vs.
Respondent.
Case No. 15-0622
A final hearing was held in this matter before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings (DOAH), on March 31, 2015, in Lakeland, Florida.
For Petitioner: Cheryl D. Westmoreland, Esquire
Department of Children and Families 1055 U.S. Highway 17 North
The issue is whether Petitioner should impose a fine against Respondent for committing both a Class I and a Class II violation of child care licensing standards.
On January 6, 2015, Petitioner, the Department of Children and Families, filed an Administrative Complaint charging Respondent, Richardson Learning Enrichment Center, Inc., with failure to maintain appropriate staff-to-children ratios and misrepresentation. Respondent timely disputed facts and requested a hearing. Petitioner referred the matter to DOAH, and it was scheduled for a final hearing.
At the commencement of the hearing, the parties agreed that the violation set forth in paragraphs six and seven of the Administrative Complaint was no longer at issue, and that Respondent agreed to the $50 fine associated with that Class II violation. Therefore, only a single violation is at issue in this proceeding. Petitioner presented the testimony of Cheryl Dishong, one of Petitioner’s child care licensing counselors, and Ashley Goff, the records custodian for Lakeside Occupational Medical Center, as witnesses and offered Exhibits A through D and Exhibit H, all of which were admitted into evidence. Natasha Richardson, Respondent’s director, testified on behalf of Respondent and offered Exhibits A through D, all of which were
admitted into evidence. As discussed more fully below, Respondent’s Exhibit A was admitted over objection from Petitioner with the following limitation: the medical record comprising Exhibit A proves that Ms. Richardson went to the Watson Clinic on May 7, 2014, due to illness. Had she gone to the doctor on that date to receive a certification that she was cleared to drive children of Respondent child care facility, the doctor would have so certified on the state-approved form or a similar form prepared by the doctor.
A transcript of the final hearing was not ordered by either party. After the hearing, Petitioner and Respondent filed their proposed findings of fact and conclusions of law on April 10, 2015, and April 8, 2015, respectively.
otherwise noted.
Respondent currently holds license number C10PO0538, issued by the Department, to operate a child care facility in Bartow, Florida, pursuant to sections 402.301 through 402.319, Florida Statutes, and Florida Administrative Code Chapter 65C-22.
On July 29, 2014, Child Care Regulations Counselor Cheryl Dishong completed a routine inspection at Respondent child care facility. In the course of the inspection, Ms. Dishong advised Natasha Richardson, the director of Respondent, that her
driver’s certification had expired on June 11, 2014, and that she would have until August 29, 2014, to provide a current certification form. Respondent was cited for a Class III violation for not having a current driver’s certification form in Ms. Richardson’s employee file.
When Ms. Dishong advised Ms. Richardson that her driver’s certification had expired, she appeared genuinely surprised to learn it had expired. At no time during the
July 29, 2014, inspection did Ms. Richardson tell Ms. Dishong she had received a health exam in May 2014. Also, Ms. Richardson did not provide Ms. Dishong with any health records concerning a health exam conducted in May during the July 29 inspection.
Due to a heavy workload, Ms. Dishong was not able to revisit Respondent on August 29, 2014, to ensure Ms. Richardson had received a new driver’s certification, and she did not follow up with Respondent concerning the expired certification.
On or about November 14, 2014, the Department received a license renewal application packet from Respondent. Ms. Dishong noted that some documents, which related to Respondent’s driver and vehicle, were missing from the application packet. Specifically, Ms. Dishong noted that the packet was missing the driver’s certification form, the driver’s CPR and first aid information, the vehicle inspection report, and the proof of insurance for the vehicle.
On November 20, 2014, Ms. Dishong visited Respondent to complete the renewal inspection. On that date, Ms. Richardson provided Ms. Dishong with her employee file. Ms. Dishong obtained copies of the CPR and first aid information,
Ms. Richardson’s driver’s license, and the driver’s certification form, which were contained within the employee file. Ms. Dishong also noticed some medical records in the employee file, but these appeared to be addressing medical conditions of a then current illness and of a personal nature, and not related to a certification of Ms. Richardson’s fitness to transport children in Respondent’s vehicle. Ms. Dishong told Ms. Richardson that all she needed from her was the driver’s certification form, not the medical records from her May 2014 exam.
Ms. Dishong examined a driver’s certification form during the November 20, 2014, inspection that was dated July 29, 2014, and appeared to have been signed by both Michael Cogdill, ARNP, at Lakeside Occupational Medical Center (“Lakeside”), and by Ms. Richardson.
Ms. Dishong took the documents she obtained on
November 20, 2014, added them to Respondent’s renewal application packet, and submitted the packet to her supervisor.
