The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Karyn Gallwitz, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner intends to work as a "therapeutic" foster parent. Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on January 4, 1999, a DCFS committee denied the request on the ground that Petitioner had not sufficiently rehabilitated herself since she was arrested for a disqualifying offense in 1985. Petitioner is now barred from working in a position of special trust because of a disqualifying offense which occurred in 1985. On an undisclosed date during that year, Petitioner acknowledges that she and four girlfriends were arrested and each was charged with possession of a controlled substance (cocaine). According to Petitioner, she pled guilty to the charge and adjudication of guilt was withheld by the court. She was not incarcerated. A copy of the pertinent court records was not made a part of this record, and thus the specific statute she is charged with violating is unknown. In 1989, Petitioner was divorced. Her daughter, J. S., lived with the ex-husband until late 1994, when she returned to live with Petitioner at her former residence in Broward County. J. S. remained there until December 1997, when Petitioner sent her to live with the child's paternal grandparents, who also lived in Broward County. Petitioner is now remarried, lives in Marion County, and has another child who is five and one-half years of age. For the last seven years or so, Petitioner has been a homemaker. Recently, in response to an advertisement in a local newspaper, she became interested in becoming a therapeutic foster parent. To this end, she successfully completed a 10-week training course by an organization which contracts with DCFS to provide this service. That organization has also found her to be qualified to be licensed as a therapeutic foster parent. However, a background screening by DCFS revealed Petitioner's disqualifying offense in 1985, and without an exemption, Petitioner cannot serve in that position. This prompted Petitioner to initiate this proceeding. Petitioner is a full-time homemaker and is active in her church, including the teaching of children's classes. Except for the single occasion on which she used a drug in 1985, she has never consumed any drugs. No alcoholic beverages are allowed in her household. There is no evidence that she has been charged with any offense since the disqualifying offense some fourteen years ago. The testimony of a church member establishes that Petitioner is a "very caring" and stable person with "high morals." Letters received in evidence as Petitioner's Composite Exhibit 1 corroborate this testimony. Petitioner also expressed a sincere desire to work with children who need special attention, such as therapeutic foster children. As clarified by DCFS at hearing, Petitioner's arrest dates back fourteen years, and by itself, would not ordinarily prevent Petitioner from obtaining an exemption for working in a day care center or other similar employment. Therapeutic foster parenting, however, involves a much more "intense" level of care, and requires that the parent, or her husband, be present in the home twenty-four hours per day. This is because a therapeutic foster child is emotionally disturbed and beset with the most serious mental health and behavioral problems. Moreover, it is not uncommon for such children to have once been patients in a psychiatric facility. Given these considerations, the most important criterion is that the child be placed in a highly stable environment. The DCFS takes the position that because Petitioner has acknowledged that she could not "control" her own daughter in 1997, which resulted in the child being sent to the grandparents, Petitioner cannot provide a stable environment for an emotionally fragile child. In addition, it contends that an abuse report discussed below demonstrates that Petitioner is not sufficiently rehabilitated since the disqualifying offense. As noted above, Petitioner's daughter, J. S., lived with her for a three-year period ending in December 1997. At that time, Petitioner admits she could no longer control J. S. and sent her to live with her paternal grandparents. Without advising Petitioner, the grandparents in turn immediately allowed the child to move in with their son, the ex-husband. In July 1998, a report of abuse was lodged against the ex-husband. The substance of the charges is found in abuse report no. 98-081187, which has been received in evidence as Respondent's Exhibit No. 1. Although the report was closed with no indicators of abuse, during the course of that investigation, an allegation was made that Petitioner allowed J. S. to stay in the home of her ex-husband even though she knew that he was a heavy drinker and may have inappropriately touched the daughter. Petitioner denied this allegation, and the agency's determination in the report that there were no indicators of abuse bears out this assertion. Therefore, the abuse report does not detract from Petitioner's evidence that she is sufficiently rehabilitated since her arrest in 1985, and that she would not present a danger to foster children if the exemption were granted. At hearing, Petitioner conceded that she finally sent her daughter to the paternal grandparents in December 1997 because the daughter would not obey her, and she found it difficult to control the child. While this issue may arguably bear on Petitioner's fitness to be licensed as a foster parent, it has no nexus to Petitioner's request for an exemption. Given the time period since the disqualifying incident, Petitioner's unblemished record since that time, and the evidence that she has high morals and stability in her life, it is found that Petitioner has demonstrated that she is sufficiently rehabilitated since her arrest some fourteen years ago and she would not present a danger if employment is allowed. Her request should accordingly be approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 18th day of March, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: DONALD R. ALEXANDER 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 18th day of March, 1999. Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Karen Gallwitz Post Office Box 827 Orange Lake, Florida 32681 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
The Issue Whether Petitioner, Palm Beach County School Board (Petitioner or School Board), has just cause to discipline the employment of Rebecca Sorensen (Respondent or Ms. Sorensen) based on the conduct alleged in the “Petition.” Also at issue is the appropriate penalty, if any.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Palm Beach County, Florida. Respondent has been an employee of the Petitioner since 1987. At all times relevant to this proceeding, Respondent was an assistant principal employed by Petitioner at Hagen Road, which is a public elementary school in Palm Beach County, Florida. Petitioner’s Policy No. 5.30 requires that, “(a) District employees who know or have reasonable cause to suspect, that a child is an abused, abandoned, or neglected child shall immediately report such knowledge or suspicion to the Department of Children and Families’ [sic] Florida Abuse Hotline (1-800- 96ABUSE, 24 hours a day)." Section 39.201(1)(a), Florida Statutes, provides, as follows: (1)(a) Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child's welfare,[1] as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2). (b) Reporters in the following occupation categories are required to provide their name to the hotline staff: * * * School teacher or other school official or personnel; Respondent’s position as an Assistant Principal at Hagen Road is included within the definitions of school personnel for purposes of Section 39.201(1)(a), Florida Statutes. The requirement to report suspected child abuse was reiterated in the Faculty Handbook for Hagen Road for the 2008- 09 school year. Cheri Rosen is the assistant director of Hagen Road’s after school care program. Ms. Rosen’s son and Student J. were in the fifth grade during the 2008-09 school year and have been friends since their first grade year. Labor Day fell on September 1 in 2008. On August 28, 2008, the Thursday prior to Labor Day, Student J. spent the night at Ms. Rosen’s house because his grandfather was hospitalized for medical tests. Student J. told Ms. Rosen’s daughter of an incident that occurred in December 2007, while Student J. was being baby-sat at his grandfather’s house, by the male counselor from the Hagen Road after school care program. Ms. Rosen’s daughter immediately told her father (Mr. Rosen) who instructed his daughter to tell her mother (Mrs. Rosen). Immediately after her daughter talked to her, Ms. Rosen asked that Student J. come tell her firsthand what had happened. Student J. told Ms. Rosen that while he was being baby- sat by the male counselor at his grandfather’s house in December 2007, just before winter break, the male counselor had taken a live snake and wrapped it around his (the male counselor’s) penis and told Student J. to look. Student J. told Ms. Rosen that he looked and then looked away. Student J. related that the male counselor told Student J. “now its your turn.” Student J. told Ms. Rosen that he said no and walked out of the room. Ms. Rosen told Student J. that she was going to have to tell his grandfather about the incident, and that she was also going to report this to Ms. Lamb, who was Ms. Rosen’s supervisor at the after school care program. Ms. Rosen spoke to Ms. Lamb shortly after her conversation with Student J. Ms. Lamb advised Ms. Rosen that she should tell the Student J.’s grandfather that he should contact the police. She further told Ms. Rosen, incorrectly, that she did not have to go through the school because the alleged incident occurred at the residence of Student J.’s grandfather, and because Student J. reported the incident at her home. Two days after Ms. Rosen’s conversation with Student J., his grandfather returned home from the hospital. Ms. Rosen and her husband visited with the grandfather and related to him the incident as Student