22-001062 Department Of Children And Families vs. Villar Family Home Daycare, Inc., D/B/A Villar Family Day Care Home Status: Closed Recommended Order on Tuesday, August 2, 2022.

Summary: DCF proved, by clear and convincing evidence, that Respondent committed six violations, including four Class I, and should be fined and placed on probation status.

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. 22 - 1062

V ILLAR F AMILY H OME D AYCARE , I NC .,

D / B / A V ILLAR F AMILY D AY C ARE H OME ,

Respondent .

/

R ECOMMENDED O RDER

The final administrative hearing on this matter was conducted before

Robert S. Cohen, Administrative Law Judge (ÑALJÒ) with the Division of

Administrative Hearings (ÑDOAHÒ) , on June 28, 2022, via Z oom

teleconference.

A PPEARANCES

For Petitioner: Carlos A. Garcia, Esq uire

Dep artmen t of Children and Families

401 N orthwest Seco nd Ave nue , Suite N - 1014

Miami, F lorida 33128

For Respondent: Matthew E. Ladd, Esq uire

Law Offices of Matthew E. Ladd, Esq uire

4649 Ponce De Leon B oule v ar d, Suite 301

Coral Gables, F lorida 33146

S TATEMENT OF T HE I SSUE S

Whether Respondent act ed appropriately in supervising the children in its

care ; and , if not, w hether violations charged and sanctions sought to be

imposed by Petitioner are supported by clear and convincing evidence .

P RELIMINARY S TATEMENT

On September 10, 2019, Petitioner, Department of Children and Families

(ÑPetitionerÒ or Ñ DCF Ò), delivered an Administrative Complaint an d

Complaint Inspection on Respondent, Villar Family Home Daycare, Inc. ,

d/b/a Villar Family Day Care Home (Ñ Respondent Ò or ÑVillarÒ), setting forth

four Class I violations, one Class II violation, and one Class III violation, and

imposing penalties of $2,1 00 and revocation of the facilityÔs license.

Respondent filed a Petition for Hearing Involving Disputed Issues of Material

Fact on September 20, 2019, which was referred to DOAH on October 2,

2019 ; given c ase n umber 19 - 5254 ; and assigned to ALJ John G. Van

Laningham.

The matter proceeded through the pre - hearing process and was originally

set for final hearing on December 9 and 10, 2019, via video teleconference at

sites in Miami and Tallahassee. After a total of six continuances during the

COVID - 19 pandem ic, the parties entered into settlement negotiations and

asked that jurisdiction of the case by relinquished to DCF for execution of a

settlement agreement. On February 3, 2021, Judge Van Laningham issued

an Order Closing File and Relinquishing Jurisdictio n.

By April 5, 2022, settlement negotiations had fallen through , and the

matter was once again referred to DOAH, given c ase n umber 22 - 1062, and

assigned to the undersigned ALJ. The case was scheduled for hearing on

June 28 and 29, 2022, and proceeded to h earing on June 28 , 2022 , only

requiring one day to complete. The parties filed a Pre - h earing Stipulation on

June 27, 2022. The stipulated facts are included in the F indings of F act below

to the extent relevant. The parties also stipulated that, due to the COVID

pandemic, any exhibits containing written statements of potential witnesses

who would have been called to testify at hearing would be accepted as non -

hearsay exhibits.

At the hearing, Petitioner called Maria Caamano, family services

counselor, and of fered exhibits 1 through 8 into evidence, all of which were

a dmitted . Respondent called Melanie Rodriguez and Ketty Villar as live

witnesses and offered six affidavits and statements of witnesses, along with

photographs of the facility on the date in quest ion, which were Bates stamped

pages 2 through 42, all of which were admitted into evidence.

No transcript of the hearing was ordered by the parties, and the parties

requested 20 days from the date of hearing to file proposed recommended

orders. Both parti esÔ proposed recommended orders were timely filed and

were duly considered in the preparation of this Recommended Order.

All cites to the Florida Statutes and to the administrative rules of DCF

are to the versions in effect at the time of the alleged viol ations.

