STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF CHILDREN AND FAMILIES,
Petitioner,
vs.
LAWANDA JACKSON, d/b/a/ TINY BLESSINGS,
Respondent.
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) Case No. 11-0565
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RECOMMENDED ORDER
On July 21, 2011, a formal administrative hearing in this case was held in Jacksonville, Florida, before Lawrence P. Stevenson, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioner: David Gregory Tucker, Esquire
Department of Children and Families 5920 Arlington Expressway
Post Office Box 2417 Jacksonville, Florida 32231
For Respondent: Lawanda M. Jackson, pro se
2778 Taylor Hill Drive Post Office Box 60551
Jacksonville, Florida 32236
STATEMENT OF THE ISSUE
At issue is whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalties should be imposed.
PRELIMINARY STATEMENT
On November 30, 2010, the Department of Children and Families (the "Department") filed a seven-count Administrative Complaint (the "Complaint") against Lawanda Jackson, d/b/a Tiny Blessings ("Tiny Blessings").
Count I of the Complaint stated that during a re-inspection on October 6, 2010, a Department licensing counselor determined that staff member Monalisa Tedtaotao had been hired on
September 3, 2010, and allowed to work as an unscreened individual until September 27, 2010, when her FBI/FDLE screening was cleared. The Complaint stated that this was a Class 1 violation pursuant to Florida Administrative Code Rule 65C- 22.001(5)(a) and assessed a fine of $500.00.
Count II of the Complaint stated that during a re- inspection on October 6, 2010, a Department licensing counselor determined that Tiny Blessings did not have in its files the required background screening form for staff member Tiffany Turner, hired on September 22, 2010. The Complaint stated that this was a Class 2 violation pursuant to Florida Administrative
Code Rule 65C-22.006(4). Because this was a second violation, the Department assessed a fine of $50.00.
Count III of the Complaint stated that during a complaint investigation on October 12 and 15, 2010, a Department licensing inspector determined that the owner of Tiny Blessings, Lawanda Jackson, had been arrested on October 6, 2010, for a disqualifying offence of battery involving domestic violence, to which Ms. Jackson had pled nolo contendere and for which adjudication of guilt was withheld on October 7, 2010.
Ms. Jackson was placed on probation for 12 months. The Complaint went on to state as follows, referencing Ms. Jackson as "L.J":
On October 11, 2010, Child Care Licensure was made aware of the disqualifying offense and advised L.J. on October 12, 2010, that she was not to be on site and/or around the children during operational hours. On October 15, 2010, an additional complaint report was made that L.J. transported L.C. (age 2), home from the daycare on
October 14, 2010. L.J. admitted to transporting the child. Staff member S.C. also admitted that L.J. transported the child home. The parent of the child confirmed the child (L.C.) was transported home by L.J. . .
[T]he fine for this first Class 1 violation is not less than $100.00 nor more than
$500.00 per day. The Department may impose other disciplinary sanction in addition to the fine. The fine amount is being assessed at $1,000.00 as L.J. was disqualified for five (5) days and failed to take the appropriate action. Additionally, L.J.
continued to act in the capacity of a child care personnel after the Licensure Department was aware of the disqualifying offense on October 12, 2010, and L.J. agreed to not be on site and/or around the children during operational hours. A second violation for staff member L.J. being on site as a [disqualified] person was cited on October 15, 2010, causing the fourth Class 1 violation.
Count IV of the Complaint stated that during a complaint investigation on October 13, 2010, a Department licensing counselor determined that K.J., a four-year-old child with special needs, and his six-year-old sister, A.S., were transported to school by staff member Joseph Williams. The children were dropped off alone and later found wandering in the halls of the school. The Complaint stated that Mr. Williams admitted to dropping the children off without verifying that a school employee had taken responsibility for them.
Mr. Williams' personnel file did not qualify him to be a designated driver. The Complaint stated that this was a Class 1 violation under Florida Administrative Code Rule 65C- 22.001(5)(a) and assessed a fine of $500.00 because of the heightened risk to the child with special needs.
Count V of the Complaint stated that during a complaint investigation on October 13, 2010, a Department licensing counselor determined that staff member Trameka Monroe, who was supervising a group of one-year-old children, did not have a
background screening clearance on file at the facility. Staff member Sarra Brown arrived at Tiny Blessings during the investigation and was found not to have a background screening clearance on file. The Complaint stated that this was a Class I violation under Florida Administrative Code Rule 65C- 22.001(5)(a) and assessed a fine of $500.00 because the facility owner continued to allow unscreened individuals to act as child care personnel after previous warnings.
Count VI of the Complaint stated that during a complaint investigation on October 13, 2010, a Department licensing counselor determined that each of the files of staff members Trameka Monroe and Sarra Brown lacked a signed Child Abuse and Neglect Reporting Requirements Form. The Complaint stated that this was a Class 3 violation pursuant to Florida Administrative Code Rule 65C-22.006(4) and assessed a fine of $25.00.
Count VII of the Complaint stated that during a complaint investigation on October 13, 2010, a Department licensing counselor determined that the files of staff members Trameka Monroe and Sarra Brown lacked the required Employee Reference Check. The Complaint stated that this was a Class 2 violation pursuant to Florida Administrative Code Rule 65C-22.006(4) and assessed a fine of $50.00.