J. had related it to them. The grandfather, who tried to remain calm because he has a heart condition, asked what he should do next. Ms. Rosen told him he had to go to the police. When Ms. Lamb returned to school on September 2, 2008, she had a voice mail from Student J.’s grandfather. She tried to return the call, but she could not reach him. On Thursday, September 4, 2008, Respondent was paged by a Ms. Ciavolino, the school treasurer and bookkeeper. Ms. Ciavolino related that Student J.’s grandfather had just called, told her about the incident, and said that he wanted advice from Respondent. Shortly thereafter on September 4, 2008, Student J.’s grandfather called Respondent to talk with her about the incident. The grandfather was hesitant, so Respondent told him what Ms. Ciavolino had told him, and Respondent also told him that she knew he wanted advice. After the grandfather confirmed what Ms. Ciavolino had related to her, Respondent advised the grandfather that the incident needed to be reported right away. She asked the grandfather where he lived in an attempt to determine whether the Delray Beach Police Department (DBPD) or the Palm Beach County Sheriff’s Office would have jurisdiction. She also told him that it would need to be reported to the Department of Children and Family Services (DCFS). Although he remained hesitant, the grandfather told Respondent that he would report the incident. On September 4, 2008, Respondent instructed Ms. Lamb to keep the male counselor away from Student J. and all other students. At that time, the male counselor was preparing to leave in a week or two to join the military. In the interim, he had been assigned to train new counselors, which did not require that he have direct contact with children. The male counselor remained on Hagen Road campus until he was removed as a result of the police investigation that ensued. Other than her instructions to Ms. Lamb, Respondent took no further action to ensure that the male counselor would have no contact with children. Respondent did not report the allegation of abuse to her principal (Mr. Hughes), to any law enforcement agency, or to the DCFS. Further, she did not instruct Ms. Rosen, Ms. Lamb, or Ms. Ciavolino to file any type of written report.2 Respondent testified that she did not feel she had to file a report because Student J.’s grandfather agreed to file a report. Respondent further testified that she did not feel she had to file a report because she heard of the allegations from the grandfather and not the student. On September 9, 2008, Student J.’s grandfather reported the incident to the DBPD which immediately began an investigation in conjunction with a DCFS investigator. As a result of the DBPD/DCFS investigation, Mr. Hughes learned of the allegations and immediately barred the male counselor from the school campus. Thereafter, Petitioner’s Police Department began its own investigation of Respondent based on her conduct and failure to act as described in this Recommended Order. All relevant procedural steps were taken by Petitioner in bringing these charges against Respondent. Part of the procedure requires a pre-disciplinary meeting at which the subject of an investigation is given the opportunity to give his or her version of the events. Respondent declined to attend the pre-disciplinary meeting on advice of counsel because at the time of the meeting a criminal investigation was being conducted.3 After the pre-disciplinary meeting, the matter was referred to Petitioner’s Employee Investigatory Committee (EIC),4 who recommended that the subject charges be brought against Respondent with the recommended disposition of a ten-day suspension of employment without pay. That recommendation was forwarded to Dr. Johnson in his capacity of Superintendent of Schools, who agreed with the recommendations of the EIC and submitted the recommendation to the School Board. On April 8, 2009, the School Board voted to accept the recommendation, subject to Respondent’s rights pursuant to the provisions of Chapter 120, Florida Statutes. The greater weight of the credible evidence established that Respondent had a reasonable basis to believe that Student J. had been subjected to sexual abuse and that she did not report that abuse to her principal, the FDCS hotline, or law enforcement. The greater weight of the credible evidence also established that Respondent took insufficient steps to protect Student J. from the male counselor after she learned of the allegations of abuse. In reaching this finding, the undersigned has considered that Principal Hughes barred the male counselor from school premises as soon as he learned of the allegations. Respondent did not bar the male counselor from the school premises, but merely instructed Ms. Lamb to make sure that the male counselor “. . . would not be with children until this was resolved.”5 Respondent’s employment has not previously been disciplined. Other than the facts set forth above, Respondent has been, in the words of Principal Hughes, a fantastic assistant principal who has performed above expectations.6
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order suspends Respondent’s employment without pay for a period of ten days. DONE AND ENTERED this 18th day of November, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2009.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: Curtis Stephen Pope, a 12-year-old student, attends seventh grade in the public schools of Dade County. He lives with his grandmother, Mrs. Joyce Robinson, at 11352 Southwest 214 Street, Goulds, Florida. Until January, 1981, he attended seventh grade at nearby Mays Junior High School. (Testimony of J. Robinson, McPhaul.) In December, 1980, the vice principal of Mays Junior High recommended that Curtis be administratively reassigned to the Opportunity School South because of repeated disruptive behavior affecting the learning opportunity of others creating an unsafe learning environment. The school principal subsequently joined in that recommendation and on January 26, 1981, Curtis was reassigned to an educational alternative program at Youth Opportunity School South, 6135 Southwest 66th Street, Miami, Florida--a school located approximately 15 miles from Curtis' residence. It is that reassignment which is the subject of this proceeding. (Testimony of McPhaul; P-3). From September, 1980, through January 1981, Curtis repeatedly disrupted classes at Mays Junior High. His behavior adversely affected the learning environment and interfered with the educational process of other students, as well as his own. He was frequently referred to the assistant principal for disciplinary action. Twice he was suspended from school for ten-day periods: on October 20, 1980, for disrespect and defiance to the assistant principal and principal, and on November 12, 1980, for fighting with another student. Mrs. Robinson was contacted by Curtis' teachers as well as the school's administrators in an attempt to define the nature of Curtis' problem and take remedial action. However, despite these good-faith efforts, his classroom behavioral difficulties continued. (Testimony of McPhaul, J. Robinson; P-2). Specifically, Curtis' disruptive classroom behavior is described below: 2/ CLASS CURTIS' BEHAVIOR Reading Highly disruptive; fails to bring classroom materials or pay attention; easily distracted; plays during class and frequently tardy or absent. Math Disturbs class by talking, walking, and bothering other students; beats on desk, makes loud noises, and runs in and out of classroom; frequently tardy or absent. Intuitive Math Plays and walks about class; fails to follow directions; disturbs class and leaves without permission. Physical Education Disinterested n class; fails to participate in activities with other children. Science Rarely cooperates; fails to remain in seat, and leaves room without permission; unprepared for class; excessive tardiness. Civics Engages in fights and horse- play with other students; makes loud noises and refuses to stop; leaves room without permission; excessive absences. (Testimony of Herrman, Smith, Delvalle, Nicholson, Rochfort, Fields; P-2). At this time, Curtis requires individualized and special educational instruction which is unavailable at Mays Junior High--where classroom enrollment ranges from 25 to 30 students. On the few occasions when Curtis has received individualized instruction at Mays, his interest increased and his academic performance improved. Such individualized attention is available, on a routine basis, at the Youth Opportunity School South's educational alternative program-- where there is one teacher for every ten students. If Curtis makes the progress which can reasonably be expected of him in such a learning environment, he should eventually be able to return to regular school programs. Whether Curtis profits from and takes advantage of the greater instructional opportunities at Youth Opportunity School--and eventually returns to regular school programs--is wholly dependent on his own attitude and choice. (Testimony of J. Robinson, C. Robinson, Smith, Herrman, Delvalle, Nicholson, Rochfort, Fields; P-4). Mrs. Robinson opposes Curtis' reassignment primarily because of her belief that several neighborhood boys who attended the school later became involved in crime. But the fact that some students' behavioral problems persisted despite the educational opportunities offered at the Youth Opportunity School do not negate those opportunities or make them less real. Given positive support and encouragement at home--coupled with the educational environment available at the Youth Opportunity School South--Curtis will be given the opportunity to learn and achieve his potential; whether he--in--fact--does so will depend on him. (Testimony of J. Robinson, C. Robinson, McPhaul).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Superintendent's action in placing Curtis Stephen Pope in the educational alternative program offered at Youth Opportunity School South be upheld and confirmed. DONE and RECOMMENDED this 20th day of May, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1981.
