The Issue Whether subject sign required current permits and whether said signs were in an "unsightly condition".
Findings Of Fact Previous to the date of this Recommended Order subject signs were properly permitted and refurbished to remove them from the "unsightly" violation category.
The Issue Whether signs were properly permitted and whether the subject sign violated the set back requirements of state and federal law.
Findings Of Fact Subject signs were not properly permitted and subject sign on U.S. 1 North was nearer than 660 feet from the nearest edge of the right of way.
The Issue Whether subject signs were properly permitted and which subject sign on Hacienda Drive was also unsightly and not permitted.
Findings Of Fact Subject signs were not properly permitted and subject sign on Hacienda Drive was also unsightly.
Findings Of Fact Respondent is the owner of a sign located alongside U.S. 19, .72 miles north of SR 60 in Pinellas County facing south bound traffic on U.S. 19. When inspected on April 13, 1987, this sign advertised a product not associated with the premises on which the sign is located. However, subsequent thereto the board on the sign has been changed to advertise office warehouses and is now an integral part of the activities taking place on the premises. As such, the sign qualifies as an on-premise sign.
Findings Of Fact The Petitioner, Pamela Williams, doing business as Secure Home Management, seeks a license to operate an adult congregate living facility (ACLF) in Palatka, Florida. The Respondent is an agency of the State of Florida charged with regulating the operation and practices of adult congregate living facilities and licensure thereof, together with enforcement of licensure standards contained in Chapter 400, Part II, Florida Statutes (1981). Preliminary discussions and informal meetings between representatives of the Department and the Petitioner, Pamela Williams, occurred at various times in January 1983, during which discussions the Petitioner was advised by the Department that she was required to apply for an ACLF license in order to legally operate her business. The Petitioner took the position that the facility she operates was a transient rental facility and thus exempt from the ACLF licensing provisions contained in Chapter 400, Part II, Florida Statutes, which exemption is provided for at Section 400.404(d) of that chapter. However, as a result of these informal discussions between the parties, the Petitioner ultimately elected to apply for licensure as an ACLF and did so on January 31, 1983. After further deliberations by the Department, requests for additional information and further informal negotiations and conferences, the Respondent Department ultimately elected to deny the application for licensure and so informed the Petitioner on May 4, 1983. In essence, the reasons for the Respondent's denial of the application for licensure was the belief by the agency and its representatives that the applicant Petitioner lacked the financial ability to provide continuing adequate care to residents under authority of Section 400.414(1)(b), Florida Statutes (1981). Subsequent to the denial of licensure, the Petitioner made a number of good-faith efforts to attempt to meet the Respondent's criteria for licensing in the area of furnishing proof of financial responsibility. For instance, on April 15, 1983, just before denial of licensure, a letter from Jack Allen, a financial backer of the Petitioner, was provided to the Department promising adequate financial support. That letter was admitted as Petitioner's Exhibit 1. However, the Department nonetheless elected to deny licensure, being unsatisfied that that constituted adequate establishment of financial security for the proposed licensed institution. Following the denial of the license, the Petitioner and the Respondent continued to attempt to resolve the problem regarding establishment of financial support for the institution. The Petitioner in that regard furnished the Respondent with additional documentary evidence from Jack Allen, dated May 12, 1983, and admitted as Petitioner's Exhibit 2, in which unlimited resources were promised in order to assure that the ACLF would embark on its operations on a secure financial footing. Sometime in August 1983, in part at the behest of the Respondent, the Petitioner retained an attorney, with the result that a document establishing financial worth and responsibility for operating the facility with adequate provision for care for its residents from a financial standpoint was provided the Department, with the result that after certain other informal negotiations the license was ultimately issued on October 14, 1983, authorizing Pamela W. Williams, d/b/a Secure Home Management, to operate the subject ACLF. Prior to this licensure, the Petitioner continued to operate the facility while making good-faith attempts to meet the requirements of the Department and during which time the dispute concerning whether she needed licensure or conversely whether she came under the above-described exemption was unresolved in part between the parties. It was established through Petitioner's testimony, as well as that of Lee Darden, a representative of the Division of Aging and Adult Services of HRS, that at all times pertinent hereto, before and after licensure, the residents of the Petitioner's facility received at least adequate care and that the failure of the Petitioner to be licensed did not in any way jeopardize the health, safety or well-being of any of the Petitioner's residents.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that no fine be assessed and levied upon Pamela W. Williams, d/b/a Secure Home Management. DONE and ENTERED this 10th day of February, 1984, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1984. COPIES FURNISHED: Albert W. Whitaker, Esquire Post Office Drawer D Palatka, Florida 32078-0019 James A. Sawyer, Jr., Esquire District III Legal Counsel Department of Health and Rehabilitative Services 1000 NE 16th Avenue, Building H Gainesville, Florida 32601 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue in this case is whether the Department of Children and Families (DCF) should fine the Respondent for alleged violations in the operations of two child care centers in Lakeland.
