22-001669 Department Of Children And Families vs. Early Impressions At Midtown, Inc., D/B/A Early Impressions At Midtown, Inc. Status: Closed Recommended Order on Friday, August 5, 2022.

Summary: The Department proved by clear and convincing evidence that the child care facility committed a third Class III violation and should be fined $25.00.

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 - 1669

E ARLY I MPRESSIONS A T M IDTOWN , I NC .,

D/B/A E ARLY I MPRESSIONS A T M IDTOWN ,

I NC . ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was conducted in this case on July 22,

2022 , via Zoom teleconference , before Lawrence P. Stevenson, a duly -

design ated Administrative Law Judge (Ñ ALJ Ò ) o f the Division of

Administrative Hearings.

A PPEARANCES

For Petitioner: David Gregory Tucker, Esquire

Department of Children and Families

5920 Arlington Expressway

Jacksonville, Florida 32211

For Respondent: Karen Boney, Owner

Early Impressions at Midto wn, Inc.

463159 State Road 200, #4

Yulee, Florida 32097

S TATEMENT OF T HE I SSUE S

At issue is whether Respondent committed the Class III violation alleged

in the Administrative Complaint and, if so, what is the appropriate penalty.

P RELIMINARY S TATEMENT

O n April 18, 2022 , the Department of Children and Families (the

Ñ Department Ò ) filed a one - count Administrative Complaint (the Ñ Complaint Ò )

against Early Impressions at Midtown, Inc., d/b/a Early Impressions at

Midtown, Inc. (Ñ Early Impressions Ò) . The Compla int stated that during a

routine in spection on August 4, 2021 , Department Licensing Counselor

LaTonjia Jones determined that:

Child(r e n) did not have a Florida Certification of

Immunization (DH Form 680 ) or a Religious

Exemption from Immunization (DH Form 681), on

fi le within 30 days of enrollment . Counselor

observed two (2) children R.M. and A.M. with

expired DH 680 Florida Immunizations on file.

Both children [sic] immunizations expired on

August 1, 2021.

The Complaint stated that this was a Class II I v iolation of child care

licensing standards. It was the facilityÔs third Class II I violation within a

two - year period. The Complaint stated that the fine imposed for this violation

would be $ 25 .00 .

Early Impressions timely filed with the Department a lette r that

challenged the Complaint and requested a formal administrative hearing. On

J une 7, 2022 , the Department forwarded Early ImpressionsÔ request to the

Division of Administrative Hearings for the scheduling and conduct of a

formal hearing. The case was set for hearing on July 22, 2022 , on which date

it was convened and completed.

At the hearing, the Department presented the testimony of : Family

Services Licensing Counselor LaTonjia Jones; Prince Danso - Odei, M.D.,

Administrator of the Nassau County Healt h Department; and, in rebuttal,

Family Services Licensing Counselor Supervisor Cassandra Virgo. Dr. Danso -

Odei was accepted as an expert in epidemiology, immunology, and childhood

immunizations. The Department offered no exhibits . Early Impressions

present ed the testimony of its owner, Karen Boney . Early Impressions offered

no exhibits .

No Tr anscript of the hearing was ordered. The Department timely filed its

Proposed Recommended Order on July 27, 2022. Early Impressions did not

submit a p roposed r ecommend ed o rder.

All references to the Florida Statutes are to the 20 21 edition, unless

otherwise noted.

F INDINGS OF F ACT

Based on the evidence adduced at hearing, and the record as a whole, the

following Findings of Fact are made:

1. The Department is authori zed to regulate child care facilities pursuant

to sections 402.301 through 402.319, Florida Statutes. Section 402.310

authorizes the Department to take disciplinary action against child care

facilities for violations of sections 402.301 through 402.319.

2. Early Impressions is licensed to operate the c hi ld care facility at

463159 State Road 200, #4, Yulee, Florida, pursuant to License

Number C04 NA0037 .

