The Issue The issue is whether Respondent's decision to reject all bids in DJJ Solicitation Number: RFP# P2043 was illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Parties DJJ is a state agency whose mission is to reduce juvenile delinquency. One of the methods used to attempt to attain this goal is through the provision of community-based intervention services programs for boys and girls. EYA and the White Foundation, both of whom are not-for- profit foundations, are contractors who are in the business of providing community-based intervention services for boys and girls. There are about 320 to 360 contracts between DJJ and private contractors. Both EYA and the White Foundation, at all times pertinent, had contracts with DJJ. The White Foundation operates only non-residential programs. EYA operates both non- residential and residential programs. Background In RFP#R2043 dated April 30, 2008, DJJ solicited requests for proposals for a contract to provide, "A 120-slot community based intervention program for boys and girls in Circuit 5 (Marion, Citrus, Hernando, Sumter, and Lake Counties, as described in the Scope of Services (Exhibit 1)." EYA is the current operator of the program and continues to operate the program pursuant to an extension of their current contract. That extension is set to expire December 31, 2008. The program sought can be further described as a nonresidential, service-oriented intervention program with comprehensive case management services for department-served youth through the development of a provider designed, developed, implemented, and operated intervention program for youth. The program is to serve youth on probation, conditional release, or post-commitment probation, and is to include supervision of youth transitioning from a residential commitment program, released from residential commitment program for post-commitment services, or placed on probation. The RFP provided that "The Department reserves the right to accept or reject any and all bids, or separable portions thereof, . . . if the Department determines that doing so will serve the State's best interests." EYA and the White Foundation submitted timely, responsive proposals. Proposals were also submitted by Gulf Coast Treatment Center, Psychotherapeutic Services of Florida, Silver River Mentoring & Instruction, Community Action Foundation of Citrus County, and Taylor Human Services. No responder availed themselves of the opportunity to ask questions about the RFP. On June 20, 2008, DJJ published its notice of intent to award the contract to EYA. On June 25, 2008, DJJ published a notice of its withdrawal of its previous decision on the RFP and its intended decision to re-issue the solicitation for the program. On June 26, 2008, the White Foundation timely filed a notice of intent to protest DJJ's intended decision. On July 9, 2008, the White Foundation timely filed a formal bid protest challenging DJJ's intended decision. Evaluation generally The language contained in the RFP is boilerplate language that is repeated with little change in all solicitations for both non-residential and residential programs, with the exception of the scope of services portion. Attachment D of the RFP is entitled, "Evaluation Criteria." It provides that the proposals are to be evaluated and scored in three categories: technical proposal (referred to as "Volume 1"), financial proposal (referred to as "Volume 2"), and past performance (referred to as "Volume 3"). Generally, at DJJ, an evaluation panel of three to five evaluators reviews Volume 1, the programmatic elements, or the technical proposal. In this case, three evaluators scored Volume I. The financial proposal, or Volume 2, was a mathematical formula that essentially required no subjective analysis. A single evaluator simply determined the lowest price that was under the maximum amount the RFP permitted. The evaluation of the third part or Volume 3, past performance, was accomplished by Senior Management Analyst II, Paul Hatcher, acting alone. Mr. Hatcher has been an employee of DJJ for 23 years and has been an evaluator of RFPs for seven years. His role in evaluating the RFP was intended to be objective. In other words, he was tasked with reviewing the information provided and ensuring that it met the requirements of the RFP. His evaluation was not supposed to be subjective or judgmental. Typically, and in this case, subsequent to the evaluation of the parts, the DJJ Contract Administrator enters the various scores into a bid tabulation sheet to determine the high scorer. It is DJJ's intention in all cases to award the contact to the prospective provider whose proposal receives the most points. In this case, on June 19, 2008, the contract administrator determined that EYA received 817.22 points and the White Foundation received 785 points. Other responders scored lower. To the extent the controversy is concerned with which party should have been awarded the most points, the focus is on the past performance evaluation. The past performance category addresses the prospective provider's knowledge and experience in operating non-residential juvenile justice programs. The criteria related to the past performance category, Volume 3, are contained in Attachment C to the RFP. Attachment C consists of three parts: Part I - Past Performance of Non-Residential