vs. ) Case No. 00-2233
Respondent. )
A formal hearing was held before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on September 11, 2000, by video conference to Orlando, Florida. The following appearances were entered:
For Petitioner: Paul V. Moyer, Esquire
Moyer, Straus & Patel, P.A. 815 Orienta Avenue, Suite 6 Post Office Box 151058
For Respondent: Eric D. Dunlap, Esquire
The issues in this case are: (a) Whether Petitioner's license as a family day care should be renewed; (b) Whether Petitioner was required to list Halvert Swanson as a household member on her annual application for a family day care license; and (c) Whether
Halvert Swanson, a convicted sex offender, was a member of Petitioner's household at any time between 1997 and 2000.
Petitioner has been licensed by Respondent as a family day care on an annual basis since 1995. Early in 2000, Petitioner filed her application for re-licensure with Respondent. Re- licensure was denied, by letter dated April 21, 2000. Petitioner filed a request for hearing, the matter was transferred to the Division of Administrative Hearings on July 18, 2000, and this hearing followed.
14 stipulated facts. At the hearing, Petitioner testified in her own behalf, and called four witnesses and offered three exhibits in evidence. Respondent called two witnesses, and six exhibits were received in evidence.
Each party timely submitted Proposed Recommended Orders on September 18, 2000. Each party's proposals have been carefully considered in the preparation of this Recommended Order.
At all times relevant to this matter, Petitioner, Gennell Hardnett, d/b/a Nell's Day Care, was licensed by Respondent to operate a family day care out of her home located at 513 West 14th Street, Apopka, Florida.
Petitioner had been licensed by Respondent in 1995 as a family day care facility, and her license has been renewed on an annual basis therefor.
Petitioner's license permitted her to operate 24 hours a day, Monday through Saturday. However, Petitioner actually operated her day care from 6:30 a.m. until midnight, Monday through Friday. She was never open during the weekends.
Petitioner's application for renewal of her license for the year 2000-2001 was denied.
As part of her licensing requirements, Petitioner knew she was to list on her Application for Licensing all of her household members for possible background screening. This is to ensure that all members of her household were properly screened for disqualifying offenses.
For each of the five years since 1995, Petitioner listed herself and her sons, Quantas Hardnett and Demetric Hardnett, as household members on her licensing application. She did not list another son, Halvert Swanson, as a household member.
On her renewal application for the year 2000-2001, Petitioner listed as household members, herself and her son Quantas Swanson because Demetric, at the time, was residing with an aunt. Halvert Swanson was, again, not listed.
Halvert Swanson, also the son of Petitioner, had been convicted of the felony of attempted lewd acts upon a child under the age of sixteen in approximately 1990. Swanson was in the
custody of the Department of Corrections from approximately February 3, 1990 to June 1, 1993. He was released from custody
in 1993.
Following his release from prison, Swanson listed the address of his mother, Petitioner, as his residence address with the State of Florida, Department of Corrections.
Petitioner was aware that her son Halvert had been convicted of this crime. She also knew that her son Halvert Swanson was not permitted to be a holdhold member, and was not to be permitted unsupervised contact with children under Petitioner's care.
Petitioner has never listed on her applications, nor notified Respondent, that her son, Halvert Swanson, resided at her family day care facilities, located at 513 West 14th Street, Apopka, Florida
On September 23, 1997, Barbara Osborne, a Department of Corrections probation specialist, visited with Halvert Swanson in the residence located at 513 West 14th Street, Apopka, Florida. The purpose of Osborne's visit with Swanson was to monitor his compliance with conditions of his release from prison. This visit with Swanson was unannounced.
During the visit with Swanson, Osborne confirmed that Swanson resided at the address on 513 West 14th Street. During her visit with Swanson, Osborne also observed several children at the home. She was not aware if Petitioner was present or not.
Osborne informed Swanson that if he intended to continue to reside at the house at 513 West 14th Street, Petitioner would need to complete an affidavit addressing whether Swanson had unsupervised contact with children.
Osborne returned to the house at 513 West 14th Street on November 18, 1997, because Swanson had not reported to Osborne as required. During her visit to the house, Osborne spoke with Petitioner who confirmed that Swanson was still residing at the home at 513 West 14th Street. Osborne reminded Petitioner of the conditions on Swanson's release regarding no unsupervised contact with children, and let her know that she would have to complete an affidavit if he continued to reside at Petitioner's home.
Early in the year 2000, a local television reporter for WKMG, Channel Six, Tony Pipitone, while investigating a news story, visited Petitioner's home. While there, Pipitone asked if Halvert Swanson was there. Petitioner replied "No," and Pipitone left. He later returned to Petitioner's home, this time with a cameraman. Pipitone asked Petitioner if Halvert Swanson lived there, and this time Petitioner replied "Yes," and that he stayed there on weekends. The story aired on local television, and Respondent was made aware of the allegation that a felon with a conviction of attempted lewd acts on a child under the age of sixteen was living at a family day care.
In April 2000, Respondent learned from a local television reporter that Petitioner stated to the reporter that
Halvert Swanson stays at her house on weekends. Some of Respondent's staff reviewed a video-tape of Petitioner's statement to the local reporter.
By letter dated April 21, 2000, Respondent denied Petitioner's application for re-licensure of her facility for the year covering May 2000-2001.