3. LaTonjia Jones works for the Department as a Family Services

Licens ing Counselor . She inspects child ca re facilities within certain Duval

and Nassau County zip codes to ensure they are not operating in violation of

Department standards. Early Impressions is within one of the zip codes

assigned to Ms. Jones.

4. On August 4, 2021, Ms. Jones went to Early Impr essions to perform a

routine inspection.

5. The DepartmentÔs rules require child care facilities to obtain for each

child in care a current, complete , and properly executed Florida Certification

of Immunization or a Religious Exemption from Immunization fo rm from the

custodial parent or legal guardian.

6. Ms. JonesÔ s inspection found that two of the children in the care of

Early Impressions did not have either a current Florida Certification of

Immunization or a current Religious Exemption from Immunizatio n on file.

Ms. Jones wrote a citation to Early Impressions for the violation.

7. Ms. Jones testified that Early Impressions corrected the violation and

obtained the required forms within a week of the citation.

8. Because this was Early ImpressionsÔ third Class III violation within a

two - year period, the Department issued an Administrative Complaint

proposing that a $25.00 fine be imposed on the facility.

9. Karen Boney, the owner of Early Impressions, testified at the final

hearing. Ms. Boney conceded that the Department had previously cited Early

Impressions for the same immunization recordkeeping violation on

November 1, 2019, and on November 9, 2020. Neither of the citations was

chall enged. Ms. Boney also conceded that Ms. Jones found the described

viola tion on August 4, 2021.

10. Ms. Boney argued that the November 9, 2020, violation should not be

counted because it occurred during the initial outbreak of COVID - 19. She

stated that every physicianÔs office used by her clients was closed, making it

impossib le for them to obtain immunizations for their children.

11. Prince Dans o - Odei , M.D., is the Administrator of the Nassau County

Health Department . Dr. Danso - Odei is a licensed physician who has worked

extensively in immunology. Prior to taking his position in Nassau County, he

directed the vaccination program in Clay County. Dr. Danso - Odei was

accepted as an expert in epidemiology , immunology, and childhood

immunizations .

12. Dr. Danso - Odei testified that immunizations were available at the

Nassau County Hea lth Department throughout the COVID - 19 lockdown.

13. Ms. Boney countered that her clients tend not to trust the Health

Department. However, Dr. Danso - Odei also credibly testified that physicians

in private practice continued to administer vaccinations in Nassau County

throughout the pandemic. The Department of Health monitors county

vaccination rates. If a significant number of physicians were to stop

administering vaccinations, then the vaccination rate would go down. If the

vaccination rate goes below a certain level, the Department of Health issues a

warning to the county H ealth D epartment.

14. Dr. Danso - Odei testified that at all relevant times, vaccination rates in

Nassau County were within acceptable levels and did not show a significant

decline , thu s making it highly unlikely that every private physicianÔs office

used by Ms. BoneyÔs clients was closed during the COVID - 19 lockdown.

15. The undersigned also takes notice of the fact that well before

November 2020, the State of Florida had lifted all man datory COVID - 19

restrictions. See , e.g., Fla. Exec. Order No. 20 - 244 (Sept. 25,

2020)(eliminating restrictions of prior Executive Orders). Ms. BoneyÔs excuse

for the November 9, 2020, violation is not persuasive.

16. Ms. Boney also complained about the lag time between the August 4,

2021, citation and the April 18, 2022, issuance of the Complaint. She testified

that the Department would Ñthrow the bookÒ at her facility if it took seven or

eight months to come into compliance after a violation but that the

D epartment thought nothing of taking a similar length of time to charge her

with a violation.

17. Cassandra Virgo, Family Services Licensing Counselor Supervisor,

testified that the Department had recently upgraded its software program,

which could have acc ounted for the lengthy time between the citation and the

Complaint.

18. The undersigned is sympathetic to Ms. BoneyÔs complaint, but she

pointed to no statutory requirement that a Complaint be brought within a

certain time after the issuance of a citation. Ms. Boney also provided no

evidence that she or her business suffered any injury attributable to the

delay.

