STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2196

)

ELIZABETH HORTON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Bradenton, Florida on August 28, 1996, before Arnold H. Pollock, an Administrative Law Judge, with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Raymond R. Deckert, Esquire

Department of Health and Rehabilitative Services, Room 500

400 West Dr. M.L. King, Jr. Boulevard Tampa, Florida 33614

For Respondent: Elizabeth Horton, pro se

Alfrader Cotton, Qualified Representative 3710 11th Street East

Bradenton, Florida 34208 STATEMENT OF THE ISSUE

The issue for consideration in this hearing is whether the Department should deny to Respondent renewal of her license to operate a family child day care center because of the matters alleged in its letter of intent to deny, dated March 26, 1996.

PRELIMINARY STATEMENT

By letter dated March 26, 1996, Charles Taylor, the Department's District Six Administrator, advised Mrs. Horton that her application for renewal of her family day care home license was denied because she had failed to provide for screening of her brother, L.H., a felon convicted of child molestation, who periodically resided in her home and who, thereby, had access to the children who were cared for there, in violation of Section 402.313(3), Florida Statutes. Mrs. Horton thereafter requested hearing on the intent to deny and this hearing ensued.

At the hearing, the Department presented the testimony of Laura DelVecchio Winfrey, a child and family services supervisor for District Six; A. M., a

female child who was periodically cared for in Respondent's home; K. M., A. M.'s mother; and Joyce West, an operations and management consultant I in the Department's Children and Family Services Office. The Department also introduced Department's Exhibits 1 through 19.

Mrs. Horton testified in her own behalf and presented the testimony of her daughter, Tangela Duyanna Horton. She also introduced Respondent's Exhibits A through E. A transcript of the proceedings was furnished and Petitioner submitted Proposed Findings of Fact which were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Department of Health and Rehabilitative Services was the state agency in Florida responsible for the licensing of family child day care centers in this state. Respondent, Elizabeth Horton, has, since before January 31, 1992, operated the Little Darling Horton-Cotton Family Day Care at 3710 11th Street East in Bradenton, Florida. The location is Mrs. Horton's home, and she resides there with Alfrader L. Cotton, her companion, Craig E. Horton and Sheldon G. Horton, her sons, and Tangela D. Horton, her daughter.

   
   

2. In January, 1992, Mrs. Horton submitted an application for a license to operate a family day care center at the stated location and listed the others noted above as residents. Thereafter, on July 9, 1992, June 28, 1993, July 11, 1994, July 18, 1994 and December 21, 1995, Mrs. Horton submitted application forms for renewal of her license. On each of the renewal application forms, those same individuals were listed as residents of the home. Mrs. Horton's brother, L. H., was not listed as a resident or in any capacity on any of the application forms.

   
   

3. On or about December 3, 1993, a report of abuse of a minor female, A. M., born on February 12, 1984, was received in the Department. The substance of the allegation was that A. M., along with her little brother, born on March 6, 1985, were placed by their mother at the Respondent's home from about 5:00 PM until early the next morning each week night, while their mother was at work. The report further alleged that Mrs. Horton's brother, L. H., had molested A. M. while she was staying in the Horton home. He was alleged to have awakened her in the middle of the night while she was asleep in the Horton daughter's bedroom on the pretext of taking her to the bathroom, but fondled her breasts and vaginal area. This report was investigated by personnel of the Department and was classified as verified.

   
   

4. A report of neglect was entered against Mrs. Horton arising out of her failure to supervise the children and a Hearing Officer from the Division of Administrative Hearings, after a formal hearing pursuant to Section 120.57(1), Florida Statutes, entered a Recommended Order recommending that the Department enter a Final Order amending the proposed confirmed report to a classification of unfounded and expunging Mrs. Horton's name from the case record and all Department records. The Hearing Officer found, however, that L. H. had committed the abuse, and this determination was subsequently affirmed by the Secretary of the Department in the Final Order entered in this case.

   
   

5. In 1989, L. H. was found guilty in the Circuit Court in Manatee County of lewd and lascivious acts in the presence of a child eleven years of age or younger, in violation of Section 800.04, Florida Statutes, a felony, and was sentenced, among other things, to community control for two years followed by

   seven years probation. After his arrest for the assault on A. M., on June 28, 1995, his prior sentence was increased to seven years in prison. He was also tried in Circuit Court for Manatee County for sexual battery, and was, on that same date, sentenced for the second offense to life imprisonment, with the provision he serve no less than twenty-five years.

