vs.
Respondent.
) Case No. 02-2769
Pursuant to notice and in accordance with Sections 120.569 and 120.57(1), Florida Statutes, a formal hearing by video was held in this case, on October 16, 2002. The hearing locations were Orlando, Florida, for Petitioner, Respondent, and witnesses, and Tallahassee, Florida, for Fred L. Buckine, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Robert J. Nesmith, Esquire
The issue in this case is whether the Department of Children and Family Services may properly revoke Petitioner's day care license for the reasons stated in its revocation letter dated June 20, 2002.
By Notice of Revocation of License (Notice) dated June 20, 2002, Respondent, the Department of Children and Family Services (the Department), advised Charlene Wilcox (Mrs. Wilcox), sole proprietor and owner-operator of Petitioner, Jumping Jack Academy, that the Department is revoking Petitioner's day care license and demanding Mrs. Wilcox cease and desist all day care operations not later than June 25, 2002. Mrs. Wilcox requested a de novo hearing in accordance with Chapter 120, Florida Statutes, to challenge the Department's cease and desist mandate and its revocation of the day care license based upon the allegations contained in the Notice.
On July 15, 2002, the Department referred Mrs. Wilcox's request for hearing to the Division of Administrative Hearings (DOAH) to conduct a hearing to resolve disputed facts. Section 120.57(1), Florida Statutes (2000). (All references in this Recommended Order are to the Florida Statutes (2000).)
The final hearing was scheduled for September 19, 2002, by video teleconference in Orlando and Tallahassee, Florida.
Petitioner's September 16, 2002, motion for continuance of the final hearing was granted by Order entered September 18, 2002, rescheduling the final hearing for October 16, 2002. The parties filed their joint Response to Pre-Hearing Instructions on October 11, 2002, and a case status telephonic hearing was conducted on October 16, 2002.
The Department presented the testimony of the following witnesses: Nicole Freeman, child protection investigator since July 21, 2001; Laura Guay, child protection investigator since June 1, 2002; Carman Herring; Fay Johnson; and Pearlie M. Robinson, and introduced ten exhibits (B through K) in evidence. The Department's motion for the record to remain open for ten days for submission of the deposition of Ann D. Wilcox, ex- spouse of Larry Wilcox who did not appear, was granted with the condition that opposing counsel be given notice and allowed to participate in Mrs. Wilcox's deposition. The deposition of
Ann D. Wilcox was not filed within the ten days.
Petitioner's counsel's unopposed request for an extended period of time to submit Petitioner's proposed recommended order, due to a two- to three-week trial to begin on or about October 21, 2002, was granted, thereby waiving the time requirement for this Recommended Order. See Rule 28-106.216, Florida Administrative Code.
The Transcript was filed on November 12, 2002. A Joint Motion for Extension of Time to File Proposed Recommended Orders, filed November 27, 2002, was granted by Order dated December 3, 2002, scheduling the filing of the proposed recommended orders not later than December 16, 2002. The Department's Proposed Recommended Order was filed on
December 16, 2002. Petitioner's second Motion for Extension of Time to File Proposed Recommended Orders dated January 6, 2003, was granted by Order dated January 9, 2003, extending the time for filing the proposed recommended order until January 24, 2003. The Proposed Recommended Orders filed by both parties have been considered in rendering this Recommended Order.
Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings during the final hearing, and the entire record compiled herein, the following relevant and material facts are found:
At all times material to the issues herein, Respondent, the Department of Children and Family Services, was the state agency responsible for receiving and approving applications for child care facility licenses and for monitoring, regulating, and if necessary, suspending or revoking child care facility licenses pursuant to Section 402.305, Florida Statutes.
At all times material, Charlene Wilcox was the sole proprietor and owner-operator of Jumping Jack Academy, a licensed child day care facility, as defined in Section 402.302(2), Florida Statutes, located at 903 Plymouth Avenue, Orlando, Florida. The child care facility is not connected nor adjunct to Mrs. Wilcox's residence located at 3626 Arch Street, Orlando, Florida.
Mrs. Wilcox is the mother of Larry D. Wilcox, who, at all times material and pertinent, had attained his majority, was not a dependent child of Mrs. Wilcox, and did not reside with Mrs. Wilcox in her home.
Beginning in 1993 the Department licensed Jumping Jack Academy annually, and each year thereafter Jumping Jack Academy has been in substantial compliance with existing rules and regulations regarding the health, safety, and well-being of all children under care in the child care facility.
