The Issue At issue is whether Respondent’s license to operate a child care center should be revoked.
Findings Of Fact From February 2, 1999, until April of 2001, when they sold their business assets to the Church of the Nazarene, Petitioner Shanion1 McCarthy (McCarthy) and her then-partner Maricel Perez (Perez) owned and operated the Little Bears Day Care Center (Little Bears). McCarthy and Perez were equal partners in the purchase, ownership, and operation of Little Bears. Both had been employed at Little Bears prior to going into business together. McCarthy had been a competent, caring, day care worker for over a decade. She did not shirk form unpleasant obligations, such as the duty to report child abuse, even when it meant exposing herself to abuse and retaliation from the accused abuser. Within months of forming their partnership, McCarthy and Perez began to seek a better facility for their business, and began making plans to move Little Bears to a new location. Perez, however, began to plan a personal business strategy, which involved opening the new center in her own name, dissolving the partnership, and recruiting Little Bears employees to work at the new center in competition with McCarthy. One of the employees whom Perez would later hire away from Little Bears was Stacy Cooper (Cooper). The Department's primary charge against McCarthy is that on March 19, 2001, McCarthy was "not aware" that a three- year-old child named Sergio had left Little Bears through a bathroom door which exited to the outside after going to the bathroom and removing his wet underwear and shorts. It is undisputed that Sergio did leave the center and was shortly thereafter found by Robin Kamrow (Kamrow), an employee of a nearby auto-transmission shop. Sergio was able to let himself out the bathroom door because he had been granted permission to go to the bathroom, without supervision, by Cooper. At all times material to this incident, Cooper, and not McCarthy, was the child care worker directly responsible for Sergio's supervision. Cooper was eager to leave for lunch with a co-worker, and did so without first verifying that Sergio was back in class, and without advising McCarthy that the child had been sent to the bathroom by himself. The incident could have ended tragically, but did not, due to Kamrow's willingness to attend to a little boy walking alone with a dog. The dog turned out to be owned by Sergio's uncle, who lived directly behind the day care center. Upon exiting to the outside from the Little Bears bathroom, Sergio proceeded to his uncle's house and took the dog with the intention of having the dog accompany him to his home, some seven blocks away. Apparently Sergio has not been taught to fear strangers, for he willingly allowed Kamrow to put a rag on his uncovered bottom, and to pick him up and carry him the rest of the way home. Sergio was able to direct Kamrow to his family's home, telling her where and where not to turn. Kamrow released Sergio to his grandmother. Rather than telephone the day care center or the police, Sergio's grandmother went to the center to confront the owners. By this time, McCarthy had discovered that Sergio was missing and had called the police. At the time of the incident, Sergio's family knew, but had not informed Little Bears, that Sergio had a propensity to run away. Immediately after this incident, McCarthy had the locks child proofed and installed a chain link fence, although the law did not require that either of these things be done. In its letter of April 2, 2001, the Department further alleges that McCarthy asked a staff member to lie about this incident, and that McCarthy told the Department that Sergio was under the supervision of a staff person who was actually out of the center on a lunch break. The only evidence that McCarthy asked a staffer to lie was offered by Cooper. Cooper claimed that McCarthy asked her to not tell investigators that Sergio had let the dog out of his uncle's gate and that Sergio was riding a tricycle. The undersigned rejects Cooper's testimony on this matter as patently implausible. Cooper never claimed to have personal knowledge of any aspect of Sergio's escape. Moreover, there was never any evidence from any source that he had a tricycle. These silly fabrications, coupled with Cooper's deceptive demeanor under oath and her financial stake in permanently eliminating McCarthy as a competitor of Perez's day care center, all contribute to the undersigned's conclusion that Cooper's testimony is unworthy of belief. Cooper is the only witness who claims personal knowledge that McCarthy's negligence was the proximate cause of Sergio's escape. To the contrary, the evidence establishes that Cooper lied under oath for the most obvious of reasons---to shift responsibility from herself to McCarthy. The Department also alleges that Little Bears "has had a history of problems." In support of this allegation, the Department relies primarily upon three incidents. On January 12, 1999, the Department found Little Bears to be out of compliance with minimum child care standards because the center was over capacity. However, on that date, McCarthy was an employee, not an owner. There is no evidence that McCarthy had any legal obligation or authority to deny admittance to a child who had been duly enrolled by McCarthy's employer. On July 11 1999, the Department again cited Little Bears for a violation of minimum child care standards because the center had 26 children enrolled. On this date, McCarthy and Perez were in an ownership position and obliged to comply with state standards. Based upon the square footage of Little Bears (as opposed to the adult-child ratios, which were in compliance) 23 