Ms. Dishong’s supervisor reviewed the packet and discussed it with her. Ms. Dishong’s supervisor specifically questioned the driver’s certification form and directed her to contact Lakeside
to confirm that Ms. Richardson had been seen by Mr. Cogdill on July 29, 2014. Ms. Dishong testified that when she called Lakeside, she was told that Mr. Cogdill could not have seen
Ms. Richardson on July 29, 2014, since his employment at Lakeside ended in March or April of 2014. Ms. Dishong was also informed that Ms. Richardson had not been to Lakeside at any time between 2010 and 2014.
Ashley Goff, the records custodian for Lakeside, appeared at the hearing. She testified that she is familiar with how records are kept at Lakeside and that she has access to these records. She further testified that the only records kept onsite at Lakeside are from December 2010 to the present. When presented with the July 29, 2014, certification form, she stated that this could not have been signed by Mr. Cogdill since he had retired in April 2014. Ms. Goff also testified that she had reviewed her records from December 2010 to November 20, 2014, and that she could find no evidence that Ms. Richardson had ever been to Lakeside during that time period.
When presented with a certification form signed by
Mr. Cogdill on July 11, 2012, and by Portia Jones on November 16, 2012, Ms. Goff testified that this one could be authentic since Mr. Cogdill was still employed by Lakeside in July 2012.
Finally, when presented with a driver’s certification signed by Darin Lastrapes at Lakeside and by Ms. Richardson on November 25,
2014, Ms. Goff testified that Ms. Richardson was seen at Lakeside on November 25, 2014, for a physical and that the driver’s certification form was a true and correct copy of the form completed by Mr. Lastrapes.
Ms. Dishong returned to Respondent on November 25, 2014, and confronted Ms. Richardson about the driver’s certification form. Ms. Richardson became upset and said “this is ridiculous.” Ms. Richardson then grabbed the keys and left the facility. Ms. Dishong finalized the renewal inspection report and had the form signed by the owner, Carolyn Richardson. At that time, Respondent was cited for misrepresentation, a Class I violation of licensing standards, resulting from the altered driver’s certification form.
Ms. Richardson’s testimony contradicted that given by Ms. Dishong. She stated that when Ms. Dishong came for the inspection on July 29, 2014, she knew her driver’s certification had expired, but that she told Ms. Dishong she had been to her doctor at the Watson Clinic for her physical in May of that year. She testified that Ms. Dishong told her the “certification” (there was no driver’s certification included in the May 2014 medical records) was on the wrong form and needed to be submitted on the correct form.
Ms. Richardson then admitted she took the certification form of another employee, and used whiteout to cover the original
date on the form and the signature of the employee.
Ms. Richardson joked about how Ms. Dishong always calls her the “Queen of Whiteout” since her printer is never in good working order. She said her intent was to have her physician, Dr. Elena Batardo, either sign over the signature of Mr. Cogdill or complete a new form on July 29, 2014. She testified she had called Dr. Batardo’s office on July 29, 2014, but could not be seen by the doctor that day. She said she then placed the altered form in her file and forgot about it.
Ms. Richardson also testified, contrary to
Ms. Dishong’s testimony, that she did not become upset during the renewal inspection on November 25, 2014, when confronted with the altered certification form. Ms. Richardson conceded that she had gone to see her doctor at the Watson Clinic on May 7, 2014, not to receive a new driver’s certification, but for personal medical issues that had arisen at the time. She agreed that Ms. Dishong would not be able to divine, from those medical records, that Ms. Richardson was certified to transport children at the child care facility.
Ms. Dishong rebutted Ms. Richardson’s testimony that the medical records were in the file on July 29, 2014, by confirming she had never seen the May 7, 2014, medical records at the first of her three inspections of Respondent on July 29, 2014. This conflicted with her earlier testimony that she saw
the medical records in the employee file during the November 20, 2014, inspection. Without a transcript, the only finding the undersigned can make is that Ms. Dishong did not see the May 7, 2014, records on July 29, 2014, but may have seen them, yet discounted their relevance since they did not include a driver’s certification, at the time of the November 20, 2014, inspection. She further testified that at no time did Ms. Richardson tell her the driver’s certification form dated July 29, 2014, was not intended to be used as her own certification form. Ms. Dishong conceded that the July 29 altered form could have been put in the file and forgotten about by Ms. Richardson.
If Ms. Richardson had told Ms. Dishong the altered form had been placed in the file and forgotten about and that she had not received her new driver’s certification, Respondent would not have been cited for the Class I violation for misrepresentation. Respondent would have been cited a second time for failure to have the required driver’s certification form in the employee’s file, a lesser violation.
The issue of whiting out information on official forms had been raised by Ms. Dishong with Ms. Richardson on at least one prior occasion. In December 2013, a child’s enrollment form had been altered by whiting out the name of one child and filling in the name of another child belonging to the same family.