The Complaint concluded with the following statement:
In addition to the fine the facility license shall be REVOKED. The children enrolled at the Child Care Program are at continued risk of harm. The Owner and staff members continued to allow a disqualified person contact with the children as well as knowingly put the child with special needs (autism) at risk by dropping him off at school without proper supervision. The disqualification (Domestic Battery) of L.J. (Lawanda Jackson) makes her ineligible to be the Owner or Operator of a Child Care Facility. The Owner continues to knowingly violate the rules outlined in Florida Administrative Code 65C-22.
Counsel for Tiny Blessings filed a Request for Administrative Hearing ("Request") on or about January 19, 2011. In the Request, Tiny Blessings stated that it received the Complaint on January 6, 2011. The Department conceded that the Request was timely filed.
On February 3, 2011, the Department forwarded the Request to the Division of Administrative Hearings for the scheduling and conduct of a formal hearing. The case was originally set for hearing on April 1, 2011. On March 23, 2011, the Department filed a motion to continue the hearing due to witness unavailability. The motion was granted and the case was rescheduled for May 27, 2011. At the outset of the hearing, counsel for Respondent moved to withdraw because of irreconcilable differences between counsel and client.
Ms. Jackson agreed with her counsel's motion to withdraw. The
undersigned granted the motion, and then continued the hearing to allow Ms. Jackson a fair opportunity to prepare her own case. The hearing was rescheduled for July 21, 2011, on which date it convened and was completed.
At the hearing, the Department presented the testimony of Jacqueline King, a family care counselor for the Department; Annette Wiggins, the mother of K.J. and A.S.; and the telephonic testimony of Sharon McKahand, Ms. Wiggins' mother-in-law and the grandmother of K.J. The Department also introduced the deposition testimony of Nancy Garrett and Amalia Santiago, teachers at Oak Hill Elementary School. The Department's Exhibits A through D were admitted into evidence.
Respondent testified on her own behalf and presented the telephonic testimony of Monalisa Tedtaotao, an employee of Tiny Blessings. Respondent's Exhibits 1 through 4 were admitted at the hearing over the Department's objection to lack of notice. At the Department's request, the undersigned left the record open to permit the Department an opportunity to review the exhibits, reconsider its objections, and possibly submit its own supplemental exhibits in response. On August 1, 2011, the parties filed a supplement to the record in which the Department withdrew its objection to the admission of Respondent's Exhibits
1 through 4 and the parties stipulated to the admission of the Department's Supplemental Exhibit 1. On August 2, 2011, the
undersigned entered an Amended Order Closing Record that acknowledged the parties' agreement and admitted the Department's Supplemental Exhibit 1 into the evidence.1/
The transcript of the hearing was filed at the Division of Administrative Hearings on August 19, 2011. The Department timely filed its Proposed Recommended Order on September 2, 2011. Respondent filed a post-hearing submittal on September 9, 2011. The Department has not objected to Respondent's late filing and the undersigned has therefore considered Respondent's submission in preparing this recommended order.
FINDINGS OF FACT
The Department is authorized to regulate child care facilities pursuant to sections 402.301-402.319, Florida Statutes. Section 402.311 authorizes the Department to inspect licensed child care facilities. Section 402.310 authorizes the Department to take disciplinary action against child care facilities for violations of sections 402.301-402.319.
Tiny Blessings is a child care facility operating pursuant to License Number C04DU0799. The facility is located at 4932 Blanding Boulevard, Jacksonville, Florida. Lawanda Jackson is the owner of Tiny Blessings.
Jacqueline King is a family service counselor for the Department's child care licensing program. She is charged with inspecting day care facilities. Ms. King has worked for the
Department for over 20 years. In addition to five years in her current position, Ms. King has worked as a child protective investigator on sexual abuse cases and has served as a juvenile probation officer. Ms. King conducted the inspections of Tiny Blessings that are at issue in this case.
Count I
On October 6, 2010, Ms. King conducted an inspection of Tiny Blessings. The facility's records appeared to show that employee Monalisa Tedtaotao had been hired on September 3, 2010, but that her background screening had not been completed until September 27, 2010. Ms. King noted that the facility's records indicated that Ms. Tedtaotao's 40-hour training program began on September 3, 2010.
Ms. Tedtaotao testified she began work at Tiny Blessings on September 27, 2010, the day the background screening was completed.
Ms. Jackson was adamant that Ms. Tedtaotao did not begin work at Tiny Blessings until September 27, 2010. She believed that Ms. King either mistook the date on
Ms. Tedtaotao's job application for her starting date, or was intentionally misstating the facts in order to stack the alleged violations and close down Tiny Blessings.2/
The Department produced no witness who actually saw Ms. Tedtaotao working at Tiny Blessings prior to September 27,
2010. The only document in evidence showing the date of September 3, 2010, was created by Ms. King as part of her inspection report. It is noted that Ms. Jackson produced no payroll records or other evidence to verify Ms. Tedtaotao's starting date.
As to Count I, the Department proved at most that Tiny Blessings' recordkeeping was inadequate. The Department did not prove that Ms. Tedtaotao worked at Tiny Blessings as an unscreened individual.
Count II
Ms. King testified that, at the time of the October 6, 2010, inspection, employee Tiffany Turner's personnel file was missing a mandatory document: CS-FSP 5131, "Background Screening and Personnel File Requirements" ("Form 5131"). The Department characterized this as a "filing problem," not a situation in which the employee had failed to undergo background screening. Ms. Jackson agreed that a Form 5131 was not in Ms. Turner's personnel file on the date of the inspection.