was the upper limit of enrollment. McCarthy acted promptly and worked with the Department to correct the violation. There is no evidence that this violation posed a threat to the health or safety of any child in care. At least one child was granted a Department waiver and permitted to remain after the parent complained about being forced to go elsewhere for child care. The Department did not seek to punish this violation, but rather worked to accommodate the needs of the families which relied on the center. The third incident alleged as part of the "history of problems" is an incident on February 22, 2000, in which McCarthy "engaged in a physical altercation with her daughter on the grounds of the Little Bears Day Care Center." Although the Department alleged that McCarthy's daughter, Chastity, was employed at the center at the time of the incident, no evidence was offered to support that allegation. Instead, the evidence revealed that Chastity, angry and upset that McCarthy had called police to report that Chastity was at a motel, possibly engaging in illegal or dangerous activities with her boyfriend, showed up unannounced, uninvited, and greatly agitated, at Little Bears. Chastity came to the door and demanded to confront her mother. McCarthy made every effort to keep the argument away from the children. Chastity became violent and McCarthy reacted in self-defense to protect herself and to restrain and calm her daughter. A police investigation revealed no wrongdoing by McCarthy. The Department imposed a $100 fine for the incident which McCarthy personally paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order dismissing the charges against Petitioner, Shanion R. McCarthy. DONE AND ORDERED this 31st day of October, 2001, 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 31st day of October, 2001.
The Issue Whether Petitioner's license to operate a family day care home should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Parties Respondent is the state agency responsible for licensing and regulating child care facilities, including family day care homes. Respondent routinely conducts inspections of licensed family day care homes to determine whether the homes are in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report, which is provided to the home's operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on family day care homes which have a provisional license rather than a standard license. Respondent also conducts inspections in response to complaints it receives, and it has the authority to inspect family day care homes at any time with or without notice. Petitioner is the owner and operator of a licensed family day care home located at 1502 North Kettles Avenue, Lakeland, Florida (hereinafter "Petitioner's facility" or "the facility"). Petitioner resides at that address as well. Petitioner has operated a day care home at the above address for approximately three years. Petitioner has taken all required training in order to be licensed. As a result, she is, or should be, familiar with the rules regulating family day care homes. Petitioner keeps children in her home, and children also play in Petitioner's backyard. This area is enclosed by a fence. Inspections and Resulting Actions by Respondent Petitioner's facility was inspected on February 4, 2003, by Respondent's inspector, Timothy Graddy, who found Petitioner caring for children. Several areas of noncompliance were identified during this inspection. Violations noted included unsafe and unsecured storage of materials dangerous to children, namely, bleach and other household cleaning chemicals were left out in the kitchen and a bathroom cleaning product was observed in the tub; paper and trash were littered around the home's back door which leads to the playground area; water that had collected in the sandbox, which presented a drowning hazard; no written evidence of a fire drill having been conducted on a monthly basis; and some of the children's immunization records were found to be out-of-date, which presented a health safety issue. A re-inspection was conducted on February 6, 2003, all violations had been corrected, and no fine or other penalty was imposed at that time. On August 26, 2004, Respondent's inspector, Tricia Step, went to Petitioner's family day care home to carry out a routine inspection, and she observed five children in the home at that time. Several areas of noncompliance were identified. The lock on a kitchen cabinet did not catch, allowing children access to household cleaning products stored there; the children's play area contained litter (empty chip bags and soda cans); an extension cord was lying on the ground in the playground area; the play areas in the home were not clean and stacked against a wall were toys and "stuff," which could fall on the children; at the time of the inspection, children were observed sleeping on blankets with no mats under them, which is in violation of the requirement that each child be provided with a mat, at least one inch thick, covered with an impermeable surface; Petitioner could not provide a record of fire drills being conducted within the previous six months; and an up-to- date and age-appropriate immunization record was missing for a child in her care. After Ms. Step completed her inspection, she discussed the results with Petitioner and provided Petitioner a copy of the inspection report. Petitioner made the corrections required prior to the due date listed on the report. Petitioner's premises were inspected for re-licensure by Mr. Graddy on January 15, 2004, and several areas of noncompliance were identified. Mr. Graddy observed a hammer, motor oil, and a plastic garbage bag on the front