Programs; Part II - Evaluation for Past Performance in the United States Outside of Florida; and part III - Evaluation for Professional Accreditation in the United States. Attachment C further states that if the prospective provider has received DJJ Quality Assurance (QA) reviews and recidivism rate results for its non-residential programs, the provider should complete only Parts I and III. Both the White Foundation and EYA had QA reviews and thus were required to address only Parts I and III. This information was available to all parties through access to DJJ databases. Part I of Attachment C - Past Performance of Non-Residential Programs Part I of Attachment C permitted the assignment of 100 points for "Average QA." For programs receiving a quality assurance review prior to 2007, responders could receive up to 75 points for performance scores and up to 25 points for compliance scores. Part I provided a grid entitled, "Attachment C-1 Part I, Data Sheet: Past Performance of Non-Residential Programs." (past performance data sheet). The past performance data sheet has columns labeled "Contract Number," "Program Type," "Contract Begin Date," "Contract End Date," "Most Recent QA Performance Percentage Score," "Most Recent QA Compliance Percentage Score (if evaluated prior to 2007)," and "Failure to Report." There is also a column entitled "Number of Completions during FY 2005-2006" in which is recorded the number of youths who complete the programs. A final column is labeled, "2005- 2006 Recidivism Rate." The "Most Recent QA Performance Percentage Score," "Most Recent QA Compliance Percentage Score (if evaluated prior to 2007)," "Failure to Report," "Number of Completions during FY 2005-2006," and "2005-2006 Recidivism Rate," are found in databases available from DJJ. This form is quite similar to the forms in RFPs for the residential programs. Ashley Nevels, an accountant, and vice-president of administration for the White Foundation, reviewed all of the records pertaining to the responses to the RFP. Mr. Nevels found Volumes 1 and 2 to be essentially correct. He found errors in Volume 3. Though not qualified or considered as an expert witness, his testimony was helpful in illuminating the forms and procedures used in evaluating the responses. Mr. Nevels carefully reviewed responses in Volume 3 submitted by the White Foundation and EYA. With regard to the past performance data sheet, he found that there was information provided by EYA that was erroneous and information that was omitted. He found that Mr. Hatcher had corrected the erroneous information supplied by EYA, but did not consider whether or not it was complete. Mr. Nevels concluded that the White Foundation was correct in its report as presented on the past performance data sheet. Laura Moneyham, an employee of DJJ, working in its purchasing section, also reviewed the past performance data sheet. She found that EYA should have been awarded only 813.04 total points instead of the 817.22 that Mr. Hatcher awarded. In other words, EYA received 4.18 more points than it should have received. Her findings generally comported with Mr. Nevels, except he believed EYA received slightly more underserved points than reported by Ms. Moneyham. Based on the testimony of Mr. Nevels, the figures derived by Ms. Moneyham, and a review of the data contained in the exhibit, it is found as a fact that EYA should have received at least 4.18 fewer points on the Attachment C-1 Part I, Data Sheet, than was awarded by Mr. Hatcher. It is further found that the White Foundation's data was correct. The errors found on the past performance data sheet would have not affected the outcome of the award. After corrections, EYA would still have enough points to prevail. However, there was also an error in scoring the Part III accreditation portion of Attachment C. As Ms. Moneyham found on her re-scoring, and as Mr. Nevels had found, the White Foundation was entitled to 30 more points than it received in that category. Part III of Attachment C - Evaluation for Accreditation It was DJJ's policy, through the accreditation section that was denominated in Part III, to reward providers with points in the procurement process for achieving accreditation status. This was DJJ's policy because accreditation is a qualified endorsement by an outside, objective party that confirms that an organization conforms to recognized service standards. Ten points were to be awarded for each accredited program submitted in the response to the RFP. Both EYA and the White Foundation submitted information on three accreditations. Both responders were eligible to receive 30 points in this category. Attachment C provides, with regard to Part III - Evaluation for Professional Accreditation in the United States, found at page 16 of 63 of the RFP, as follows: All documentation provided . . . must include the start and end dates, be current dated and valid at least through the start date of the Contract that results from this RFP. The documentation shall also state that the program cited is a non-residential juvenile program and that it is run by the prospective Provider. The Department will verify all information received but is not responsible for research to provide information not submitted and documented by the prospective Provider. Failure to provide the required supporting