Petitioner offered testimony of several witnesses who were unable to recall accurate details about Halvert Swanson's whereabouts from 1990 through 2000. However, it appears that, since his release from prison, Swanson had no permanent place of residence, but moved about, living with various relatives and girlfriends at his convenience. In addition, he was incarcerated for parts of this time period.
During the relevant time period, Halvert Swanson, on occasion, visited the home of Petitioner and stayed overnight with his mother and his brothers on weekends.
Swanson was also asked to stay at and look after Petitioner's home on several weekends while Petitioner and her other sons were out of town.
Swanson continued to visit with his mother and brothers at 513 West 14th Street, Apopka, Florida, and continued to use her home as his permanent address.
In the five years that Petitioner operated her licensed family day care center, the children under the care of Petitioner have not been injured or hurt.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.
Section 402.313, Florida Statutes, sets licensing standards for the family day care homes.
Section 402.310, Florida Statutes, authorizes the Department of Children and Family Services to deny a license for the violation of any provision of Sections 402.301-402.319, Florida Statutes.
The burden of proof is upon Respondent to adduce evidence to support the denial of the renewal of Petitioner's application for re-licensure. Dubin v. Department of Business Regulation, 262 So. 2d 273 (Fla. 1st DCA 1972); Phillips v. Department of Business and Professional Regulation, 737 So. 2d 553 (Fla. 1st DCA 1998); Section 120.60(5), Florida Statutes.
Section 402.305(2), Florida Statutes, sets forth the minimum standards for child care personnel in a day care center. In particular, Section 402.305(2)(a), Florida Statutes, states:
Good moral character based upon screening. This screening shall be conducted as provides in Chapter 435, using level 2 standards for screening set forth in that chapter.
Section 435.04(1) Florida Statutes, "Level 2 screening standards" provides:
All employees in positions designated by law as positions of trust or responsibility shall
be required to undergo security background investigations as a condition of employment and continued employment. For the purposes of this subsection, security background investigations shall include, but not be limited to, employment history checks, fingerprinting for all purposes and checks in this subsection, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.
Section 435.04(2), Florida Statutes, "Level 2 Screening standards" provides:
The security background investigations under this section must ensure that the no person subject to the provisions of this section have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:
* * *
(u) Chapter 800, relating to lewdness and lascivious behavior.
If Halvert Swanson was a household member of Petitioner's home, he would have to be screened. Further, as Halvert Swanson had been convicted under Chapter 800 of an attempted lewd act upon a child in 1990, his living at Petitioner's home could disqualify Petitioner from operating a family day care. The question thus becomes, was Halvert Swanson a household member of Petitioner's home while she was a licensed day care operator.
At all times relevant to this appeal, Petitioner was licensed to operate a family day care home at 513 West 14th Street, Apopka, Florida. According to Section 402.313(3), Florida Statutes, "Child care personnel in family day care homes shall be subject to the applicable screening provisions contained in Sections 402.305(2) and 402.3055." This section clarifies further that child care personnel "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. . ."
The credible testimony in this case established that Halvert Swanson resided in Petitioner's home at 513 West 14th Street between approximately September 1997 and November 1997. During this period of time, Petitioner continued to operate her day care and never informed Respondent that Swanson resided there.
Petitioner's own admission to the local television reporter in April 2000 established that Swanson "stays" at her house on weekends.
Since the relevant statute, Section 402.313(3), does not define what "residing" or "stays" mean, the common ordinary meaning of those two words may be relied upon. The word "reside" is defined in the Webster's New World Dictionary, Second College Edition, as follows: "to dwell for a long time; having one's residence; live (in or at)." The word "stay" is defined in the same dictionary as follows: "to live, dwell, or reside, esp.
temporarily (for the time specified)." The word "household" is defined as: "all the persons who live in one house; family. . ."
Petitioner submitted an application for re-licensure dated March 15, 2000 in which she was required to disclose the name of everyone who lived in her home or who "stays" at her house on weekends. By signing the application, Petitioner attested that the information on the application was "truthful, correct, and complete."
Halvert Swanson is a member of Petitioner's family and, at the time of Petitioner's statement to the local reporter, he stayed there on weekends. This fact, notwithstanding the fact that he resided at Petitioner's family day care for the extended period in 1997, made Swanson a person subject to background screening.
The credible evidence established that while Swanson may not have resided at Petitioner's house on a permanent basis, he was there frequently enough to be considered a member of the family and was subject to background screening. See Department of Children and Families v. Elizabeth Horton, DOAH Case
No. 96-2196 (October 8, 1996).
Petitioner knew that she was required to notify Respondent of all household members so they could be properly screened for disqualifying offenses pursuant to Chapter 402 and 425, Florida Statutes. Petitioner knew that Swanson's criminal history made him unsuitable for residence at her family day care.
Yet she allowed him to reside there in 1997 and then, over the years, including the year 2000, she allowed him to stay at her house on weekends.
Clearly, Petitioner withheld relevant information from Respondent. By failing to disclose that Swanson stayed
at her house on weekends, Petitioner has violated Section 402.313(3), Florida Statutes.
Based on the foregoing findings of fact and conclusions of law, it is, therefore,
RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for re-licensure of her family day care home, for the year 2000-2001.
DANIEL M. KILBRIDE
Paul V. Moyer, Esquire Moyer, Straus & Patel, P.A. 815 Orienta Avenue, Suite 6 Post office Box 151058
Eric D. Dunlap, Esquire Department of Children and
Virginia A. Daire, Agency Clerk Department of Children and
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.