The Issue The issue is whether Petitioner's application for a license to operate a child care facility should be approved.
Findings Of Fact The Department is the state agency responsible for licensing child care facilities. On June 17, 2016, Ms. Gaines filed an application for a license to operate a child care facility in Babson Park, Polk County (County). She previously worked as a caregiver for two child care facilities in the County and desires to operate a new facility known as Brighter Beginnings Learning Center. To qualify for licensure, an applicant must meet the licensing standards in section 402.305(1), Florida Statutes. Also, section 402.305(2) requires that child care personnel meet minimum requirements as to good moral character based upon a level 2 screening as provided for in chapter 435. That screening includes a check to determine if the applicant has a report on the Central Abuse Hotline. The background screening revealed that Ms. Gaines has three reports on the Central Abuse Hotline. The incidents occurred in 2010, 2014, and 2015. Based on this information, and the underlying facts surrounding those reports, the Department informed Petitioner by letter dated June 30, 2016, that her application was denied. Petitioner timely requested a hearing. On July 12, 2010, the Department received a report that Ms. Gaines (then known as Ms. Hamilton) had grabbed and pinched several children at Hope Child Development Center in Frostproof, where she was working as a caregiver. The incident was investigated by Deanna McCain, then a child protective investigator (CPI), who testified at hearing. However, the report was not verified because there were no visible injuries on the children. The facility terminated Petitioner as an employee after the incident. Ms. Gaines began working as a caregiver at Our Children's Academy in Lake Wales around October 2013. On October 12, 2014, the Department received a report that a 13- year-old child under Ms. Gaines' supervision was left unattended in a sandbox in the playground while Ms. Gaines was on a personal cell phone call in a classroom. The child suffers from autism and epilepsy and is prone to having seizures. The child suffered a seizure during Petitioner's absence. Brandy Queen, a CPI who testified at hearing, was assigned the task of investigating the incident. Her investigation revealed the child suffered a severe seizure that lasted four minutes and caused her to vomit and defecate on herself. Based on interviews with Petitioner, a teacher who witnessed the incident, and the school principal, Ms. Queen classified the incident as verified. The child was found face down in the sandbox by a teacher, Mr. Swindell, who immediately contacted the school nurse to check the child. Mr. Swindell, who testified at hearing, established that the child was alone outside for around ten to 15 minutes and that Petitioner did not go back outside to check on the child until after she had awoken from the seizure. Throughout the episode, Ms. Gaines was making a personal call on her cell phone. The facility has a policy of no cell phone usage during student contact time. Prior to the incident, the principal had spoken to Petitioner around nine or ten times about inappropriate cell phone usage. After the incident, a Letter of Concern regarding cell phone usage was placed in Petitioner's file. The mother of the student testified at hearing and stated she had no concerns about the incident and described it as "overblown." She said her daughter suffers seizures two or three times a week without warning, but they are not life- threatening. She does not blame Petitioner for the incident. The mother was under the impression, however, that her child was left alone for only a very short period of time and Petitioner immediately went back to the playground to retrieve her. The mother admitted she would be concerned had she known that her daughter had been allowed to remain alone for ten to 15 minutes and that asphyxiation could be a potential result if the child was face down in the sand. On February 25, 2015, the Department received another report of possible abuse by Petitioner, who was still employed as a caregiver at Our Children's Academy. The report indicated that Petitioner had inappropriately dragged a non-verbal child with Down Syndrome from the classroom to the playground. Two school therapists were present during the incident and testified at hearing. They confirmed that Petitioner was working with the child in an effort to get him from the classroom to the playground swings. The child was frightened by the swings and resisted her efforts. Petitioner first grabbed the child by one arm, and when he dropped to the floor, she grabbed both arms and dragged the child on his stomach out of the classroom and into the hallway. She then dragged him down a set of wooden stairs and to the playground where she forced him to sit in the swings against his will. One of the therapists observed that the child was very upset and urged Petitioner to let him calm down, but Petitioner continued dragging the child to the playground. The frightened child urinated on himself. The incident was investigated by CPI Queen, who interviewed the Petitioner, principal, and two therapists. She observed minor bruising on the child's arms but could not say definitively that the bruising was caused during the incident. She also could not establish that the child would suffer long- term emotional trauma due to the incident. Because of this, she classified the report as unsubstantiated. This meant that something happened to the child, but she could not verify that the bruising was caused by Petitioner's actions. The facility terminated Petitioner as an employee after the incident. Petitioner downplayed her conduct and generally contended that she never harmed or failed to supervise the children assigned to her care. Petitioner has five children of her own, she has a passion for children, and she wants to put that passion to good use by operating a child care center. The Department based its decision to deny the application on the facts that underlie the reports, and not the reports themselves. This includes consideration of who was interviewed by the CPI, what the statements were, whether there were any inconsistencies, how the cases were closed, the applicant's employment history, and whether there appears to be a pattern of concerning behavior. Based on this information, a Department licensing official observed a pattern of concerning behavior on the part of Petitioner as well as inconsistencies between Petitioner's statements and those of persons who witnessed the incidents. The Department considers Petitioner to be a potential risk to children unless she is supervised.
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 license to operate a child care facility. DONE AND ENTERED this 17th day of October, 2016, 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 17th day of October, 2016. COPIES FURNISHED: Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Trina Gaines Post Office Box 4024 Lake Wales, Florida 33859-4024 Cheryl D. Westmoreland, Esquire Department of Children and Families 1055 U.S. Highway 17 North Bartow, Florida 33830-7646 (eServed) Rebecca F. Kapusta, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue The issue in this case is whether the evaluators of the subject request for proposals (RFP) were qualified under the applicable law and RFP criteria to evaluate the proposals.
