22-000171 Department Of Children And Families vs. Primrose School Of Hunter's Creek Status: Closed Recommended Order on Monday, August 15, 2022.

Summary: Petitioner failed to prove two Class 1 violations because the unsupervised child did not leave the child care facility premises. Dismissal recommended.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF C HILDREN A ND

F AMILIES ,

Petitioner ,

Case No. 22 - 017 1

vs.

P RIMROSE S CHOOL OF H UNTER ' S C REEK ,

Respondent .

/

R ECOMMENDED O RDER

The final hearing in this matter was conducted before Brian A. Newman,

Administrative Law Judge of the Division of Administrative Hearings

(DOAH), on June 9 , 2022, by Zoom video conference in Tallahassee, Florida.

A PPEARANCES

For P etitioner: Kathleen Craft Loftus, Esquire

Department of Children and Families

Office of General Counsel

400 West Robinson Street, Suite S1129

Orlando, Florida 32801

For Respondent: Joseph C. Shoemaker, Esquire

Bogin, Munns, & Munns, P.A.

628 South 14th Street

Leesburg, Florida 34748

S TATEMENT OF T HE I SSUE S

The issues to be determined are whether Respondent committed two

Class 1 violations under classification standard 4.3 ; and, if so, what penalties

should be i mposed .

P RELIMINARY S TATEMENT

On December 13 , 2021, the Department of Children and Families (DCF)

filed an Administrative Complaint charging Respondent with a Class 1

violation based on the allegation a child was not adequately supervised and

left the fa cility premises without supervision. Respondent requested a

hearing involving disputed issues of fact , and the case was referred to DOAH

on January 18, 2022 .

On May 6, 2022 , DCF was allowed to amend its Administrative

Complaint, without objection from Re spondent, to add a second Class 1

violation for allegedly allowing the same child to leave the facility premises

without supervision on a separate occasion.

Prior to the final hearing, the parties filed a Pre - H earing Stipulation , in

which they stipulate d to certain facts. To the extent relevant, the parties '

stipulated facts have been incorporated in the findings below.

At the final hearing, Petitioner offered E xhibits A through I , which were

admitted without objection. Petitioner presented the testimon y of James

Bernier, Michendy Joseph, and Daphine Joyce Harvey. Respondent offered

E xhibits 1 and 2 , which were admitted without objection. Respondent

presented the testimony of Deborah Shreiner.

The one - volume Transcript of the final hearing was filed on June 28, 2022 .

The parties requested an extension of time to submit proposed recommended

orders which was granted. Thereafter, t he parties timely filed P roposed

R ecommended O rders , which were duly considered in the preparation of this

Recommended Order.

F INDINGS OF F ACT

1 . Respondent, Primrose School of Hunter ' s Creek, operates a licensed

child care facility.

2 . Respondent ' s child care facility is located on the corner of two busy

streets. Respondent ' s parking lot is dedicated to Respondent ' s child care

operation; it is not a shared parking lot. Respondent ' s parking lot is not

fenced, but it is surrounded by bushes that are four feet high . One side of the

parking lot is also bordered by a brick wall that is eight feet high . The bushes

and wall separate R espondent ' s parking lot from the sidewalk and the

adjacent busy streets .

3 . On September 2, 2021, K.G., then a three - year - old child, exited

Respondent ' s child care building , unescorted , and was found alone, just

outside the front door of the building. On September 10, 2021, K.G. exited

Respondent ' s child care building, again unescorted, and was found alone in

Respondent ' s parking lot. The evidence is unclear as to how long K.G. was

alone, outside of the child care building on either occasion.

C ONCLUSIONS OF L AW

4 . The Division of Administrative Hearings has jurisdiction in this

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

5 . This proceeding is penal in nature because DCF seeks to impose

discipline upon Respondent ' s license. Stat e ex rel. Vining v. Fla. Real Est .