Count III
Ms. King testified that on or about October 12, 2010, the Department received a complaint that Ms. Jackson had been arrested for domestic violence but was still working at Tiny Blessings. Ms. King's investigation revealed that Ms. Jackson had been charged with domestic battery in violation of section
784.03(1)(a), Florida Statutes (2010), on October 6, 2010, and had pled no contest to the charge on October 7, 2010. The county court in Jacksonville withheld adjudication and placed Ms. Jackson on 12 months of probation with early termination contingent upon her completion of the Safe Families program and her having no contact with the victim. Under the provisions of section 435.04(3), Florida Statutes (2010), a plea of nolo contendere to an offence that constitutes domestic violence as defined in section 741.28, Florida Statutes, is an offence that disqualifies a person from occupying a position for which a Level 2 Background Screening is required.
Ms. King testified that on October 12, 2010, she advised Ms. Jackson that her plea constituted a disqualifying offence. Ms. Jackson did not accept Ms. King's statement. Ms. King put Ms. Jackson on the phone with staff in the Department's background screening office, who confirmed
Ms. King's statement.
Ms. Jackson testified that she entered her plea only upon the assurance by the court and the assistant state attorney that the domestic violence charge was not a disqualifying offense and the plea would not affect her child care license.
On November 3, 2010, Ms. Jackson's counsel filed in the county court a motion to vacate and set aside the judgment. In the motion, counsel stated as follows, in relevant part:
The Defendant, by and through her undersigned counsel, raised the issue of the Defendant's fear of losing her daycare license as a result of pleading to the charge of Battery.
The State Attorney and the judge both advised the undersigned counsel that the daycare license would not be affected.
Upon reliance on same, the Defendant entered a plea of nolo contendere to the charge of Battery and was sentenced on the same day.
On or about October 15, 2010, the Defendant was visited by an agent from the Department of Children and Families and advised that due to her plea of no contest to the battery charge and being sentenced on same, the Defendant's daycare license was subject to forfeiture and ineligibility. This came as a result in a change of law that took effect in July 2010 that mandates that either an adjudication of guilt or a withhold [sic] of guilt on a domestic charge, such as Battery, makes the license holder ineligible to run a daycare.3/
As of the date of the hearing in the instant case, the county court had not acted on Ms. Jackson's motion to vacate.
On May 24, 2011, the court denied a May 17, 2011 motion filed by Ms. Jackson to "amend the record."4/
The Department sent Ms. Jackson a certified letter, dated December 1, 2010, advising her of her disqualifying offence and of the process contained in chapter 435 for
Ms. Jackson to seek an exemption from disqualification.
The post office tracking slip indicated that the letter was returned unclaimed on December 31, 2010.
Ms. Jackson knew or should have known, no later than December 31, 2010, that she was disqualified from operating a day care facility. Ms. Jackson has never filed an application for an exemption from disqualification.
Count IV
K.J. is a four-year-old autistic boy. He has a six- year-old sister, A.S. Their mother is Annette Wiggins. K.J. and A.S. attend Oak Hill Elementary School ("Oak Hill"). During the period relevant to this proceeding, K.J. was enrolled in
pre-kindergarten and A.S. was in kindergarten. During the latter part of September 2010, K.J. and A.S. were enrolled for day care at Tiny Blessings.
Ms. Wiggins would normally drop off K.J. and A.S. at Tiny Blessings, and Tiny Blessings would transport the children to Oak Hill. Two days per week, Ms. Wiggins would pick up the children from school at the end of the day. Three days a week, Tiny Blessings would pick up the children when Oak Hill dismissed its students, and then Ms. Wiggins would pick up the children from Tiny Blessings. K.J.'s teacher at Oak Hill, Amalia Santiago, an autism specialist, testified that at the beginning of the school year, Ms. Wiggins was "heavily
dependent" on the day care to provide transportation for the children.
Ms. Wiggins works at Point West Cluster, a nursing home. Her regular work hours are from 7:00 a.m. to 3:30 p.m. Ms. Wiggins did not drop off her children at Oak Hill unless one of the children was sick, she was not working that day, or there was some special occasion. Ms. Wiggins testified that she always let Ms. Jackson and Ms. Santiago know whether she would be taking the children to Oak Hill.
Ms. Santiago confirmed that Ms. Wiggins was scrupulous in informing her of the children's transportation arrangements. Ms. Santiago and Ms. Wiggins had a close working relationship because of their mutual concerns with K.J.'s autism.
Ms. Santiago testified that in her experience, Ms. Wiggins had never dropped her children off at Oak Hill without personally leaving K.J. with her.
Sharon McKahand is K.J.'s grandmother and Ms. Wiggins' mother-in-law. Ms. McKahand was sometimes responsible for picking up K.J. from school or from day care but never for dropping him off in the morning.
Nancy Garrett is a fifth grade teacher at Oak Hill.
She also is the extended day director at Oak Hill for early and after-school care. Ms. Garrett's responsibilities include overseeing children who are brought to Oak Hill between 7:00
a.m. and 8:05 a.m. because their parents have to go to work early. Ms. Garrett stated that there were approximately 55 children who stayed in early care during the early part of the 2010-2011 school year. Ms. Garrett is assisted by a paraprofessional named Barbara Johnson. Neither K.J. nor A.S. was enrolled in the early care program at Oak Hill.