information for Parts II or III of the attachment shall result in a score of zero (0) for that section. EYA responded to Part III by providing a copy of page 24 of the RFP and providing copies of three certificates from the Council on Accreditation (COA) indicating that EYA was accredited in Circuits 6, 7, and 11; a letter from the copies of Bureau of Quality Assurance Performance Rating Profiles; and an explanation that the three programs are operated in the United States under DJJ contract, are non-residential programs, and are operated under the CBIS program model. The EYA certificates did not indicate start dates. Nevertheless, Mr. Hatcher awarded 30 points to EYA. The White Foundation responded to this section by providing copies of pages 20-23 of the RFP and three certificates from the Commission on Accreditation of Rehabilitation Facilities (CARF) that indicated that the White Foundation was accredited. Mr. Hatcher awarded no points to the White Foundation in the accreditation category. Mr. Hatcher arrived at the White Foundation's score, or non-score, by referring to Part III of Attachment C of the RFP. In that section there appears a list of four accreditation organizations. Accreditation by one or more of these organizations can result in a responder receiving points for the section. Following the list of acceptable accreditation organizations, the form inquires, "Does the prospective provider currently operate or perform a non-residential juvenile justice organization/program/facility/service ('accredited entity') in the United States which is being offered as a part of its RFP proposal, and is that accredited entity in good standing and without restrictions by: . . . " and lists four accreditation agencies. The evaluator is to check "yes" or "no." Immediately following this language, the form recites 12 standards to be addressed if the responder answers "yes." These standards serve as the base requirements for a responder to have an acceptable "yes." Mr. Hatcher found that the White Foundation had not complied with standard eight of the 12 standards, which states, "Must provide documentation that establishes the accredited entity is offered as part of the prospective provider's proposal (i.e. RFP) proposal page and/or section reference)." Mr. Hatcher believed standard eight required documentation of the specific page and section of the RFP to which the accreditation would apply, and that was not provided by the White Foundation in Part III. He believed the White Foundation was required to provide a reference to a specific portion of Volume 1. Because the accreditations supplied did not provide a reference to a proposal page or section, Mr. Hatcher, using a strict interpretation of the requirement, found it to be noncompliant. Mr. Hatcher could have looked at Volume 1 of the White Foundation's response and found the information that was required. He did not look at Volume 1 because he believed that would be "research" of the type prohibited by the guidance found at page 16 of 63 of the RFP. Subsequent to the announcement of the agency decision revealing that EYA had prevailed, as noted, Mr. Nevels and Ms. Moneyham reviewed the evaluations for past performance. Lisa J. Eaton, a Senior Management Analyst II, who is employed by DJJ, also reviewed the evaluations for past performance. Interpreting the same language Mr. Hatcher used for guidance, they all arrived at the opposite conclusion with regard to accreditation and determined that the White Foundation should have been awarded 30 points. It is found as a fact that standard eight of the 12 standards, when read in conjunction with the guidance provided in the first paragraph of Attachment C, Evaluation of Past Performance for Non-Residential Programs, at page 16 of 63, provided guidance that could confuse an evaluator and could result in a decision with regard to accreditation that was contrary to DJJ policy that DJJ attempted to express in the RFP. Agency deliberations with regard to the decision to reject all bids It was brought to the attention of DJJ in December of 2007, by the Recommended Order in Eckerd Youth Alternatives, Inc. v. Department of Juvenile Justice, Case No. 07-4610BID (DOAH December 14, 2007), that the past performance portion of their RFP was infused with ambiguity. As a result, an attempt was made to clarify the type of information that was desired to satisfy the accreditation portion of the past performance part of the RFP. After the responses to RFP# P2043 were received and scored, the contract section of DJJ determined that Mr. Hatcher's scoring was inconsistent with the scoring that had been done on residential RFPs even though the two were 99 percent congruent. The evaluators of the residential programs would provide information omitted by a response, and correct information that was incorrect when submitted. Then they would score the response. Unlike the residential scorers, Mr. Hatcher did not count QA programs that were missing, but did correct information that was incorrect when submitted, if the contract numbers were correct. This meant that a potential vendor could choose to include their well-performing programs and not report programs that were performing poorly, and thereby gain an advantage. This did not comport with the desires of DJJ. DJJ staff also determined that Mr. Hatcher