The Issue The issue to be resolved in this proceeding concerns whether the Respondents should suffer revocation of a Foster Care License for the reasons stated in the Administrative Complaint, involving alleged use of corporal punishment to discipline two children placed in their care.
Findings Of Fact The Petitioner is an agency of the State of Florida charged in pertinent part with regulating the licensure and child care standards of foster care providers. The Respondents are licensed foster care providers, licensed by the Petitioner Department. Billie Harbison is the foster care supervisor with the Department engaged in training and licensure of foster care families. She is familiar with the Respondents as foster care providers, having been involved in their licensure in 1995. In the course of her involvement with the Respondents as foster care parents, she instructed them as to the discipline policy and training provided to them as foster parents. Sometime in late 1996 she became aware of the abuse report of September 1996 concerning Joseph I. and Jerome I., which is Petitioner's Exhibit That report indicated the foster parents, the Respondents, were alleged to have struck the two boys with a belt (extent of injuries, if any, unknown) and that one of the boys indicated that his foster mother taped his mouth shut when he talked too much. Because she felt that the report showed abuse, Ms. Harbison recommended revocation of the Respondents' license. Licensed therapists were working with the children during times pertinent hereto, including the time when the abuse report was rendered because the children are "ADHD" (Attention Deficit Hyperactive Disorder). Ms. Harbison never saw nor interviewed the two children nor had any professional become aware of or recorded indications of abuse. No therapist working with the children ever reported any indicia of abuse nor were they ever interviewed. Jim Hutchison, a therapist with the Children's Home Society, testified for the Department. He diagnosed both children as ADHD and Joseph to be "oppositionally defiant." He described both children as difficult to converse with and that Jerome was evasive about what happened in his relationship with his natural mother and that Joseph could not be relied upon to testify accurately and honestly. Rachel Sweat is a kindergarten teacher with the Baker County School Board. She only had contact with the children for four to five days. She recounted a hearsay statement, which was admitted into evidence as a "spontaneous utterance," from one of the children concerning "Momma" taping their mouths. This statement, coupled with other testimony reveals that the child was referring to his natural mother and not to his foster mother, Ms. Farmer. Brenda Van Landingham was a shelter parent for the children for two months. In testifying for the Respondents she described the children as very aggressive, fighting constantly with other children. They always sought to place the blame for any altercation on other children and showed a propensity to lie. She noted that they referred to their natural mother as "Trish" or "Momma" or "Momma Trish." Both children showed a propensity to become very angry when their natural mother failed to arrive for visitation. She also noted in her testimony that in conversations with Mrs. Farmer, Mrs. Farmer told her that her discipline method with the children was to use "time out" and not to use corporal punishment. She found that worked better for her. Fay Wood testified for the Respondents. She holds Bachelor of Science and Master of Science degrees in psychology. She is currently working on attainment of a Ph.D. with the Fielding Institute and practices as a children's psychological therapist with the North Florida Mental Health Center. She has seen both children on a weekly basis and the evidence shows that she saw them for at least twenty weekly visits. She noted that she had to counsel the children individually because when they were together in the same room they became very aggressive with each other. Although she saw the children every week, she obtained no reports or indications from either of them that they were being corporally punished or that their mouths had been taped. She saw no indications that the children had been abused by the Respondents. Although she questioned the children about how they were disciplined at home and got an answer to the effect that they were spanked or had "time out," the only reference to spanking indicated that a person called by the child or children "Daddy Willis" had ever spanked them. It may be deduced from the other record evidence that that person is someone involved with the household of the children's natural mother. In any event, however, there is no evidence that either of the Respondents had spanked the children as foster parents. Ms. Wood saw evidence of good results from the Farmer's care of the children. She also observed evidence in the children of a propensity to lie. Natalie Wilson is director of the "Love Center" a day care facility. She has cared for both children. She never heard of or saw any indications of any inappropriate conduct by the Respondents involving corporal punishment or abuse of the children. The children never described any spanking, slapping or other corporal punishment incidents to her. They never described any incidents involving taping of their mouths for excessive talking, et cetera. Cynthia Stewart is a licensed foster parent and has had contact with the Farmers. She knows the Farmers to have used "time out" as a disciplinary measure and they had advised her to do so in her practice as a foster parent, because such disciplinary measures had worked well for them. Likewise she never saw any signs in these children of spanking or corporal punishment by the Respondents. Tracey Forest is a counseling professional employed with the Meridian Behavioral Health Center in MacClenny. Without objection she described receipt of a letter from a therapist or counselor regarding the Respondents' good parenting practices. She herself neither observed nor found any record of abuse by the Farmers of the children. In fact Joseph I.'s medical record indicated that although his natural mother "Momma Trish" struck him, that his foster parents did not hit him. She is aware of no indication or record that the Farmers had struck the children. Lisalotte Farmer, a Respondent, testified on her own behalf and that of her husband, Cleveland Farmer. She described her love for children and the subject children and the fact that she and her husband wish to continue to be foster parents. They do not use corporal punishment and found that it is not necessary. Their disciplinary measures involve use of "time out" when discipline needs to be imposed and buying the children small gifts as rewards for good behavior. She also recounted that the children often showed a propensity to lie. In summary, the preponderant credible evidence has not established that the acts of abuse and corporal punishment occurred nor that the Respondents perpetrated such. The abuse reports in evidence as "corroborative hearsay" are not probative of any material facts in issue. The reports themselves are hearsay and the witnesses testifying for the Petitioner agency had no independent knowledge of facts tending to show that child abuse or corporal punishment had occurred nor any independent, competent knowledge as to the identify of the perpetrators, if such had occurred. Thus there is no competent, non-hearsay testimony or evidence supportive of the operative facts charged against the Respondents which the abuse reports could corroborate. Consequently they are not of material, evidential value. The instances of corporal punishment or child abuse have not been proven to have occurred. The Respondents did not perpetrate such.
Recommendation Accordingly, having considered the foregoing findings of fact and conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered by the Department of Children and Family Services dismissing the Administrative Complaint in its entirety and restoring the Respondents' foster care licensure status to good standing. DONE AND ENTERED this 4th day of February 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (805) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1998. COPIES FURNISHED: Terence M. Brown, Esquire Brown and Christopher 486 North Temple Avenue Starke, Florida 32091 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Gregory D. Venz, Agency Clerk Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399 0700
The Issue The issue in this proceeding is whether Petitioners committed the offenses described in the Administrative Complaints and if so, whether the Department of Children and Family Services should impose proposed fines.