stoop area, which are hazardous and dangerous to children; litter, including aluminum cans and paper, was observed in areas where children play; a gap in the required 4-foot fence was observed, which would permit children in the outdoor play area access to a trafficked street; a written record of fire drills for the months of December 2003 and January 2004 were not provided; Petitioner was unable to produce a student health examination file on two children in her care; and the current enrollment information was incomplete on four children. The results of the inspection were discussed with Petitioner, and she was given a copy of the report. Graddy then went back to his office and discussed the results of the inspection with his supervisor, Patricia Hamilton. Based upon the results of the January 15, 2004, inspection and the prior incidents of noncompliance at Petitioner's facility, Ms. Hamilton determined that Petitioner's license should not be renewed. Although Petitioner attempted to do so, Respondent did not give Petitioner an opportunity to bring her home into compliance with the minimum standards in Respondent's licensing rules and standards before deciding to issue a letter of denial. Thereafter, on March 2, 2004, Mr. Graddy sent a letter to Petitioner informing her that her license was not being renewed and advising Petitioner of her right to "appeal" that decision through the administrative process. At the hearing, Ms. Hamilton testified that she was particularly concerned about Petitioner's repeat violations, namely Petitioner allowing the children access to toxic and other dangerous materials, repeated failure to conduct fire drills, and to keep health and enrollment records current. She characterized these as serious child safety violations. These were the primary reasons she recommended that Petitioner's child care license not be renewed. Petitioner, in her testimony, did not deny committing the violations noted in the inspections of February 4, 2003, August 26, 2003, and January 15, 2004. However, she did demonstrate that a re-inspection of her facility listed her to be in compliance with all violations listed in the report. Petitioner's testimony is credible, especially when bolstered by her friends, family, and client's testimonials, that she is a loving and caring person who goes out of her way to care for the children she keeps in her home. The evidence is clear and convincing that Petitioner violated several code provisions, including repeated violations of the rules regarding toxic and hazardous materials; trash and dangerous conditions in the children's play area; failure to conduct fire drills; and failure to have current health and enrollment records on file for each child. Respondent withdrew its allegation that Petitioner was not a person of good moral character. Petitioner has shown mitigating evidence that she is a concerned and loving caregiver and has demonstrated that her license for a family day care home should not be denied or revoked but that a lesser penalty should be imposed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of violating the provisions of Florida Administrative Code Rules 65C-20.010(1)(b) (three counts), 65C-20.010(1(e) (three counts), and 65C-20.010(3)(b)4. (three counts). Finding Petitioner not guilty of violating the provisions of Section 402.301, Florida Statutes. Issuing Petitioner a provisional license. DONE AND ENTERED this 30th day of July, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 30th day of July, 2004.
The Issue The issue is whether Petitioner's application for a child caring agency license should be denied for the reasons stated in the Department of Children and Families' (Department) letter dated September 25, 2018.
Findings Of Fact The Department is the state agency responsible for regulating the licensing of child caring agencies. A child caring agency is defined in section 409.175(2), Florida Statutes (2018), as an agency that "provides staffed 24-hour care for children in facilities maintained for that purpose, regardless of whether operated for profit or whether a fee is charged." Regulations governing this type of facility are found in Florida Administrative Code Chapter 65C-14. A child caring agency, also known as a foster care group home, serves extremely vulnerable children who have been removed from their parents' home for various reasons, such as physical abuse or substance abuse by the parent. Because the children are extremely traumatized, the operator of a facility must have a high degree of skill, training, and experience. For this reason, the Department reviews applications for a child caring agency in a careful and deliberative manner. The proposed child care agency will be owned and operated by Michaelle Streeter. She is a licensed registered nurse who works as a travel nurse throughout the United States.1/ If the application is approved, she will no longer accept travel nurse assignments. From 2013 until 2017, she was licensed by the Agency for Persons with Disabilities (APD) to operate a group home in Lakeland, Florida. In May 2017, Ms. Streeter filed an application with the Department seeking licensure to operate a child caring facility. After a lengthy review of the application, which included numerous discussions with Ms. Streeter, the Department denied the application on December 11, 2017, because she was unable to meet the financial requirements outlined in rule 65C-14.006(10). Resp't Ex. 5. Petitioner did not challenge that denial. After denying the application, the Department informally recommended to Ms. Streeter that she consider becoming a foster parent. However, Ms. Streeter opted to pursue her application for a child caring