STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 98-5512

)

MARIE McCRACKEN, d/b/a )

PINE RIDGE DAY CARE, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on April 12, 1999, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes.

The hearing location was the Yates Building, City Hall Annex,

231 East Forsyth Street, Jacksonville, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Roger L.D. Williams, Esquire

Department of Children and Family Services

Post Office 2417

Jacksonville, Florida 32231

For Respondent: Gene T. Moss, Esquire

Moss and Andrews

337 East Bay Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Should Petitioner revoke or impose other discipline against Respondent's child care facility license? More specifically

should action be taken against the license for Respondent's knowingly allowing persons who had not undergone Level 2 screening in accordance with Section 435.04, Florida Statutes, to either work in, volunteer in, or be present in the licensed facility or to reside in the residence of Marie McCracken adjacent to the facility, all in a setting in which one of those persons as a part of "child care personnel" would be disqualified to work in the facility under terms set forth in the screening process? See Section 402.310, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner gave Respondent notice of its intent to revoke the child care facility license for reasons summarized in the preliminary statement. That notice was dated December 2, 1998. On December 4, 1998, Petitioner received Respondent's request to be heard on those allegations. On December 17, 1998, the Division of Administrative Hearings received the case for conduct of a Section 120.57, Florida Statutes hearing. The case was then noticed for hearing. Following one continuance the case was heard on the aforementioned date.

At hearing Petitioner presented the testimony of Walter Michael Giannone, Laura Thomas, and Maurice W. Murray.

Petitioner's Exhibits 1 through 5 were admitted as evidence. Respondent testified in her own behalf.

Official recognition was made of Chapter 65C-22, Florida Administrative Code.

A transcript was prepared and filed with the Division of Administrative Hearings on April 22, 1999. On May 17, 1999, Petitioner submitted a proposed recommended order. Respondent has not submitted a proposed recommended order. Petitioner's proposed recommended order has been considered in the preparation of the recommended order.

FINDINGS OF FACT

1. Petitioner in accordance with Section 402.305, Florida Statutes, licenses child care facilities to provide child care in Florida. Respondent holds a child care facility license to operate Pine Ridge Day Care in Duval County, Florida.

2. Respondent has two adult sons, Keith McCracken and Ohlan McCracken who were adults at times relevant to the inquiry.

3. Walter J. Giannone, Family Services Counselor for Petitioner, received a complaint on July 23, 1998, in relation to circumstances in Respondent's child care facility. The complaint was in relation to the attendance at the facility by Respondent's two adult sons.

4. Mr. Giannone investigated the complaint on July 28, 1998. To conduct his investigation Mr. Giannone went to Respondent's licensed premises. While there he spoke to

   Ms. McCracken and asked her about her sons being present at the facility. Ms. McCracken denied that her sons were ever present at the facility. Several other staff members at the facility gave statements that were in accordance with Ms. McCracken's

   explanation that the sons were never at the center. By virtue of the visit, Mr. Giannone did not confirm the presence of Respondent's sons at the facility.

5. Mr. Giannone received another complaint concerning Respondent's child care facility on October 22, 1998, that Respondent's adult sons were working with children at the facility. That complainant wanted to know if those adult sons had been screened. The complainant indicated to Mr. Giannone that the sons were there "all the time."

6. In relation to the complaint made on October 22, 1998, Mr. Giannone went to the facility on October 28, 1998, to investigate. He spoke to Ms. McCracken. Ms. McCracken told Mr. Giannone that her sons stopped by the facility at various times of the day. However, Ms. McCracken told Mr. Giannone that the sons did not provide care to the children. To that date, Ms. McCracken realized that the sons had not been required to undergo the screening requirements of Section 435.04, Florida Statutes, as "child care personnel," as defined at Section 402.302(3), Florida Statutes. Following a discussion about the advisability of screening the two adult sons, in which

   Mr. Giannone recommended that both sons be screened to avoid any concerns about the propriety of their attendance at the facility, Mr. Giannone left Ms. McCracken background screening forms to be executed by her two adult sons. This arrangement was also made in consideration of the possibility that the sons could serve as

   substitute personnel at the facility when regular employees were absent. On this visit Mr. Giannone also determined that Ohlan McCracken was living with Respondent on property that was adjacent to the child care facility.

7. On November 2, 1998. Mr. Giannone received another complaint concerning Respondent's child care facility. It was reported that Keith McCracken had lived in a bathroom in the child care facility for over a year, with a sign posted on the bathroom door that said "out of service." This complainant also stated that Ohlan McCracken lived next door to the facility and that both McCracken men took care of children at the facility without undergoing screening. This allegation was investigated by Mr. Giannone on November 3, 1998, during which Mr. Giannone made an inspection of the facility. In particular, he examined the bathroom that had been described by the complainant and found no evidence that anyone was living in the bathroom. He found the bathroom to be clean and stocked with supplies. Mr. Giannone made this discovery after Ms. McCracken told Mr. Giannone that Keith McCracken did not live in the bathroom. In this visit Ms. McCracken told Mr. Giannone that both of her sons lived next door to the facility. While Mr. Giannone was at the facility on this date, Keith McCracken was summoned by pager and came to the facility within 5 minutes.