Findings Of Fact Carmen Smith owned and operated Happy Days Day Care Center (Happy Days) located in Ocala, Florida. On June 17, 2001, the license to operate Happy Days expired and was not renewed.1/ Tia Howard is Carmen Smith's daughter. Ms. Howard was not employed by Happy Days but volunteered there. She also was never an employee of St. Paul's A.M.E. Church Preschool. Around the time that Happy Days' license was to expire, Ms. Howard contacted the Department inquiring as to transferring the license of Happy Days to Ocala Northwest Learning Center. Ms. Howard was informed there was no valid license to transfer.2/ Ms. Howard helped move equipment from Happy Days to St. Paul's on June 17, 2001. Ms. Howard was in Savannah, Georgia, for school and National Guard duty from June 18, 2001 until July 2, 2001. On a date near in time to the expiration of Happy Days' license, Ms. Smith and Ms. Howard wrote an undated letter to parents of children who attended Happy Days. The letter read as follows: HAPPY DAYS CHILD CARE CENTER 2345 N.W. 10th Street Ocala Florida Phone: 732-3848 or 732-8292 Happy Days Child Care Center is suggesting that all students (with the exception of Protective Service Students) transfer to St. Pauls Academy effective June 18, 2001. Parents must notify Childhood Development of their transfer before Monday June 18th. Parents on Protective Service Program we are recommending Oakcrest Early Education Center where transportation will be provided for those who need it. This is only a temporary placement of approximately 14 days or until Happy Days can complete the transaction of a name change, from Happy Days to Ocala N.W. Learning Center Childhood Development Services (CDS) contracts with the Department to administer the enrollment in and payment for subsidized daycare in the Ocala area. When the Department notified Ms. Smith that the license would not be renewed, CDS sent a letter dated April 11, 2001, to all parents with children enrolled in Happy Days advising them that they would have to make other arrangements for daycare because Happy Days would no longer be licensed or eligible to provide subsidized childcare. St. Paul's A.M.E. Church Preschool (St. Paul's) held child care facility license number 130852 effective October 20, 2000 through October 21, 2001. Reverend James Sykes is the Pastor of St. Paul's A.M.E. Church, where the preschool was located. Ms. Smith and her daughter, Ms. Howard, were and are members of St. Paul's A.M.E. Church. Sometime before June 17, 2001, Ms. Smith approached Reverend Sykes about St. Paul's taking the children who attended Happy Days. St. Paul's child care facility was vacant at the time despite the license to operate remaining current at all times material hereto. There was also a modular unit on St. Paul's property that had been leased to CDS but had been vacated by June 18, 2001. Reverend Sykes agreed to provide child care to the children whose parents wanted to transfer their children from Happy Days to his child care facility. Many of the children who attended Happy Days moved to St. Paul's which reopened on June 18, 2001. The Board of Trustees of his church was aware of this arrangement and either approved it or agreed to it. Reverend Sykes rented vans and other equipment for St. Paul's daycare center from Ms. Smith for a nominal sum. The vans and equipment had been used at Happy Days. Reverend Sykes explained that his motivation in providing child care to the children was to help out Ms. Smith because she was a member of his church, and to help out the parents by offering continuity of childcare for the children. The Happy Days name and telephone number remained on the vans for a week to ten days until the vans were spray painted to cover the Happy Days name. The record is unclear as to whether the telephone number and/or license number of Happy Days remained on the vans after the name was covered by spray paint. Except for the payment of nominal rent for the vans and the equipment, there is no evidence that Reverend Sykes or St. Paul's paid any money to Ms. Smith or her daughter, Ms. Howard. Neither Ms. Smith or Ms. Howard were employees of St. Paul's. Mr. Stan Blanchard is employed by the Marion County Health Department. One of his responsibilities is to conduct inspections of daycare centers. He received information that Happy Days or Ocala Northwest moved operations to St. Paul's and was operating illegally there. He went to St. Paul's on June 18, 2001, and found persons he described as staff from Happy Days and Ocala Northwest. He was familiar with Ms. Smith and Ms. Howard because of contact he had with them over time at Happy Days. He saw Ms. Smith bringing food into the building. He found children in the modular building that had been occupied by CDS. Additionally, he found what he determined to be violations of standards for child care facilities. At the time of his inspection of St. Paul's, Mr. Blanchard was not certain that St. Paul's had a valid license to operate a daycare facility, and did not know whether Ms. Smith was as employee of St. Paul's. He wrote two reports while at St. Paul's that day. One report identifies the facility as "St. Paul's AME Christian Daycare". At the top of the report, Mr. Blanchard wrote, "DCF to determine the legality of this arrangement." His report noted three violations: that St. Paul's allowed Ocala Northwest to use their facility; that infants were not allowed due to lack of hand-washing facilities and, therefore, the infants must be sent home; and that food comes in from Ocala Learning Center which "has lost its license" and that food must come from St. Paul's kitchen. Ms. Smith arrived during his inspection and signed this report, according to Mr. Blanchard, because she was bringing food into the facility at the time of his inspection. Mr. Blanchard presumed the food came from Ocala Northwest. The second report of Mr. Blanchard's identifies the facility as "Ocala NW Learning Center". At the top of the report, Mr. Blanchard wrote, "Immediate Closure Required." The report stated that Ocala Northwest was illegally occupying the former CDS St. Paul's Headstart Center, which had been housed in the modular unit on St. Paul's property, and cannot reopen until licensed by the Department. The report noted that the children had been moved from the former CDS center to the St. Paul's daycare next door "which may still have an active license." This report was signed by Diana Jones. Diana Jones was an employee of Happy Days for 10 years. When Happy Days ceased operations, she was offered employment by Reverend Sykes and became employed as his assistant director of the facility. She was not an owner of either Happy Days or St. Paul's but was employed by each. She gave Mr. Blanchard's report which she had signed to Reverend Sykes. She continued to work at St. Paul's until it ceased operations on July 2, 2001. Upon receiving a complaint that Happy Days was operating illegally at St. Paul's, Mary Carpenter, a Department counselor, went to St. Paul's to investigate. Her report indicates that she went to St. Paul's on June 18, 2001, and that no one would answer the locked door. Ms. Carpenter did not testify and it is unclear from her report and from the record why she received no answer at the door of St. Paul's when Mr. Blanchard was able to go inside on the same day and write two reports while there. A second report of Ms. Carpenter's was written on June 29, 2001, and referenced the same problems brought up by Mr. Blanchard regarding infants being at the facility and food preparation.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order dismissing the Administrative Complaints against Petitioners Carmen Smith, Diana Jones, and Tia Howard. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 February, 2002.
The Issue The issue is whether Petitioner is eligible for exemption from disqualification from working as a caretaker for children under Subsection 435.07(3), Florida Statutes.