facility. On an undisclosed date in 2018, she filed a second application. On September 25, 2018, the Department again denied the application, this time for the following reasons: Compliance concerns noted while being licensed as a provider with a different licensing entity around the time frame of June 2016. [§] 409.175, Fla. Stat.; Concerns around the ability to show and maintain financial stability of an owned or rented property after a notice of foreclosure was filed in 2017. During the licensing process there were several concerns on the money that was being reported as viable income to meet the FAC financial requirements for license. (Florida Administrative Code 65C-14.006); [Y]ou were granted an exemption on a previous criminal charge which allowed you to continue but did not guarantee becoming a licensed provider. After reviewing the circumstances of this criminal charge, the Department is not comfortable moving forward with issuing you a child caring agency license. Resp't Ex. 16. Petitioner requested a hearing to contest the Department's decision. The Department's letter stated that the denial was not based solely on the concerns stated above. However, the letter was never amended, and, prior to the hearing, Petitioner was not given notice of any additional concerns. Therefore, only the reasons cited in the letter have been considered.2/ Compliance Concerns While Operating Another License Citing section 409.145, the Department asserts it has "[c]ompliance concerns" based upon the operation of an APD facility by Ms. Streeter "around the time frame of June 2016." Section 409.145 generally requires that children in foster care be provided "quality parenting." The essence of the charge is that Ms. Streeter failed to meet standards for operating a less- restrictive APD facility that had only two clients, and along with the other concerns cited in the letter, collectively, they support a determination that she is not qualified for licensure. As noted earlier, Ms. Streeter operated an APD group facility from 2013 until 2017. According to Ms. Streeter, the facility closed in 2017 when the "partnership ended" and her partner removed all clients from the home. Because APD facilities receive Medicaid funds, they are reviewed periodically by Qlarant, formerly known as the Delmarva Foundation (Delmarva), a state contractor, to determine if the facility is complying with APD standards. The results of the review are found in a Provider Discovery Review (PDR) Report, which assigns a score to each provider. The record is silent, however, as to what score is necessary in order to have a satisfactory review. Delmarva's review findings for the period June 1, 2015, through May 31, 2016, are found in Respondent's Exhibit 1. The PDR Report indicates that overall, the facility received a score of 65.1 percent and a compliance score of 75.4 percent. The PDR Report contains multiple health and safety concerns, such as improperly stored medication, lack of required oversight by a behavioral analyst, and billing discrepancies of $12,986.26, which represents a significant portion of total reimbursed funds of $46,597.39. Also, Ms. Streeter engaged in physical "takedowns" of clients without approval of a medical doctor, proof that she was trained to conduct takedowns, or documentation of when and why these takedowns occurred. Improperly used takedowns present a risk of physical injury to the client. Ms. Streeter disputed the findings in the PDR Report and requested reconsideration of the billing discrepancies. After Delmarva considered her objections, reconsideration was denied and all findings remain as originally reported. The criticisms noted in Delmarva's PDR Report are legitimate concerns and should be considered in the licensing process. Financial Concerns A second concern by the Department centers around the applicant's "ability to show and maintain financial stability of an owned or rented property after a notice of foreclosure was filed in 2017. During the licensing process there were several concerns on the money that was being reported as viable income to meet the FAC financial requirements for licensure." According to the Department's regional licensing manager, this concern is a very important piece of the Department's decision to deny the application. An applicant for licensure must demonstrate "[s]atisfactory evidence of financial ability to care for children in compliance with licensing requirements." § 409.175(5)(b)8., Fla. Stat. Also, rule 65C-14.006(10) requires an applicant to "provide written documentation that it has sufficient funds to meet all requirements for licensure. Facilities beginning operation shall provide evidence of sufficient funding for operation of the program for at least six (6) months." To satisfy the foregoing requirement, the Department requires an applicant to estimate the facility's first year operating expenses and to have on-hand cash or a line of credit that equals one-half of estimated annual operating expenses. Ms. Streeter estimated her first year operating expenses to be $292,200.00. Resp't Ex. 3. This meant she needed around $146,000.00 in cash or a line of credit to meet the Department's requirement. A bank statement was not provided, but Ms. Streeter submitted a letter from a lending institution stating that her application for a cash-out refinance (second mortgage) on her residence had been approved in the amount of $160,000.00. Resp't Ex. 4. However, the Department does not consider a second mortgage to be a source of capital. Besides a lack of an adequate source of capital to operate the facility, Ms. Streeter filed a Suggestion of Bankruptcy in June 2017 under chapter 13 of the United States Bankruptcy