One day near the end of September 2010,5/ Ms. Garrett found K.J. and A.S. in a hallway at Oak Hill at a time close to 7:00 a.m. The children were not accompanied by an adult.
Ms. Garrett did not know the children's names and had no idea how they got there. Philip Gardner, a special education teacher who specialized in autistic children, recognized K.J. and took the children to his classroom.
Ms. Garrett noted that it was not quite light outside when the children were dropped off. She was there for early care, and Mr. Gardner was a well-known "early bird," but aside from them, there were very few people on the Oak Hill campus at seven in the morning. Ms. Garrett reasonably believed that because the children were "tiny," and K.J. had special needs, an adult should have been with the children.
A couple of days later, Ms. Garrett was at Oak Hill at about the same time in the morning and heard "little knockings going on in the hallway." Upon investigation, she discovered
K.J. and A.S. again alone in the hallway. This time,
Ms. Garrett took the children to Ms. Santiago's classroom.
Ms. Santiago and Ms. Garret asked the children who had dropped them off. K.J.'s language deficits were such that he was unable to answer. A.S. told Ms. Santiago that they had been dropped off by "the day care." Ms. Garrett then informed
Ms. Santiago that this was not the first time she had found the children alone in the hallway.
Ms. Santiago phoned Ms. Wiggins to alert her that her children had been found roaming the campus unattended and that
A.S. said that the day care had dropped them off. Ms. Santiago testified that Ms. Wiggins was "livid" when she learned that her children had been wandering the campus unattended.
Ms. Wiggins was at work when Ms. Santiago called her.
Because she was unable to leave work to address the issue, Ms. Wiggins contacted Ms. McKahand and asked her to go to Oak Hill and make further inquiries into the situation.
Ms. McKahand immediately went to Oak Hill. The receptionist at Oak Hill could not tell Ms. McKahand who had dropped off the children that morning. Ms. McKahand next went to Tiny Blessings. Ms. McKahand testified that Ms. Jackson stated that Tiny Blessings had dropped off the children that morning, but that they had dropped the children off on time and would never drop them off early.
Ms. King testified that she learned of this incident while investigating a report that staff of the day care was physically abusive to a school-age child who arrived at Tiny Blessings early in the morning. Ms. King arrived at the day care early on the morning of October 13, 2010, to interview parents as they dropped off their children. She saw Ms. Wiggins dropping off K.J. and A.S.
Ms. King noted that A.S. appeared to be of school age.
She asked Ms. Wiggins whether the day care was transporting A.S. to school. This was significant to Ms. King because Tiny Blessings had told the Department that it did not provide transportation. Ms. Wiggins told Ms. King that Tiny Blessings had been providing school transportation for both children since the start of the school year.
Ms. King then asked Ms. Wiggins if she had any concerns about the care her children received at Tiny Blessings. Ms. Wiggins proceeded to tell Ms. King about her children being dropped off at Oak Hill by Tiny Blessings and later being found wandering in the hallway at the school.
Ms. King informed Ms. Wiggins that she would have to make other provisions for the transportation of her children to school, because Tiny Blessings did not have an employee who met the licensing standards to transport children. Ms. Wiggins told
Ms. King that in that event she would remove her children from Tiny Blessings.
With Ms. Wiggins' permission, Ms. King interviewed A.S., who told Ms. King that "Joe" drove her and K.J. to and from Oak Hill. Joseph Williams is Ms. Jackson's son and an employee of Tiny Blessings.
Ms. King interviewed Mr. Williams, who admitted transporting children in his mother's vehicle but denied ever dropping off the children without ensuring they were released to school staff at the curbside pick-up and drop-off location.
Ms. Santiago, who assisted in the curbside pick-up, recalled that a "young man" frequently picked up the children after school. Mr. Williams did not testify at the hearing.
At the hearing, Ms. Jackson denied that Tiny Blessings ever dropped the children off early. Ms. Jackson testified that on many days the children could not have been dropped off early at school because Ms. Wiggins did not drop them off at Tiny Blessings until around 8:00 a.m.
Ms. Jackson introduced Tiny Blessings' parent sign-in sheets for the period from September 20, 2010, through September 29, 2010. On September 20, Ms. Wiggins dropped off the children at 8:04 a.m. On September 21, 2010, Ms. Wiggins dropped off the children at 8:11 a.m. On September 22,
Ms. Wiggins dropped off A.S. at 7:59 a.m.; the sheet indicated
that K.J. was not dropped off at the day care. On September 23, the date that Ms. Santiago believed to be the second date on which the children were found wandering the school, Ms. Wiggins dropped off the children at 7:09 a.m. On Friday, September 24, Ms. Wiggins dropped off the children at 7:04 a.m. On Monday, September 27, Ms. Wiggins dropped off the children at 7:36 a.m. On September 28, Ms. Wiggins dropped off the children at 8:02
a.m. On September 29, Ms. Wiggins dropped off the children at 7:11 a.m.
Ms. Jackson testified that on days when the children were brought to Tiny Blessings at around seven, they were given breakfast at the day care before being transported to Oak Hill. On days when Ms. Wiggins was running late, Ms. Jackson would drive the children directly to school. School staff persons would be waiting at the curb to take the children from the vehicle.
Ms. Jackson testified that she had one child whom she had to pick up from the child's home no later than 7:30 a.m. By the time she returned to the day care at around 7:45, it would be time to transport school-age children such as A.S.
