STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 99-1969

)

GAYE BRINA VESTAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed fact hearing on August 30, 1999, in Gainesville, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David A. West, Esquire

Department of Children and Family Services

1000 Northeast 16th Avenue Box 3

Gainesville, Florida 32601

For Respondent: Gaye Brina Vestal pro se

Post Office Box 696

Lake Como, Florida 32157 STATEMENT OF THE ISSUE

Whether the Department of Children and Family Services, properly denied Gaye Brina Vestal's license application to operate a commercial day care facility, pursuant to Section 402.3055, Florida Statutes.

PRELIMINARY STATEMENT

This cause was referred to the Division of Administrative Hearings on or about May 3, 1999.

Before the disputed fact hearing on August 30, 1999, the procedural history, jurisdictional status, and disputed issues of material fact had been narrowed by stipulations and pleadings.

It was acknowledged that Respondent had received her registration for a family day care home, pursuant to Section 402.313, Florida Statutes.

The proposed final agency action herein is the Department of Children and Family Services' denial of licensure to Respondent for a commercial day care facility under Section 402.3055, Florida Statutes.

The parties stipulated that the Department's only reasons for denying licensure under Section 402.3055, Florida Statutes, were contained in the Department's February 4, 1999, letter and that it would not be necessary for Respondent to "prove-up" the sufficiency or completeness of her application other than to address the issues raised therein. The Department issued an amended denial letter dated July 2, 1999, to clarify this stipulation.

The Department denied Respondent a commercial day care facility license upon grounds that the information provided by her in several applications to the Department contained false or misleading information. It was the Department's position that

licensing Respondent would not be in the best interest of children because of a perceived pattern of continuing deception.

Respondent, as a first-time applicant, bears the ultimate burden of proof herein, but by agreement, the Department presented its proof first. It had five exhibits admitted in evidence and presented the oral testimony of Ken Barnett, Dede Sharples, William Dollar, and "Tony L. Vestal" a/k/a "Tony L. Mitchell."

Respondent testified on her own behalf. Her exhibits one, four, and five were admitted in evidence.

No transcript was provided.

Both parties timely filed Proposed Recommended Orders, which have been considered. Photographs submitted by Respondent with her proposal have not been considered because they are outside the record.

FINDINGS OF FACT

1. Respondent's legal name is "Gaye Brina Vestal."

   
   

2. Respondent is married to "Tony L. Vestal" a/k/a "Tony L. Mitchell."

3. The name on Tony's birth certificate is "Tony Mitchell." When he was eight years old, his mother married a man named "Vestal." Thereafter, Tony went by the last name "Vestal." He attended school, obtained a driver's license and a Social Security account number, married, and had children under the name "Vestal." When he divorced, he began using the name "Mitchell"

   and obtained a different Social Security account number and driver's license under the name "Mitchell."

4. At some point, Tony married Gaye Brina (Respondent) under the name "Vestal." They then remarried under the name "Mitchell." Respondent tried using the name, "Mitchell" with Tony, but due to hostility from Tony's mother, Respondent elected to return to using the name "Vestal." She was unable to persuade Tony to return to using the name "Vestal." 1/

5. By a September 16, 1997, application for registration of a family day care home in her home on Sisco Street in Pamona Park, Respondent and Tony listed "Tony Vestal" as Respondent's husband with his "Vestal" Social Security Number. "Shirley Vestal," is listed as a character witness for each of them. The forms clearly show "Shirley Vestal" as Tony's "ex-wife" and as Respondent's "friend." Among her own past employments, Respondent claimed to have been the manager of a pizza parlor; she listed her supervisor there as "Tony Mitchell." She also listed another previous employment as being the "owner" of a different pizza parlor which closed in 1996. Both pizza parlors were named "Tony-O's Pizza." The Sisco Street property was shown as belonging to "Tony Mitchell."

6. Either at this point, or later, while Respondent was operating under provisional day care home licenses, Dede Sharples, a Department employee with responsibility to oversee home day care licensing, became concerned as to the true identity

   of Respondent's husband. She asked Respondent whether "Tony-O's Pizza" had been named for Respondent's supervisor or Respondent's husband. While there is considerable disagreement between the two witnesses as to exactly what was said, and while Ms.