19. Clear and convincing evidence was presented that Early Impressions

committed the Class III violation alleged by the Department.

C ONCLUSION S OF L AW

20 . The Division of Administrative Hearings has jurisdiction of the subject

matter of and the parties to this proceeding. §§ 120.569 and 120.57(1) , Fla.

Stat.

21 . The Department has the burden of establishing the grounds for

discipline against Res pondent's license by clear and convincing evidence.

Dep't of Banking and 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).

22 . In Evans Packing Company v. Depar t ment of Agric ulture and

Consumer Ser vices , 550 So. 2d 112, 116 n.5 (Fla. 1st DCA 1989), the c ourt

defined clear and convincing evidence as follows:

Clear and convincing evidence requires that the

evidence must be foun d 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 in

confusion as to the facts in issue. The evidence

must be of such weight that it produce s 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. Slomowitz v. Walker , 429

So. 2d 797, 800 (Fla. 4th DCA 1983).

23 . Judge Sharp, in her dissenting opinion in Walker v. Department of

Business and Professional Regulation , 705 So. 2d 652, 655 (Fla. 5th DCA

1998) (Sharp, J., dissenting), reviewed recent pronouncements on clear and

convincing evidence:

[C]lear and convincing evidence requires more

proof than prepon derance of evidence, but less than

beyond a reasonable doubt. In re Inquiry

Concerning a Judge in re Graziano , 696 So. 2d 744

(Fla. 1997). It is an intermediate level of proof that

entails both qualitative and quantative [sic]

elements. In re Adoption of B aby E.A.W ., 658 So. 2d

961, 967 (Fla. 1995), cert. denied, 516 U.S. 1051,

116 S. Ct. 719, 133 L. Ed. 2d 672 (1996). The sum

total of evidence must be sufficient to convince the

trier of fact without any hesitancy. Id. It must

produce in the mind of the fac tfinder a firm belief

or conviction as to the truth of the allegations

sought to be established. Inquiry Concerning

Davey , 645 So. 2d 398, 404 (Fla. 1994).

24 . At all times material to this case, Respondent was a provider of child

care, pursuant to secti on 402.302, which provides the following relevant

definition:

(1) Ñ Child care Ò means the care, protection, and

supervision of a chil d, for a period of less than

24 hours a day on a regular basis, which

supplements parental care, enrichment, and health

sup ervision for the child, in accordance with his or

her individual needs, and for which a payment, fee,

or grant is made for care.

(2) Ñ Child care facility Ò includes any child care

center or child care arrangement which provides

child care for more than fi ve 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 operated for

profit . . . .

25 . Section 402.305(1) directs the Department to Ñ establish licens ing

standards t hat each licensed child care facility must meet regardless of the

origin or source of the fees used to operate the facility or the type of children

served by the facility. Ò

26 . Section 402.310(1) provides, in relevant part:

(c) The departme nt shall adopt rules to:

1. Establish the grounds under which the

department may deny, suspend, or revoke a license

or registration or place a licensee or registrant on

probation status for violations of ss. 402.301 -

402.319.

2. Establish a uniform syst em of procedures to

impose disciplinary sanctions for violations of

ss. 402.301 - 402.319. The uniform system of

procedures must provide for the consistent

application of disciplinary actions across districts

and a progressively increas ing level of penalties

from pre disciplinary actions, such as efforts to

assist licensees or registrants to correct the

statutory or regulatory violations, and to severe

disciplinary sanctions for actions that jeopardize

the health and safety of children, such as for the

deliber ate misuse of medications . . .

27 . To implement these statutory directives, the Department has adopted

Florida Administrative Code C hapter 6 5C - 22, ÑChild Care Standards.Ò

Rule 65C - 22.001(6) specifies that licensed childcare facilities must follow the

sta ndards specified in the Ñ Child Care Facility Handbook, Ò October 2021

( Ñ Handbook Ò ) , 1 which is adopted by reference in the rule .