On January 17, 2002, Nicole Freeman, the Department's employee in the position of a child protective investigator since July 2001, responded to an Abuse Hotline Report that coded Mrs. Wilcox and Larry Wilcox as alleged perpetrators. Upon her arrival at Jumping Jack Academy on January 17, 2002, Ms. Freeman spoke with two employees, Pearlie Robinson and Patricia Rule. From Ms. Freeman's conversation with these two ladies, she concluded that Larry Wilcox had occasionally been at the day
care facility either dropping things off or running errands for his mother. No specific dates were given regarding Larry Wilcox's occasional visits.
At the time of Ms. Freeman's visit on January 17, 2002, she did not have in her possession a current address for Larry Wilcox. From the hotline database, she secured a five-year-old address of 500 Domino Drive, Orlando, Florida, as his current address. At that time, Ms. Freeman had confirmed that Larry Wilcox did not live at that address.
Between January 17 and January 22, 2002, Ms. Freeman secured a background check from the Florida Department of Law Enforcement (FDLE) on Larry Wilcox. From Ms. Freeman's personal review of information contained in the FDLE reports, she concluded: (1) that Larry Wilcox had been arrested several times for rape and (2) that Larry Wilcox had been convicted for rape, battery, and sexual battery in 1996. Ms. Freeman's testimony regarding her conclusions drawn from the FDLE reports, when compared to the factual content of those reports, clearly demonstrated that Ms. Freeman's conclusions were incorrect. The FDLE reports did not contain data that Larry Wilcox had been convicted for rape or battery and for sexual battery in 1996. Ms. Freeman's testimony regarding her review, conclusions, and interpretation of the FDLE reports is neither factual nor credible.
At the time of Ms. Freeeman's testimony and based upon the FDLE reports, she knew or should have known that Larry Wilcox had not been convicted by a court of competent jurisdiction for the alleged sexual battery charge in the FDLE report. The Orlando police report, also reviewed by
Ms. Freeman, revealed that the alleged rape victim admitted to the police that she lied about the rape charge. The alleged rape victim admitted that she was a prostitute, that she charged and was paid $10 for sex by Larry Wilcox, and that they had consensual sex, at night, in the child care facility. Other than Ms. Freeman's erroneous testimony, the Department offered no evidence that a court of competent jurisdiction entered a guilty verdict of sexual battery against Larry Wilcox.
Ms. Freeman further assumed that Larry Wilcox had been "inside" the child care facility in the presence of the children. Ms. Freemen acknowledged that her assumption resulted from her investigative conversations with three children at the child care facility, although admittedly no child interrogated said to her that Larry Wilcox had been either "inside" the facility or in their presence. Based in part upon Ms. Freeman's first erroneous assumption that Larry Wilcox had been "convicted" of many sexual batteries and her second erroneous assumption that Larry Wilcox had been "in" the presence of the children, she went further to erroneously conclude that his
presence in the facility posed a risk to the children at Jumping Jack Academy.
Based upon Ms. Freeman's erroneous assumptions and conclusions, Ms. Freeman believed she had "verified" the Hotline Abuse Report allegations. Ms. Freeman then shared her faulty assumptions and erroneous conclusions with the licensing division, who apparently considered her conclusions as fact. Ms. Freeman did not secure corroborating evidence, independent of the Hotline Abuse Report allegations, to vertify any "sexual abuse/threatened harm" to children at the child care facility because of Larry Wilcox's alleged employment there.
Laura Guay, employed by the Department since
June 2002, as a part of her due diligence search to locate Larry Wilcox, researched public records, contacted power companies, the driver's license bureau, hospitals and phone companies, attempting to secure the current address for Larry Wilcox.
Through her diligent search of public records, Ms. Guay was unable to locate a current address for Larry Wilcox. She uncovered from Orange County court files a Petition for Injunction against Spousal Abuse, dated June 4, 2001, containing information that Larry Wilcox's ex-wife, Ann Wilcox, had provided. According to Petitioner, Larry Wilcox's last known place of employment was Jumping Jack Academy, 601 Gore Street, Orlando, Florida (not 903 Plymouth Avenue, the address of the
child care facility contained in the Notice). With this information, Ms. Guay then asked Charlene Wilcox for Larry Wilcox's address, and Mrs. Wilcox informed her that Larry Wilcox was not in town and that she had no way of contacting him. This testimony of Mrs. Wilcox is uncontested.
Pearlie Robinson, Petitioner's employee since July 16, 2001, had on occasion seen Larry Wilcox, "at" the day care facility, but not physically "inside" the facility and not in the presence of the children. As best she could recall during those occasions, Larry Wilcox was either delivering something for Mrs. Wilcox or running errands for Mrs. Wilcox. The work she observed Larry Wilcox doing at the center was outside the building. She had never seen Larry Wilcox inside the day care center when the children were present during the period from July 16, 2001, to the time of her testimony at the final hearing.