   Sharples' questioning may have been tenuous and Respondent's response may have been intended to be humorous, Respondent still left the Department representative with the impression that there were two different "Tony's."

7. On October 16, 1997, the Department did a home inspection. Respondent thereafter corrected the Sisco Street location for fire inspection purposes.

8. By a December 18, 1997, application for a family day care home license at her Sisco Street home, Respondent listed "Tony Lee Vestal" as a household member and listed the owner of the property as "Tony Mitchell."

9. In reviewing the December 18, 1997, application,

   
   

   Ms. Sharples told Respondent that Respondent would need to have Mr. Mitchell sign a letter saying that Respondent had his permission to run a day care facility on his property. 2/ Respondent told Ms. Sharples that "Tony Mitchell" was a good friend that had gone to Indiana and then elsewhere and that he did not want his address given out. She further stated that her home was in Mitchell's name because she had damaged credit and had an oral agreement with Mitchell to pay on the house until it was paid for and then Mitchell would sign the house over to

   Respondent and Respondent's husband. Ms. Sharples cautioned Respondent that this was a dangerous practice which could leave Respondent with no house and no recourse to her money expenditure for the house.

10. Respondent was granted two six-month provisional family day care home licenses while awaiting Florida Department of Law Enforcement screening and abuse registry screening of herself and "Tony Vestal."

11. On January 12, 1998, the Department received a clear background check/screening on Respondent but no information concerning "Tony Vestal."

12. On February 12, 1998, Ms. Sharples inspected the home on Sisco Street for a compliance check. Respondent was notified of items to correct.

13. On March 9, 1998, the Department sent a certified letter to Respondent because it had not received any communication from her that the noncompliance items had been corrected in anticipation of a second compliance visit.

14. On April 8, 1998, Ms. Sharples secured a copy of the deed to the Sisco Street address. It showed the property to be owned by "Tony Mitchell and Gaye Brina Mitchell, his wife." Respondent admitted to Ms. Sharples that Respondent once was married to "Tony Mitchell," but Respondent did not volunteer that "Tony Mitchell" and "Tony Vestal" were one and the same person.

15. By a November 25, 1998, application for a commercial day care facility license on Grove Avenue in Crescent City, Respondent listed her name as "Gaye Brina Vestal," her address as a post office box, and the owners of the Grove Avenue real property as "Tony L. Mitchell" and herself as "Gaye Brina Mitchell." Respondent signed the application as "Gaye Brina Vestal."

16. Also on November 25, 1998, Respondent submitted an application fee of $25.00 by a check drawn on the account of "L & M Falling Tree Service" signed by "Tony Mitchell."

17. Ken Barnett processes commercial family day care facility license applications for the Department. He is Ms. Sharples' supervisor.

18. On November 18, 1998, the Department sent Respondent a letter verifying that she had not renewed her family day care home license because she was applying for a commercial family day care facility license and informing her that her family day care home must close on December 31, 1998.

19. Respondent asked Mr. Barnett when she would be licensed for a commercial family day care facility license. He replied that if the final inspection went all right, Respondent would be licensed within two weeks of December 31, 1998.

20. As a result of her conversation with Mr. Barnett, Respondent did not timely renew her family day care home license. Her day care home license has since expired. 3/

21. At some point that is unclear from the record, the Department discovered that "Tony Vestal" and "Tony Mitchell" were one and the same person with two different driver's licenses and two different Social Security account numbers. As a result, on February 4, 1999, the Department denied Respondent's pending application for a commercial day care facility license.

22. At some date that is unclear from the record, the Florida Department of Law Enforcement background screening and the abuse registry screening came back clear on Respondent, "Tony Vestal," and "Tony Mitchell," e.g. "Tony" under both Social Security numbers.

23. Tony testified that he originally had used the name "Mitchell" to hide his children by his first wife so that his first wife would not take their children to Mexico.