Ms. Dishong stated that Respondent was not cited in December 2013
for the altered form, but Ms. Richardson was warned that any further altered forms would result in a citation for misrepresentation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
The Department has established a licensing program for child care facilities such as Respondent, pursuant to sections
402.301 through 402.319, Florida Statutes. The standards for such facilities are set forth in section 402.305 and in Florida Administrative Code Chapter 65C-22. The Department has authority to enforce these standards pursuant to section 402.310 and rule 65C-22.010.
Pursuant to section 402.310, the Department is authorized to impose administrative fines. The Department is required to adopt rules in order to establish a uniform system under which the fines are imposed. This has been done through the promulgation of chapter 65C-22. More specifically, the rules governing enforcement of licensing standards are outlined in
rule 65C-22.010. Pursuant to this rule, each violation of a licensing standard is classified by the severity of the
violation. The violation at issue in this proceeding is a Class I violation.
The Department is governed by rule 65C-22.010(2)(e) in determining what disciplinary action to take against a facility for violations that occur during a two-year period. This rule provides, in part: “For the first and second violation of a Class I standard, the department shall, upon applying the factors in Section 402.310(1), F.S., issue an administrative complaint imposing a fine of not less than $100 nor more than $500 per day.”
Where the Department seeks to impose sanctions on a licensee, the Department must prove the allegations contained in the administrative complaint by clear and convincing evidence. See Dep’t of Banking & Fin. v. Osborn Stern & Co., Inc., 670 So.
2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla.
1987).
As to the allegations contained in paragraphs six and seven of the Administrative Complaint, Respondent did not contest the fact it had violated section 402.305(4) and rule 65C- 22.001(4) related to staff-to-child ratios on October 21, 2013, and June 26, 2014, and, therefore, should be fined $50 for the Class II violation.
Section 402.319 provides, in pertinent part:
It is a misdemeanor of the first degree, punishable as provided in s. 775.082 or
s. 775.083, for any person knowingly to:
(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.
* * *
(f) Make any other misrepresentation, by act or omission, regarding the licensure or operation of a child care facility or family day care home to a parent or guardian who has a child placed in the facility or is inquiring as to placing a child in the facility, or to a representative of the licensing authority, or to a representative of a law enforcement agency, including, but not limited to, any misrepresentation as to:
The number of children at the child care facility or the family day care home;
The part of the child care facility or family day care home designated for child care;
The qualifications or credentials of child care personnel;
Whether a family day care home or child care facility complies with the screening requirements of s. 402.305; or
Whether child care personnel have the training as required by s. 402.305.
The Department provided clear and convincing evidence that Respondent violated section 402.319 by misrepresenting information concerning the failure of Ms. Richardson,
Respondent’s director, to have a valid driver’s certification form in her employee file at the time of the initial inspection on July 29, 2014, and at the time of the renewal inspections on November 20 and 25, 2014. Respondent had numerous opportunities to inform the Department she had mistakenly put an altered driver’s certification form in the file or simply that she had neglected to receive her new certification at the time of the July inspection or the renewal inspections in November 2014.
While she may have forgotten she placed the altered form into her employee file, she never admitted that it was, in fact, altered. She continued to maintain that she had undergone a physical exam in May 2014 for the purpose of receiving a driver’s certification when the evidence proves she went to the doctor in May 2014 when she was ill and never received (nor even requested) a certification at that time, or at any other time between July 29 and November 25, 2014. Further, it would have been impossible for her to have a driver’s certification form signed by
Mr. Cogdill in July 2014 since he had retired from Lakeside in April of that year.
Ms. Dishong gave Ms. Richardson every opportunity to admit the form had been altered, even during the renewal inspection on November 25, 2014, yet Ms. Richardson held fast in her position that she had received the driver’s certification physical exam and received the certification. Whether she
intended to misrepresent her obtaining a driver’s certification or was merely negligent in following through with the certification form does not matter under the statute governing misrepresentation, section 402.319, which makes no mention of intent as a requirement for this Class I violation, merely that the act or omission itself constitutes misrepresentation. Here, the form was altered to show Ms. Richardson had the required certification to provide transportation on behalf of Respondent. The altered form was made available to the Department by being in Ms. Richardson’s employee file, and she never argued prior to the hearing that she had made a mistake by leaving the form in her file.
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 finding that Respondent violated a Class I day care licensing standard and fining Respondent $300 for the violation of the misrepresentation standard, and finding that Respondent violated a Class II day care licensing standard and fining Respondent $50 for the violation of the staff-to- children ratio standard.
DONE AND ENTERED this 15th day of April, 2015, in Tallahassee, Leon County, Florida.
ROBERT S. COHEN
Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2015.
Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204
Cheryl D. Westmoreland, Esquire Department of Children and Families 1055 U.S. Highway 17 North
Rebecca Kapusta, General Counsel Department of Children and Families Building 2, Room 204
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.