28 . Rule 65C - 22.010 Ñestablishes 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 system of procedures to impose disciplinary sanctions.Ò

Rule 65C - 22.010(1)(e)2. defines violations of licensing standards in terms of

their relative severit y, as follows:

(e) ÑViolationÒ means noncompliance with a

licensing standard as described in an inspection

1 Whi le the current version of the Handbook was adopted after the occurrence of the violation

at issue in this proceeding, the relevant standard , 7.1 , has been unchanged since at least the

2017 version of the Handbook.

report resulting from an inspection under Section

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

Class II, and Class III Violations.

1. ÑClass I ViolationÒ is an incident of

noncompliance with a Class I standard as described

on CF - FSP Form 5316, May 2019 Child Care

Facility Standards Classification Summary and

CF - FSP Form 5427, May 2019, School - Age Child

Care Facility Standards Classification Summa ry,

which are incorporated by reference. Copies of the

CF - FSP Form 5316 and CF - FSP Form 5427 may be

obtained from the DepartmentÔs website at

www.myflfamilies.com/childcare or from the

following links: http://www.flrules.org/Gateway/

reference.asp?No=Ref - 1 0471 and http://www.

flrules.org/Gateway/reference.asp?No=Ref - 10473.

However, any violation of a Class II standard that

results in death or serious harm to a child shall

escalate to a Class I violation. The effective date of

a termination of a providerÔs G old Seal Quality

Care designation is the date of the DepartmentÔs

written notification to the provider. However, any

violation of a Class II standard that results in

death or serious harm to a child shall escalate to a

Class I violation. Class I violations are the most

serious in nature.

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 serious in nature than

Class I violations.

3. ÑClass III Violatio nÒ is an incident of

noncompliance with an individual Class III

standard as described on CF - FSP Form 5316.

Class III violations are less serious in nature than

either Class I or Class II violations.

29. The allegation made in the Complaint is that Early I mpressions

violated section 7.1.B of the Handbook by failing to obtain for each child in its

care a current, complete , and properly executed Florida Certification of

Immunization or a Religious Exemption from Immunization form from the

custodial parent or legal guardian. Section 7.1.B of the Handbook requires

that these documents Ñbe at the facility for review by the licensing authorityÒ

during all hours of operation.

30. Section 41.1 of the DepartmentÔs Form CF - FSP 5316, ÑChild Care

Facility Standards Clas sification Summary,Ò provides that a violation of

section 7.1.B constitutes a Class III violation.

31. Rule 65C - 22.010(2)(b) provides a grace period wherein a violation of a

standard that has occurred more than two years prior to a subsequent

violation of the same standard will not be counted for purposes of progressive

discipline. However, the facts in this case established that Early Impressions

committed three violations of section 7.1.B within a two - year period.

32. Rule 65C - 22.010(2)(d)3.a. provides th at the Department will impose

an administrative fine of $25.00 fo r the third violation of the same Class III

standard.

33. The Department proved by clear and convincing evidence that Early

Impressions committed a violation of section 7.1.B of the Handbook and that

it should be fined $25.00 under the cited rule.

R ECOMMENDATION

Based upon 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 an administrative fine of $25.00 on Early Impressions for its

third violation of section 7.1.B of the Handbook within a two - year period.

D ONE A ND E NTERED this 5 th day of August , 2022 , in Tallahassee, Leon

County, Florida.

S

L AWRENCE P. S TEVENSON

Administrative Law Judge

1230 A palachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5 th day of August , 2022 .

C OPIES F URNISHED :

Danielle Thompson, Agency Clerk David Gregory Tucker, Esquire

Department of Children and Families Department of Children a nd Families

Office of the General Counsel 5920 Arlington Expressway

Suite 100 Jacksonville, Florida 32211

2415 North Monroe Street

Tallahassee, Florida 32303 Andrew McGinley, Acting General Counsel

Department of Children and Families

Karen Boney Office of the General Counsel

Early Impressions at Midtown, Inc. Suite 100

463159 State Road 200 , #4 2415 North Monroe Street

Yulee, Florida 32097 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.