Findings Of Fact The Respondent, Faith Without Works, Inc., d/b/a The Early Years CDC, is licensed by DCF to operate a child care facility at 5100 U.S. Highway 98, North, and at 2933 Duff Road, both in Lakeland. The Respondent's license certificate for the Highway 98 facility is C10PO0696; its license certificate for the Duff Road facility is C10PO0799. The charges in this case pertain to the Highway 98 license, C10PO0696. Late License Renewal The Respondent's annual license for Highway 98 was due to expire on December 14, 2013. On November 4, 2013, the Respondent's principal, Elizabeth Jackson, telephoned DCF on behalf of the Respondent to report that no renewal packet had been received. Normally, DCF sends licensees a renewal packet in time to file a renewal application at least 45 days prior to the license expiration date (i.e., by the filing deadline). The evidence was not clear why the Respondent had not received the packet. The Respondent picked up a renewal packet from DCF and filed its renewal application on November 6, 2013. There was no evidence of an affirmative misrepresentation from an authorized DCF employee that reasonably led the Respondent to delay filing its license renewal application. At best, there was evidence that the Respondent's license renewal application was late in 2011, but that no fine had been assessed. In that year, the Respondent asked DCF in early December as to the whereabouts of the renewal packet and was told that one had been sent on October 27, 2011. The Respondent then reported to DCF that a renewal packet was received on December 10, 2011, four days before expiration of its annual license, but the packet pertained to a different licensee. The Respondent picked up a renewal packet from DCF and filed for renewal. The Respondent was not fined for late renewal that year. Children Left in Van On October 18, 2013, the Respondent's van driver took a four-year-old boy and his one-year-old sister home from the Highway 98 facility. On the way, he stopped at the Duff Road facility to drop off a box lunch. He parked the van in front of the building, very close to the door, went inside briefly, returned to the van to get what he was delivering, and brought the delivery into the building. He then returned to the van and continued on his way to deliver the children to their destinations. During the time he was at the Duff Road facility, the driver left the two children in the van with the engine running. The driver recalled: that the door to the facility was unlocked; that he entered the building the first time just to announce his presence; that the entire delivery process took just 30 seconds; and that the Duff Road facility staff was watching the van from the door the entire time. The Duff Road employee testified that the door was locked; that she interrupted her lunch break to unlock it and hold the door open; and that she was watching the van from the doorway the entire time. An employee of the Early Learning Coalition, who happened to drive up for a scheduled appointment just before the van arrived, testified that she saw no one at the door; that she could see the older child squirming in his seat; and that the children were left alone in the van long enough for her to make her observations, telephone her supervisor, report her observations, and ask what she should do, which probably took considerably longer than 30 seconds. A child protective investigator testified that she learned from interviews with the driver, the older child, and the child's father that the child had a history of removing, or attempting to remove, his seat belt and moving about, or attempting to move about, while in vehicles. However, the evidence was not clear and convincing that the driver, who was a new employee, knew the child's propensities in that regard. During the incident and the investigation on it, the Respondent accepted DCF's expression of concern that the driver's conduct could have resulted in serious harm to the children. The Respondent blamed the incident on the driver being a new employee, who was a school bus driver but was inexperienced transporting preschool children. The Respondent reprimanded the driver and required him to take training in transporting young children. The driver was appropriately remorseful and welcomed the training as being appropriate and helpful. All involved were grateful that no actual harm to the children occurred. In its defense of the charge and during the hearing, the Respondent took the position that there was no serious harm, or threat of serious harm, based on the testimony of the driver and the Duff Road employee. The Respondent attempted to impeach the testimony of the protective investigator, that the driver did not mention the purported supervision by the Duff Road employee during her interview of him, by eliciting that the investigator did not directly ask whether staff was watching from the door. However, in the context of the interview, the driver would have been expected to offer that information had it been true. Overall, the contemporaneous reaction and statements of all involved belie the Respondent's current position and the referenced testimony of its witnesses. It is found that the driver's conduct posed an imminent threat that serious harm could have occurred. The boy could have climbed out of his seat and gotten out of the van, which may not have been detectable by staff standing at the front door to one side of the van, or started playing