24. Tony testified that he never used his Social Security card for a job; he only used it "privately," to keep his ex-wife from finding him.

25. As of the date of the disputed fact hearing, Tony had not notified the Federal Social Security Administration that he had two Social Security identities/accounts.

26. Since the Department's denial, but prior to the disputed fact hearing, Tony's driver's license in the name "Vestal" had been turned-in to the Florida Department of Highway Safety and Motor Vehicles (DHSMV) and his driver's license in the name of "Mitchell" had been revoked by that agency. 4/

    Respondent asserted that DHSMV compromised what could have been harsher civil and/or criminal penalties upon its determination that Tony had no intent to defraud. However, Respondent introduced no corroborative evidence of this assertion.

27. At all times material, Respondent knew about Tony's two Social Security cards and two driver's licenses in different names.

28. Respondent and Tony signed all the departmental forms referred-to above pursuant to the penalty of perjury for not telling the truth thereon.

29. Incredibly, Respondent testified that it did not occur to her that the use of different names on the documentation supporting her several applications would create confusion within the Department.

30. Equally incredibly, Respondent testified that she had assumed that the preliminary background screenings and fingerprint checks would disclose all identities so that full disclosure would be made and all discrepancies explained.

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.

32. Due to the parties' stipulations and clarified pleadings, any issues concerning Respondent's failure to timely

    renew her family day care home license, are not appropriate to this case.

33. The Department has asserted that Respondent's several applications created a "pattern of deception"; that this "pattern of deception" failed to properly identify the persons in the various applications as required in order for the Department to be able to conduct adequate background checks, pursuant to Section 402.3055(2), Florida Statutes; and that the best interest of children in day care, both personally and as regards the handling of federal Title XX and private pay funds, would be placed at risk by such deception.

34. Statutory considerations in this case are as follows:

    
    

    Section 402.301 Child care facilities; legislative intent and declaration of purpose and policy--It is the legislative intent to protect the health, safety, and well-being of the children of the state and to promote their emotional and intellectual development and care. Toward that end:

    1. It is the purpose of ss. 402.301-

       402.319 to establish statewide minimum standards for the care and protection of children in child care facilities, to ensure maintenance of these standards, and to approve county administration and enforcement to regulate conditions in such facilities through a program of licensing.

    2. It is the intent of the Legislature that all owners, operators, and child care personnel shall be of good moral character.

    3. It shall be the policy of the state to ensure protection of children and to encourage child care providers and parents to share responsibility for and to assist in the improvement of child care programs.

       (Emphasis supplied)

       
       

       * * *

       Section 402.305 Licensing standards; child care facilities.

       1. PERSONNEL.--Minimum standards for child care personnel shall include minimum requirements as to:

          1. 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. (Emphasis supplied)

             * * *

             
             

             Section 402.3055 Child care personnel requirements.

             1. REQUIREMENTS FOR CHILD CARE PERSONNEL.--

                1. The department or local licensing agency shall require that the application for a child care license contain a question that specifically asks the applicant, owner, or operator if he or she has ever had a license denied, revoked, or suspended in any state or jurisdiction or has been the subject of a disciplinary action or been fined while employed in a child care facility. The applicant, owner, or operator shall attest to the accuracy of the information requested under penalty of perjury. If the applicant, owner, or operator admits that he or she has been a party in such action, the department or local licensing agency shall review the nature of the suspension, revocation, disciplinary action, or fine before granting the applicant a license to operate a child care facility. If the department or local licensing agency determines as the result of such review that it is not in the best interest of the state or local jurisdiction for the applicant to be licensed, a license shall not be granted.

                2. The child care facility employer shall

                   require that the application for a child care personnel position contain a question that specifically asks the applicant if he or she has ever worked in a facility that has had a license denied, revoked, or suspended in any state or jurisdiction or has been the subject of a disciplinary action or been fined while

                   employed in a child care facility. The applicant shall attest to the accuracy of the information requested under penalty of perjury. If the applicant admits that he or she has been a party in such action, the employer shall review the nature of the denial suspension, revocation, disciplinary action, or fine before the applicant is hired.