Code. Resp't Ex. 7. On December 1, 2017, the Bankruptcy Court issued an Order Granting [the Trustee's] Motion to Dismiss Chapter 13 Case on the ground Ms. Streeter failed to comply with the Trustee's Order. Resp't Ex. 8. At hearing, Ms. Streeter provided earnings statements for 2017 and 2018 related to her employment as a travel nurse. Although she was well paid for her services, the preponderance of the evidence shows that Petitioner has failed to satisfy the financial stability requirement. Prior Criminal Charges The denial letter states that after "reviewing the circumstances of [a previous] criminal charge, the Department is not comfortable moving forward with issuing [Petitioner] a child caring agency license." The specific criminal charge is not identified in the denial letter. Testimony by a Department licensing official indicates that the Department is concerned with "a domestic violence history" on the part of Ms. Streeter. On August 21, 2000, she pled nolo contendere to a charge of battery (domestic violence), a first degree misdemeanor at that time. Resp't Ex. 14. Adjudication was withheld by the court, and she was placed on 12 months' probation, which she successfully completed in August 2001. The details of the incident are unknown. There is no other evidence of "a domestic violence history." The record also contains evidence of several criminal charges in the State of Massachusetts, which occurred in the early 1980s, or almost 40 years ago, when Ms. Streeter was in her 20s. Resp't Ex. 13. These incidents are so dated that they should not play a role in the Department's decision. In November 2012, Ms. Streeter's name was submitted "for recognition of an honorable deed performed in the community's interest and for [her] assistance to the Hillsborough County Sheriff's Office." Pet'r Ex. C. On September 14, 2007, the Department of Health granted Ms. Streeter an exemption from disqualification for employment as a registered nurse. On January 19, 2011, the Florida Board of Nursing granted Ms. Streeter an exemption from disqualification to serve as a registered nurse. On January 30, 2012, APD granted Ms. Streeter an exemption from disqualification for employment/licensing in a caretaker position working with children or vulnerable adults. On February 5, 2018, the Department granted Ms. Streeter an exemption from disqualification for employment/ licensing in a caretaker position working with children or vulnerable adults. Although APD granted Ms. Streeter an exemption from disqualification to operate a facility licensed by that agency, the Department does not consider that exemption to be binding on its determination here. The Department did not explain or otherwise address the exemption that it granted her in February 2018.
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 denying Petitioner's application for a child caring agency license. DONE AND ENTERED this 24th day of January, 2019, in Tallahassee, Leon County, Florida. S R. ALEXANDER 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 24th day of January, 2019.
Findings Of Fact On or about July 18, 1988, Petitioner's representatives learned that Respondent's daughter was operating an ACLF, as defined in Part II of Chapter 400 Florida Statutes without having a license from Petitioner for such a facility. The facility was located at 1217 East 139th Avenue, Tampa, Florida. One of the residents in the facility at the time of Petitioner's employees' discovery of its unlicensed status had been recently transferred there from Respondent's licensed facility. Respondent knew her daughter's facility had been licensed by hotel and restaurant regulatory authorities. She also believed her daughter had obtained licensure from Petitioner for the operation of an ACLF. Testimony of Petitioner's witnesses that Respondent was aware of the absence of the facility's licensure by Petitioner is not credited in view of the testimony of Respondent and others to the contrary; also, Petitioner's employees did not include any incriminating statements of Respondent professing knowledge of such unlicensed status in their initial investigative reports in the matter. Uncontroverted testimony of Katherine H. Echevarria, a registered nurse of thirty years experience who holds a master's degree in nursing and is presently associated with research efforts of the College of Nursing at the University of South Florida, establishes that Respondent has a natural ability to lead and establish programs for disadvantaged older adults who are residents of Respondent's ACLF. Echevarria's testimony further establishes that Respondent possesses the character and competency required to operate her facility and provide continuing adequate care to residents.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered granting Petitioner's application for renewal of her license. DONE AND ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 15th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5455 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS Unnecessary to result reached. Addressed. Unnecessary to result reached. Addressed. Addressed. PETITIONER'S PROPOSED FINDINGS 1.-2. Adopted in substance. Unnecessary to result reached. Rejected, not supported by the greater weight of the evidence. COPIES FURNISHED: Edward A. Haman, Esquire Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614 Arnold D. Levine, Esquire 100 South Ashley Drive Suite 1600 Tampa, Florida 33601-3429 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Agency's denial of Petitioner's request for exemption for employment as a Certified Nursing Assistant in an Assisted Living Facility pursuant to Section 435.07, Florida Statutes, was proper.