8. On November 2, 1998, within 5 minutes of the time the aforementioned complaint was made, a second complaint was

   received from a different person. The second complainant indicated that she had been using the facility for the past year for child care and had observed both McCracken sons caring for children at the facility. In reference to that complaint, when Mr. Giannone made his investigation on November 3, 1998, he observed Ohlan McCracken at the center around nap time helping- out with child care. Ms. McCracken acknowledged that Ohlan McCracken worked on that date and the day before to assist

   Ms. McCracken in the attempt to stay within the ratio of staff- to-children called for by licensure requirements.

9. Before Mr. Giannone left the facility on November 3, 1998, he collected the completed screening forms that had been executed by Keith McCracken and Ohlan McCracken. It was later revealed that Ohlan McCracken was disqualified from working in a position of trust or responsibility to provide "child care" by virtue of his commission of the offence of auto theft, pursuant to an arrest in Duval County, Florida, on December 31, 1996. The disqualification for that type of offense is related to Chapter 812, Florida Statutes, as referred to under the screening provisions of Section 435.04(2)(r), Florida Statutes.

10. Ms. McCracken was made aware of the discovery that Ohlan McCracken was disqualified to work in "child care" following the screening. With this revelation, Ms. McCracken left Mr. Giannone with the impression that she was previously

    aware that Ohlan McCracken had a record but the nature of the record pertained to a juvenile offense.

11. Following the notice of disqualification, Petitioner, in the person of Mr. Giannone, has no knowledge that Ohlan McCracken has returned to Respondent's child care facility.

12. Ms. Laura Thomas had children who were cared for at Respondent's child care facility. Dates upon which the children received care began in March 1995 and continued into October 1998, for at least one of her children. While her children were present, Ms. Thomas observed Keith McCracken and Ohlan McCracken caring for children at the facility on a consistent basis for about two years. Specific care observed by Ms. Thomas involved Ohlan McCracken giving a bottle to Ms. Thomas' infant son on many occasions. Ms. Thomas observed her daughter playing with Keith McCracken many times. Ms. Thomas observed Ohlan McCracken and Keith McCracken providing lunches for the children at the facility. Ms. Thomas observed Keith McCracken and Ohlan McCracken caring for the children at the close of the day while the children were waiting to be picked up by their parents.

    Ms. Thomas had been in the facility at various times between 6:30 a.m. and 6:00 p.m. and observed Keith McCracken and Ohlan McCracken participating in child care.

13. Maurice W. Murray, Family Services Counselor Supervisor for Petitioner, has had experience with Respondent and her Pine Ridge Day Care. Although Mr. Murray does not consider

    Respondent's child care facility to be a "problem center," he has observed inadequacies in the facility in the past. One of his observations had to do with the fact that Ms. McCracken "was not real good with keeping up with her background screening timely." In particular, a background screening warning letter had been issued on April 3, 1996, with respect to an employee at Respondent's child care facility. Mr. Murray also had discussion with Ms. McCracken about the condition of playground equipment being in disrepair. While on the playground performing an inspection, Mr. Murray observed Ohlan McCracken on the playground at the facility. Mr. Murray asked Ms. McCracken, "Who's he?"

    Ms. McCracken replied "that's my son, Ohlan." Mr. Murray stated, "Well, you know, if he is going to be here, he needs to be background screened." To emphasize the point, Mr. Murray wrote in his supplemental inspection report for that day the details of this conversation. Finally, concerning the performance of the facility, Mr. Murray made one other reference to a background screening issue aside from the experience that Mr. Giannone related as has been reported in the fact-finding.

14. In her testimony at hearing Ms. McCracken acknowledged that her sons had helped out at the facility whenever she was "shorthanded." Ms. McCracken acknowledged telling Mr. Murray that her sons were there at the facility a lot but she demurs that she is their mother and their presence at the facility should not be unexpected. Further, Ms. McCracken testified that

    she did not see anything wrong with her sons giving children their snacks if the sons were at the facility. Ms. McCracken never observed Ohlan giving bottles to Ms. Thomas' son.

    Ms. McCracken acknowledged that her sons played with the children on the playground but not on a regular basis. Ms. McCracken established that her sons are not regular employees who have been hired and paid to provide child care at the facility.

