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
Findings Of Fact Outdoor Advertising Art, Inc. is the owner of a 12 x 40 foot sign located on State Road 540 in Polk County. The records of the Department of Transportation show the last valid permit for this sign was issued in 1973. The Respondent forgot to renew the permit for 1974 due to clerical error of its staff although it received notice as required by statute from the Department of Transportation. On October 2, 1975, Outdoor Advertising Art, Inc. attempted to obtain a permit for this sign for the year 1974 and 1975, and tendered a check to Department of Transportation in the amount of $20. In doing so, the Respondent relied upon what it stated the policy of the Department had been regarding renewal of delinquent permits; however, it did not fail to renew in reliance on this policy but through its own oversight. The Department of Transportation denied the permit on the sign which did not conform to the existing rules and regulations adopted by the State of Florida as part of the federal highways beautification program. Testimony was received that delinquent applications have been allowed to be filed by the Department of Transportation, but not in District I of the Department of Transportation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, this Hearing Officer recommends that the sign be removed. DONE and ENTERED this 27th day of January, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John J. Rimes, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire Post Office Box 539 Winter Park, Florida 32789
The Issue Whether Respondent, a licensed real estate salesperson, committed the offenses alleged in the Administrative Complaint, and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Chapters 455 and 475, Florida Statutes, and Title 61J2, Florida Administrative Code. Respondent has been a duly licensed real estate sales person in the State of Florida at all times pertinent to this proceeding. Prior to March 31, 1997, Petitioner mailed to Respondent a renewal notice that reminded her that her license would expire on March 31, 1997. Accompanying the renewal notice was an insert that contained the following caveat: In order to renew, the RENEWAL NOTICE MUST BE RETURNED WITH THE APPROPRIATE FEE. By submitting the appropriate fee to the department, you are affirming that you have "COMPLETED" the required classroom education. Respondent submitted her renewal card along with the requisite fee without having completed a 14-hour continuing education course required by Rule 61J2-3.009, Florida Administrative Code. Respondent's license was thereafter renewed by Petitioner, effective March 31, 1997. Respondent discovered from a discussion with her broker that she should have taken the continuing education course before she submitted her renewal application. By letter dated June 12, 1997, Respondent advised Petitioner that she sent in the paperwork for the renewal of her license before she had taken the continuing education course. Respondent successfully completed the required 14-hour continuing education course on June 18, 1997. Respondent testified without contradiction that she did not intend to misrepresent the status of her continuing education.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner find Respondent guilty of violating the provisions of Sections 475.25(1)(e) and (m), Florida Statutes, and imposes an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 9th day of June, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1998. COPIES FURNISHED: Geoffrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Rosemary Nixon, pro se 6565 Parkview Drive Boca Raton, Florida 33433 Henry M. Solares, Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Conclusions The City had a duty to replace the stop sign as soon as practicable to prevent foreseeable injuries to motorists. It breached that duty when it failed to replace the stop sign within 32 hours after receiving a report of another crash at the intersection. The breach of this duty was the proximate cause of the crash in which Alexandria was killed. There are many reasons for entering into a settlement agreement other than the perceived merits of the claim and, therefore, I am not precluded from reviewing the terms of the parties' settlement agreement in this matter and determining whether they are reasonable under the totality of the circumstances. The payment of a claim bill is a matter of legislative grace. It is in derogation of the principle behind the sovereign immunity doctrine that claims against public agencies must be limited so that the agencies can continue to operate and provide important public services. Although the City breached its duty to replace the stop sign within a reasonable amount of time after it learned that the sign was missing, it was not proven by a preponderance of the evidence that the breach of duty was the proximate cause of Alexandria’s injuries. The more persuasive evidence suggests that Alexandria would not have been critically injured or killed if Ms. Freeman-Salazar had provided for Alexandria’s safety as a passenger by making her use the seat belt. Therefore, in consideration of the nearly $363,000 Ms. Freeman-Salazar has already received, I believe the claim should not be paid. Pursuant to s. 316.614(4)(a), F.S., it is unlawful to operate a motor vehicle with a 5-year-old passenger unless the child is restrained by a safety belt or by a child restraint device. Claimants point to s. 316.613(3), F.S., which provides: The failure to provide and use a child passenger restraint shall not be considered comparative negligence, nor shall such failure be admissible in the trial of any civil action with regard to negligence They argue that this statute should bar any consideration by the Senate of the seat belt issue in determining whether their claim bill should be paid. I disagree. I believe the statute was intended to control judicial proceedings and not the legislative claim bill process. This process is not for the purpose of establishing comparative negligence in a legal sense, but for the purpose of establishing whether Claimants' request for legislative grace is deserving. Rules regarding the admissibility of evidence at trial are not controlling. Paying a claim in circumstances where an unbelted child survived a crash with injuries that require costly future care might be reasonable. In this case, however, there are no such future financial needs. ATTORNEY’S AND LOBBYIST’S FEES: Claimants' attorneys have agreed to limit their fees to 25 percent of any amount awarded by the Legislature in compliance with s. 768.28(8), F.S. However, they have not acknowledged their awareness of the provision of the bill that limits attorney’s fees, lobbyist’s fees, and costs to 25 percent of the award. They report costs of $9,115. The proposed lobbyist's fee is 6 percent of any award. LEGISLATIVE HISTORY: This is the second claim bill filed in this matter. OTHER ISSUES: The City has an insurance policy that will pay all but $25,000 of this claim bill. The City's operations would not be adversely affected if the claim bill is passed. RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate Bill 50 be reported UNFAVORABLY. Respectfully submitted, cc: Senator Carey Baker Representative Jack Seiler Faye Blanton, Secretary of the Senate Tom Thomas, House Special Master Bram D. E. Canter Senate Special Master House Committee on Constitution and Civil Law Counsel of record