Findings Of Fact Respondent is an agency of the State of Florida and is the procuring agency in this proceeding. On November 23, 2009, the Department issued RFP #P2062 (the RFP), requesting proposals from prospective providers to operate 16 IDDS programs in 16 different judicial circuits in Florida: Circuits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 15, 17, 18, and 20. The RFP's Statement of Services provided that proposers would be responsible for designing, implementing, and operating an IDDS program in each of the 16 listed judicial circuits. The RFP described an IDDS program as a diversion program targeting a specific population of juvenile offenders determined to be at risk of becoming serious and chronic offenders. The goal of IDDS is to facilitate a positive change in youth behavior and criminal thinking and provide the youth with the tools necessary to avoid recidivism or future criminal involvement. Prospective providers were instructed to propose services that included specified minimum components, including scheduling, supervision, and monitoring of compliance with court-ordered sanctions, such as community service, curfew, and restitution; random urinalysis monitoring; provision of counseling, anger management education, educational training, and vocation services to age-appropriate youth; and substance abuse prevention and treatment services. The RFP provided that proposers were to submit a single response to address one or more circuits in which they intended to propose operating an IDDS program. However, if a prospective provider proposed to operate IDDS programs in more than one circuit, its response had to include separate sections on staffing, prices, and budgets for each circuit/program proposed. The deadline to file challenges to the specifications of the RFP was within 72 hours of its posting. No challenges to the RFP's specifications were filed within the required 72-hour window. Petitioner, Intervenor, and two other proposers' timely submitted proposals to operate an IDDS program in Circuit 17, in response to the RFP. Following its evaluation of proposals, on March 2, 2009, Respondent posted its notice of agency action, indicating its intent to award the contract in Circuit 17 to Intervenor, whose proposal received the highest score of 1549.78 points. Juvenile Services Program, Inc., was ranked second, with 1454.01 points. Petitioner was ranked third, with 1327.57 points. Lutheran Services of Florida, Inc., was ranked fourth, with 986.43 points. Petitioner's timely challenge to Respondent's intended agency action in Circuit 17 is limited to the issue of whether the evaluators were qualified under the applicable law and RFP criteria to evaluate the proposals. The standard established by "the applicable law," section 287.057(17), Florida Statutes, is that the agency must appoint "[a]t least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought." The RFP criteria contain the following in the RFP Addendum, in the form of a question from a prospective provider and Respondent's answer: Q: Who will be evaluating the proposals[?] Will they be fully knowledgeable about IDDS programs and how they are run[?] A: The proposal will be evaluated by a team of DJJ staff who are fully knowledgeable about IDDS programs and how they are run. These people are chosen for their particular skills, knowledge and experience. They have also been chosen because of the Department's confidence in their ability to score proposals both independently and fairly. Amy Johnson, Respondent's chief of contracts, has the responsibility for supervising the Department's contracting and procurement process and ensuring compliance with section 287.057. The Department goes beyond the statutory requirements by specifically training potential evaluators in the competitive procurement process with a focus on the process itself, including evaluation and scoring of proposals. Ms. Johnson has in the past conducted this training and remains responsible for ensuring that evaluators are trained. A number of years ago, Ms. Johnson developed an internal means of identifying potential evaluators who were considered qualified to evaluate specific program areas and services that might be the subject of competitive procurements. This process involved identification by persons in charge of the various program areas of individuals they believed had sufficient experience and knowledge to evaluate certain types of programs and services. The program area representatives would submit names of individuals considered qualified to evaluate the various programs and services within their program area, along with a brief biographical statement describing the individuals' background and experience. Added to this substantive or programmatic categorization of potential evaluators was the qualification of having been trained in the competitive procurement process. Ms. Johnson developed a spreadsheet to maintain the results of the two-step qualification process. The spreadsheet lists individuals with a summary of the information obtained from the program area representatives, including the categorization of the types of programs and services the individuals are considered qualified to evaluate based on their background and experience. The spreadsheet also identifies the most recent date on which each individual completed training in the competitive procurement process. The spreadsheet document has been maintained over time to keep the running results of the pool of evaluators identified through the two-step qualification process. Elaine Atwood is the Department's contract administrator. She has assumed responsibility for conducting the training sessions for potential evaluators in the competitive procurement process, as well as the responsibility for maintaining the spreadsheet of the evaluator pool. Ms. Atwood served as the procurement officer for RFP #P2062. Her duties included working with the program area to put the RFP together, posting the RFP on the Department's website, receiving the proposals, and conducting all other activities that were part of the procurement process. The "program area" for RFP #P2062 is the Office of Probation and Community Intervention, and Paul Hatcher was the designated program area representative. IDDSs are one category of services within the Probation and Community Intervention program area. Ms. Atwood worked with Mr. Hatcher to address programmatic issues for this RFP. Mr. Hatcher identifies individuals who are considered qualified to conduct evaluations for RFPs involving programs or services falling under the umbrella of his program area. For the current pool of potential evaluators, Mr. Hatcher submitted names of individuals who were substantively qualified for programs and services falling under his program area and who could be placed on the evaluator pool spreadsheet for those categories of programs and services. However, Mr. Hatcher does not select the individual evaluators for a particular RFP. That is because selection of evaluators for a particular RFP is, by design, a random process, using the information about evaluator qualifications that is maintained on the spreadsheet.4/ Responses to RFP #P2062 were submitted in three volumes: Volume One was the "technical" proposal setting forth the prospective provider's organizational structure and management capability, the proposed program services, and proposed staffing; Volume Two was the "financial" proposal, including the proposed price sheet and budget and the provider's Supplier Qualifier Report prepared by Dun & Bradstreet; and Volume Three was the "past performance" section to demonstrate the provider's knowledge and experience in operating similar programs. Ms. Atwood conducted the review and scoring of the financial proposals in a fairly mechanical process of pulling out numbers from each cost proposal and, also, pulling Dun & Bradstreet numbers for the prospective providers and putting them on a spreadsheet. No evidence was presented that Ms. Atwood was not sufficiently qualified to conduct this review. Mr. Hatcher conducted the evaluation of prospective providers' past performance. No evidence was presented that Mr. Hatcher was not sufficiently qualified to conduct this review. Three evaluators were randomly selected from the pool of potential evaluators designated for IDDS reviews to evaluate and score the "technical" component of responses to RFP #P2062: Karen McNeal, Jeffrey Balliet, and Cheryl Surls. Of these three evaluators, Petitioner presented the testimony of only the first two, and Petitioner directed its qualification challenge to only one, Ms. McNeal. Ms. McNeal is employed in the Department's Probation program area. She is responsible for the oversight of the Duval Assessment Center that screens youth to determine their detention or release. She has held that position since July 1, 2009. Before that position, she was detention superintendent for the St. John's Juvenile Detention Center. She has been with the Department since October 2001. Before joining the Department, Ms. McNeal was a program analyst for ten years with the Department of Health and Rehabilitative Services. Ms. McNeal went through a four-week juvenile probation officer certification course before assuming her current position in Probation. That Probation training course included a review of the various prevention programs falling under the probation program area umbrella, including IDDS. However, Ms. McNeal does not have specific programmatic experience with IDDS. Ms. McNeal had not previously served as an evaluator on an RFP, before this experience. In accordance with the Department's internal procedure, Ms. McNeal underwent training by Ms. Atwood in the competitive procurement process on November 17, 2009. Mr. Balliet, the other member of the technical component evaluation team who testified, has held the position of contract manager for the Department since 2006. Before that time, he supervised a contract management unit at the district level and, also, served as assistant chief probation officer for Circuit 5, where he monitored compliance of IDDS programs in that circuit. Mr. Balliet has undergone training in the competitive procurement process multiple times. Although Mr. Balliet has had specific experience with IDDS programs, he did not think that such specific experience was necessary to evaluate an RFP dealing with IDDS programs, if one had a background that would otherwise allow for an understanding of the process. As noted above, the third evaluator on the three-person evaluation team for the technical component was Ms. Surls, who did not testify. Petitioner did not present any evidence to establish that Ms. Surls was not qualified to serve as an evaluator. Beyond the sheer difference in name of the particular services addressed by this RFP--IDDS versus other programs and services falling under the umbrella of the Probation and Community Intervention program area, Petitioner failed to establish that the experience and training Ms. McNeal has obtained over the years and, particularly, since assuming the oversight position for Duval Assessment Center, is not appropriate or sufficient to qualify her to evaluate proposals for IDDS. Petitioner presented no evidence that the components of an IDDS program are substantively dissimilar from the components of the services and programs in which Ms. McNeal has attained direct experience and training or that staffing considerations are dissimilar. Petitioner's case began and ended with the fact that Ms. McNeal has no direct experience, specifically with IDDS programs, and that Ms. McNeal had not previously evaluated proposals submitted in response to an RFP. The record does not reveal whether there would be any other Department employees, besides Mr. Balliet, who had direct experience specifically with IDDS programs and who, also, had evaluated proposals for an RFP before. Imposing either or both of these requirements for potential evaluators could serve as an impossibly restrictive hindrance to an agency trying to follow the competitive procurement process while also carrying out the agency's functions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a final order be entered by Respondent, Department of Juvenile Justice, dismissing the Petition filed by Petitioner, Psychotherapeutic Services of Florida, Inc. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 14th day of March, 2011.