Findings Of Fact Under Subsection 402.305(1), Florida Statutes, Department of Children and Family Services is the agency responsible for establishing licensing standards for child care facilities and child care personnel. Petitioner applied to Respondent to be licensed as a family day care facility. As a result of Petitioner's application, Respondent conducted a Level 2 background screening to determine if Petitioner qualified as a person of "good moral character" as required by the licensing minimum standards. The background screening and Petitioner's testimony determined the following: In 1990, in Bergen County, New Jersey, the Petitioner was charged with possession of cocaine and pled guilty; she was sentenced to three years probation which she successfully completed. In 1993, in Osceola County, Florida, Petitioner was charged with petty theft, which charge was dismissed. In 1995, in Orange County, Florida, Petitioner pled nolo contendere to felony possession of cocaine. She served one day in jail and one year probation which she successfully completed. In 1997, in Orange County, Florida, the Petitioner was charged with domestic battery; the charge was dismissed. Petitioner acknowledged that she had a "drug problem" from 1994 to 1996. She successfully completed a drug treatment program in 1997 and has been drug-free ever since. Petitioner married her present husband, Ivan, in 1997 and has a two-year-old son from this marriage. She is the custodial parent of a 14-year-old daughter. Petitioner's 19-year-old son attends college. As required by law, as a part of her background screening, Petitioner filed an Affidavit of Good Moral Character in which she asserted that she had "not been found guilty, or entered a plea of guilty or nolo contendere (no contest), regardless of adjudication, to any of the following charges. . . . Chapter 893 drug abuse prevention and controls only if the offense was a felony or if any other person involved in the offense was a minor." The statement immediately above Petitioner's signature on the Affidavit of Good Moral Character reads: Under the penalty of perjury, which is a first degree misdemeanor, punishable by a definite term of imprisonment, not exceeding one year and/or a fine not exceeding $1,000 pursuant to ss. 837.012, or 775.082, or 775.083, Florida Statutes, I attest that I have read the foregoing, and I am eligible to meet the standards of good moral character for this caretaker position. The statement contained in the Affidavit of Good Moral Character was untrue and Petitioner's explanation for having filed the false affidavit was not persuasive and reflects her refusal or inability to understand the importance of this document, having sworn to the truth of the inaccurate statements contained in the document. When she was advised that she had been disqualified from working as a caretaker for children and, as a result, her application for a registered family day care facility had been denied, she requested an exemption as provided in Section 435.07, Florida Statutes. Michael Ingram, District 7 Screening Coordinator, convened a three-person Exemption Review Committee which considered the circumstances surrounding the disqualifying criminal incident(s), nature of harm to victim(s), amount of time since the last criminal incident, and the applicant's general history. The Exemption Review Committee relies on the applicant to provide information on rehabilitation. The Exemption Review Committee denied Petitioner's exemption request based, in part, on the fact that not enough time had elapsed since the 1997 felony conviction and that there was little evidence of rehabilitation. This denial was a proper exercise of the authority vested in the Exemption Review Committee. Petitioner has made a good start on a self-structured rehabilitation program. Apparently, she has a good marriage and a supportive husband. On February 27, 2001, she completed a 30-hour Family Child Care Training Course. She completed a pediatric basic first-aid course on January 16, 2001. She is enrolled in a GED high school equivalency program. She has letters of support from friends and neighbors. Some of the very positive indicators of rehabilitation have occurred since she appeared before the Exemption Review Committee. Although Petitioner has provided evidence indicating a positive direction in her life, she has failed to provide clear and convincing evidence of rehabilitation at this time.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner, Veronica Smith, an exemption from disqualification from employment as a caretaker for children. DONE AND ENTERED this 25th day of May, 2001, 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 25th day of May, 2001. COPIES FURNISHED: Eric D. Dunlap, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Veronica Smith 500 Sunrise Drive Casselberry, Florida 32707 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner may revoke Respondent's foster home license for her use of corporal punishment in violation of Rule 65C-13.010(1)(b)5.f, Florida Administrative Code.
Findings Of Fact Respondent has been a mother for 45 years. Five years ago, she became a foster parent because her children were grown and other children needed homes. As a foster parent, Respondent has cared for more than a dozen foster children. Due to an unrelated incident in the summer of 2001, Petitioner's representative counseled Respondent about the prohibition against the use of corporal punishment against foster children. At that time, Respondent signed a Therapeutic Foster Care Agreement, statement of Discipline Policy, and Agreement to Provide Substitute Care for Dependent Children. Each of these documents restates the prohibition against the use of corporal punishment. In March 2002, Respondent took her 10-year-old foster child in her care to a McDonalds restaurant to meet his mother, who had been forced to place him in foster care due to his aggressive behavior. The mother and her three daughters were at a table with Respondent, the foster child, and another child. The foster child began to misbehave and Respondent warned him that she was the law and, if he failed to behave, she would drop him off at the detention center. Respondent is a uniformed crossing guard and is employed by the St. Lucie County Sheriff's Office. In response to Respondent's warning to behave, the child replied, "You're not the law. You're just a crossing guard." Respondent slapped the foster child in the mouth. The force of the slap to the mouth did not cause the child to cry, but did leave a red mark. The mother reported the incident to Petitioner. In dealing with cases of corporal punishment administered to foster children, Petitioner does not invariably revoke the foster parent's license. Instead, Petitioner attempts first to determine the likelihood that the foster parent can be rehabilitated so as not to use corporal punishment. Among the factors justifying revocation are that Petitioner had recently reinforced the corporal punishment prohibition with Respondent, Respondent displayed a blatant disregard or ignorance of the policy by striking the child in front of his mother, and Respondent falsely denied the incident during the course of the investigation and at the hearing. In some respects, the last factor is the most serious because Respondent's lack of candor and remorse for the incident undermine the trust that Petitioner necessarily places in foster parents whom it licenses.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order revoking Respondent's foster home license. DONE AND ENTERED this 12th day of December, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 12th day of December, 2002. COPIES FURNISHED: Paul Flounlacker, Jr., 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 204B Tallahassee, Florida 32399-0700 Laurel Hopper District 15 Legal Counsel Department of Children and Family Services 337 North 4th Street Fort Pierce, Florida 34950 Lyn Carswell, Qualified Representative 2101 Avenue P Fort Pierce, Florida 34950
The Issue The issue is whether to deny Respondent's application to renew its child care facility license and impose an administrative fine for the reasons stated in the Department's letter dated September 16, 2016.
