3, 2021 ,

due date by which Respondent was to co mplete the repair.

2 6 . Respondent did not sign the February 17, 2021, inspection report ;

however, Smiley credibly testified that she provided a copy of the second

inspection report to Respondent on February 22, 2021 , at 1:35 p.m.

The March 4, 2021, Inspe ction

2 7 . Smiley conducted the second reinspection Ð i.e., the third inspection Ð

of Respondent's facility on March 4 , 2021 . Once again, she found that

Respondent had not repaired the gate .

2 8 . Smiley completed an other inspection report, again finding

noncom pliance under paragraph 17, " Outdoor Play Area/Fencing CCF

Handbook, Section 3.5. " Her comments state d : " [a] t the time of inspection,

the fence was still observed not to be in good repair. A piece of the wood on

the fence was loose with a screw sticking ou t. Technical Assistance provided

below. "

2 9 . On questioning at the final hearing , Smiley clarified that Respondent

was cited for the loose board and loose nail or screw that was sticking out of

the gate and could fall onto the ground in an area immediatel y adjacent to

the area where children play . Smiley did not observe glass or litter in the

play area , and her noncompliance determination for Respondent's facility was

not based on her having found glass or litter in the play area .

30 . Smiley provided the M arch 4 , 2021, inspection report to Eddy Vielot,

another Family Services Counselor at the Department of Children and

Families , who , in turn, provided the inspection report to Chavez - Velando .

3 1 . Vielot also testified on Petitioner's behalf. He clarified th at it is

immaterial whether the identified hazard was a nail or a screw ; the issue is

that the presence of a nail or screw sticking out or on the ground in an area

accessible to children creates a hazard , because a child could be injured by

step ping on the nail or screw .

3 2 . Following the second reinspection, Vielot received a text message from

Chaves - Velando dated March 8, 2021 , explaining that at some point after the

first inspection, the gate had been repaired but " the board got loose again. "

This text message was sent after the second reinspection on March 4, 2021 ,

and confirms that as of t he time of (and after) the date of the second

reinspection, the gate remained in a state of disrepair , and, thus, continued

to present a hazard to children at the fa cility .

Respondent's Defenses

33 . Chavez - Velando testified on behalf of Respondent and presented

photographs of Respondent's facility , which were admitted into evidence .

34 . Chavez - Velando testified that she did not notice that the gate needed

repair , an d that only one screw was loose. She contended that the boards

were not loose , and asserted th at the inspection report had said there was a

loose screw , rather than a loose board. 5

35. She also testified that the blue tape on the gate which was present at

the time of the first inspection had been p laced there by R espondent's

5 Item 17 in the inspection report state s , in pertinent part: "FSC observed a broken fence on

the side of the play ground being held together by blue tape. On the bottom of the fence where

it was broken, there was a nail hanging out." The word "it" in that sentence clearly refers to

the gate itself being broken, and this is confirmed by Petitioner's Exhibit A, a photog raph

depicting boards on the gate held in place by tape because they were loose.

employees to indicate that the gate needed to be repaired . She stated that the

employees did not tell her that the gate needed to be repaired, and that she

only found out about the cond ition of the gate when she read the first

inspection report.

36. She acknowledged that the gate had been installed seven or eight

years ago; was weathere d; and that the nail/screw holes g rew larger over

time, causing the screw to fall out. She testified t hat Respondent tried to

have the gate repaired after the first inspection, but that she was unable to

find a repairman willing to do a " small job. "

37 . She also contended that PetitionerÔs photos of the gate look ed " very

distorted , " and asserted that the photographs of the gate that she presented

at the hearing were more accurate depictions of its condition . However, on

questioning at the final hearing , she acknowledged that the photographs she

presented at the hearing were taken after the gate was repair ed , at some

point following the second reinspection . She testified that the gate is now in

good condition.

38 . Chavez - Velando contended that she only received the first inspection

report , and did not receive the second or third inspection reports . She

te stified that the only reason she signed the first inspection report was

because Respondent's license renewal was contingent upon her signing it .

39 . However, e ven if Respondent did not receive the second and third

inspection reports , Respondent clearly was on notice, pursuant to the first

inspection report (which she signed) , that the gate was in disrepair and that

a nail or screw was sticking out and had fallen out of the gate and onto the

ground . Additionally, Chavez - Velando's March 8 , 2021, te x t message to Vielot

confirms that she knew that the gate needed to be repaired, and that it still

had not been repaired at the time of the second reinspection .

IV. Findings of Ultimate Fact

4 0 . Th e question whether a person or entity engaged in conduct that

violate s statutes or rules , as charged in an administrative complaint , is one 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. CommÔn on Ethi cs , 658 So. 2d 1131, 1138 (Fla. 1st DCA 1995);

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

41 . Based on the foregoing findings of fact , it is determined that Petitioner

has proved, by clear and convincing evidence, that Respondent commit ted the

violations alleged in the Administrative Complaint.

42 . Specifically, Petitioner proved that a gate in a state of disrepair at

Respondent's facility was identified as a basis for noncompliance with

Standard #17 - 02 on January 12, 2021, and that by t he time of the

reinspections on February 17 and March 4, 2021, Respondent still had not

repair ed the gate .

43 . Petitioner also proved , by clear and convincing evidence, that the state

of disrepair of the gate at the time of the three inspections resulted i n nails or

screws being present in an area immediately adjacent to, and accessible from,

the outdoor play area , thereby posing a threat to the health, safety , or well -

being of the children at Respondent's facility , in violation of Section 3.5, A. of

the Ch ild Care Facility Handbook , as incorporated into Standard #17 - 02.