F INDINGS OF F ACT

1. DCF is the s tate agency charged with regulating providers that are

licensed or registered to provide child care services in the State of Florida.

§ 402.305, Fla. Stat.; Fla . Admin. Code Ch. 65C - 22.

2 . Ketty Villar is the owner of a day care home licensed as Villar at

22045 S outhwest 125 th Avenue, Goulds, Florida , license number

F11MD0224.

3 . On August 16, 2019, DCF went to Villar to respond to a complaint

alleging that the provider would tell parents not to drop of f kids at the home

if there was anything happening in the home. The provider was alleged to

have 20 children in care , and when DCF would come to inspect , the children

would be taken to the neighborÔs home. DCF conducted a complaint

inspection on August 16, 2019, of Vil lar.

4 . At the complaint inspection on August 16, 2019, the family services

counselors arrived at the home and found the gate to the home locked. The

inspectors rang the doorbell several times , and there was no answer. The

inspectors made three phone calls to the home with no answer. Sometime

later , the call was returned, and the inspectors were allowed into the home

approximately 14 minutes after their arrival to the front door .

5. Upon entering the home , 11 children were counted. The homeÔs licensed

capa city is ten . To come back into the required ratio of caregivers to children,

one of the childrenÔs parents was called to pick up the child .

6. The inspection continued , and the childrenÔs files were reviewed. It was

observed by the inspectors that all 11 o f the children had an expired

immunization record and several influenza forms for the children were

missing.

7. On the outside of the home , a gate adjoining the properties of Villar and

the neighborÔs home was found. Ms. Villar explained that the gate was used

for the neighborÔs grandkids to come and swim at her home.

8. Upon completing their inspection , and while heading back to their

vehicles , the inspectors heard several childrenÔs cries coming from the home

on the corner of the block. Th is is the home o f Elsa Carmona. Based on the

allegations that they had received, the inspectors knocked on the door of this

home. No one answered the door. Law enforcement was contacted to assist

with the matter.

9. Upon law enforcementÔs arrival , the officer , M. Chaney, badge

number 4728, was informed of the situation regarding the complaint and was

shown the connecting gate to the two homes. Ms. Villar approached O fficer

Chaney and M aria Caamano, the DCF inspector , and admitted that she had

lied to the DCF inspectors . Sh e stated that she had taken the children

through the gate adjoining the two homes to Ms. CarmonaÔs house when the

DCF inspectors had come to Villar for their inspection . She stated that the se

were children from Villar in the neighborÔs home and that it was not the only

time that this was done.

10. Ms. Caamano testified that the children in Ms. CarmonaÔs home were

soiled, hungry, and crying when she and the police entered the Carmona

home. Ms. Caamano counted 14 children in the home with the lights turned

of f. Officer Chaney confirmed that there were 14 children in the home under

the care of one adult, Ms. Carmona.

11. Ms. Villar testified that the children in excess of the ten for which she

was licensed (one in her home and 14 in Ms. CarmonaÔs home) were pre sent

for an end - of - year Hawaiian luau event at Villar.

1 2 . Officer Chaney assisted DCF in retrieving the 14 children from

Ms. CarmonaÔs home , as evidenced by his body worn camera.

1 3 . Ms. Carmona had not been background screened by DCF and

authorized to su pervise children.

1 4 . Since the complaint inspection, Villar has taken steps to correct the

violations by installing video cameras to monitor attendance and has been in

c ompliance with DCF statutes and rules.

1 5 . Ms. Villar, the operator of Villar , presen ted a live tour through Zoom

during her testimony . The tour showed of a clean and organized facility with

safe play areas. This was further confirmed by a series of photographs ,

entered into evidence by Respondent , showing the well - maintained grounds

and i nterior of Villar.

1 6 . Ms. Villar also presented six affidavits , all admitted into evidence

without objection, by her enrollee s Ô parents that testified to the fact that

Ms. Villar is a very compassionate and caring person and that her program is

extremely valuable to the community .