Findings Of Fact Ms. Garcia operated a child care facility at 5600 Old Cheney Highway, Orlando, for almost two years. A probationary license expired on September 21, 2016. This proceeding concerns Ms. Garcia's application for renewal of her license. The Department has regulatory authority over the licensing of child care facilities. To ensure compliance with regulations, the Department conducts periodic inspections of licensed facilities. Unless violations are observed during an inspection, the Department's Orlando office annually conducts two routine and one license renewal inspection of each of the 395 licensed facilities in Orange and Seminole Counties. If a license is placed on probation because of violations, inspections are made at least once a month during the probationary period to ensure the deficiencies are corrected. Violations by a licensee of Department rules or a statute are treated as Class 1, 2, or 3 violations. A Class 1 violation is the most serious, as it "pose[s] an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child." Fla. Admin. Code R. 65C-22.010(1)(d). For example, it is a Class 1 violation for a facility operator to allow unsupervised individuals who have no current background screening to be with children. This is because all child care personnel must have a current Level 2 background screening performed before they begin work in the facility. See Fla. Admin. Code R. 65C-22.006(4)(d)1. In 2015, Respondent's facility was inspected on at least four occasions: January 13, March 20, May 18, and August 11. On each occasion, violations of Department rules and relevant statutes were observed. Because the first three inspections were performed by a non-Spanish speaking counselor, Ms. Garcia requested that her facility be inspected by a counselor who spoke Spanish. In June 2015, the Department assigned Roy Garcia (no relation to Ms. Garcia) to perform future inspections, as he is bi-lingual. Later, Ms. Garcia expressed her dissatisfaction with Roy Garcia as well. On January 15, 2016, Roy Garcia conducted an inspection of Respondent's facility. Based on violations observed during the inspection, on February 19, 2016, the Department issued an Administrative Complaint seeking to impose a $270.00 fine. See Dep't Ex. 2. The Administrative Complaint cited the following violations observed during the inspection: Two violations of sections 402.302(3) and (15) and 402.305(2) and Florida Administrative Code Rule 62C-22.006(4)(d) by failing to perform required background screening for two employees. Two violations of rule 65C-22.006(d) and (e) by failing to have background screening documents in the staff files. Three violations of the staff/ratio rule, as required by section 402.305(3) and (4) and rule 65C-22.001(4). Two violations of section 402.302(3) and rule 65C-22.001(5) by allowing a volunteer to supervise children without a qualified employee being present. Four violations of rule 65C-22.006(2) by failing to have student health examinations on file. Four violations of rule 65C-22.006(2) by failing to have required student immunization records on file. At hearing, Ms. Garcia took the position that the charges were not warranted. However, in April 2016, she paid the $270.00 fine. Even though the Department informed her that she could request a hearing, a request was not filed. Therefore, the agency action became final. On April 29, 2016, Roy Garcia conducted another inspection of the facility. Based on violations observed during the inspection, on June 30, 2016, the Department issued an Administrative Complaint seeking to impose a $125.00 fine and to convert her annual license to probationary status, given the number of recurring violations during the preceding year. See Dep't Ex. 3. The Administrative Complaint cited the following violations observed during the inspection: Three violations of section 402.305(3) and (4) and rule 65C-22.001(4) by failing to maintain a ratio of two staff personnel for each five infants under one year of age. One violation of rules 65C-22.006 and 65C-22.010 for failing to have background screening documents and employment history checks in the facility files. At hearing, Ms. Garcia disagreed with the merits of these charges. However, in August 2016, she paid a $125.00 fine. Even though the Department informed her she could request a hearing to contest the charges, a request was not filed. Therefore, the agency action became final. A probation-status license was issued on July 31, 2016, with an expiration date of September 21, 2016, which coincided with the date on which her original annual license expired. See Dep't Ex. 4. A probation-status license is issued for a short period of time during which the licensee must come back into compliance. See § 402.310(1)(a)2., Fla. Stat. On August 4, 2016, Ms. Garcia filed an application for renewal of her license. Because the license was on probation, follow-up inspections of the facility were conducted by Roy Garcia on August 26, 29, 30, and 31, 2016. Multiple inspections were conducted because he believed the safety of the children was at risk. Although Ms. Garcia contends these inspections constituted an "abuse of authority," the Department routinely performs follow-up inspections if a facility's license is on probation. Multiple violations were observed during these inspections. See Dep't Ex. 1. They included the following: Four Class I violations of section 402.305(2)(a) by allowing unscreened individuals to be left alone to supervise children in the facility's care. These violations call for a fine of $400.00, or $100.00 per violation. Three Class 2 violations of rule 65C- 22.002(3)(a) by failing to maintain 20 or 35 square feet per child in areas occupied by children. These violations call for a fine of $180.00, or $60.00 per violation. Three Class 2 violations of section 402.305(4) and rule 65C-22.001(4)(a) and (b) by failing to maintain a sufficient staff to children ratio. These violations call for a fine of $300.00, or $100.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)1. by failing to have Level 2 background screening documentation on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d) by failing to have employee CF- FSP Form 5131 on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)2. by failing to have employment history checks on file. These violations call for a fine of $150.00, or $75.00 per violation. One Class 2 violation of rule 65C- 22.003(2)(a) for a facility employee having not completed the 40-clock-hour Introductory Child Care Training. This violation calls for a fine of $75.00. One Class 3 violation of rule 65C- 22.006(2)(a) and (d) by failing to have on file student health examinations for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. One Class 3 violation of rule 65C- 22.006(2)(c) and (d) by failing to have on file immunization records for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. The Department's letter of September 16, 2016, proposes to impose an administrative fine in the amount of $1,565.00. See § 402.310(1)(a)1., Fla. Stat. Ms. Garcia did not challenge the amount or manner in which the fine was calculated. Rather, she contends the charges were not justified and therefore no fine should be imposed. However, by clear and convincing evidence, the Department has proven the allegations described in its letter. After each inspection, Roy Garcia explained the nature of each violation and how it must be corrected in order to comply with Department rules. Despite his efforts to help Ms. Garcia, repeat violations were observed. Unscreened individuals were supervising the children on two of the four days. Therefore, it was necessary for Roy Garcia to call the parents and ask that they come to the facility and pick up their children. After observing staff ratio violations on August 29, Roy Garcia returned the next day and observed the same violation. He also observed unsupervised volunteers alone with children three times (August 29, 30, and 31) during the same week.2/ When Roy Garcia asked Ms. Garcia why she was not following his instructions, she would argue with him, deny that any violation occurred, and contend he was out to shut her down and discriminate against her because she was an "entrepreneurial woman." While conceding that she made "mistakes," Ms. Garcia contended Roy Garcia was harassing her and simply trying to find violations when he inspected the facility. She also contends the violations were not serious, were technical in nature, and did not threaten the safety or welfare of the children. However, Class 1 violations were repeatedly observed. Ms. Garcia stressed the fact that her family is dependent on the income she derives from operating the facility, and she will not be able to support her family if the license is not renewed. She added that she is now in limbo on whether to prepay the rent on the building where her current facility is located. Had the facility been operated in compliance with Department rules, these concerns would not be present. Ms. Garcia also contended that Roy Garcia would not allow her husband, Elmer, to substitute for a missing teacher. However, Elmer works in the kitchen, drives a facility vehicle, and at that time did not have the minimum training necessary to qualify as a facility employee who supervises children. Ms. Garcia further contended she was never given appropriate training on how to determine if a prospective employee has current background screening, especially since she has very few computer skills. This assertion is contrary to the accepted evidence, as she could have simply called the Department's Orlando office to verify the eligibility of prospective employees or volunteers before they were hired. Notably, even after a series of administrative complaints were issued concerning unscreened employees/volunteers, as of January 5, 2017, four persons who had worked or volunteered at the facility still had no Level 2 background screening. Ms. Garcia presented the testimony of four mothers whose children used the facility when the license was active. All were pleased with the care of their children. They especially appreciate the fact that the facility is open until midnight, is located in an area convenient to where they live or work, and charges less than other child care facilities in the area.