44. Accordingly, it is found, as a matter of ultimate fact, that

Respondent engaged in conduct that violated the applicable statutory and

rule provisions, as charged in the Administrative Complaint.

C ONCLUSIONS OF L AW

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

proceeding , pursuant to sections 120.569 and 120.57(1).

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

facility license, pur suant to section 402.310(1). Petitioner bears the burden,

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

against Respondent's license. DepÔt of Banking & Fin. , Div. of Sec . & Inv .

Prot. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla . 1996); Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987); Coke v. DepÔt of Child. & Fam. Servs. , 704 So. 2d

726 (Fla. 5th DCA 1998).

47. In Evans Packing Co. v. Department of Agriculture and Consumer

Services , 550 So. 2d 112 (Fla. 1st DCA 1989), the c our t defined the clear and

convincing evidence standard 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 an d

explicit and the witnesses 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

s ought to be established.

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

1983).

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

This statute states in pertinent part:

" Child care facility " include s any child care center

or child care arrangement which provides child care

for more than five children unrelated to the

operator and which receives a payment, fee, or

grant for any of the children receiving care,

wherever operated, and whether or not oper ated for

profit.

49 . Pursuant to section 402.310(1)(a)1., Petitioner may i mpose an

administrative fine not to exceed $100 .00 per violation per day as a

disciplinary sanction for violating sections 402.301 through 402.319 and the

rules adopted pursuant to these statutory provisions .

50. Chapter 65C - 22, titled " Child Care Standards, " establishes the

licensure and operating standards applicable to child care facilities in

Florida.

51. Rule 65C - 22.001(6) states , in pertinent part : " [c] hild care programs

mu st follow the standards found in the Child Care Facility Handbook , May

2019 , incorporated herein by reference . "

52. Standard 3.5 in the Child Care Facility Handbook states , in pertinent

part: " 3.5 Outdoor Play Area A. The outdoor play area must be clean a nd free

from litter, nails, glass and other hazards . "

53. CF - FSP Form 5316, the Child Care Facility S tandards Classification

Summary, which is incorporated by reference in rule 65C - 22.010(1)(e) , states,

in pertinent part: " 17. Outdoor Play Area/Fencing C CF Handbook, Section

3.5. " Th is form describe s Standard #17 - 02 as follows: " 17.2 The facilityÔs

outdoor play area contained litter, nails, glass or other hazards that posed a

threat to the health, safety or well - being of the children. CCF Handbook,

Section 3.5, A . "

54. CF - FSP Form 5316 classifies the violation of Standard #17 - 02 as a

Class II violation.

5 5 . As discussed above, the evidence clear ly and convincing ly establishes

that Respondent violated Standard #17 - 02 , and, thus, Child Care Facility

Handb ook Standard 3.5, on three separate occasions within a two - year

period. In doing so, Respondent committed three Class II violations of

Petitioner's rules and incorporated standards.

5 6. R ule 65C - 22.010 , titled " Enforcement, " esta blishes the grounds under

w hich Petitioner may impose administrative fine s for violatin g chapter 402

and administrative rules, including the Child Care Facility Handbook

standards , applicable to child care facilities.

5 7. " Standards " are defined as the requirements for the operation of a

licensed facility provided in statute or in rule. Fla. Admin. Code R .

65C - 22.010(1) (c) .

5 8. A " [v] iolation , " in the context of Class I, II, or III violations, means

noncompliance with a licensing standard , as described in an inspection report

resu lting from an inspection under section 402.311. Fla. Admin. Code R .

65C - 22.010(1)(e ) .

5 9 . A " Class II Violation " is defined as an incident of noncompliance with

an individual Class II standard , as described on CF - FSP Form 5316. Class II

violations are les s serious in nature than Class I violations. Fla. Admin. Code

R . 65C - 22.010(1)(e)2 .

60 . D isciplinary sanctions for violations of applicable standards are

applied progressively , for the violation of each child care facility standard.

Fla. Admin. Code R . 65C - 22.010(2)(a).

61. Rule 65C - 22.010(2)(b) provides a grace period under which the

violation of a standard which occurred more than two years before a

subsequent violation of the same standard is not counted for purposes of

imposing discipline.

62 . For th e second violation of the same Class II standard within a two -

year period , Petitioner impose s an administrative fine of $50.00 for each such

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

63 . Here, the evidence clearly and convincingly establishes tha t

Respondent committed three Class II violations within a two - year period .

Accordingly, the appropriate penalty, pursuant to rules 65C - 22.010(2)(b) and

65C - 22.010(2)(d)2.a ., is imposition of a $ 1 00.00 administrative fine against

Respondent .

R ECOMMENDATION

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

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

final order determining that Respondent, A to Z for Kids, committed three

Class II violations within a two - year period, and imposing a $ 1 00.00

administrative fine .

D ONE A ND E NTERED this 9 th day of November , 2021 , in Tallahassee, Leon

County, Florida.

S

C ATHY M. S ELLERS

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9 675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of November , 2021 .

C OPIES F URNISHED :

Danielle Thompson , Agency Clerk Beatrice Chaves - Velando

Department of Children and Families A to Z for Kids

Office of the General Counsel 6450 Collins Avenue , # 504

Suite 100 Miami Beach, Florida 33141

2415 No rth Monroe Street

Tallahassee, Florida 32303

Javier Enriquez, General Counsel

Department of Children and Families

Office of the General Counsel

Suite 100

2415 North Monroe Street

Tallahassee, Florida 32303

Aaron Feuer, Esquire

Department of Children an d Families

Suite N1014

401 Northwest 2nd Avenue

Miami, Florida 33128 - 1740

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.