The Issue The issues for determination are whether Respondent committed the acts alleged in a denial letter issued by Petitioner, and, if so, whether Petitioner should refuse to renew Respondent's family day care license pursuant to Subsection 402.310(1)(a), Florida Statutes (2003).
Findings Of Fact Petitioner is the agency responsible for licensing and regulating day care homes in the state. Respondent is licensed to operate a day care home known as Kidz Kingdom Academy at 738 Glenwood Avenue, Sebring, Florida 33876 (the facility). Petitioner inspected the facility nine times between November 25, 2003, and July 7, 2004. The specific dates of inspection were November 25, 2003; March 30 and 31; April 21 and 28; June 2, 11, and 15; and July 7, 2004. With a few exceptions, Respondent committed 53 violations of applicable statutes and rules during the nine inspections. Approximately 13 of the 53 violations are potentially repeat violations because they involve violations of the same statute or rule. However, they may not be repeat violations because most of the violations arise from distinctly different facts, i.e., a different factual offense that violates the same statute or rule. The remaining violations are frequent violations but are not repeat violations because they do not violate the same statute or rule on more than one occasion irrespective of the factual basis of the violation. Neither party cited any statute, rule, or case law that defines a repeat violation. On July 14, 2004, Petitioner issued a denial letter proposing to deny Respondent's application for renewal of her license. The denial letter is the notice of charges against Respondent. The literal terms of the denial letter are ambiguous. For example, the denial letter, in relevant part, notifies Respondent that the nine inspections revealed "repeat violations" of applicable statutes and rules. The notice of charges further notifies Respondent that based on "these violations" Petitioner proposes to deny Respondent's application for renewal of her license. The reference in the denial letter to "these violations" arguably could be construed to mean the "repeat violations," however the term "repeat violation" may be defined. Alternatively, the reference to "these violations" arguably could be construed to mean the 13 "repeat violations" and the 40 frequent violations. The denial letter adequately resolves the apparent ambiguity by attaching and referencing a "chart setting out specific violations" that Petitioner found during the nine inspections. The reference to "these violations" includes all 53 violations listed on the "chart." The distinction between "repeat violations" and "frequent violations" is not material to the grounds stated in the denial letter for the proposed refusal to renew Respondent's license. The denial letter does not include an allegation that Respondent has failed to pay an outstanding fine that Petitioner previously imposed against Respondent. During testimony, however, Petitioner's agency representative testified that she would recommend that the agency renew the license if Respondent were to pay the fine. The testimony of the agency representative is not relevant and material to an allegation that Respondent failed to pay an outstanding fine. The denial letter does not include any such allegation, and Petitioner cannot refuse to renew Respondent's license on grounds not included in the denial letter. Nor did the agency representative provide any written evidence of the imposition of an unsatisfied fine. The testimony of the agency representative is relevant and material to Petitioner's argument during the hearing that any one violation, or all of them together, threaten children or others with serious harm within the meaning of Subsection 402.310(1)(b), Florida Statutes (2003). The agency representative is the person charged with responsibility for evaluating the severity of the alleged offenses and explicating the evidentiary grounds for the proposed agency action. It is axiomatic that the agency representative would not recommend renewal of the license upon payment of the fine if any one or all of the 53 violations represented any harm to the public, including children. One or all of the 53 violations do not threaten harm to children or other members of the public within the meaning of Subsection 402.310(1)(b), Florida Statutes (2003). Although Petitioner showed by clear and convincing evidence that Respondent committed the 53 violations, Petitioner failed to show by clear and convincing evidence that one or all of the 53 violations threatened children or others with serious harm. One "repeat violation" involved missing hand towels in the bathroom or hand towels mounted too high for children to reach. Respondent regularly replenished hand towels and placed them where children could reach them. Respondent failed to adequately supervise children during nap times. Volunteers, rather than full-time staff, sometimes supervised children. However, full-time staff members were close by in the adjacent room. Respondent repeatedly failed to comply with applicable standards of maintenance and cleanliness. On one occasion, the microwave oven needed to be cleaned and sanitized. During one inspection, some ceiling tiles in the facility were "coming down and showed evidence of water damage," and there was some evidence of "rodent or vermin infestation." Respondent corrected both violations in a timely manner. On March 30 and June 11, 2004, lighting at the facility was inadequate. Respondent adequately corrected the violation during each inspection by turning on more lights and opening the blinds during nap time. Gaps in a wood fence enclosing the play area were too large. However, a chain link fence immediately inside the wooden fence prevented a child from exiting through the gaps in the wooden fence. During two inspections, the facility placed soiled diapers in an open container. The facility corrected both violations at the time of the inspection by covering the containers or taking them outside. On November 25, 2003, the facility left some electrical plugs in the music room uncovered. The inspection was a preliminary inspection, and the facility corrected the problem before any follow inspection. No follow-up inspections cite Respondent for a similar violation. On March 30, 2004, the facility used highchairs that had been recalled. The facility immediately corrected the problem by taking the recalled highchairs out of service and replacing them with new high chairs not subject to a recall. On March 30, 2004, a wooden climber for a slide in the playground was wobbly. A "slat was not secured to the railing." In addition, a latch on a toddler swing did not function properly. Respondent corrected both violations at the time of the inspection. On June 11, a swing and a rope ladder were broken. A fence was beginning to sag. Respondent corrected both violations before a follow-up inspection. On March 30 and 31, 2004, Respondent failed to maintain signed parental authorizations for the facility to administer prescription medications to children at the facility. Respondent corrected the deficiencies immediately by requiring the parents to remove the medications from the facility because the parents failed to comply with the facility's request for a signed authorization form. Petitioner alleged, but did not show by clear and convincing evidence, that Respondent failed to give medications to children as prescribed. Petitioner submitted no evidence that Respondent ever administered the specific medication at issue contrary to the prescribed dosage or without a signed authorization. On November 11, 2003, and June 11, 2004, Respondent failed to properly dispose of a bottle after use by leaving