Comm ' n , 281 So. 2d 487, 491 (Fla. 1973). Accordingly, DCF must prove the

charges against Res p ondent by clear and convincing evidence. Dep ' t of

Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co. , 670

So. 2d 932, 933 - 34 (Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292, 294 -

95 (Fla. 1987)); Nair v. Dep ' t of Bus. & Pro . Reg ul ., Bd. of Med. , 654 So. 2d

205, 207 (Fla. 1st DCA 1995).

6 . Regarding the standard of proof, in Slomowitz v. Walker , 429 So. 2d

797, 800 (Fla. 4th DCA 1983), the court developed the following " workable

definition " of clear and convincing evidence :

[C]lear 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 testimony must be precise and

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 a firm belief or conviction,

without hesitancy, as to the truth of the allegations

sought to be established.

Id. The Florida Supreme Court later adopted the Slomowitz court ' s

description of clear and convincing evidence. See In re Davey , 645 So. 2d 398,

404 (Fla. 1994).

7 . Section 402.310, Florida Statutes (2021) , 1 authorizes DCF to impose

discipline against licensed child care facilities. This statute provides, in

pertinent part :

[DCF] or [a] local licensing agency may administer

any of the following disciplinary sanctions for a

v iolation 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 does 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.

§ 402.310(1)(a), Fla. Stat.

1 All references to Flori da Statutes are to the 2021 codification, as the law in effect at the

time of the alleged violations .

8 . At issue here is whether Respondent committed two Class 1

violations Ð as opposed to less serious Class 2 or Class 3 violations , which

were not charged, Ð by allowing K.G. to leave Respondent ' s child care

building , unescorted , on two separate occasions. Class 1 violations are " the

most serious in nature " and, consequently, carry the highest penalties. Fla.

Admin. Code R . 65C - 22.010(1)(e)1. and (2)(d).

9 . DCF relies exclusively on standard 4.3 ( incorporated by reference in

r ule 65C - 22.010(1)(e)1. ) to establish that Respondent committed two Class 1

violations. S tandard 4.3 provides that the following is a Class 1 violation :

A child was not adequately supervised and left the

facility premises without child care personnel

supervision.

DCF alleges that the facts here establish a violat ion of standard 4.3 because

K.G. was not adequately supervised and left the " regulated portion " of the

child care facility . See Amended Administrative Complaint para graph 5.

10 . The foregoing statutory and rule provisions " must be construed

strictly, in favor of the one against whom the penalty would be imposed. "

Munch v. Dep ' t of Pro . Reg ul ., Div. of Real Est . , 592 So. 2d 1136, 1143 (Fla.

1st DCA 1992); see Camejo v. Dep ' t of Bus. & Pro . Reg ul . , 812 So. 2d 583, 583 -

84 (Fla. 3d DCA 2002); McClung v. Crim. Just. Stds. & Training Comm ' n ,

458 So. 2d 887, 888 (Fla. 5th DCA 1984)( " [W]here a statute provides for

revoca tion of a license the grounds must be strictly construed because the

statute is penal in nature. No conduct is to be regarded as included within a

penal statute that is not reasonably proscribed by it; if there are any

ambiguities included, they must be c onstrued in favor of the licensee. " ); see

also, e.g., Griffis v. Fish & Wildlife Conserv. Comm ' n , 57 So. 3d 929 , 931 (Fla.

1st DCA 2011)(statutes imposing a penalty must never be extended by

construction).

11 . Further, the grounds proven must be those spec ifically alleged in the

Amended Administrative Complaint. See, e.g., Cottrill v. Dep ' t of Ins., 685

So. 2d 1371, 1372 (Fla. 1st DCA 1996); Kinney v. Dep ' t of State , 501 So. 2d

129, 133 (Fla. 5th DCA 1987); Hunter v. Dep ' t of Pro . Reg ul . , 458 So. 2d 842,

84 4 (Fla. 2d DCA 1984). Due process prohibits an agency from taking

disciplinary action against a licensee based on matters not specifically alleged

in the charging instrument. See § 120.60(5), Fla. Stat. ( " No revocation,

suspension, annulment, or withdrawal of any license is lawful unless, prior to

the entry of a final order, the agency has served, by personal service or

certified mail, an administrative complaint which affords reasonable notice to

the licensee of facts or conduct which warrant the intended action . . . . " ); see

also Trevisani v. Dep ' t of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA

2005)( " A physician may not be disciplined for an offense not charged in the

complaint. " ); Marcelin v. Dep ' t of Bus. & Pro . Reg ul . , 753 So. 2d 745, 746 - 747

(Fla. 3d DCA 2000); Delk v. Dep ' t of Pro . Reg ul . , 595 So. 2d 966, 967 (Fla. 5th

DCA 1992)( " [T]he conduct proved must legally fall within the statute or rule

claimed [in the administrative complaint] to have been violated. " ).

12 . Although other standard violations may be implicated by the facts of

this case (including other Class 1 and less serious Class 2 violation

standards ) , DCF steadfastly maintains that standard 4.3 is the only violation

charged in this case. ( Tr. 144 - 145). Indeed, standard 4.3 is the only sta ndard

DCF cited in the Amended Administrative Complaint and the only standard

DCF cited as grounds for discipline in its Proposed Recommended Order.

13 . According to DCF, only one standard was cited in this case because

DCF is precluded from c harging a li censee with alternative violations for the

same conduct. ( Tr .147 - 148). DCF did not, however, cite any law that imposes

such a limitation.

14 . Turning now to the language of classification standard 4.3, DCF is

required to prove two elements: 1) a child was not adequately supervised ; and

2) the child left the facility premises without child care personnel

supervision.

15 . The first element is not in doubt ; K.G. was not adequately supervised

on two occasions . If K.G. had been adequately supervised, the three - year - old

would not have been able to exit the child care building alone on two separate

occasions. But DCF did not prove that K.G. also left the facility premises. The

common understanding of the word " facility premises " includes Respondent ' s

parking lot. The a dministrative l aw j udge in De partment of Children and

Families v. L.O.T. Early Learning Center, LLC , Case No. 19 - 0136 ( Fla.

DOAH June 7, 2019; DCF Sept . 11 , 2019) was confronted with the same issue

and correctly concluded:

[ T ] he term " facility prem ises " is not defined, but it

is not ambiguous, either. The noun " facility, " as

used in this term, serves as an adjective; it modifies

the other noun, " premises. " Clearly, the " facility "

in view is the daycare, whose " premises " comprise

the land, building (s), and other improvements (e.g.,

the playground, sidewalks, parking lot, etc.), which,

collectively, form the campus of the daycare.

Id . at ¶ 17. The judge in L.O.T. Early Learning Center also rejected the same

argument DCF advances here, that " facility premises " is the daycare building

alone. Id . at ¶ 18. DCF adopted the L.O.T. Early Learning Center

R ecommended O r der in total by a F inal O rder entered on September 5, 2019,

and then by an A mended F inal O rder entered on September 11, 2019 .

16 . DCF argues that the undersigned should not reach the same result

here because L.O.T. Early Learning Center was incorrect ly decided . Florida

law, however, requires a state agenc y to follow the precedent it create s by

final order unless it provides a reasonable explana tion for the inconsistency.

As one court explained:

The concept of stare decisis, by treating like

cases alike and following decisions rendered

previously involving similar circumstances, is a

core principle of our system of justice. ... While it

is appare nt that agencies, with their significant

policy - making roles, may not be bound to follow

prior decisions to the extent that the courts are

bound by precedent, it is nevertheless apparent

[from the statutory requirement that agencies

index their orders and make them publicly

available that] the legislature intends there be a

principle of administrative stare decisis in Florida.

Gessler v. Dep ' t of Bus. & Pro . Reg ul . , 627 So. 2d 501, 504 (Fla. 4th DCA

1993), superseded on other grounds , Caserta v. Dep ' t of B us. & Pro . Reg ul . ,

686 So. 2d 651 (Fla. 5th DCA 1996). S ee also § 120.68(7)(e)3., Fla. Stat. , and

Amos v. Dep ' t of HRS , 444 So. 2d 43, 47 (Fla. 1st DCA 1984) .