Ms. Jackson stated that, within the strictures of her morning schedule, it would make no sense for her to drive K.J. and A.S. to school before 7:45 a.m.
Ms. Jackson testified that on the days in question, Ms. Wiggins must have dropped the children off at school herself. She noted that on September 22, Ms. Wiggins had not dropped both children off at Tiny Blessings because K.J. was
sick.
It is problematic that the Department could not
definitely state the dates on which K.J. and A.S. were dropped off at the school. However, the Department has proven facts sufficient to establish Tiny Blessings' responsibility for the incident. Ms. Garrett and Ms. Santiago were absolutely clear that both K.J. and A.S. had been dropped off early at Oak Hill and been found wandering the halls of the school. Ms. Garrett witnessed this situation twice within a few days. These teachers had no motive to invent such a story. Ms. Santiago testified as to the shock and anger registered by Ms. Wiggins when she learned that her children had been found wandering the school, and that Ms. Wiggins always came in and spoke to her when she dropped off her children at the school. Ms. Wiggins' testimony was credible and consistent with Ms. Santiago's observations.
Ms. Jackson's own records established that Ms. Wiggins left both children at Tiny Blessings on each weekday morning between September 20 and 29, with the exception of September 22, when only A.S. was left at Tiny Blessings. Therefore,
Ms. Wiggins could not have dropped off the children at Oak Hill at around 7:00 a.m. on any of those mornings. The children could only have been left at Oak Hill by Ms. Jackson or some agent of Tiny Blessings.6/
The Department did not prove that the children were dropped off at the school by Mr. Williams. The hearsay statements of Mr. Williams and A.S. are the only evidence supporting a finding that Mr. Williams drove the children to school. Though she denied that anyone at Tiny Blessings would ever drop off the children without supervision, Ms. Jackson testified that she did most of the driving in the mornings. Mr. Williams drove mostly in the afternoons, picking up the children from Oak Hill.
Counts V, VI, and VII
Ms. King followed up her October 13, 2010, investigation with a visit to Tiny Blessings on October 14. During the follow up visit, Ms. King observed an individual named Trameka Monroe supervising the one-year-old children. Ms. King did not recognize Ms. Monroe and requested to see her personnel folder.
The personnel folder showed no documentation that Ms. Monroe had undergone an employment history check, a part of the background screening the Department requires of child care
personnel. Also, Ms. Monroe's folder contained no documentation of the required FBI/FDLE criminal records clearance.
Ms. Jackson testified that Ms. Monroe had obtained background screening and that her local law enforcement clearance and FDLE/FBI clearance had been completed on October 13, 2010. She introduced a document produced by the Department stating that it had received Ms. Monroe's complete
criminal history records and found nothing that would disqualify her from working for Tiny Blessings. The letter stated: "RESULTS VALID AS OF: 10/13/2010."
However, the document also stated: "PLEASE BE ADVISED THAT LOCAL LAW ENFORCEMENT CHECKS WERE NOT INCLUDED IN THE DETERMINATION/PROCESS." No evidence was presented that
Ms. Monroe's background screening was ever fully completed.
Ms. Jackson did not provide an employment history for Ms. Monroe. Ms. Jackson testified that Ms. Monroe was so anxious to start work at Tiny Blessings that she personally went to the Department's office on October 13 to have her background check completed. Ms. Jackson stated that the morning of
October 14 was Ms. Monroe's first day on the job, and that it was a coincidence that this was the day Ms. King arrived at the facility.
Ms. Monroe did not testify at the hearing.
In the absence of any information in the personnel file confirming the status of Ms. Monroe's background screening, Ms. King instructed Ms. Monroe to leave the premises, which she did. Ms. Jackson testified that Ms. Monroe never came back "because of how rude Ms. King was."
Ms. King also observed that the personnel file for employee Sarra Brown was incomplete. Ms. Brown had been employed previously at Tiny Blessings, but at some point she had been terminated and then rehired. Ms. Jackson provided no records to show the dates of the prior employment or how many days elapsed from the day Ms. Brown was fired to the date she was rehired. Florida Administrative Code Rule 65C- 22.006(4)(e)6. provides that child care personnel must be re- screened following a break in employment in the child care industry that exceeds 90 days.
Because Ms. Brown's file lacked an employment history, Ms. King was not able to determine whether or for how long
Ms. Brown had been out of the day care industry. Ms. King required Ms. Brown to leave the premises.
The personnel files of both Ms. Monroe and Ms. Brown were missing completed Form 5131 and CS-FSP 5337, "Child Abuse & Neglect Reporting Requirements" ("Form 5337"). Ms. Monroe's file lacked the forms entirely; Ms. Brown's forms were incomplete. Ms. Brown later completed the forms in her file.
Ms. Monroe did not complete the forms, possibly because she never came back to Tiny Blessings after Ms. King directed her to leave on October 14.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2010).
The Department has the burden of establishing the grounds for revocation of the Respondent's licensure 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).
In Evans Packing Co. v. Dep't of Agric. and Consumer Servs., 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), the Court defined clear and convincing evidence as follows:
Clear 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 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 produces 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).
Judge Sharp, in her dissenting opinion in Walker v.
Dep't of Bus. and Prof'l 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 preponderance of evidence, but less than beyond a reasonable doubt. In re Inquiry Concerning a Judge 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 Baby 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 factfinder 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).