the bottle in an infant room after use. Respondent corrected the violation at the time of inspection by moving the bottle to the kitchen where Respondent properly stored the other bottles for subsequent cleaning. In addition, Respondent failed to properly refrigerate baby formula supplied to the facility for one of the infants in Respondent's care. Petitioner failed to show how long the formula had not been refrigerated. Respondent corrected these deficiencies at the time of inspection. On November 25, 2003, and June 2, 2004, Respondent failed to maintain immunization records for some of the children at the facility. Immunization records for other children had expired. The parents had not returned the completed immunization records to the facility by the deadline of December 5, 2003. Respondent failed to maintain health examination records for 14 students. Petitioner did not show that this was an ongoing or uncorrected violation. From November 25, 2003, through June 2, 2004, Respondent failed to maintain forms required to be signed by employees that the employees understood the requirements for reporting child abuse and neglect. On June 2, 2004, Respondent failed to maintain on file a signed affidavit of good moral character for an employee. The insufficiencies could have been corrected by obtaining the signature of the respective facility employees. From November 25, 2003, through June 11, 2004, Respondent failed to maintain required records showing that background screening for facility employees had been completed. On June 11, 2004, Respondent had a fingerprint card on file for an employee, but had not submitted the card to the Department of Law Enforcement within five working days of the first day of employment. Respondent failed to maintain documentation that volunteers at the facility were in fact volunteers. Petitioner submitted no evidence of which volunteers or employees were involved, the beginning date for employment or volunteer service, or whether the individuals continued to be volunteer or be employed at the time of the alleged deficiency. Petitioner alleges that Respondent failed to maintain required attendance records on June 2, 2004, for a field trip. The inspector did not reconcile attendance lists from the staff managing the field trip with those maintained by staff at the facility. The two lists, together, may or may not have accounted for all of the children either at the facility or on the field trip. Respondent corrected the alleged deficiency at the time of the inspection. However, Respondent failed to obtain required parent permission slips for some of the students and failed to inform some parents that their children would be on a field trip. Respondent failed to maintain required attendance records from April 21 through June 11, 2004. On June 11, 2004, Respondent failed to maintain proper attendance records. Approximately 16 children attended the facility on that date, but the parents of only 12 children actually signed the attendance sheet. On November 25, 2003, Respondent failed to maintain a written discipline policy and failed to maintain properly signed student discipline forms. On March 30, 2004, Respondent failed to maintain proper ratios of staff to children. On July 7, 2004, Respondent left toxic or hazardous cleaning materials exposed to children. On June 2, 2004, Respondent failed to maintain staff with adequate first aid and CPR training. On June 2, 2004, Respondent failed to post the menu and failed to adequately implement single service items. Petitioner conducted re-inspections on March 31, April 28, and June 11 and 15, 2004. Of the 53 alleged violations, Petitioner cited only 13 on re-inspection. However, only four of the 13 were uncorrected deficiencies. The remaining nine were deficiencies cited for the first time on re- inspection. The four deficiencies cited as uncorrected on re- inspection were the failure to maintain attendance and background screening record reports and the failure to maintain a clean facility in good repair. As previously stated, none of the violations were severe within the meaning of Subsection 402.310(1)(b), Florida Statutes (2003). The violations did not result in death or serious harm to a child. There was no evidence that the violations created a probability, rather than a possibility, of death or serious harm to a child. The agency representative would have approved the application for renewal but for an unpaid fine by Respondent. It is axiomatic that an agency representative would not ignore severe deficiencies in exchange for the payment of a fine. The licensee corrected all of the alleged violations except those pertaining to attendance records, a clean facility, and background screening record reports. Petitioner failed to show by clear and convincing evidence that the missing or incomplete background screening record reports pertained to specific employees who were currently on staff at the facility. The evidence was vague and lacked the specificity required in a license discipline proceeding. Petitioner intends the denial letter to be an administrative complaint. The Administrative Complaint does not allege that the licensee has any previous violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Respondent guilty of committing those acts found to be violations in this Recommended Order and imposing an administrative fine of $2,900. DONE AND ENTERED this 23rd day of November, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 23rd day of November, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Keith Peterson, Esquire 170 North Florida Avenue Bartow, Florida 33830 Paul F. Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Respondent’s felony convictions directly relate to the practice of public accounting and, if so, what penalty should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed certified public accountant, having been issued license number AC-0001638 by the Florida Board of Accountancy. Respondent was convicted on felony charges of conspiracy to commit health care fraud, mail fraud, and making false statements in United States v. Tunick in the Southern District of New York on December 26, 2000. Respondent was thereafter sentenced to a year and a day in prison to be followed by three years of supervised probation. He is currently free on bail pending an appeal. Respondent’s convictions violate the level of professional conduct expected of a person licensed to practice public accounting in Florida and are within the scope of crimes that directly relate to the ability to practice public accounting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order in this case finding Respondent guilty of the violations charged in the Administrative Complaint; permanently revoking the Respondent’s license to practice public accounting in Florida; and assessing Respondent an administrative fine in the amount of $5,000. DONE AND ENTERED this 15th day of January, 2002, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS 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 15th day of January, 2002. COPIES FURNISHED: Walter B. Lebowitz, Esquire 12555 Biscayne Boulevard, No. 924 Miami, Florida 33308 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Martha Willis, Director Division of Certified Public Accounting Department of Business and Professional Regulation 240 Northwest 76 Drive, Suite A Gainesville, Florida 32607 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue to be resolved in this proceeding concerns whether disciplinary action should be imposed against the licensure of Douglas R. Shanklin, M.D., the Respondent, for allegedly falsely testifying that he had not been issued a "Letter of Guidance", in violation of Section 458.331(1)(k), Florida Statutes.