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 the application to renew Respondent's license and imposing an administrative fine of $1,565.00. DONE AND ENTERED this 9th day of February, 2017, in Tallahassee, Leon County, Florida. S D. 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 9th day of February, 2017.
The Issue Whether Respondent, YouthFit by BodyZone Fitness, conducts activities that constitute "child care," so that it must obtain a child care facility license in order to conduct these activities.
Findings Of Fact The Parties Petitioner DCF is the state agency responsible, pursuant to chapter 402, Florida Statutes, for regulating providers of "child care," as that term is defined in section 402.302(1). Respondent YouthFit is a Florida limited liability company. It is located at, and its business address is, 2827 North Roosevelt Boulevard, Key West, Florida. YouthFit is owned and managed by Calvin Paquette. Paquette also owns BodyZone Fitness, LLC ("BodyZone"), a Florida limited liability company that operates a fitness facility located at 2740 North Roosevelt Boulevard, Key West, contiguous to YouthFit. Information Submitted in Questionnaire On July 13, 2018, Paquette submitted a Child Care Licensure Questionnaire ("Questionnaire") to DCF on behalf of YouthFit, requesting a determination whether YouthFit conducts "child care." The Questionnaire was admitted into evidence at the final hearing. The Questionnaire provided information regarding the nature and location of YouthFit's operation; the types of activities that YouthFit provides to children; the ages of the children participating in YouthFit's activities; the type of supervision that YouthFit provides to participants; and the payment/fee arrangements to participate in YouthFit's activities. According to the Questionnaire, YouthFit is a youth fitness program consisting of instructor-led classes offered to children ranging in age from preschool to high school. The classes identified in the Questionnaire were tumbling classes; strength, conditioning, and flexibility classes; and ninja classes. A YouthFit Class Pricing Schedule attached to the Questionnaire showed that, at the time the Questionnaire was submitted, YouthFit also offered "open gym" and "parents' night out" activities. Both of these activities entailed parents dropping children off at, and picking them up from, YouthFit. The Questionnaire stated that YouthFit offered classes from 9:00 a.m. to 9:00 p.m., seven days a week. Per the Questionnaire, participation in these classes is limited to one to two hours of class per day for each child. Attendance is not required, and the same children do not necessarily attend YouthFit's classes on a regular basis. The Questionnaire stated that parents are not required to remain on the YouthFit premises at all times, although they are permitted to do so. Parents may drop children off at the YouthFit facility to participate in classes and are expected to pick them up after class is over. The Questionnaire stated that children are not permitted to enter and leave the YouthFit classes or premises unless they have permission pursuant to prior arrangement or have adult supervision. Parents are required to sign their children in and out of the YouthFit classes and premises. According to the Questionnaire YouthFit supervises all children who are participating in its classes, including the children whose parents remain on the premises. Prepackaged snacks and drinks are offered to the participants of each of YouthFit's classes. Payment for participation in YouthFit's activities is made two ways: payment through adult membership at BodyZone Fitness, and payment of a drop-in fee for persons who are not members of BodyZone Fitness. YouthFit is not operated by a public or nonpublic school and is not located on a school site. YouthFit is not affiliated with a national non-profit organization created for the purpose of providing youth service and youth development. Based on the foregoing information, DCF determined that YouthFit provides "child care," as defined in section 402.302(1); therefore, it is required to be licensed as a "child care facility" pursuant to section 402.305, unless it falls within a statutory or rule exemption from the licensure requirement. Based on its review of the Questionnaire, DCF also determined that YouthFit did not qualify for any statutory or rule exemption from licensure as a child care facility. Accordingly, DCF notified Paquette of its decision that YouthFit was required to obtain a child care facility license in order to provide its youth fitness program activities. Facts Stated in YouthFit's Request for Hearing As noted above, Paquette timely requested a hearing challenging DCF's decision that YouthFit must obtain a child care facility license. In the letter requesting a hearing, Paquette provided additional information regarding the YouthFit fitness program. This letter was admitted into evidence as Petitioner's Exhibit C. According to the letter, YouthFit classes will be offered in BodyZone's expanded premises, which accommodate both YouthFit classes and adult fitness activities. Per the letter, children ages two through 18 may take the YouthFit classes. The letter clarified that a parent must be present at all times for children ages four and under, and YouthFit may require a parent to be present for children up to age five. The letter also clarified that each child would be limited to one class per day, which may range from 45 minutes to two hours in duration. The letter stated that YouthFit would not offer "child care" services, but, instead, would "operate no different [sic] than a local gymnastics center (or martial-arts dojo) offering tumbling classes (or ju-jitsu classes)." The letter explained that the "intent is fitness activities, not child care services." Other Evidence Presented at the Final Hearing DCF presented evidence at the final hearing that included screenshots of YouthFit's website, Facebook page, and Twitter account. At the time the screenshots were taken, YouthFit's Facebook page and Twitter account advertised a range of YouthFit classes and activities, including tumbling, Zumba kids, yoga kids, ninja class, boot camp, open gym, parents' night out, and day camps. Paquette testified that the hours associated with YouthFit's program recently have changed, so that classes and activities are now offered from 3:30 p.m. to 6:00 p.m. Additionally, YouthFit no longer offers parents' night out, open gym, or day camps. Paquette also testified that YouthFit no longer advertises its activities on Facebook and Twitter. However, at the time of the final hearing, he had not been able to access these accounts, so the advertisements had not been removed from the internet. Paquette testified that the sole means by which information on YouthFit's classes and activities is disseminated is by "word-of-mouth."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order finding that Respondent, Youthfit by BodyZone Fitness, LLC, currently provides a program of classes and activities that constitute "child care," so that it is required to obtain a "child care facility" license to provide this program. DONE AND ENTERED this 6th day of March, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 6th day of March, 2019.