At all times material to this case, Respondent was a provider of child care, pursuant to section 402.302, Florida Statutes (2010), which provides the following relevant definition:
"Child care" means the care, protection, and supervision of a child, for a period of less than 24 hours a day on a regular basis, which supplements parental care, enrichment, and health supervision for the child, in accordance with his or her individual needs, and for which a payment, fee, or grant is made for care.
* * *
"Child care facility" includes 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....
Section 402.305(2)(a), Florida Statutes (2010), provides:
PERSONNEL. -- Minimum standards for child care personnel shall include minimum requirements as to:
Good moral character based upon screening. This screening shall be conducted as provided in chapter 435, using the level 2 standards for screening set forth in that chapter.
Section 435.04(1)(a), Florida Statutes (2010),
provides:
(1)(a) All employees required by law to be screened pursuant to this section must undergo security background investigations as a condition of employment and continued employment which includes, but need not be limited to, fingerprinting for statewide criminal history records checks through the Department of Law Enforcement, and national criminal history records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.
Section 402.302(14), Florida Statutes (2010), provides:
"Screening" means the act of assessing the background of child care personnel and volunteers and includes, but is not limited to, employment history checks, local
criminal records checks through local law enforcement agencies, fingerprinting for all purposes and checks in this subsection, statewide criminal records checks through the Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation.
The Department has adopted rules to implement the quoted statutes regarding the background screening of child care facility personnel and to require the facility to maintain personnel records to document the screening. Florida Administrative Code Rule 65C-22.006(4) provides:
Personnel Records. Records shall be maintained and kept current on all child care personnel, as defined by section 402.302(3), F.S., and household members if the facility is located in a private residence. These shall include:
An employment application with the required statement pursuant to section 402.3055(1)(b), F.S.
Position and date of employment.
CF-FSP Form 5337, March 2009, Child Abuse & Neglect Reporting Requirements, which is incorporated by reference, must be signed annually by all child care personnel.
Initial Screening. Screening information must be documented on CF-FSP Form 5131, March 2009, Background Screening and Personnel File Requirements, which is incorporated by reference. Screening includes the following:
Level 2 screening as defined in section 435.04, F.S., which includes at a minimum Federal Bureau of Investigations (FBI), Florida Department of Law Enforcement
(FDLE), and local law enforcement records checks. For the purpose of issuing a license, any out-of-state criminal offense, which if committed in Florida, would constitute a disqualifying felony offense, shall be treated as a disqualifying felony offense for screening purposes under this rule.
An employment history check must include the previous two years, which shall include the applicant’s job title and a description of their regular duties, confirmation of employment dates, and level of job performance. Failed attempts to obtain the employment history must be documented in the personnel file, and include date, time, and the reason the information was not obtained.
CF Form 1649A, January 2007, Child Care Attestation of Good Moral Character, which is incorporated by reference, must be completed for all child care personnel annually or in accordance with the local licensing authority. A copy of the CF Form 1649A may be obtained from the department's website at www.myflorida.com/childcare.
Count I
Ms. Tedtaotao clearly recalled that she commenced work at Tiny Blessings on September 27, 2010, after she was cleared by her background screening. There is no need to ascribe bad motives to Ms. King in order to find that her notation that
Ms. Tedtaotao began work on September 3 was incorrect.
The Department suggests that it was an "unlikely coincidence" that the background screening for Ms. Tedtaotao was completed on the same day that she started work at Tiny Blessings. To the undersigned, it seems only reasonable that an
eager potential employee would wish to start work as soon as her background screening was complete.
The Department points out that Ms. Jackson offered no easily obtainable documentary evidence, such as payroll records, "to substantiate the later starting date for Ms. Tedtaotao and refute Ms. King's observation." See Valcin v. Public Health Trust of Dade County, 473 So. 2d 1297, 1305 (Fla. 3d DCA 1984), affirmed in part, quashed in part, 507 So. 2d 596 (Fla. 1987) (where a party "fails to produce evidence within his control or produces weaker evidence without satisfactory explanation," courts permit an inference that the withheld evidence would be unfavorable to the party that failed to produce it.)
While it is true that payroll records would have been helpful, the burden was on the Department to prove that
Ms. Tedtaotao began work on September 3, not on Tiny Blessings to prove that she did not. Moreover, Ms. Jackson did present her own sworn testimony and that of Ms. Tedtaotao, who was a credible witness. Their testimony was sufficient to offset the notations made by Ms. King during her inspection.
The Department failed to prove the allegations of Count I of the Complaint by clear and convicing evidence.
Count II
Ms. King testified, and Ms. Jackson did not dispute, that a Form 5131 was missing from employee Tiffany Turner's
personnel file when Ms. King inspected Tiny Blessings on October 6, 2010.
The Department proved the allegations of Count II by clear and convincing evidence.
Count III
The evidence established, and Ms. Jackson did not dispute, that on October 7, 2010, she pled nolo contendere to a charge of domestic battery in violation of section 784.03(1)(a), Florida Statutes (2010).
Section 435.04(3), Florida Statutes (2010), provides:
The security background investigations under this section must ensure that no person subject to this section has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense that constitutes domestic violence as defined in s. 741.28, whether such act was committed in this state or in another jurisdiction.
Section 741.28(2), Florida Statutes (2010), provides: "Domestic violence" means any assault,
aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.