Findings Of Fact At all times material hereto, the Respondent was a physician licensed in the State of Florida. He holds license number ME0009372. The Petitioner is an agency of the State of Florida charged with regulating the licensure status and related practice standards of physicians in Florida, including making investigations and bringing Administrative Complaints against those physicians, in their licensure status, believed to be departing from those practice standards. On January 8, 1993, the Respondent testified as a defense witness, by deposition, in a medical malpractice case. The case style was Faircloth v. Coastal Empire Pathology Services, P.C., et al. The trial occurred in Savannah, Georgia. During his deposition, the Respondent was asked three times, by opposing counsel, if he had ever been issued a Letter of Guidance by any state licensing agency. The Respondent stated three times that, indeed, he had not. In fact, on May 15, 1984, a Probable Cause Panel of the Board of Medical Examiners in Florida considered a complaint against the Respondent. The Probable Cause Panel made a determination that while probable cause existed to believe that the Respondent had violated the provisions of the Medical Practice Act, the complaint should be dismissed with a Letter of Guidance. The Board stated in its Order that: Probable cause exists to believe that subject has violated the provisions of the Medical Practice Act. In light of the circumstances presented, however, this case should be and the same is hereby dismissed with a letter of guidance to subject. Thereafter, an undated letter was sent to and received by the Respondent. See Petitioner's Exhibit 2 in evidence. The Closing Order was never mailed to, nor received, by the Respondent. The Respondent was unaware of the Closing Order until March of 1993, when the investigation in this case was commenced and at which time he was first supplied a copy of that Closing Order of the Board's Probable Cause Panel. The Petitioner's Exhibit 2 in evidence, the undated letter, is not entitled or otherwise delineated as a "Letter of Guidance" and at no place in the letter is the word "guide" or "guidance" used. Consequently, at the time the Respondent received the letter, which is Exhibit 2, he did not understand or perceive it to be a Letter of Guidance but, rather, understood it to be a letter of closing indicating that he had prevailed in the complaint case. On January 8, 1993, when the Respondent testified at the deposition referenced above, he did not have in mind, nor did he remember, the undated letter. On January 8, 1993, when he testified at that deposition that he had not been issued the Letter of Guidance, he believed he was answering those questions truthfully. He did not know or understand that he had been issued a Letter of Guidance. On January 8, 1993, when he testified at the deposition, he did not testify falsely, because he had not been given the Closing Order at the time that the undated letter (Exhibit 2) was received. He thus did not understand that undated letter to be a Letter of Guidance from the then Department of Professional Regulation. He was never served a copy of the actual Closing Order which might have explained the situation to him. Consequently, he had a genuine, good-faith belief that he had not been issued a Letter of Guidance. Because his belief was genuine and he had no specific intent to tell a false story in those particulars, he made no false or fraudulent representation and committed no deception in conjunction with his answers to those questions at his deposition.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence or record, the candor and credibility of the witnesses, it is RECOMMENDED that a Final Order be entered finding the Respondent not guilty of violating Section 458.331(1)(k), Florida Statutes, and that the Complaint be dismissed in its entirely. DONE AND ENTERED this 3rd day of May, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5903 Petitioner's Proposed Findings of Fact 1-3. Accepted. 4-6. Rejected, as not entirely in accord with the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-11. Accepted. COPIES FURNISHED: Steven Rothenburg, Senior Attorney Agency for Health Care Administration 9125 Bay Plaza Boulevard Suite 210 Tampa, FL 33619 Larry G. Turner, Esquire Post Office Box 508 Gainesville, FL 32602 Dr. Marm Harris Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303