Findings Of Fact Respondent owns and operates a licensed child care facility known as Toddler Village. The license number is 889- 15. On October 1, 1991, at approximately 10:45 a.m., the facility had one adult supervising two children up to 12 months old, one adult supervising 11 children between 12-24 months old, and one adult supervising 17 children over two years old with the majority being four years old. The inspector gave the inspection report to Shirley Davenport and explained that Respondent had to correct the deficiency immediately. Ms. Davenport is the president of Respondent and, with her mother, owns the company. The inspector ordered Respondent to report on compliance by October 2, 1992. The evidence establishes that, following receipt of the letter, Respondent failed to reduce the number of children in the 12-24 months age group that each staff person was supervising. On January 16, 1992, the inspector again visited the facility. The ratios were one adult supervising two children up to 12 months old, one adult supervising 10 children between 12 and 24 months old, and one adult supervising 25 children over two years old with the majority being four years old. The inspector left an inspection report with Melissa Davenport, who is Shirley Davenport's daughter and was an adult employee of the facility at the time. The report ordered Respondent to provide proof of sufficient staff ratios by January 20, 1992, or else Respondent would face administrative action. On January 30, 1992, at approximate 9:25 a.m., the inspector again visited the facility. In the interim, Respondent had reported to Petitioner other corrective actions concerning alleged violations that are not involved in this case. However, Respondent failed to report corrective actions concerning the ratio of adults to children. The ratios on January 30 were one adult supervising six children up to 12 months old, one adult supervising nine children between 12 and 24 months old, and one adult supervising 21 children from two to four years old. The Administrative Complaint was signed by the District Administrator on February 3, 1992. There are 124 days between October 1, 1991, and February 3, 1992.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order finding Respondent guilty of violating the staff-child ratio for 121 days and imposing an administrative fine of $1210. ENTERED this 28 day of July, 1992, in Tallahassee, Florida. COPIES FURNISHED: Robert B. Williams, Secretary ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28 day of July, 1992. Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 James A. Sawyer, Jr. District 7 General Counsel Department of Health and Rehabilitative Services South Tower, Suite S827 400 West Robinson Street Orlando, FL 32801 Shirley Davenport 6510 Edgewater Drive Orlando, FL 32810
The Issue Whether the Department of Children and Families’ (the “Department”) intended decision to revoke the provisional child- caring agency licenses of Vision Youth Services of Florida, Inc. (“Vision Youth”), is correct.
Findings Of Fact The Department is the agency charged with the responsibility of licensing foster homes and residential child- caring agencies for children in the state of Florida dependency system. See § 409.175, Fla. Stat. Vision Youth is a licensed child-caring agency that provides group home care for children who are in the state dependency system. Vision Youth began operation in Florida when the Department licensed a six-bed male group home in west Duval County on February 27, 2015 (the Cheryl Ann home). The Department licensed two additional homes (the Hamden and Rutland homes) for Vision Youth on June 8, 2015. Angela Christian is the owner and registered agent for Vision Youth. Ms. Christian started working in the foster care industry in the year 2000. The early administration of Vision Youth was disorganized and disjointed. Tierika Terry was the original Executive Director of Vision Youth, but resided in Atlanta during her brief tenure. Ms. Terry was eventually relieved of her duties, and someone identified in the record only as Ms. Bahiyya replaced her for a “couple of months,” sometime between March 2015 and November 2015. Vision Youth was also briefly under the direction of Shoshana Ellis, sometime between November 2015 and February 2016. An initial license issued for the operation of a group home expires one year from the date of issuance, unless earlier suspended, revoked, or voluntarily returned. See § 409.175(6)(i), Fla. Stat. Accordingly, Vision Youth’s license for the Cheryl Ann home was set to expire on February 26, 2016. The licenses for the Hamden and Rutledge homes were set to expire on June 7, 2016. On January 12, 2016, Department Licensing Specialist, Angela Bradley, conducted an initial on-site visit for the purpose of Vision Youth’s re-licensure. Ms. Bradley noted “many areas of non-compliance, lack of documentation in all areas reviewed, and no communication from the Executive Director.” In light of Ms. Bradley’s findings, the Department issued a no-placement hold for all three Vision Youth group homes. On February 2, 2016, Vision Youth hired Davaris Pilcher as its Executive Director. On February 15, 2016, Ms. Bradley made her first follow-up visit to Vision Youth. Ms. Bradley noted that Vision Youth had hired Mr. Pilcher as the Executive Director and additional staff to meet the administrative needs of the program. As a result of Ms. Bradley’s follow-up visit, the Department extended the “no placement” holds until “such time [Vision Youth] has demonstrated sufficient compliance with all areas of Florida Administrative Code 65C-14.” Ms. Bradley, along with Paul D. Kellam, the Department’s Program Manager, created a Re-licensing Review Document (the “Report”) on February 23, 2016. The Report included findings noted during the review of Vision Youth’s compliance with sections of Florida Administrative Code Rule 65C-14, expressed in a percentage of compliance.2/ The Report rated Vision Youth 78 percent compliant with the “Administrative Review” requirements of the rule. Notably, Vision Youth failed to submit documentation of a financial audit for fiscal year 2015, a current operating budget, and an annual meeting of its governing body (along with minutes thereof), as required by rule 65C-14.026(3), (4), (5) and (6)(e). Further, the agency failed to notify the Department in writing within 30 days of the change of Executive Director and failed to provide an updated list of Vision Youth’s advisory board members, as required by rules 65C-14.026(7) and 65C- 14.006(3)(b) and (6), respectively. The Report rated Vision Youth 50 percent compliant with the “Food and Nutrition” requirements of rule 65C-14.051 for failing to provide documentation that a registered dietician consulted with Vision Youth for menu planning on a quarterly basis. In fact, the Report noted no documentation of any reviews by a registered dietician since initial licensure in February 2015. The Report rated Vision Youth 49 percent compliant with the “Employee, Personnel File Review” requirements of the rule. Of note, the employee files for the two employees who would be employed for a full year by March 2016 contained no documentation of any ongoing in-service training. In sum, the Report noted 42 different areas of non- compliance by Vision Youth and placed Vision Youth’s overall compliance with rule requirements at 65 percent. The 65 percent overall compliance rating given to Vision Youth after the initial re-licensure visit was well below the Department’s expectation. Mr. Kellam testified, credibly, that he had never before encountered a licensee with such a low compliance percentage. The Department’s regional policy defines substantial compliance as a minimum of 90 percent compliance. Vision Youth was expected to be, at minimum, 90 percent compliant for each area reviewed during their next re-licensing review. The Department may issue a provisional license to an agency which fails to meet licensing requirements at the time of the study, but which the Department believes is able to meet the licensing requirements within