1 7 . The six affidavits presented were submitted from parents and contain

warm feelings for Villar by the parents. Parents refer to Ms. Villar as a ÑGod

send , Ò Ñdevoted , Ò Ñloving,Ò and Ña blessing.Ò One parent credits Ms. Villar for

her sonÔs improvement of a delayed speech issue. It seems that all of the

parents genuinely value her service and that their children wake up happy to

attend the day care.

1 8 . Ms. Villar testified that her long - time and well - acquainted next - door

neig hbor, a grandmother herself, Ms. Carmona, assisted her, as did another

individual (Ms. Yani), who m DCF did not identify and whose location was not

confirmed by the DCF inspectors or Officer Chaney . However, the unrefuted

and credible testimony from Ms. Vil lar clai med that Ms. Yani worked at a

day care herself (not Villar) and had been background screened.

1 9 . Ms. R odriguez, a mother of one of RespondentÔs students , testified on

behalf of Respondent. Ms. Rodriguez testified, consistent with the other

affidav its from parents, that she holds Respondent and Ms. Villar in the

highest regard; that her child developed substantially through the program

offered by Ms. Villar; and that the neighbor, Ms. Carmona , was certainly no

cause for concern. She testified that t here was no reason to believe that

Ms. Carmona threatened the safety of the children. Ms. Rodriguez also

testified that ÑMs. YaniÒ also was no cause for concern of harm or danger to

the children.

20 . Despite the heart - felt testimonials from Ms. Rodriguez a nd those

contained in the affidavits from other parents, violations occurred on

August 16, 2019, that should subject Respondent to discipline. The extent

and severity of those violations, as well as a recommended penalty, will be

discussed in the C onclusio ns of L aw below.

C ONCLUSIONS OF L AW

2 1 . DOAH has jurisdiction over the parties and the subject matter of this

case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2021) .

This proceeding is de novo pursuant to section 120.57(1)(k).

2 2 . DCF se eks to impose four Class I violations on RespondentÔs license to

operate a child day care facility, one Class II violation, and one Class III

violation. Additionally, DCF seeks to revoke the license of the family day care

home. In order to impose such disc ipline on RespondentÔs license, DCF must

prove there exists clear and convincing evidence to impose the requested

sanction s against Respondent due to the allegations contained in DCFÔs

A dministrative C omplaint.

2 3 . Petitioner, as the party asserting the af firmative of the issue in this

proceeding, has the burden of proof. Coke v. DepÔt of Child. & Fam. Servs. ,

704 So. 2d 726 (Fla. 5th DCA 1998 ); Balino v. DepÔt of Health & Rehab .

Servs. , 348 So. 2d 349 (Fla. 1st DCA 1977); DepÔt of Agric. & Consumer Servs.

v. Strickland , 262 So. 2d 893 (Fla. 1st DCA 1972).

2 4 . Pursuant to Florida law, Ñ[f]indings of fact shall be based upon a

preponderance of the evidence, except in penal or licensure disciplinary

proceedings or except as otherwise provided by statute, and s hall be based

exclusively on the evidence of record and on matters officially recognized.Ò

§ 120.57(1)(j), Fla. Stat.

2 5 . Petitioner has the burden to establish by clear and convincing

evidence that the allegations contained in the Administrative Complaint

support the charged violations , imposition of a fine , and revocation of VillarÔs

license . DepÔt of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996). The clear and convincing standard of evidence has been described by

the Florida Supreme C ourt as follows:

[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 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 a firm belief or conviction,

without hesitancy, as to the truth of the allegations

sought to be established.

In re Davey , 645 So. 2 d 398, 404 (Fla. 1994) (quoting Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983)) ; see also S. Fla. Water Mgmt. Dist.

v. RLI Live Oak, LLC , 139 So. 3d 869, 872 - 73 (Fla. 2014) . ÑAlthough this

standard of proof may be met where the evidence i s in conflict È it seems to

preclude evidence that is ambiguous.Ò Westinghouse Electric Corp. v. Shuler

Bros. , 590 So. 2d 986, 988 (Fla. 1991).

