         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D18-4144
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MID FLORIDA COMMUNITY
SERVICES, INC.,

    Appellant,

    v.

DEPARTMENT OF CHILDREN AND
FAMILIES,

    Appellee.
                 _____________________________


On appeal from an order of the Department of Children and
Families.

                        October 30, 2019



PER CURIAM.

     This is an appeal from a final order of the Department of
Children and Families (“DCF”) concluding that Mid Florida
Community Services, Inc. (“Mid Florida”) is required to obtain a
child care license for each of its five Head Start ESE Blended
Classrooms operated pursuant to a cooperative agreement with
the Volusia County School District (“VCS”). Because the blended
classroom sites were entitled to an exemption from licensure under
sections 402.302(2) and 402.3025(1), Florida Statutes (2017), we
reverse.
                                I.

     Mid Florida is a private, not-for-profit Florida corporation
operating a variety of social service and early education programs,
including twenty “Head Start” programs in Hernando, Sumter,
and Volusia counties.

     In 2010, VCS entered into a cooperative agreement with Mid
Florida to create Head Start “blended classrooms.” The blended
classrooms were created to help VCS meet state standards for
serving pre-kindergarten aged students with disabilities in its
district. VCS served those students by placing them in “blended”
environments with typically developing peers. The Head Start
ESE Blended Classrooms consist of eight ESE students enrolled as
VCS students and ten non-ESE typically developing peers that are
not VCS students but are eligible to enroll in a Head Start
program.

    The cooperative agreement states in part:

    The joint programs authorized by this Agreement
    constitute integral programs of the School Board of
    Volusia County for purposes of section 402.302(2),
    Florida Statutes for the following reasons:

         a. District teachers and paraprofessionals work
    directly in this joint program with students enrolled in
    the District. Head Start staff participating in the
    program are funded by [Mid Florida].

        b. This joint program operates only on school
    campuses owned, operated and exclusively paid for by the
    District;

        c. This joint program takes place on school campuses
    which are exclusively administered and managed by
    school administrators of the District;

         d. This joint program is among the program options
    offered by the District to its students; and



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         e. The District has exclusive control over the
    curriculum offered to students in this joint program.

     In 2017, in response to an inquiry from Mid Florida to DCF
regarding the need for licensure of one of its relocated Head Start
classrooms, 1 DCF issued a “Determination Letter” concluding that
eighteen of Mid Florida’s Head Start classrooms, located in three
different counties, were subject to licensure as child care facilities.
All but five of the eighteen sites identified were already validly
licensed. 2 The five sites that were not licensed are the five VCS
Head Start ESE blended classrooms at issue in this case.

     Mid Florida contested DCF’s determination regarding the five
Head Start ESE blended classrooms through a formal
administrative hearing. The testimony at the hearing established
that the blended classrooms were created to serve the needs of pre-
kindergarten students in the district. VCS determines whether a
Head Start blended classroom is needed at a particular school by
assessing how many children in the area would benefit from those
services. The decision whether to have a blended classroom
program is made annually. The blended classrooms are in VCS
schools and use VCS’s calendar. VCS has “exclusive control” over
the curriculum offered in the blended classrooms. Each classroom
has one VCS teacher and one VCS teaching assistant, and one Mid
Florida teacher and one Mid Florida assistant. The teachers work
cooperatively to teach all the children and there is no segregation
of ESE and non-ESE students in the classroom. The principal of
the school where the classroom is located has final say concerning
discipline of all students in the classroom. The classrooms also
follow VCS guidelines on visitors. It is the Head Start (Mid
Florida) teacher’s responsibility to cover any additional education
requirements that go above what VCS is required to provide. All
Mid Florida employees working in the blended classrooms are

    1The inquiry concerned a Head Start classroom that was not
a blended classroom and was not a part of the cooperative
agreement with VCS.
    2 In the licensed Head Start programs run by Mid Florida
there were no public-school teachers in the classroom. Those
programs were run entirely by Mid Florida.

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required to be vetted and screened by VCS. The blended
classrooms are subject to Department of Education standards and
required performance and learning outcomes. VCS is responsible
for the cost of feeding the eight ESE students while Mid Florida is
responsible for the cost of feeding the ten non-ESE students in
compliance with Head Start requirements. VCS provides funding
for the ESE children enrolled in the blended classrooms, and Mid
Florida provides the funding for the Mid Florida teacher and
teacher’s assistant.