   
   

6. Whenever an individual is issued a license to operate a family day care center, that person is provided with a copy of a handbook containing the rules of the Department of Health and Rehabilitative Services relating to the licensing and operation of those facilities. Included within that pamphlet is a copy of Department rule 10M-10.002, dealing with personnel, which requires that all persons who are members of the operator's family or who reside in the day care home must be screened as must be persons providing substitute care in the absence of the operator.

   
   

7. The evidence regarding the status of L. H. is contradictory. A. M. indicates that L. H. would be at the center from about 10:00 PM at night, after Mrs. Horton picked him up at work; would be there when she, A. M., went to bed at some time after 9:00 PM and before 11:00 PM; and, most of the time, would also be there then next morning, having spent the night in the bedroom of Mrs. Horton's son, Craig. A. M. cannot recall if L. H. ate his meals at the Horton home or took his showers there, but she recalls that he did cook there several times. She never saw him change or wash his clothes there and she never saw any of his clothes in the closet. Though she contends she was never left alone with

   L. H. by Mrs. Horton, she claims she was touched on her private parts by him on several occasions in the early hours of the morning, while the others in the house were sleeping.

   
   

8. A. M.'s mother does not know if L. H. lived at the Horton child care center or not. He was there sometimes at night when she dropped the children off, and he was always there when she picked them up the next morning. To the best of her knowledge, the children were never left alone with him.

   
   

9. Mrs. Horton, on the other hand, while admitting she knew that her brother had been convicted of a felony regarding a sexual offense against a minor child, categorically denies that L. H. lived at her home. She admits that he visited there from time to time and admitted to Ms. Winfrey, the child care supervisor from the Department, that he spent the night there from time to time as well.

   
   

10. According to Mrs. Horton, L. H. lived with their parents in a home in the next block east on 11th Street East. Respondent admitted at hearing to picking him up from work around 9:00 PM at times, but not regularly. She contended at hearing he would come to the house to watch TV and to play games with her son, but rarely did he stay and never did he spend the night. The probation officers who visited L. H. would sometimes come to her house to see him but would never come in. None of the probation officers ever said anything to her about L. H.'s being at her home with children being present. At no time until the report of abuse was filed did she have any idea that L. H. was behaving improperly with any children in her charge. When she found out what he had done, she told him not to come back to that house.

    
    

11. Mrs. Horton's daughter, age 17, claims that L. H. did not live at the care center at any time. He did not wash his clothes there or do anything which indicated he lived there. Since she was older, she stayed up later than

    A. M., going to bed around 10:00 PM or so. As she recalls, L. H. would usually

    leave the house about 10 or 11:00 PM and she would see him leave often. She did not often go to bed while he was still there.

    
    

12. Taken together, the evidence establishes that while L. H. may not have resided at the house on a permanent basis, he was there frequently enough to be considered a member of the family as defined in the Department rules.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

14. Under the provisions of Section 402.310(1)(a), Florida Statutes, the Department of Health and Rehabilitative Services may revoke a daycare facility license if it finds that the operator of the facility has violated any provision of Section 402.301 through 402.319, Florida Statutes. Section 402.313(3), Florida Statutes, and Rule 10M-10.002(1)(b), F.A.C. provide that family day care homes and the child care personnel working or with access to the children there shall be subject to applicable screening. Child care personnel are defined as any members over the age of twelve years of a family day care operator's family. or any person over the age of twelve years who reside with the operator in the family day care home.

    
    

15. In the instant case, though there may be some question as to whether

L. H. resided in the family day care center with the operator, Mrs. Horton, there is no question that he is a member of her family and was in the day care center for extended periods under conditions which gave him unsupervised access to the children. Under these circumstances, he fell within the criteria requiring screening, and Mrs. Horton was well aware of the screening requirements. Nonetheless, she failed to comply with them, to notify the Department of her brother's frequent visits to the day care center, or, until she became aware of his abuse of A. M., bar him from coming there. Under the above-cited statutory provisions, therefore, her license is subject to discipline.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order denying Elizabeth Horton renewal of her license to operate a family day care center.

DONE and ENTERED this 8th day of October, 1996, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1996.

COPIES FURNISHED:

Raymond R. Deckert, Esquire Department of Health and

Rehabilitative services, Room 500

400 West Dr. M. L. King, Jr. Boulevard Tampa, Florida 33614

Elizabeth Horton

3710 11th Street East Bradenton, Florida 34208

Alfrader Cotton Qualified Representative 3710 11th Street East

Bradenton, Florida 34208

Gregory D. Venz Agency Clerk

Department of Health and Rehabilitative Services

Building Number Two, Room 204 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran General Counsel

Department of Health and Rehabilitative Services

Building Number Two, Room 204 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 96-002196

Orders for Case No: 96-002196