2 6 . DCF is directed to Ñ [e] stablish a uniform system of procedures to

impose disciplinary sanctions for violations o f ss. 402.301 - 402.319. The

uniform system of procedures must provide for the consistent application of

disciplinary actions across districts and a progressively increasing level of

penalties È . Ò § 402.310(1)(c)2 . , Fla. Stat. This is commonly referred to a s the

Ñ classification system. Ò DCF complied with the provisions of this statute

when it created the Child Care Facility Standards Classification Summary.

2 7 . Adoption of the classification system contained within the Child Care

Facility Standards Classific ation Summary is incorporated in the rule by

reference at Florida Administrative Code R ule 65C - 22.012(1)(e)1. The

standards listed in the classification summary are the standards that all

licensed child care facility providers must follow. DCF is authorize d to cite

providers for violations of a classification summary standard.

2 8 . The six charged violations in DCFÔs Administrative Complaint are as

follows:

Violation One: Standard 01 - 02 Licensed Family: Exceeded Capacity, a

Class I v iolation. The evidence c learly and convincingly establishes that

Villar exceeded its licensed capacity of ten children by 15 children, 11 in

Ms. VillarÔs home and 14 in the unlicensed home of Ms. Carmona . The

proposed DCF fine is $500.

Violation Two: Standard 08 - 01 Staffing Requ irements : Unscreened

Individual Alone with Children, a Class I v iolation. The evidence clearly and

convincingly establishes that 14 children were left with Ms. Carmona, an

individual who had not had a Level 2 background screening, in her home next

door to Respondent. Despite the fact that Ms. Carmona was described as a

kind, gentle, and loving mother and grandmother, the children were observed

by law enforcement and the DCF inspector as being in Ms. CarmonaÔs home

with the lights turned out and were soiled, hungry, and crying. The proposed

DCF fine is $500.

Violation Three: Standard 08 - 03 Staffing Requirements: Child Left in

Vehicle/Home/Behind, a Class I v iolation. The evidence clearly and

convincingly establishes that 14 of the children entrusted to Villa r, whether

enrolled or otherwise, were outside the licensed day care home with

Ms. Carmona without the licensed provider or any other authorized child care

personnel present. The proposed DCF fine is $500.

Violation Four: Standard 34 - 05 Fraudulent Informa tion Provided: Serious

Harm, a Class I v iolation. Ms. Villar was asked several times by the DCF

inspectors if she had transported children to any of the neighborÔs homes, to

which she replied Ñno.Ò As the investigation progressed, it was proven

Ms. Villar had transported children to Ms. CarmonaÔs home on August 16,

2019, and on other previous occasions. The proposed DCF fine is $500.

Violation Five: Standard 01 - 01 Licensed Family: Allowable Number of

Children Exceeded, a Class II v iolation. On a previous i nspection , on

December 6, 2017, Villar was cited for violating this standard by having

seven preschool - aged children in the day care when she was licensed for six .

On the August 16, 2019, inspection , Ms. Villar was found to have 11 children

on the premises when she was licensed for ten . The proposed DCF fine is $50.

Violation Six: Standard 31 - 02 ChildrenÔs Records: Immunization Record

Unacceptable, a Class III v iolation. On two previous inspections, December 6,

2017, and January 17, 2018, immunization reco rds for one or more children

at Villar were found to have expired. On August 16, 2019, the inspectors

found that immunization records for all 11 children enrolled were expired.

The proposed DCF fine is $ 2 5.

2 9 . In accordance with s ection 402.310(1)(a)3 ., F lorida Statutes , DCF is

expressly authorized to deny, suspend, or revoke a license or registration for

a violation of any provision of s ection s 402.310 through 40 2 .319 or the rules

adopted thereunder. In determining the appropriate disciplinary action to b e

taken , the following factors are to be considered :

1. The severity of the violation, including the

probability that death or serious harm to the health

or safety of any person will result or has resulted,

the severity of the actual or potential harm, and

the extent to which the provisions of ss. 402.301 -

402. 319 have been violated.

2. Actions taken by the licensee or registrant to

correct the violation or to remedy complaints.

3. Any previous violations of the licensee or

registrant.

§ 402.310(1)(b), Fla. Stat.