    The administrative law judge’s recommended order concluded
that the five blended classrooms sites are “integral programs” of
VCS and are “directly operated and staffed” by VCS. As such, the
judge held that the blended classroom sites are entitled to an
exemption from licensure as childcare facilities under section
402.302(2).

      The agency’s final order granted most of DCF’s exceptions to
the recommended order and ultimately concluded that the blended
classroom sites must be licensed as childcare facilities. The final
order rejected the administrative law judge’s determination that
the blended classrooms are integral programs of VCS, concluding
that the programs are not “operated and staffed directly” by VCS.
The order reasoned that Mid Florida provides a teacher and
paraprofessional who have primary supervision and “program
responsibility” for the Head-Start-only students. Further,
reasoned DCF, the Head-Start-only students rely on Mid Florida
for food, transportation, and to ensure that their educational needs
are met. Finally, DCF noted that VCS does not take attendance of
the Head-Start-only students. This appeal followed.

                                  II.

     Chapter 402, Florida Statutes, requires DCF to license
childcare facilities. A childcare facility is defined as “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 operated for profit.” §
402.302(2), Fla. Stat. Section 402.302(2)(a) excludes from that


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definition: “Public schools . . . and their integral programs, except
as provided in s. 402.3025.”

     Section 402.3025 provides exemptions from licensure as a
child care facility. In relevant part, the statute provides as follows:

    (1) Public Schools.—

    (a) The following programs for children shall not be
    deemed to be child care and shall not be subject to the
    provisions of ss. 402.301-402.319:

    ...

    2. Programs for children who are at least 3 years of age,
    but who are under 5 years of age, provided the
    programs are operated and staffed directly by the
    schools and provided the programs meet age-
    appropriate standards as adopted by the State Board of
    Education.

(emphasis added).

     Mid Florida argues, in part, that DCF’s interpretation of the
phrase “operated and staffed directly by the schools” as used in
section 402.3025(1)(a)2. erroneously limited the exemption to
programs operated and staffed exclusively by the schools. We
agree. The fact that Mid Florida may supervise and have some
level of responsibility for the non-ESE, non-VCS students does not
mean that the blended programs are not operated and staffed
directly by VCS. DCF recognized, and the undisputed evidence
shows, that “Mid Florida uses the VCS curriculum, has a VCS
teacher and paraprofessional assigned to the classrooms, [and]
follows VCS instructional discussion, and the health services
policies.” VCS is responsible for ensuring that state educational
standards are met and has final authority over the operations,
policies, and practices implemented in these classes. In fact, the
blended programs would not even exist unless VCS determined
there was a need for them to serve VCS’s pre-kindergarten
children with learning disabilities.



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     For these reasons, the blended classes are also integral to VCS
as recognized in the VCS cooperative agreement with Mid Florida.
As the administrative law judge found, based on competent
substantial evidence in the record, the purpose of the partnership
between Mid Florida and VCS is “to provide services to VCS. . .
necessary for VCS pre-K children with disabilities to achieve
academic success and high quality of life,” and to ensure
compliance with the Head Start program. Mid Florida correctly
asserts that but for the desire of VCS to provide Head Start ESE
Blended Classrooms as part of its continuum of services to
students with disabilities, Mid Florida would not be a part of these
classrooms.

     We therefore conclude that DCF erred in denying Mid Florida
exemption from the child care facility licensing requirements for
the five Head Start ESE Blended Classrooms subject to the VCS
cooperative agreement.

    REVERSED and REMANDED.

RAY, C.J., BILBREY, J., 3 and SHARRIT, MICHAEL S., ASSOCIATE
JUDGE, concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Jennifer C. Rey of The Hogan Law Firm, Brooksville, for
Appellant.

Jane Almy-Loewinger, Assistant General Counsel, Department of
Children and Families, Daytona, and Stefanie Camfield, Assistant


    3 Judge Bilbrey was substituted for an original panel member
in this proceeding after oral argument. He has viewed the digital
recording of oral argument.

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General Counsel, Department   of   Children   and   Families,
Tallahassee, for Appellee.




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