The Department failed to prove that Larry Wilcox was a child care personnel, as set forth in Section 402.302(3), Florida Statutes, of Jumping Jack Academy during the time material and pertinent to the allegations made by the Department in its Notice.
Patricia Richardson is the Department's employee, and she is the child care Licensing Division Supervisor. In
Ms. Richardson's position as Supervisor, she exercises final authority to issue and revoke child care licenses. After reviewing the investigative reports prepared by Ms. Freeman and Ms. Guay, the two child protection investigators who investigated the Abuse Hotline Reports, and assuming the child care investigators' reports were factually correct,
Ms. Richardson concluded that Larry Wilcox was either an employee or volunteer at Jumping Jack Academy day care center. At that point in the process, Ms. Richardson authored and mailed her first letter to Mrs. Wilcox dated January 28, 2002, enclosing several employee background screening forms for Larry Wilcox to complete and submit to the Department, on the assumption that Larry Wilcox was either an employee or a volunteer at the child care facility. Mrs. Wilcox responded to Ms. Richardson's letter informing her that the only time Larry Wilcox had been at the child care facility was after hours and that he worked out of town most of the time. No dates were provided when Larry Wilcox had been at the child care facility.
After receipt of Mrs. Wilcox's response, the Department sent a second letter dated March 13, 2002, requesting information of where Larry Wilcox worked, and informing
Mrs. Wilcox that if she did not provide the information requested by the Department, the Department would take administrative action against Jumping Jack Academy's child care
license. At the time the information request was made, the Department did not know nor at any subsequent time did the Department ascertain the employment or residence addresses of Larry Wilcox. Mrs. Wilcox's oral and written replies to both of the Department's inquiries concerning Larry Wilcox were consistent: "she didn't know were Larry Wilcox worked or lived."
As a direct result of Mrs. Wilcox's responses to her inquiries, described by Ms. Richardson as an "impasse,"
Ms. Richardson convened a staffing meeting composed of her licensing staff and Ms. Freeman and Ms. Guay. The purpose for the meeting was consideration of Jumping Jack Academy's child care license status. The topic of discussion was Mrs. Wilcox's response that Larry Wilcox was not working at the day care center and her denial of any knowledge regarding his current residence and current employment addresses. The licensing staff committee members considered the Hotline Abuse Report, the protective investigators' reports,1 the FDLE reports, the Orlando city police reports, Mrs. Wilcox's denial that Larry Wilcox worked at the day care center, and her denial that she knew of his current employment and resident address. At the conclusion of the staff meeting discussion, Ms. Richardson determined that Jumping Jack Academy's child care license should be revoked.
Ms. Richardson testified that her decision to revoke Jumping
Jack Academy's child care license was based upon: "[T]he fact that we had information that showed that he was working there and we wanted to talk to him and she gave us information that I 'felt' was evasive and misleading." Ms. Richardson's "feelings" and "emotions," not facts, were the primary factor and basis for the revocation of Jumping Jack Academy's child care license.
The Department has failed to prove its allegation that Larry Wilcox was a convicted sex offender. As a direct consequence of that failure, the Department has also failed to demonstrate that his presence at the day care facility (arguendo, he had been present at the child care facility and had been in the presence of the children) presented a threat of harm to the children.
The Department failed to prove that Larry Wilcox was an employee or a volunteer at Jumping Jack Academy and that, as a convicted sex offender, he posed a threat to the safety of the children in the child care facility.
The Department presented no substantive, competent or credible evidence to prove that the Department knew or had in its possession a current and correct residence address and a current and correct employment address of Larry D. Wilcox at any time material to the allegations contained in its Notice to Mrs. Wilcox. Therefore, the Department has failed to substantiate the allegation that Mrs. Wilcox, in fact, knew the
current and correct residence and the current and correct employment addresses of Larry Wilcox, when the Department made inquiry and, thereafter, intentionally misled and/or concealed that information from the Department as alleged in the Department's revocation letter dated June 20, 2002.
On June 20, 2002, the Department sent Mrs. Wilcox the following Notice of Revocation of License:
Dear Ms. Wilcox:
Your license to operate Jumping Jack Academy, a childcare facility, is revoked due to your efforts to intentionally mislead the licensing division concerning your son's residence and place of employment, which has placed the children at risk of harm. You must cease and desist all operations of the childcare facility within seven (7) days of receipt of this letter
On January 28, 2002, you were advised that the licensing unit had received information that your son, Larry D. Wilcox, was working at your day care. The licensing unit requested that you comply with background screening rules applicable to all employees. Despite our request, you telephoned the Department and stated that Larry Wilcox was not employed at the day care and did not live at the day care.