17 . DCF ' s assertion that L.O.T. Early Learning Center wa s incorrect ly

decided is not an adequate explanation for departing from this precedent. But

even without th is precedent, the undersigned would independently reach the

same conclusion here , and reject DCF ' s argument that the " regulated portion

of the child care facility premises " is the same as " facility premises , " the

latter being the broader term actually contained in DCF ' s rule . An agency

must follow its own rule; if a change is required, it must do so by rulemaking,

not an abrupt change of policy. Cleveland Clinic Hosp. v. Ag . f or Health Care

Admin . , 679 So. 2d 1237, 1242 (Fla. 1st DCA 1996) . Thus, if DCF wants to

add modifiers to " facility premises " to narrow the term , prospectively, to

mean only the " regulated portion " thereof, it should do so through

rulemaking so licensees have advance noti ce of the new standard they must

conform to . See Breesman v. DepÔt of Pro. Regul. , 567 So. 2d 469, 471 - 72 (Fla.

1st DCA 1990). It cannot do so in the context of a disciplin ary proceeding.

18 . DCF next argues that it is not bound by L.O.T. Early Learning Ce nter

alone because a contrary result was reached in another case tried at DOAH

that was also adopted by DCF final order. In Dep artmen t of Children and

Families v. Kids Village Early Learning Center , Case No. 17 - 2598 (Fla.

DOAH Aug. 1, 2017 ; DCF Oct. 9, 201 7 ) , the administrative law judge found

the licensee guilty of a Class 1 violation because a child left the child care

building and wandered in to a parking lot . Kids Village , L.O.T. Early

Learning Center and this case all involve allegations of child elopem ent from

a child care building, but that is where the similarit y ends.

19 . First and foremost, Kids Village did not analyze whether the licensee

violat ed standard 4.3. I n Kids Village , DCF alleged that the licensee ' s lack of

supervision posed an imminent threat to the child , which could have resulted

in death or serious harm Ð a Class 1 violation under standard 4.2. The

licensee was not charged with a violation of standard 4.3; as such, Kids

Village does not analyze whether the child left the " facility prem ises, " when

he wandered into the parking lot, because it was unnecessary to do so to

decide th at case.

20 . Kids Village is also factually distinguishable from the instant case .

The evidence there was that the child care facility was located in a str i p mall

and that it shared a parking lot with other retail businesses. In fact, the

judge found that the child was left in the strip mall parking lot ,

unsupervised , for at least five minutes , and almost reached the neighboring

Dollar General store that shared the same parking lot . Thus, Kids Village is

factually distinguishable from this case and from L.O.T. Early Learning

Center , because the parking lot the child wandered into was not part of the

child care center ' s campus . For these reasons , the precedent establ ished by

DCF in Kids Village has no application here.

21 . DCF failed to prove that K.G. left the facility premises unsupervised

on September 2, 2021 , or September 10, 2021, and , therefore , failed to prove

that Respondent committed a Class 1 violation un der standard 4.3.

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 finding that Respondent did not violate standard 4.3, and dismissing

the Am ended Administrative Complaint.

D ONE A ND E NTERED this 15th day of August , 2022 , in Tallahassee, Leon

County, Florida.

S

B RIAN A. N EWMAN

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 15th day of August , 2022 .

C OPIES F URNISHED :

Danielle Thompson, Agency Clerk Kathleen Craft Loftus, Esquire

Department of Children and Families Department of Children and Families

2415 North Monroe Street , Suite 100 Office of General Counsel

Tallahassee, Florida 32303 400 West Robinson Street , Suite S1129

Orlando, Florida 32801

Joseph C. Shoemaker, Esquire

Bogin, Munns, & Munns, P.A. And rew McGinley, Acting General Counsel

628 South 14th Street Department of Children and Families

Leesburg, Florida 34748 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 Recommended Order. Any exceptions to this Recommended

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

case.