There is no question that, under section 435.04(3), Florida Statutes, as revised by chapter 2010-114, Laws of Florida, Ms. Jackson's plea to domestic battery constituted a
disqualifying offense. However, the Department does not dispute that Ms. Jackson was advised by her attorney, by the state attorney, and by the presiding judge, that her plea would not disqualify her from operating Tiny Blessings.
The Department concedes that during the times relevant to the allegations of Count III of the Complaint, Ms. Jackson was reasonably relying on the advice of the court that her plea would not affect her child care license, and that despite the clear and convincing evidence of her disqualifying offense,
Ms. Jackson should not be penalized for being on the premises of Tiny Blessings in October 2010.
The Department sensibly contends that Ms. Jackson's reliance on the judge's advice was no longer reasonable after December 31, 2011, when the certified letter from the Department notifying her of her disqualification was returned unclaimed. This letter followed Ms. Jackson's conversations with Ms. King and other Department representatives in which Ms. Jackson was informed of the Department's position that she was disqualified.
Count IV
During the latter part of September 2010, K.J., a four-year-old autistic boy, and his six-year-old sister, A.S., were enrolled for day care at Tiny Blessings. Both children attended Oak Hill. The evidence established that either
Ms. Jackson or an agent of Tiny Blessings twice dropped off K.J.
and A.S. at Oak Hill well before the 8:05 a.m. opening of the school. The Tiny Blessings employee who drove the children to Oak Hill did not make sure that an adult at the school took charge of the children. The children were not enrolled in the early care program at Oak Hill, and both times were found wandering the halls by Ms. Garrett, the director of the early care program.
Ms. Jackson attempted to shift the blame for these incidents onto Ms. Wiggins, the mother of the children.
However, Ms. Jackson's own records demonstrated that Ms. Wiggins dropped the children off at Tiny Blessings on every morning on which these events could have occurred, with the exception of September 22, 2010, when Ms. Wiggins dropped off only A.S. at Tiny Blessings. The only explanation that is supported by the credible evidence adduced at the hearing is that someone from Tiny Blessings dropped the children off, unsupervised, at Oak Hill.
The Department has established by clear and convincing evidence that Tiny Blessings did not adequately supervise K.J. and A.S., in violation of Florida Administrative Code Rule 65C- 22.001(5)(a). Both children were very young, and K.J. was autistic, meaning that the lack of supervision could have resulted in serious harm to the safety and/or well-being of the children.
Count V
During her follow-up visit to Tiny blessings on October 14, 2010, Ms. King observed that the personnel file of Tiny Blessings' employee Trameka Monroe did not document an employee reference check or an FBI/FDLE criminal records clearance.
Ms. Jackson produced documentation indicating that Ms. Monroe's criminal history records had been screened by the Department as of October 13, 2010, but also indicating that the screening did not include local law enforcement checks.
Ms. Jackson testified that October 14 was the one and only day that Ms. Monroe worked at Tiny Blessings. Ms. Monroe's background screening was never completed.
Even accepting Ms. Jackson's story that Ms. Monroe did not begin working until September 14, and did not work thereafter, the evidence produced at hearing established that Ms. Monroe was supervising children at Tiny Blessings before her background screening was completed and without an employment history in her personnel file.
As to Count V, the Department has established by clear and convincing evidence that an unscreened individual was supervising a group of one-year-old children at Tiny blessings, in violation of Florida Administrative Code Rule 65C- 22.001(5)(a).
Counts VI and VII
During the October 14, 2010, follow-up inspection, Ms. King found that the personnel files of Ms. Monroe and Sarra Brown were missing mandatory Forms 5131 and 5337. Ms. Monroe's file was missing the forms completely and was never completed. Ms. Brown's forms were merely incomplete and were later completed. Ms. Brown's file was also missing an employee reference check, which was later provided.
The Department has established by clear and convincing evidence that Ms. Brown's personnel file was incomplete on the day that Ms. King inspected it, but was later completed.
The Department has established by clear and convincing evidence that Ms. Monroe's personnel file was incomplete on the day that Ms. King inspected it and was never completed.
However, the Department did not establish that Ms. Monroe continued to work at Tiny Blessings after October 14. The penalty should not be enhanced based on Ms. Jackson's failure to complete a personnel file for someone who was no longer an employee of Tiny Blessings.
In summary, the Department has proven by clear and convincing evidence the violations it alleged in Counts II, IV, V, VI, and VII of the Complaint.
The violation found for Count II of the Complaint is a Class 2 violation pursuant to Florida Administrative Code Rules
65C-22.006(4) and 65C-22.010(1)(d)2. Because this was a second violation, the Department should assess a fine of $50.00, pursuant to Florida Administrative Code Rule 65C- 22.010(2)(e)2.b.7/
The violation found for Count IV of the Complaint is a Class 1 violation pursuant to Florida Administrative Code Rules 65C-22.001(5)(a) and 65C-22.010(1)(d)1. Based on the young age of the children, the special needs of K.J., and the caregiver's disregard for the safety of the children, the Department should assess a fine of $500.00 per day, for a total of $1,000.00, pursuant to Florida Administrative Code Rule 65C- 22.010(2)(e)1.a.
The violation found for Count V of the Complaint is a Class 1 violation pursuant to Florida Administrative Code Rules 65C-22.001(5)(a) and 65C-22.010(1)(d)1. The evidence established that an unscreened individual was directly supervising children at the facility. Based on all the circumstances, the Department should assess a fine of $100.00, pursuant to Florida Administrative Code Rule 65C- 22.010(2)(e)1.a.