On March 13, 2002, a second request was sent to you requesting the residence of Larry Wilcox and his place of employment. The information was needed to ensure the safety of children in your care due to Larry Wilcox's criminal history. In response, you wrote a letter that concealed specific information about Larry Wilcox's address and his place of employment. An investigation by the Department revealed that Larry Wilcox
is a convicted sex offender who is employed at or frequenting your day care.
Signed by: Robert R. Morin, Jr. District Seven Administrator Certificate of Service
Signed by: Richard Cato, Esquire
District 7 Licensing Attorney CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes.
The Department alleged that Larry Wilcox was a convicted sex offender who was employed by or was a volunteer at Jumping Jack Academy or who frequented the facility. The Department also alleged that Mrs. Wilcox intentionally misled the Department and concealed specific information concerning Larry Wilcox's residence and place of employment.
Section 402.310, Florida Statutes, authorizes the Department of Children and Family Services to revoke a license for the violation of any provision of Sections 402.301 through 402.319, Florida Statutes. Section 402.319(1)(a), Florida Statutes, reflects the intent of the Legislature to impose criminal penalties, making it a misdemeanor of the first degree, punishable in Sections 775.082 or 775.083, Florida Statutes, for any person knowingly to:
(1)(a) Fail, by false statement, misrepresentation, impersonation, or other fraudulent means, to disclose in any application for voluntary or paid employment or licensure regulated under ss. 402.301-
402.318 all information required under those sections or a material fact used in making a determination as to such person's qualifications to be child care personnel, as defined in s. 402.302, in a child care facility, family day care home, or other child care program.
Section 402.302(12), Florida Statutes, defines owner as (12) "Owner" means the person who is licensed to operate the child care facility.
Section 402.302(3), Florida Statutes, provides that:
"Child care personnel" means all owners, operators, employees, and volunteers working in a child care facility. The term does not include persons who work in a child care facility after hours when children are not present or parents of children in Head Start. For purposes of screening, the term includes any member, over the age of
12 years, of a child care facility operator's family, or person, over the age of 12 years, residing with a child care facility operator if the child care facility is located in or adjacent to the home of the operator or if the family member of, or person residing with, the child care facility operator has any direct contact with the children in the facility during its hours of operation. Members of the operator's family or persons residing with the operator who are between the ages of
12 years and 18 years shall not be required to be fingerprinted but shall be screened for delinquency records. For purposes of screening, the term shall also include persons who work in child care programs which provide care for children 15 hours or
more each week in public or nonpublic schools, summer day camps, family day care homes, or those programs otherwise exempted under s. 402.316. The term does not include public or nonpublic school personnel who are providing care during regular school hours or after hours for activities related to a school's program for grades kindergarten through 12 as required under chapter 232. A volunteer who assists on an intermittent basis for less than 40 hours per month is not included in the term "personnel" for the purposes of screening and training, provided that the volunteer is under direct and constant supervision by persons who meet the personnel requirements of Section 402.305(2), Florida Statutes.
The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc.,
396 So. 2d 778 (Fla. 1st DCA 1981). This de novo proceeding involves the revocation of Petitioner's child care facility license. License revocation proceedings are considered penal in nature and implicate significant property rights. Therefore, the extension of the clear and convincing evidence standard is warranted. Department of Banking and Finance, Division of
Securities and Investor Protection v. Osborne Stern Company, 670 So. 2d 932 (Fla. 1996); Section 120.57(1)(j), Florida Statutes.
The Department has failed to prove that Larry Wilcox was a convicted sex offender and was an employee or a volunteer, or someone who frequented Jumping Jack Academy child care facility.
The Department has failed to prove that Mrs. Wilcox, in fact, knew the current and correct residence address and the current and correct employment address of Larry Wilcox, and that she intentionally misled and/or concealed that specific information from the Department as alleged in the Department's revocation letter dated June 20, 2002.
Based upon the Findings of Fact and Conclusions of Law hereinabove, it is RECOMMENDED that:
The Department of Children and Family Services enter a final order reinstating Petitioner's child care facility license.
DONE AND ENTERED this 19th day of February, 2003, in Tallahassee, Leon County, Florida.
FRED L. BUCKINE
Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2003.
1/ The Department's witnesses appeared to have mistakenly concluded that every arrest report (there were several on other charges) which related back to Larry Wilcox's failure to appear on the initial charge of involuntary sexual battery, and every capias issued for failure to appear, were, in fact, a new sexual battery charge. There was one sexual battery charge, and it was not prosecuted because the victim admitted lying to conceal that while the sex act occurred during the night at the day care center, she was not raped but was engaging in prostitution and was paid $10.
Robert J. Nesmith, Esquire
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.