with the van's gear shift and accelerator, which also may not have been observable from that vantage point, even assuming staff was monitoring the van the entire time. Employee Work History Not Checked The driver of the van on October 18, 2013, had Level 2 screening, but there was no documentation that his work history was checked. On July 16, 2012, during a routine DCF inspection, it was revealed that the Respondent had three employees whose work history had not been checked at the time. DCF provided "technical assistance" by telling the Respondent that all employees should have their two-year history checked before starting work, which should be documented. At the time of this earlier violation, DCF gave the Respondent a formal warning stating its intent to take administrative action if further violations of the standard were found. Employee Not Screened On July 19, 2013, the Respondent employed Desaundra Oldfield, who did not have Level 2 screening at the time. In its defense against this charge, the Respondent took the position that Ms. Oldfield was a participant in the Welfare-to-Work Program of Polk Works and was screened through that program. However, it is clear that Ms. Oldfield did not get required Level 2 screening until July 20, 2013. On March 19, 2013, the Respondent was unable to produce documentation that Regina Curtis, who was employed for 30 days and also a parent of a child at the daycare center, had Level 2 screening. The Respondent's defenses at the time of the hearing were that Ms. Curtis was a participant in the Polk Welfare-to- Work Program, and also that she was no longer employed on March 19, 2013, so that on-site documentation was not required. However, the evidence was clear and convincing that Ms. Curtis did not have required Level 2 screening during the time she was working for the Respondent. Non-compliance was noted. Since Ms. Curtis no longer was employed, nothing further was done in the way of technical support. At the time of this earlier violation, DCF gave the Respondent technical support and a formal warning stating its intent to take administrative action, if further violations of the standard were found. Inadequate Supervision On June 7, 2013, a DCF inspector responding to an unrelated (and unfounded) complaint observed a single employee in charge of a room of 19 four-year-olds having a party. While the employee's back was turned to help one child in the adjoining bathroom, the other children were jumping off tables and playing with balloons. One parent was in the room with the other children while this was going on, but the parent was not an employee, was not screened, and did not have her work history checked. A balloon burst while in a child's mouth, and the DCF inspector attended to the child to make sure the child did not swallow the burst balloon and choke. On October 26, 2012, a DCF inspector responding to an unrelated (and unfounded) complaint came upon a child in a room by himself. Unnoticed, the child left the room where he was being supervised by an employee of the Respondent to look for candy and was in an adjoining room when seen by the DCF inspector. According to the inspector, when she returned the child, the employee indicated not knowing the child had left. During the hearing, the Respondent asserted that the employee saw the child walk around the DCF inspector, undetected, and enter the adjoining room. The defense was not supported by any competent evidence and was not presented in the Respondent's proposed order. At the time of this earlier violation, DCF gave the Respondent technical support and a formal warning stating its intent to take administrative action, if further violations of the standard were found. Safety Violation Rule 65C-22.002(1)(a) and (b) requires child care facilities to be free from health and safety hazards and not be used for any activity that endangers the health and safety of children. DCF proved a violation of this rule during a routine inspection on August 14, 2013, because several electrical sockets did not have required safety plugs. This was a Class III violation. DCA also proved by clear and convincing evidence two previous violations of this rule, one on June 7 and another on July 19, 2013. After the earlier violations, DCF gave technical support; after the second, DCF gave the Respondent a formal warning stating its intent to take administrative action, if further violations of the standard were found. Selective Enforcement Defense The Respondent asserts as an additional defense that it was the victim of selective overzealous and picayune enforcement because of the personal prejudices and animosity of certain DCF personnel for various reasons, including that the Respondent licensed a second facility (at Duff Road) and intended to expand further. The evidence did not prove the alleged prejudice and animosity, or selective enforcement.
Recommendation 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 the Respondent guilty of the alleged violations and fining the Respondent a total of $475. DONE AND ENTERED this 30th day of April, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 30th day of April, 2014. COPIES FURNISHED: Esther Jacobo, Interim Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Karen I. Meeks, Esquire Meeks, Lewis and Cabrera, P.A. Post Office Box 1598 Bartow, Florida 33831-1598 Cheryl Dianne Westmoreland, Esquire Department of Children and Families 1055 U.S. Highway 17, North Bartow, Florida 33830-7646