30 . Villar was over capacity by 15 children. Up on a rrival of the D CF

inspectors, 14 of the children were moved to a neighborÔs home through a

gate in the fence where they were left in an unlicensed home with an

unscreened individual . While the children in the neighborÔs home were

clearly not at great r isk of serious bodily harm or death, they were not clean,

well fed, smiling, and happy when law enforcement arrived on the scene and,

together with Ms. Caaman o , entered Ms. CarmonaÔs home. Had law

enforcement been later to the scene, it was reasonably cert ain the childrenÔs

unhealthy conditions would have worsened without having their soiled

clothes changed, food provided, and better supervision provided by more

adults who were qualified .

3 1 . DCF has proven by c lear and c onvincing evidence that R espondent

c ommitted all six violations. The facts in this case are not in dispute, and the

actions taken by the day care homeÔs owner is clearly documented. The

children were moved to Ms. CarmonaÔs home and were left with an

unscreened individual for the duration of DCFÔs inspection , while not being

changed or fed throughout that time. Moreover, Ms. VillarÔs actions in not

admitting that a large number of children, 14, that exceeded, in itself, the

maximum number of children authorized to be under VillarÔs care, is an

aggravating factor here. Not until confronted by the police and the DCF

inspectors did Ms. Villar, who by all appearances is a warm and dedicated

provider of high - quality child day care services, come clean and admit the

children were all under her care, albeit for an end - of - school year party. She

was fortunate no children were injured or, far worse, died while in her

neighborÔs care, but that does not excuse her willful behavior concerning clear

DCF standards for child day care facilities.

3 2 . However, ta king into account that, except for two or three prior minor

violations of DCF statutes and rules, Ms. Villar and Villar , as a child day care

facility, had a clean record until the badly failed inspection of August 16,

2019. The undersigned believes that th e fact that all the major violations

occurred from one instance, rather than a series of incidents, that this fact

mitigates towards avoiding the ultimate penalty sought to be imposed here,

namely, revocation of RespondentÔs license. Since death was extrem ely

unlikely to occur here and since serious harm did not occur , although there

was minor harm (crying, soiled, and hungry children) , t he fines for Violations

One through Four should be reduced to $250 per violation. The proposed

fines in the amount of $50 for Violation Five and $25 for Violation Six are

reasonable and not excessive, and should stand. Moreover, RespondentÔs

license should be placed on probation status for six months pursuant to the

conditions of section 402.310(1)(a)2.

3 3 . The undersigned r ecognizes that Villar is providing service to the

underserved population in South Florida, which is much needed and

admirable. Any sanction imposed here may jeopardize RespondentÔs

eligibility for the Early CoalitionÔs School Readiness Funds to assist pare nts

with funds to enroll their children in the day care . While unfortunate, the

safety of children is of paramount importance here and RespondentÔs willful

violations committed on August 16, 2019, combined with the fact that

Ms. Villar admitted, albeit lat e, that she had exceeded her licensed capacity

of students on occasions in addition to the August 16 , 2019, inspection makes

agreeing to impose little or no sanctions here untenable.

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 imposing a fine of $1,075 and placing RespondentÔs license in probation

status for six months from the date of the final order.

D ONE A ND E NTERED this 2nd day of Aug ust , 2022 , in Tallahassee, Leon

County, Florida.

S

R OBERT S. C OHEN

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 2nd day of August , 2022 .

C OPIES F URNISHED :

Carlos A . Garcia, Esquire Matthew E. Ladd, Esquire

Department of Children and Families Law Offices of Matthew E . Ladd , Esquire

401 Northwest Second Avenue , Suite N - 1014 4649 Ponce De Leon Boulevard , Suite 301

Miami, Florida 33128 Coral Gables, Florida 33146

Howard J. Hochman, Esquire Danielle Thompson, Agency Clerk

Law Offices of Howard Hochman Department of Children and Families

7695 Southwest 104th Stree t , Suite 210 Office of the General Counsel

Miami, Florida 33156 2415 North Monroe Street , Suite 100

Tallahassee, Florida 32303

Andrew McGinley, Acting General Counsel

Department of Children and Families

Office of the General Counsel

2415 North Monroe Street, Suite 100

Tallahassee, Florida 32303

N OTIC E 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.