The violation found for Count VI of the Complaint is a Class 3 violation pursuant to Florida Administrative Code Rules 65C-22.006(4) and 65C-22.010(1)(d)3. Because this is the third Class 3 violation found against Tiny Blessings, the Department
should assess a fine of $25.00, pursuant to Florida Administrative Code Rule 65C-22.010(2)(e)3.c.
The violation found for Count VII of the Complaint is a Class 2 violation pursuant to Florida Administrative Code Rules 65C-22.006(4) and 65C-22.010(1)(d)2. Because this was a second violation, the Department should assess a fine of $50.00 pursuant to Florida Administrative Code Rule 65C- 22.010(2)(e)2.b.
As to Count III, the undersigned accepts the Department's suggestion that no penalty should attach to
Ms. Jackson's presence on the premises of Tiny Blessings during the period covered by the Complaint despite her status as a disqualified individual. Ms. Jackson's reliance on the advice of the court regarding the effect of her plea was reasonable under all the circumstances.
This conclusion, however, does not affect
Ms. Jackson's status going forward. As of December 31, 2010, Ms. Jackson knew or should have known that the court's advice to her was mistaken and that she is required to seek an exemption from disqualification before she may operate a day care facility.
Because only two Class I violations were proven at the hearing, the undersigned concludes that outright revocation of Ms. Jackson's license is inappropriate under Florida
Administrative Code Rule 65C-22.010(2)(e)1.b. However, Tiny Blessings should not be allowed to operate under License Number C04DU0799 unless and until the Department grants Ms. Jackson an exemption from disqualification pursuant to section 435.07,
Florida Statutes.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order imposing a fine of $1,225.00 upon Lawanda Jackson d/b/a Tiny Blessings, and suspending License Number C04DU0799 until such time as the Department grants Lawanda Jackson an exemption from disqualification pursuant to section 435.07, Florida Statutes.
DONE AND ENTERED this 12th day of December, 2011, in Tallahassee, Leon County, Florida.
S
LAWRENCE P. STEVENSON
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2011.
ENDNOTES
1/ In their supplement to the record, the parties referenced Respondent's Exhibits 1 through 4 as "Respondent's Supplemental Exhibits 1 through 4." The undersigned finds this terminology could cause confusion by implying there is some difference between the exhibits admitted at the hearing and those submitted by the parties with the supplement to the record. In fact, Respondent's Exhibits 1 through 4 that were admitted at the hearing are the same documents that were attached to the supplement to the record and labeled "Respondent's Supplemental Exhibits 1 through 4."
2/ Ms. King credibly denied any intention other than to enforce the laws governing child care facilities.
3/ Section 38, chapter 2010-114, Laws of Florida, effective August 1, 2010, deleted former subsection (4) of section 435.04, Florida Statutes, and amended subsection (3) to read:
The security background investigations under this section must ensure that no person subject to this section has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense that constitutes domestic violence as defined in s. 741.28, whether such act was committed in this state or in another jurisdiction.
Prior to the passage of chapter 2010-114, subsection (4)(b) of section 435.04 provided that the screening standards must ensure that the person "[h]as not committed an act that constitutes domestic violence as defined in s. 741.30." This provision was interpreted as requiring proof that the person had committed the act, not merely that the person had pled to the offense. See, e.g., J.D. v. Dep't of Children and Family Services, Case No.
09-4792 (DOAH March 31, 2010).
4/ Though the motion was titled "Amendment of Record," the text of the motion made it clear that Ms. Jackson sought to withdraw her plea and take the case to hearing. The court denied the motion without explanation. It is noted that Ms. Jackson had completed her probation prior to filing the motion.
5/ No witness had a firm recollection of the dates on which these incidents occurred. Ms. Santiago believed that the incident involving her occurred on September 23, but could not be certain of the date. Ms. Jackson understandably complained that it was difficult to defend her facility's actions when the Department could not provide dates for the alleged violations.
6/ The hearsay statements of A.S., who told Ms. Santiago that "the daycare" dropped her off and told Ms. King that "Joe" drove her and her brother to Oak Hill, are not necessary to reach the ultimate finding of Tiny Blessings' responsibility for the incident alleged in Count IV of the Complaint.
7/ The previous violations that provide enhancement for several of these penalties were not contested by Tiny Blessings at the hearing.
COPIES FURNISHED:
David Gregory Tucker, Esquire Department of Children and Families 5920 Arlington Expressway
Post Office Box 2417 Jacksonville, Florida 32231
Lawanda M. Jackson 2778 Taylor Hill Drive Post Office Box 60551
Jacksonville, Florida 32236
Gregory D. Venz, Agency Clerk Department of Children and Families 1317 Winewood Boulevard
Building 2, Room 204A Tallahassee, Florida 32399-0700
Drew Parker, General Counsel Department of Children and Families 1317 Winewood Boulevard
Building 2, Room 204
Tallahassee, Florida 32399-0700
David Wilkins, Secretary
Department of Children and Families 1317 Winewood Boulevard
Building 1, Room 202
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 04, 2012 | Agency Final Order | |
| Dec. 12, 2011 | Recommended Order | The Department proved some but not all of the allegations in the Administrative Complaint; recommended that Respondent be fined $1,225.00 and that Respondent's license be suspended pending the owner's receiving an exemption from disqualification. |