Findings Of Fact Chapter 402, Florida Statutes, provides for licensing of child care facilities by the Department of Health and Rehabilitative Services (hereinafter "HRS"). It mandates minimum standards for personnel, physical facilities, sanitation and safety, nutritional practices, admissions and record keeping, transportation safety, child discipline, and plans of activities. Section 402.306, Florida Statutes, allows counties whose licensing standards meet or exceed state minimum standards to perform child care facility licensing in that county rather than HRS performing that activity. Chapter 402, Florida Statutes, was originally enacted in 1974 to provide minimum standards for the growing number of commercial day care facilities. In the definitional section of that Chapter, the legislature specifically defined a child care facility and further specified those programs and facilities exempted from the child care facility licensing laws. Section 402.302(4), Florida Statutes, provided as follows: "Child care facility" includes any child care center or child care arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for profit. The following are not included: public schools and non- public schools which are in compliance with the Compulsory School Attendance Law, chapter 232; summer camps having children in full-time residence; summer day camps; and Bible Schools normally conducted during vacation periods. [Emphasis supplied.] Due to extensive publicity involving certain abuse incidents by personnel at child care facilities and public opinion, the child care facility licensing laws were revisited in 1984. In a special session, the Legislature strengthened some requirements of Chapter 402 and provided for screening and background checks of personnel in child care facilities and for reasonable parental access to children in those facilities. Chapter 84-551, Laws of Florida. Due to the insistence of HRS and certain counties performing their own child care facility licensing that pre- kindergarten programs in schools required those schools to obtain licensure as child care facilities, Chapter 402 was further amended in 1985 to clarify the exclusion of schools. As amended, the statutory definition of child care facility now provides: "Child care facility" includes any child care center or child care arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for profit. The following are not included: public schools and non- public schools and their integral programs; summer camps having children in full-time residence; summer day camps; and Bible Schools normally conducted during during vacation periods. [Emphasis supplied.] Section 402.302(4), Florida Statutes 1985. The Senate Staff Analysis and Economic Impact Statement regarding the amendment of Chapter 402 provides that this change is a "Technical amendment which clarifies that public and non-public school programs are not subject to licensure as child care facilities." Respondent's Exhibit numbered 6. Following the 1985 amendments to Chapter 402, HRS and the Palm Beach County Health Department (which was responsible for child care facility licensing in Palm Beach County) jointly requested a legal opinion from the Attorney General regarding the scope of the statutory exclusions from child care licensing laws for public and nonpublic schools and their integral programs. The specific question posed was as follows: Do the exemptions under s. 402.302(4), F.S., as amended, and s. 9, Ch. 77-620, Laws of Florida, apply to public and nonpublic schools which offer: Prekindergarten classes during regular school hours in the same physical plant or in an adjoining structure? Infant care during regular school hours in the same physical plant or in an adjoining structure? School age child care services before and after school hours in the same physical plant or in an adjoining structure? In a lengthy analysis of the statutory exclusion of schools from child care facility licensing requirements, the Attorney General concluded: In sum, then, and unless and until legislatively or judicially determined otherwise, it is my opinion that the exemptions under s. 402.302(4), F.S., as amended by Chs. 84-551 and 85-54, Laws of Florida, and s. 9, Ch. 77-620, Laws of Florida, apply to public and nonpublic schools which offer prekindergarten classes or infant care during regular schools hours or school age child care services before and after school hours. . . . AGO 55-74, p. 7. Attorney General Opinion 85-74 also provides at page 3 as follows: Thus, public schools and nonpublic schools and their integral programs are not "child care facilit[ies]" for purposes of ss. 402.301-402.319, F.S., as amended. The term "integral programs" is not defined within ss. 402.301-402.319, F.S., as amended, or Oh. 85-54, Laws of Florida; however, the word "integral" has generally been defined as "[c]onstituting a completed whole; . . . lacking nothing of completeness." See, 46 C.J.S. Integral p. 1100; Ballentine's Law Dictionary 645 (3rd ed. 1969). And see, Random House Dictionary of the English Language Integral p. 738 (unabridged ed. 1967) (pertaining to or belonging as a part of the whole; constituent or component; necessary to the completeness of the whole); Webster's Third International Dictionary Integral p. 1173 (1966) (composed of constituent parts; making up a whole). Of., Matezak v. Secretary of Health, Education and Welfare, 299 F.Supp. 409, 413 (D.C.N.Y. 1969)("integral" means part of constituent component necessary or essential to complete the whole). Whether a particular child care center or arrangement constitutes an integral program for purposes of s. 402.302(4), FS., as amended, would appear to present a factual question which can only be reached on a case-by-case basis. [Emphasis supplied.] During the special session in 1984 and the regular session in 1985, the Legislature increased funding for HRS' child care facility licensing activities and also created 48 additional staff positions for those licensure activities. Several HRS employees determined that (1) the Attorney General's Opinion was confusing, (2) it was too difficult to determine on a case-by-case basis whether a program was an integral part of a school or a child care facility, and (3) the exclusion of schools from child care facility licensing requirements was inconsistent with legislative intent of protecting children. Accordingly, HRS drafted an amendment to Rule 10M-12.001, Florida Administrative Code, to define the term "integral program". The "rule package" prepared by HRS in compliance with Section 120.54, Florida Statutes, commences with the following language: Reason rule is being filed or amended: Chapter 402.302(4), Florida Statutes, provides the definition of a child care facility. Public and non public schools and their integral programs are precluded from this definition as a child care facility and therefore are not subject to licensure. . . . The term "integral programs", which is not defined by statute, is ambiguous and has been the subject of various interpretations by public and non public schools. For purposes of licensure, this rule amendment is necessary in order to clarify which specific child care programs in the public and non public schools are required to be licensed. Without the rule amendment, some schools will continue to interpret their "integral programs" as meaning their infant and preschool programs, or before and after school programs, thereby avoiding licensure and resulting in no regulation by the department . . . Rule 10M-12.001, Florida Administrative Code, as proposed, would provide as follows: (1) Child Care Standards and Licensure. Child Care Standards included in this chapter were adopted by the department to protect the health, safety and well being of the children of the State who receive child care in child care facilities as defined in Section 402.302, Florida Statutes, and to promote their emotional and intellectual development and care. Public and nonpublic schools and their integral programs are not child care facilities as defined in Section 402.302(4) Florida Statutes, and are not subject to licensure. The term "integral programs" includes school activities which are directly related to the educational component of the school for 5 year old kindergarten programs through grade 12, and extra curricular activities, such as sport teams, school yearbook, school band, meetings, and service clubs. The term also includes child care programs administered directly by the school to care and supervise children from 5 year old kindergarten through grade 12 before and after the school day. The term "integral program" does not include child care programs for children below 5 year old kindergarten, such as infants and preschoolers, and