the time allowed by the provisional license. See § 409.175(7)(a), Fla. Stat. The Report recommended that all three group homes be issued a provisional license for an annual period effective February 28, 2016. On February 27, 2016, the Department issued three provisional licenses to Vision Youth: No. 100054140 for Vision Youth3/; No. 100054141 for the Rutland home; and No. 100054139 for the Hamden home. The provisional licenses were effective until February 26, 2017, unless renewed, withdrawn, or revoked for cause.4/ Issuance of a provisional license is contingent upon the submission to the Department of an acceptable written plan to overcome the deficiencies by the expiration date of the provisional license. § 409.175(7)(a), Fla. Stat. This plan is commonly referred to as the CAP. On February 29, 2016, Ms. Bradley forwarded to Mr. Pilcher and Ms. Christian a formal CAP for Vision Youth. The CAP was executed by both Vision Youth and the Department on March 15, 2016. The CAP consolidated the 42 deficiencies noted in the Report to 26 corrective action items. For each action item, the CAP identified the party responsible for taking that action, and set forth a target date for completion of the corrective action. The deadline for completion of all CAP requirements was October 21, 2016. In the subsequent months, Vision Youth made significant progress toward addressing the 42 areas of deficiency noted in the Report and substantial progress in implementing the CAP. On April 4, 2016, Ms. Bradley made her second follow- up visit to Vision Youth. Based upon the progress made toward satisfying the CAP requirements, Ms. Bradley lifted the placement hold on one of the three homes.5/ On May 4, 2016, Ms. Bradley made her third follow-up visit to Vision Youth. Based upon the progress noted by Ms. Bradley, she lifted the placement hold on a second home. Non-renewal of Hamden Home Lease On June 24, 2016, Holly Anderson, the property manager for the Hamden home, sent a Notice of Non-Renewal (Notice) to the Hamden home address via certified mail. The Notice was addressed to Lestine Lewis. Ms. Lewis is Ms. Christian’s sister, but is neither a Vision Youth employee nor a resident of the Hamden home. Ms. Lewis is the lessee of the Hamden home property. The notice advised that the Hamden home lease would not be renewed, and that the premises must be vacated no later than August 31, 2016. The certified letter return receipt card was not introduced in evidence. The record does not establish the date on which, and by whom, the Notice was received on behalf of Vision Youth. Ms. Christian did not become aware of the Notice until July 31, 2016, when it was brought to her attention by a Vision Youth employee. Ms. Christian first attempted to address the non- renewal issue by working with the property manager to identify another suitable facility to which to relocate the children. After reviewing available properties with Ms. Anderson, however, Ms. Christian rejected those properties as unsuitable. Neither Ms. Christian nor Mr. Pilcher notified the Department of the Notice. Eventually, the Department received information from a third party that the homeowners’ association of the neighborhood in which the Hamden home was located was beginning an “eviction process” against Vision Youth. The record does not support a finding of the exact date the Department received this information. The record supports a finding that the Department was informed of “eviction proceedings” against Vision Youth in mid- to late-August. Upon receipt of this information, Ms. Bradley immediately scheduled a meeting with Ms. Christian and Mr. Pilcher to discuss this issue and ascertain Vision Youth’s plan for relocating the children in the event of an eviction. The meeting was held on August 24, 2016, a mere seven days before the Hamden home was to be vacated pursuant to the Notice. At that meeting, Ms. Christian explained to Ms. Bradley and Mr. Kellam that there was no eviction proceeding underway, but that the Hamden home lease would not be renewed. This was the first time the Department received notice that the Hamden home must be vacated by August 31, 2016. At the meeting, Ms. Christian advised that she was exploring with the leasing agent the possibility of relocating the children to a larger home under the leasing agency’s control. Following the meeting with Vision Youth, Ms. Bradley contacted Ms. Anderson for information regarding the pending plans to relocate the children to another property. Ms. Anderson informed Ms. Bradley that all available properties had been previously rejected by Ms. Christian. In reaction to this news, as well as the failure of Vision Youth to timely inform the Department of the significant pending change affecting Vision Youth’s program, the Department issued another “placement hold” on all three Vision Youth homes. On August 26, 2016, Vision Youth notified the Department that they would be moving all of the children from the Hamden Home to the Cheryl Ann Home, which was vacant at the time due to placement holds. On August 30, 2016, Ms. Bradley was informed by Ms. Anderson that the Notice was actually delivered to Vision Youth on June 24, 2016. Revocation According to the CAP, Vision Youth had until October 21, 2016, to complete all corrective actions. On October 4, 2016, the Department sent an email to Ms. Christian and Mr. Pilcher noting that three items from the CAP were still outstanding: documentation of board information, including official minutes of board meetings; documentation of quarterly menu consultations by a registered dietician; and a completed financial audit for fiscal year ending 2015. On November 4, 2016, the Department notified Vision Youth by letter that it intended to revoke Vision Youth’s licenses for the following three reasons: Noncompliance with rule 65C-14, failure to complete the CAP, and actions materially affecting the health or safety of children in the care of Vision Youth. Noncompliance with Rule In the revocation letter, the Department alleged that Vision Youth had not substantially complied with the following provisions of the Florida Administrative Code: 65C-14.006, Administration and Organization (2) Incorporation * * * The Governing body shall meet no less than once per year. The governing body responsibilities are to: * * * (b) evaluate in writing the director’s performance annually * * * (e) maintain written minutes of all meetings, which shall be open to inspection by the department. 65C-14.026, Organization (4) Audit: The agency shall have financial records audited annually. 65C-14.051, Food Service The facility shall assign a staff member to the overall management of the food service. If this person is not a professionally registered dietitian, consultation on menu planning shall be obtained at least quarterly from a professionally registered dietitian or the local health department. 65C-14.056, Staff Development The facility shall ensure that staff members working directly with children receive at least 40 hours of training activities during each full year of employment. Activities related to supervision of the staff member’s routine tasks shall not be considered training activities for the purposes of this requirement. The facility shall document that appropriate training received by direct child care staff includes, but is not limited to the following areas: Administrative procedures and overall program goals; Understanding of children’s emotional needs and problems which affect and inhibit their growth; Family relationships and the impact of separation; Substance abuse: recognition and prevention; Identification of and reporting responsibilities in regard to child abuse and neglect; Principles and practices of child care; Behavior management techniques, including crisis management and passive physical restraint; Emergency and safety procedures; and The screening supervision and use of volunteers. The second reason for revocation was Vision Youth’s failure to complete the CAP requirements. The first two reasons are closely connected because the CAP was designed to bring Vision Youth into