    Ms. McCracken identified that on the date that Mr. Murray saw Ohlan McCracken on the playground, Ohlan McCracken was not living at the residence adjacent to the facility. As Ms. McCracken established, at the time that Ohlan McCracken was observed on the playground by Mr. Murray, he was not there for the purposes of assisting in child care. As established by Ms. McCracken, Ohlan McCracken moved back to the residence adjacent to the facility in the latter part of 1997.

15. At times relevant to the inquiry, it can reasonably be inferred that Respondent was aware of the participation of Keith McCracken and Ohlan McCracken in providing child care at Respondent's licensed facility.

16. As Ms. McCracken described it, she was aware that Ohlan McCracken had been trouble for "taking a car" before the results of the screening were made known to her. She did not realize that the offense was a felony. Ms. McCracken established in her testimony that Ohlan McCracken has not returned to the facility following the disclosure through the screening results that Ohlan

    McCracken was disqualified from serving as "child care personnel."

17. Ohlan McCracken continues to live with Respondent at the residence adjacent to the facility beyond the point in time during which Respondent had been charged with violations in accordance with the December 2, 1998 charging document.

18. Concerning the past license history, Ms. McCracken acknowledges an incident in 1981 in which the facility had a problem with rendering care for "too many children."

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding in accordance with Section 120.57(1), Florida Statutes.

20. Respondent is licensed by Petitioner to provide child care in the Pine Ridge Day Care facility. See Section 402.305, Florida Statutes. Petitioner intends to impose discipline against Respondent's child care license under the provisions set forth in Section 402.310, Florida Statutes. The reasons for imposing the discipline are described in the notice of revocation of license. The accusations pertain to allowing Keith McCracken and Ohlan McCracken, as unscreened personnel, to work in, volunteer in, or be present in the facility, or to reside in the residence adjacent to the facility, in a setting in which these contacts would subject Respondent's adult children to background

    screening requirements announced in the Section 435.04, Florida Statutes. Moreover, according to the allegations, background screening revealed a disqualifying offense (for Ohlan McCracken). To prove the allegations, Petitioner must present clear and convincing evidence of the violations. See Dept. of Banking v.

    Osborne Stern, 670 So. 2d 932 (Fla. 1996). The terms "clear and convincing" are defined in Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

21. The activities that Keith McCracken and Ohlan McCracken were involved in at Respondent's child care facility, and which have been described in the fact-finding, constituted participation in the delivery of "child care" as defined in Section 402.302(1), Florida Statutes. Keith McCracken and Ohlan McCracken were serving as "child care personnel" on those occasions described in the fact finding, within the meaning of the definition found at Section 402.302(3), Florida Statutes. They were "volunteers" working in Respondent's "child care facility" as defined at Section 402.302(2), Florida Statutes. As such, Keith McCracken and Ohlan McCracken were required to undergo screening to confirm their good moral character. See Section 402.305(2), Florida Statutes. Respondent knew or should have known that this requirement for screening was incumbent upon her sons and that the duty resided with the Respondent to assure compliance with that requirement. See also Section 435.05, Florida Statutes. Notwithstanding the participation in the

    provision of "child care" at the facility by Keith McCracken and Ohlan McCracken, known to Respondent, background screening was conducted on the sons not through the volitional act of Respondent but upon the suggestion by Petitioner's employees.

    Respondent should have arranged for background screening of Keith McCracken and Ohlan McCracken long before being reminded by Petitioner's employees to accomplish those tasks. Even in the absence of a clear impression of the nature of the offense committed by Ohlan McCracken, involving automobile theft and the implication of that offense as it would prohibit Ohlan McCracken from having contact with children in Respondent's child care facility, see Section 435.04(2)(r) Florida Statutes, Respondent is not excused from the necessity to have Ohlan McCracken screened upon Respondent's initiative.

22. Grounds exist for imposing disciplinary action in accordance with Section 402.310(1)(a), Florida Statutes. In determining the appropriate disciplinary action the factors set forth in Section 402.310(1)(b), Florida Statutes, have been examined.

RECOMMENDATION

Upon consideration of the violations and the standards for imposition for discipline, it is

RECOMMENDED:

That a final order be entered finding the Respondent knowingly allowed unscreened personnel, her sons, to work in the

child care facility, in a setting where Respondent knew that those persons should have been screened before working in the child care facility, in which one of those persons was disqualified from working in the facility, and suspending the license for the child care facility for 30 days.

DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1999.

COPIES FURNISHED:

Gene T. Moss, Esquire Moss and Andrews

337 East Bay Street Jacksonville, Florida 32202

Roger L.D. Williams, Esquire Department of Children

and Family Services Post Office 2417

Jacksonville, Florida 32231 Gregory D. Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, General Counsel Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-005512

Orders for Case No: 98-005512