child care programs which are contracted by the school to provide care and supervision for children from 5 year old kindergarten through grade 12 before and after the school day. The proposed rule as published and noticed by HRS, although defended by HRS vigorously in this proceeding, is not in fact the rule that HRS intends to adopt. HRS now admits that it has no authority to regulate any program in a public school since only the Florida Department of Education can regulate public schools. HRS intends, therefore, to delete the reference to public schools in its proposed rule and to only regulate nonpublic schools although it admits that such regulation of only nonpublic schools would therefore be discriminatory. HRS further intends to amend its proposed rule so as to clarify that those nonpublic schools which are religious in affiliation will continue to enjoy the additional exemption from child care facility licensure given to them by Section 402.316(1), Florida Statutes, which provides: The provisions of ss. 402.301-402.319, except for the requirements regarding screening of child care personnel, shall not apply to a child care facility which is an integral part of church or parochial schools conducting regularly scheduled classes, courses of study, or education programs accredited by, or by a member of, an organization which publishes and requires compliance with its standards for health, safety, and sanitation. However, such facilities shall meet minimum requirements of the applicable local governing body as to health, sanitation, and safety and shall meet the screening requirements pursuant to ss. 402.305 and 402.3055. Failure by a facility to comply with such screening requirements shall result in the loss of the facility's exemption from licensure. Petitioner Florida Association of Academic Nonpublic Schools (hereinafter "FAANS") is comprised of approximately 25 associations of schools. Additionally, archdioceses, which are separate corporate entities, and which own and operate schools, are direct members as are county organizations and the Florida Catholic Conference. The organization itself represents nonpublic schools in the state of Florida before state agencies, including the Legislature which it actively lobbies. It has a direct relationship as a state representative, one of only five in the country, with the United States Department of Education. It is involved in accreditation and has a code of ethics with which all schools (both direct members and indirect members) must comply. FAANS presently represents 943 schools with approximately 230,000 students, out of the approximate 1,750 nonpublic schools in the state of Florida. A majority of the schools represented by FAANS operate educational programs for children under 5 years of age. For the most part, these school programs are not licensed as child care facilities although some of the schools have licensed their programs under duress rather than have their programs closed by the child care facility licensing agencies. All of the nonpublic schools represented by FAANS comply with the Florida Department of Education requirement that they annually submit statistical information including the number of students and faculty in their prekindergarten programs for the Department of Education's Nonpublic School Data Base. Petitioner Jacksonville Country Day School presented no evidence in this proceeding. Petitioner The Cushman School is a nonpublic school in Miami, Florida, and is an indirect member of FAANS. It has been in operation for 62 years and has operated educational programs for children under 5 since it was founded. It begins enrolling students at the age of 3 years (and on rare occasion 2 years) and offers education through grade 6. It is not presently licensed as a child care facility. Under the proposed rule as published in the June 6, 1986, Florida Administrative Weekly, The Cushman School would be required to obtain a child care facility license, the economic impact of which would be significant. First, it would lose its exemption from property taxes as an educational institution at a speculated cost of approximately $10,000. Structural modifications would need to be made to the school for bathing and sleeping facilities. Additional requirements, such as fencing and child-staff ratios, would come into play imposing more costs on the school. The Cushman School possesses historic site status which means even minor repairs, let alone structural modifications, have extensive restrictions imposed as to how they can be done and the materials that can be used. The end result is that if the proposed rule goes into effect, The Cushman School will have to discontinue its educational programs for children under 5 years of age. The economic impact of compliance with child care facility licensing requirements by schools is not unique to The Cushman School. Section 120.54, Florida Statutes, requires each agency proposing or amending a rule to provide a detailed economic impact statement. The purpose of an economic impact statement is to promote informed decision-making by ensuring an accurate analysis of economic factors, and those factors an agency must consider are clearly specified. An agency must also consider the impact of a proposed rule on small businesses as defined in the Florida Small and Minority Business Assistance Act of 1985. There are nonpublic schools throughout Florida which fit the statutory definition of small business. It is clear from the economic impact statement for proposed rule 10M-12.001 that HRS did not consider the impact of the rule on small business nonpublic schools. Also to be considered is the cost to an agency of implementing the rule. According to HRS' impact statement, actual implementation statewide will only cost $31. There is no consideration of additional staff time and paperwork to process applications, issue additional licenses, or conduct additional inspections. There is no comment in the economic impact statement of the impact on competition and the open market for employment, or any indication that such an analysis is inapplicable; rather, the agency's estimate of effect on competition speaks to potential cost savings from deregulation of before and after school care programs. Similarly, the required analysis of the costs or economic benefits to all persons directly affected by the proposed rule speaks in terms of deregulation and substantial savings and is, accordingly, deceptive. An agency is also required to provide a detailed statement of the data and method used in making each of the estimates required in the economic impact statement. The only detailed statement in HRS' economic impact statement refers to the costs of printing and mailing, publication of the proposed rule in the Florida Administrative Weekly, and conducting a public hearing on the proposed rule. There is no hint of the data and method used, if any, in reaching other conclusions contained within the economic impact statement. The economic impact statement accompanying proposed rule 10M-12.001 is inadequate. Section 120.54(1), Florida Statutes, further requires that an agency proposing a rule give notice of its intended action and the specific legal authority under which its adoption is authorized. As set forth above, the rule proposed by HRS does not reflect its intended action since the rule purports to apply to both public and nonpublic schools and HRS intends to further amend the rule so as to exclude its application to public schools and its application to religious nonpublic schools. As to the specific legal authority under which the proposed rule is authorized, HRS cites, at the end of the proposed rule, as its rulemaking authority Section 402.301, Florida Statutes. That section is entitled "Child care facilities; legislative intent and declaration of purpose and policy". Nowhere in that legislative intent section is HRS authorized to promulgate rules. The proposed rule thus fails to fulfill that requirement.
The Issue The issue in this case is whether the Department of Health and Rehabilitative Services (Respondent) wrongfully awarded a contract to provide juvenile alternative services in Polk, Hardee and Highlands Counties to Bay Area Youth Services, Inc. (Intervenor) rather than the existing Provider, Juvenile Services Program, Inc. (Petitioner). At the hearing the parties stipulated to the introduction of seven joint exhibits. Petitioner called six witnesses, aid Respondent called one witness. A transcript of the hearing was filed on September 28, 1987, and the parties were allowed ten days thereafter to file Proposed findings of fact, conclusions of law and memoranda. The Appendix to this Recommended Order contains a ruling on each timely filed Proposed finding of fact.