             2. EXCLUSION FROM OWNING, OPERATING, OR BEING EMPLOYED BY A CHILD CARE FACILITY OR OTHER CHILD CARE PROGRAM; HEARINGS PROVIDED.--

                1. The department or local licensing agency shall deny, suspend, or revoke a license or pursue other remedies provided in s. 402.310, s. 402.312, or s. 402.319 in addition to or in lieu of denial, suspension, or revocation for failure to comply with this section. The disciplinary actions determination to be made by the department or the local licensing agency and the procedure for hearing for applicants and licensees shall be in accordance with s. 402.310.

                   * * *

                   
                   

                   Section 402.313 Family day care homes.

             3. Child care personnel in family day care homes shall be subject to the applicable screening provisions contained in ss. 402.305(2) and 402.3055. For the purposes of screening in family day care homes, the term includes any member over the age of 12 years of a family day care home operator's family, or persons over the age of 12 years residing with the operator in the family day care home. 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.

       
       

       * * *

       
       

       Section 402.319 Penalties.

       1. It is a misdemeanor of the first degree, punishable as provided in s. 775.082

          or s. 775.083, for any person willfully knowingly or intentionally to:

          1. 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 a material fact used in making a determination as to such person's qualifications to be an owner, operator, employee, or volunteer in a child care facility or other child care program.

35. This is a situation which exemplifies the old adage, "They lied when to tell the truth would have done better."

36. Persons of good moral character do not assume two identities, and if they do, they do not camouflage the fact that they have done so while signing oaths to tell the truth under penalty of perjury.

37. The motivation described by Tony for using the name "Mitchell" is suspect, given all the circumstances. Tony's explanation of protecting his children from abduction by his ex-wife may or may not be true, but if true, hiding the

    whereabouts of children from their mother does not bode well for Tony being a good risk on the premises of a child care establishment. If not true, there is no remotely reasonable cause for deceiving his ex-wife, the DHSMV, or the Social Security Administration. What legitimate "private purpose" Tony might have for a second Social Security number defies the imagination of the undersigned. 5/

38. Respondent's knowledge of the foregoing, her affirmative obfuscation, and her failure over the course of three

    applications, spanning two years, to "come clean" to the Department does not inspire trusting her with the care of children or with administration of the public and private funds which must be scrupulously administered by child care licensees.

39. Respondent's pattern of deception delayed, but ultimately did not render impossible, the statutorily-required criminal background and abuse/neglect screenings, but it is evidence of lack of good moral character.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Department of Children and Family Services enter a final order denying Respondent's application for a commercial day care facility license.

DONE AND ENTERED this 2nd day of November, 1999, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 2nd day of November, 1999.

ENDNOTES

1/ At one point, Respondent suggested that one reason for her using the name "Mitchell" was to avoid confusion within the Department about whether Respondent was Tony's first wife, who has been investigated for child abuse/neglect, but since Respondent continued to use the name "Vestal" and has used the ex-wife as a character reference, this testimony has been discounted.

2/ See Rule 65C-2.009, Florida Administrative Code.

3/ Respondent has asserted that Mr. Barnett intentionally misled her into not renewing her family day care home license.

Concomitantly, she has asserted that the Department is estopped to deny her commercial day care facility license application due to the representations of Mr. Barnett that she would be licensed when he knew she was under investigation concerning the use of two names.

4/ Respondent asserted in her post-hearing proposal that this was merely a one-year suspension.

5/ Social Security numbers are required for all types of background checks and on federal income tax returns. Driver's licenses are limited to one at a time by Florida Law.

COPIES FURNISHED:

David A. West, Esquire Department of Children

and Family Services

1000 Northeast 16th Avenue Box 3

Gainesville, Florida 32601

Gaye Brina Vestal Post Office Box 696

Lake Como, Florida 32157

Samuel C. Chavers, Acting Agency Clerk Department of Children

and Family Services Building 2, Room 204B 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: 99-001969

Orders for Case No: 99-001969