substantial compliance with the cited rule requirements. Governance Regarding the governing body issue, the CAP required the Vision Youth Services Board of Directors or Advisory Board to meet no less than once per year, maintain written minutes of all meetings, and ensure that those minutes are readily available to the Department for inspection. These tasks had a target date of March 28, 2016. Ms. Christian testified that the Vision Youth Board of Directors met once prior to opening the first home in 2015, and openly admitted that the Board did not record minutes from the meeting. Vision Youth did not, and could not, comply with the CAP requirement to produce minutes from the 2015 Board meeting. Vision Youth did not produce a record of a Board meeting for 2016 or any minutes thereof. As to the 2016 Board meeting, Ms. Christian explained only that the Board was not due to meet again at the time Vision Youth was cited for failure to comply. She offered no evidence of plans for a 2016 Board meeting or internal procedures to ensure that minutes would be recorded and maintained. Food Service Regarding the menu issue, the CAP required Vision Youth to provide menu consultation by a registered dietician on a quarterly basis and to maintain documentation of the quarterly reviews. This task had target dates of March 28, 2016; June 28, 2016; September 28, 2016; and December 28, 2016. Vision Youth introduced no evidence at the final hearing to satisfy the quarterly menu consultation requirement. Mr. Kellum testified that the only documentation Vision Youth provided to the Department during the CAP compliance period was an email from a dietician in October 2016. He testified that the documentation would have satisfied only the September quarterly target date. Financial Audit Regarding the financial audit, the CAP required Vision Youth to engage the services of a CPA by March 28, 2016, to ensure that a financial audit for the 2015 fiscal year is completed to assess the program’s financial standing. The CAP required Vision Youth to provide a copy of the 2015 financial audit to the Department by July 1, 2016. The purpose of a financial audit is to ascertain whether the child-caring agency is financially secure and stable enough to provide ongoing care for the children placed in the agency’s care. At hearing, Ms. Christian did not dispute the fact that Vision Youth failed to submit a 2015 financial audit. Ms. Christian openly admitted that the program’s recordkeeping was poor during its first year of operation. Vision Youth could not comply with the requirement to produce a 2015 financial audit no matter how much time the Department allowed in the CAP. Staff Development Regarding Staff Development, the Department rule requires every direct-care staff person to complete a minimum of 40 hours of inservice training per year. The CAP required Vision Youth to (1) ensure that all employees were aware of the training requirements; (2) develop a training log to record the dates, type of training, and training facilitator for each training completed; (3) maintain documentation (certificates, etc.) of all completed staff training; and (4) ensure that staff completes at least 10 hours of training each quarter. This action had a target date of “March 28, 2016 and ongoing.” The evidence conflicted as to how many staff Vision Youth employed, and for what length of time, on the date the Report was issued. Ms. Bradley testified that Vision Youth had two employees on staff for a full year on or about the date of the re-licensure inspection. Ms. Christian testified that, at the time of the re-licensure review, only one employee had been with Vision Youth for a year, and that the employee had completed 31 of the required 40 training hours at that time. All employees of Vision Youth were required to have 10 hours of training per quarter. During the CAP compliance period, Vision Youth did not provide the Department with any documentation of employee training. Vision Youth introduced no documentation at the final hearing of quarterly staff training for any of its employees. The only evidence was Ms. Christian’s testimony that the single employee who was employed for a full year on the date of Ms. Bradley’s inspection had received 31 hours, and that all employees had received at least 40 hours of ongoing training for 2016 as required by the CAP. Notably, both the rule and the CAP required Vision Youth not only to provide the training, but also to maintain documentation of the training via a training log in employee files and applicable training certificates. Even if Ms. Christian’s testimony that the training was provided, was accepted as credible and persuasive, it would not establish compliance with the requirement to document the training. Percentage of Compliance Ms. Bradley established early in the hearing that 90 percent compliance with Department rules was “substantial compliance” for purposes of licensure. Rating Vision Youth by percentage of compliance with each rule section was a critical component of the Department’s Report. By the time the CAP compliance period ended, Vision Youth had completed 22 out of 26 required corrective actions. Ms. Bradley testified repeatedly that Vision Youth was “right at 90 percent” compliance in November 2016 when the Department issued the revocation letter. She later testified that her “best guess” would put Vision Youth at an “89 to 90 percent” compliance rate. The Department’s revocation letter was issued despite Vision Youth’s substantial compliance with the applicable rule requirements. Children’s Well-Being The last reason for revocation given by the Department in the revocation letter was the Department’s concern with Vision Youth’s inability to provide an environment that promotes the well-being of children in need of out-of-home care. The Department specifically cited Vision Youth’s failure to notify the Department and the child care agencies responsible for the children placed with Vision Youth of the impending relocation from the Hamden Home. The Department was also concerned that Vision Youth failed to develop a proper plan to re-locate the children when Vision Youth knew that their lease for the Hamden Home would not be renewed. These two concerns hindered the Department’s responsibility for safety of the children homed with Vision Youth. Ms. Christian attempted to justify her decision to handle the matter without involving the Department by introducing Vision Youth’s Internal Location Change Policy (“Location Policy”), which reads as follows, in relevant part: A location change may be necessary when one or more of the following is true: The child presents the potential to harm another resident that resides in the current location. The child feels physically, psychologically or emotionally uncomfortable because of the personalities, ages or backgrounds of one or more residents in the current location. Vision Youth Services placement team feels the child would be a better fit at another location. The placing agency and or case manager requests that the child not share a home with a specific child in care for the safety of one or more residents. The Location Policy does not address the situation at hand--complete closure of a group home. Instead, the Location Policy authorizes movement of individual children from one placement to another in order to address a child’s specific behavioral or emotional needs. Vision Youth’s failure to disclose the pending non- renewal to either the Department or the child-placing agencies, and its utter failure to secure a plan for relocating the children even seven days prior to the impending vacancy date, especially at a time when it was under strict scrutiny by the Department, suggests Vision Youth was more concerned with its reputation than the well-being of the children placed in its care.
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 revoking Vision Youth’s provisional child- caring agency licenses numbered 100054140, 100054141, and 100054139. DONE AND ENTERED this 31st day of March, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 31st day of March, 2017.