Findings Of Fact On or about April 24, 1987, Respondent issued a Request For Proposal (RFP) for the Juvenile Alternative Services Project (JASP) in Polk, Highlands and Hardee Counties. JASP is designed to serve delinquent children and status offenders, and is intended to reduce the incidents of their repeated contacts with the juvenile justice system through a program of meaningful sanctions and services. The program is available as a dispositional alternative by referral from Respondent's intake units, the State Attorney's Office and the Juvenile Division of the Circuit Court. Specific services to be Provided under this RFP include victim negotiation, community work programs, restitution, family counseling service and volunteer counseling services. The RFP calls for Providing services to 585 clients from July 1, 1987 through June 30, 1988. Petitioner and Intervenor each timely submitted proposals in response to the RFP. Petitioner is a social service agency with administrative offices in St. Petersburg, and Intervenor is a private service agency with offices in Tampa. Petitioner is the existing JASP provider in Polk, Hardee and Highlands Counties. The RFP designates $131,654.86 as the anticipated funding level for this program, and Petitioner's proposal identified $131,655 for the provision of the requested services to a minimum of 585 clients while Intervenor's proposal identified $126,631 to provide these services to a minimum of 636 clients. The proposals submitted by Petitioner and Intervenor were responsive to the RFP. Pursuant to the RFP, a seven-member selection team was designated to review and evaluate the responsive proposals. Representative of Respondent on the selection team included JoAnne Harvey, Kevin Roberts and Tom McFadyen; the courts were represented by Jim Vanderwalker, the State Attorney's Office by Steve Houchins, the Public Defender's Office by Jay B. Haviser, and the community by Fran Martin Shiver from the Polk County Sheriff's Office. RFP responses were opened at 4:30 p.m. on June 1, 1987, and the selection team met at 9:00 a.m. on June 3, 1987. Five of the selection team members attended the meeting and participated in the evaluation of these two proposals; Haviser and Shiver did not attend. The RFP specifies that the evaluation was to be completed on June 4, 1987, and that the selection team, upon completion of its review, would submit its "recommendation" to Respondent's contract signer for award "based upon the recommendation made by the selection team and taking into consideration which bidder's offer is most advantageous to the Department." Selection team members Houchins, Roberts and Harvey recommended that Intervenor be awarded the contract, and members Vanderwalker and McFadyen recommended Petitioner. Vanderwalker rated Petitioner one Point higher than Intervenor and McFadyen rated Petitioner three Points higher than Intervenor. Members recommending Intervenor all did so by a greater point spread than members selecting Petitioner. Intervenor received a total of 1325 Points to 1284 for Petitioner, of a total Possible Points of 1625. The selection team, through its chairperson JoAnne Harvey, submitted its report and recommendation on June 4, 1987 that the JASP contract be awarded to Intervenor, and on or about June 11, 1987 Petitioner received formal notification of Respondent's intent to award this contract to Intervenor. On the same day Petitioner filed its notice of intent to Protest, and thereafter Petitioner timely filed its request for hearing on or about June 19, 1987 alleging that the award Procedure was "deficient" and that the deficiency resulted in their not receiving the award. Specifically, it is alleged that the selection team based its recommendation upon erroneous facts and information Provided to it by Chairperson Harvey and Diane Morton, JASP contract manager with Respondent who selected the team members, coordinated, scheduled and attended the team meeting. Chairperson Harvey took notes of the selection team meeting and her report was based upon those notes. Neither a transcript or tape recording of the team meeting was required by the RFP, nor were they made. No opportunity for oral presentations by providers was allowed in the RFP, nor was any provided before the selection team. Although Chairperson Harvey had received and reviewed the proposals prior to the meeting, some of the selection team had not, and therefore time was allowed at the beginning of the meeting for each member to review the two proposals and to ask Diane Morton technical, non-substantive questions about each proposal. Based upon the testimony of McFadyen, Morton and Harvey, Morton functioned only as a facilitator or coordinator during the meeting, assisting members in finding certain items or subject matter in each proposal, and determining if the automatic disqualification items of Part A on the proposal rating sheet applied to either proposal. However, Morton made no qualitative judgments about either proposal, and responded only to members' questions. Her participation assisted, rather than impaired, the fairness and integrity of the process. Following the time allotted for review and asking technical questions, each member completed the rating sheet individually, and thereafter the scores were announced. A discussion period was then provided during which members explained the basis for their evaluation of each Proposal. Following this discussion, members could change their rating based upon new information and the comments of other members, but in this instance no member changed his rating. The final ratings and recommendations were then announced. There is no evidence that the selection team acted arbitrarily or capriciously, or in a manner which was inconsistent with the RFP or rules of Respondent. The sole basis for team member ratings of each Proposal was their own evaluation of each Proposal; there is no evidence of "erroneous" facts or information being supplied to the team by Harvey or Morton. No member of the team asked for additional time to review or rate the Proposals during the meeting on June 3, although the evaluation did not have to be completed until the next day, June 4. At hearing, Petitioner sought to establish that Intervenor did not include a required Civil Rights Statement. The RFP lists a series of appendices which "must" be attached to each Proposal. Appendix 9(g) references a "Civil Rights Statement (Attachment IV of the RFP)." However, Attachment IV to the RFP is a "Civil Rights Certificate" not a "Civil Rights Statement." Attachment X of the RFP is a Civil Rights Compliance Checklist, and Intervenor included Attachment X, rather than the required Attachment IV with its RFP. However, question 6 of the Checklist asks whether "an Assurance of Compliance (is already) on file with HRS?" Intervenor answered this question on the Checklist in the affirmative. The required Attachment IV, Civil Rights Certificate, is the Assurance of Compliance referred to in question 6. Therefore, the unrebutted record in this case establishes that Intervenor already had on file with Respondent the required Attachment IV, and Respondent reasonably accepted this previous filing, along with the additional civil rights information provided on the Checklist as compliance with the RFP Appendix 9(g) requirement. It is also apparent from Section VI, A, 3. of the RFP that the failure to include Appendix IV will "not be fatal to the consideration of the proposal and that only five points are to be given for this Attachment. The three committee members who recommended Intervenor each gave Intervenor the five points on this item; however, even if this five points is deducted from Intervenor's score, Houchins, Roberts and Harvey still would have rated Intervenor higher than Petitioner, and Intervenor's overall point total would still have exceeded Petitioner's. Petitioner produced the testimony of Peter Schatzel, Certified Public Accountant, to establish that Intervenor is not financially able to sustain and carry out the JASP proposal. However, Schatzel had not reviewed any audited or unaudited financial statements for Intervenor covering the period after June 30, 1986, and thus had no knowledge of Intervenor's current financial condition. Chairperson Harvey testified that a successful bidder can receive an advance of amounts due under a contract to support start-up costs. It was therefore not established, by competent substantial evidence, that Intervenor would not be financially able to carry out its obligations under this contract.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the bid protest filed by Petitioner. DONE AND ENTERED this 14th day of October, 1987, at Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2800BID Petitioner filed Closing Argument on October 7, 1987 which has been considered in the preparation of this Recommended Order. However, no specific ruling thereon can be made since this is not a proposed finding of fact as provided in Rule 22I- 6.031, F.A.C. COPIES FURNISHED: Dominic Amadio, Esquire 100 34th Street North Suite 305 St. Petersburg, Florida 33713 Frederick P. Wilk, Esquire 4000 West Buffalo Avenue Room 520 Tampa, Florida 33614 William F. Bowman 2410 East Busch Boulevard Suite 303 Tampa, Florida 33612 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are whether Respondent, a child care facility operating under a probation-status license, violated the terms of probation by committing three Class II Violations, as Petitioner alleges, and if so, whether the license should be suspended or revoked; and, alternatively, whether, if Respondent committed the alleged Class II Violations (or any of them), Petitioner should deny Respondent's application for renewal of license.