Findings Of Fact The Agency for Health Care Administration is responsible for conducting background screenings for employees of health care facilities licensed under Chapter 400, Florida Statutes. At all times material to this case, Petitioner, Nikita Johnson, a licensed certified nursing assistant, was employed by an assisted living facility in Pinellas County, Florida, providing personal services to the residents therein. On or before October 23, 2000, and after a level I background screening by the Assisted Living Facility (AFL) licensing unit, Petitioner requested a hearing on her exemption for employment application. On October 23, 2000, the ALF licensing unit conducted a telephonic hearing on Petitioner's request for an exemption for employment. ALF licensing unit denied Petitioner's request for exemption. The Agency proved that on December 23, 1998, Petitioner was arrested on the felony charge of sexual assault: a sexual offense against a child, and lewd lascivious acts in the presence of a child under the age of 16 years. The felony charges were reduced to misdemeanor charges. Petitioner entered a plea of guilty to each of the two counts of battery, was convicted, and sentenced to one-year probation, plus payment of a fine and court cost. Petitioner completed the terms and conditions of her probation on or about April 4, 2001. The Agency proved that on February 19, 2000, Petitioner was arrested on the misdemeanor charge of disorderly conduct, and on April 4, 2000, entered a plea of nolo contendere to which adjudication was withheld and a fine imposed. Petitioner has committed disqualifying offenses as defined by Chapter 435, Florida Statutes. Additionally, Petitioner is ineligible for exemption based on a failure to demonstrate any rehabilitative efforts and an appreciation of the seriousness of the criminal charges. Petitioner has not met her burden of clear and convincing evidence that she should not be disqualified from employment as required by Section 435.07(3), Florida Statutes. By mail at the last known address, Petitioner was notified of the time, date, and place of the final hearing and chose not to appear.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a Final Order denying Petitioner's request for exemption for employment, pursuant to Section 435, Florida Statutes. DONE AND ENTERED this 1st day of May 2001, in Tallahassee, Leon, County, Florida. FRED L. BUCKINE 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 1st day of May, 2001. COPIES FURNISHED: Nikita Johnson 121 North Mercury Avenue Clearwater, Florida 33765 Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue The issue in this case is whether or not Petitioner's license as a family day care home should be revoked.
Findings Of Fact Based on the testimony and demeanor of the witnesses and the documentary evidence presented, the following findings of fact are made: On November 19, 2001, Petitioner received a letter advising that Respondent "has registered your Family Day Care Home for one year effective November 30, 2001. Your registration number is 07E732." This registration was for Petitioner's residence at 2716 Seabreeze Court, Orlando, Florida 32805. On November 29, 2001, Petitioner advised Respondent of an address change for the registered family day care home. On the same day, November 29, 2001, by a hand-delivered letter, Respondent advised Petitioner: "The Department of Children and Families has been notified of your change of address. Please be advised that registrations for family day care homes are issued exclusively to the address at the time of application. Accordingly, your registration at 2716 Seabreeze Court; Orlando, Florida 32805 is cancelled." On the same day, November 29, 2001, Petitioner submitted an application for registration for 1720 South Rio Grande Avenue, Orlando, Florida 32805. No evidence was presented as to whether or not a registration was granted regarding this application for registration. On January 8, 2002, an incident of alleged child abuse was reported to the Orange County Sheriff's office by the parent of a child placed for day care with Petitioner. This incident was reported to the Florida Protective Services abuse hotline and Respondent by the Orange County Sheriff's Office. An investigation of the abuse complaint determined that Petitioner had disciplined a three-year-old child by striking the child a number of times on the legs, arms, and buttocks with a plastic mini-blind rod approximately two feet in length. Striking the child with the mini-blind rod had caused welts and had broken the skin in places. Petitioner acknowledged using the plastic mini-blind rod to strike the three-year-old child. Credible evidence, some from Petitioner herself, was received that Petitioner physically punished a three-year-old child. On March 18, 2002, as a result of the abuse investigation, Respondent notified Petitioner by Certified Mail, of "Notice of Revocation of Registration." The letter stated: "The purpose of this letter is to advise you that your registration #07E732 issued by the Department of Children and Families effective November 30, 2001 to provide child care services is revoked." (This appears to be a revocation of the registration that was cancelled on November 29, 2001; see paragraph 3, supra).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services' revocation of Petitioner's license as a family day care home is found to be appropriate and be upheld. DONE AND ENTERED this 26th day of August, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 26th day of August, 2002. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Iris Patrice Anderson 1720 South Rio Grande Avenue Orlando, Florida 32805 Paul 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