Findings Of Fact Respondent Wiz Kidz Learning 2, Inc. ("Wiz Kidz"), holds a probation-status Certificate of License, numbered C11MD1914, which authorizes the company to operate a child care facility in Palmetto Bay, Florida, for six months, from September 2, 2017, through March 1, 2018. The licensee does business under the name Wiz Kidz Learning 2. As the operator of a licensed child care facility, Wiz Kidz falls under the regulatory jurisdiction of Petitioner Department of Children and Families ("DCF"). At the time of the final hearing, Wiz Kidz had been a probation-status licensee for more than six months. DCF had converted Wiz Kidz' license to probation status effective June 29, 2017, after finding Wiz Kidz guilty of violating the staff-to-child ratio rules four times in a two-year period, as charged in an Amended Administrative Complaint dated May 25, 2017, which Wiz Kidz had not contested. The conditions of probation were that Wiz Kidz would pay all outstanding fines, not violate the staff-to-child ratio rules again, not commit any other Class I or Class II Violations while on probation, and submit to biweekly inspections. Wiz Kidz' initial probation-status license had been due to expire on September 1, 2017. Shortly before that date, however, Wiz Kidz had submitted a renewal application, which meant that, by operation of law, the probation-status license would not expire until DCF had finally acted upon Wiz Kidz' application for renewal.2/ Instead of simply allowing Wiz Kidz to operate on the "unexpired" license, however, DCF issued a new probationary license to Wiz Kidz effective from September 2, 2017, to March 1, 2018, which essentially renewed the initial probation-status license for another six-month period of probation.3/ On August 17, 2017, DCF employees Claudia Alvarado Campagnola and Quendra Gomez conducted an inspection of the Wiz Kidz facility between the hours of 9:00 a.m. and 2:00 p.m., during which they observed three alleged incidents of noncompliance with "Class II" (mid-level) licensing standards, namely: (1) storing a toxic substance in a place accessible to children; (2) failing to provide adequate direct supervision; and (3) failing to possess a current attendance record during a fire drill. On September 26, 2017, DCF issued to Wiz Kidz a Notice of Intent to Deny Child Care Facility Licensure, which gave notice that DCF planned to deny Wiz Kidz' pending application for renewal of license because, on August 17, 2017, Wiz Kidz had been "cited for 3 class II violations and 7 class III violations in direct violation of [its] probationary license terms." The "toxic substance" seen on August 17, 2017, was an alcoholic beverage. Upon entering the facility, Ms. Gomez noticed two unopened bottles of champagne at the back of a shelf, behind (and partially obscured by) a large plastic toy and other items. There is no photograph of the shelf in evidence, and the descriptive testimony lacked precision; as near as the undersigned can tell, this shelf was several feet long, about one foot deep, and mounted about five feet high on one of the classroom walls. One detail is not disputed: the shelf was above the heads of even the oldest children in care (between the ages of six and seven years). Thus, even if a child could have seen the bottles, he would not have been able to take possession of them without deliberate effort; because the bottles were well out of reach, the child would have needed to stand on a stepladder or its equivalent (e.g., a suitable chair) to get his hands on them. There is no evidence that a stepladder was available. Ms. Gomez testified that a child could have pulled over a chair and climbed on it to reach the champagne bottles. Perhaps so. On the other hand, while the undersigned can reasonably infer that there were chairs in the classroom, he cannot reasonably infer that any of them would have been fit to enable a child to access the bottles. To establish the element of "accessibility" based on the theory that a chair could be used as a stepladder, DCF needed to prove that a suitable chair was actually there for a child present in the classroom to use. This it failed to do. There is no evidence regarding the dimensions of the available chairs, nor any evidence concerning the heights of the children. The witnesses provided only a rough idea of the height of the shelf; their reasonably consistent accounts constitute clear and convincing evidence of the general fact that the shelf was higher than the kids' heads, but not of the actual measurement. Absent proof of these material facts, Ms. Gomez's testimony regarding the way a child could have gotten hold of the champagne bottles is too speculative to support a finding that these items were, in fact, physically accessible to the children. In addition, there is no evidence suggesting that a child could have dragged a chair over to the shelf and clambered up without attracting the attention of an adult. Given that the shelf was located in the classroom, the undersigned infers that no child reasonably could have pulled this off, unless the adult in the room were asleep at the switch. Finally, it is worth mentioning that if a child were able to stand on a chair and grab a champagne bottle without being caught, he still would not have access to the "toxic substance" in the bottle unless he could somehow pour it out. There is no evidence in the record concerning how one opens a champagne bottle, but common experience teaches the undersigned that a young child (the children in care were less than eight years old) likely would have difficulty twisting out the cork. In any event, DCF failed to prove that any of the children at Wiz Kidz reasonably could have popped the cork on the champagne, and therefore it failed to prove that the champagne was accessible to a child. The other two alleged violations occurred during a fire drill, which the inspectors required Wiz Kidz to conduct, in their presence, during the children's nap time. Three children exited the facility in their bare feet. The area where the children were assembled after evacuating the "burning building" was near a dumpster; some litter and tree branches were on the ground. From these facts, which were not seriously disputed, DCF infers that the children were not adequately supervised. The undersigned rejects this inference, which does not reasonably and logically follow from the basic facts. To begin, there is no rule that requires children always to wear shoes. Thus, that some of the children had removed their footwear before taking a nap is of no concern. When the alarm went off, staff evidently did not make these children pause to put their shoes back on, which would have protected their feet——but delayed their exit. To be sure, it is probably a good practice, generally speaking, to prevent young children from going outside barefoot. Clearly, however, it is best not to let them perish in a fire; in an emergency, getting to safety is the highest priority. Because the purpose of a fire drill is to simulate an actual emergency, the fact of the barefoot children prompts undersigned to infer, not that staff failed to provide adequate supervision, but that staff facilitated the speediest escape under the circumstances. During the fire drill, one of the teachers failed to take along a current attendance record when leaving the building, which (unlike the wearing of shoes) is mandated by rule. Ultimate Factual Determinations Wiz Kidz is not guilty of storing a toxic substance in a place accessible to children because the evidence failed to establish an incident of noncompliance with Florida Administrative Code Rule 65C-22.002(1)(f). Wiz Kidz is not guilty of failing to provide adequate direct supervision because the evidence failed to establish an incident of noncompliance with rule 65C-22.001(5)(a). The undersigned determines, based upon clear and convincing evidence, that a staff member failed to possess a current attendance record during a fire drill, which constitutes an incident of noncompliance with licensing standard No. 33-12, which implements rule 65C-22.002(7)(e). This was Wiz Kidz' first occasion of noncompliance with licensing standard No. 33-12.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding Wiz Kidz not in violation of the terms of probation. It is further RECOMMENDED that Wiz Kidz' application for renewal of license not be denied based on the commission of a Technical Support Violation. DONE AND ENTERED this 20th day of March, 2018, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 20th day of March, 2018.
The Issue Whether Petitioner is disqualified from employment in positions requiring him to work with children or the developmentally disabled and, if so, whether he is entitled to an exemption from such disqualification.
Findings Of Fact Petitioner's employer, Youthland Academy Child Care Facility, is a day care facility that works with children. The employer submitted Petitioner's name to Respondent for a background screening pursuant to Section 402.305(2)(a), Florida Statutes. The background screening reflected that Petitioner had an extensive arrest record between June 1983 and January 1999. The screening also reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on April 25, 1994. The underlying offense was an act of domestic violence against the person of April Cox (the mother of a child by Petitioner) on November 17, 1994. The screening further reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on November 6, 1997. The underlying offense was an act of domestic violence against the person of Tanya Anne Austin (also the mother of a child by Petitioner) on June 15, 1997. A charge of violating an injunction against domestic violence was nolle prossed as part of a plea agreement. On April 21, 2000, Respondent attempted to notify Petitioner in writing that he may be ineligible for continued employment in a position of special trust working with children or the developmentally disabled because of the acts of domestic violence on November 17, 1994, and June 15, 1997. That certified mailing was not picked up by Petitioner. Thereafter, on June 5, 2000, Respondent re-mailed the notification letter to Petitioner at his place of employment. The notification letter advised Petitioner of his rights to an exemption hearing, but required that he request such hearing within 30 days from his receipt of the letter. The notification letter also advised Petitioner that he could request a formal or informal hearing to challenge the accuracy of his criminal record. As of August 10, 2000, Petitioner had not responded to Respondent's letter of June 5, 2000. On that date, Ms. Barton advised the director of Youthland Academy that Petitioner had been disqualified from working with children or the developmentally disabled. On August 16, 2000, Petitioner responded to Ms. Barton's letter stating that he had misunderstood the notification letter, that he wanted to explain the circumstances of the two incidents of domestic violence, and that he wanted a hearing. Petitioner did not dispute the accuracy of his criminal record at the final hearing. Although Petitioner presented testimony as to the circumstances involved in each conviction at issue in this proceeding, that evidence merely confirmed that each incident constituted domestic violence. Petitioner failed to establish that he should not be disqualified from working with children or the developmentally disabled, that he has been rehabilitated since his last criminal conviction, and that he would not present a danger if continued employment is allowed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Petitioner is disqualified from working with children or the disabled. It is further RECOMMENDED that the final order find that Petitioner is not entitled to an exemption from that disqualification. DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2001. COPIES FURNISHED: Kalvin T. Davis 2100 Northeast Third Court Boynton Beach, Florida 33435 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Virgina 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 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