failed to score the accreditation portion in accordance with their policy objectives. Amy Johnson, Chief of the Bureau of Contracts, believed that Mr. Hatcher was confused by the language of the RFP and that accounted for his incorrect scoring. Upon reviewing the situation, Deputy Secretary Rod Love and Assistant Secretary Darryl Olson determined that all bids should be rejected and the process begun anew. It cannot be determined from the evidence whether that decision was made before the White Foundation protested, or after. As a result of the difficulties experienced in RFP# P2043, DJJ staff have attempted to further clarify that information that is omitted or inaccurate will be corrected and used. They have removed standard eight of the 12 standards that referred to the need to cross-reference. It was DJJ's intent to have consistent interpretations and scoring of proposals throughout the Department, and in particular, between bids for residential and non-residential programs. In order to carry out that intent, DJJ decided to reject the bids and initiate a new RFP for the desired project. There was no evidence that the actions of DJJ were illegal, dishonest, or fraudulent. For reasons that will be addressed below, the decision to reject all bids also was not arbitrary.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Department of Juvenile Justice issue a final order dismissing the Petition and Formal Protest filed by Petitioner. DONE AND ENTERED this 27th day of October, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 27th day of October, 2008. COPIES FURNISHED: Donna Holshouser Stinson, Esquire M. Stephen Turner, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Tonja V. White, Esquire Department of Juvenile Justice Knight Building, Room 312L 2737 Centerview Drive Tallahassee, Florida 32399-3100 Martha Harrell Chumbler, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 Frank Peterman, Jr., Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue presented for decision herein concerns the appeal of the Board's assignment of Jesus Valladares to Youth Opportunity School South, an alternative school placement.
Findings Of Fact Jesus Valladares, date of birth April 11, 1970, is an eighth grader who was enrolled at Rockway Junior High School during the 1983-84 school year in the Dade County School System. By letter dated March 14, 1983, Respondent was advised by the Director, Alternative Education Placement, William Perry, Jr., that in lieu of expulsion, Jesus was being administratively assigned to the opportunity school program. The basis of that administrative assignment stems from an incident on February 16, 1984 wherein Respondent carried a knife on his person while attending school at Rockway Junior High School. On February 14, 1984, Respondent displayed the knife to several students and threatened one student with the knife. On February 16, 1984, Lewis Plate, Principal of Rockway Junior High, took the knife from Respondent's person. As noted herein above, Respondent, or a representative on his behalf, did not appear to contest or otherwise refute the basis upon which the Petitioner administratively assigned him to Youth Opportunity School South.
Recommendation Based on the foregoing findings of fact and conclusions of of law, it is hereby recommended: 1. That the Petitioner, School Board of Dade County, Florida, enter a Final Order of assignment of Respondent, Jesus Valladares, to Youth Opportunity School South, an alternative school placement. RECOMMENDED this 13th day of July, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, 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 13th day of July, 1984.
Findings Of Fact Fischer is a child under commitment to the Department of Health and Rehabilitative Service who on May 24, 1978, was granted the privilege of transferring to a community placement under the direct supervision and authority of the Bureau of Fields Services, Division of Youth Services. The transfer was the subject of a furlough agreement entered into by Fischer with HRS on the same date. On May 31, 1978, Fischer was furloughed from the Alyce D. McPherson School, Ocala, Florida, and released to the custody of Mr. Rolf Fischer, the brother of Fischer's natural father who had raised her since she was sixteen (16) months old. On June 6, 1978, Fischer was placed on a contract with her counselor, Francine Nelms, for the week of June 6, 1978, to June 13, 1978. The contract provided that Fischer could not leave her residence without her stepfather being with her, that she was to do all her chores and that she was to maintain an attitude of respect toward her stepfather. Fischer did not sign the contract although she read it and indicated that she understood it. On June 7, 1978, Fischer left her stepfather's place of residence without permission and travelled around the State of Florida by hitchhiking and riding the bus. She was apprehended in Venice, Florida, by the Venice Police Department. Pursuant to a hearing conducted by Mr. Arrie Owens, Youth Services Program Specialist of HRS, on June 21, 1978, Fischer had her furlough revoked because she failed to abide by her furlough agreement by virtue of her leaving her place of residence without permission. Fischer subsequently commenced this appeal.
The Issue Whether Amanda’s Childcare and Preschool is subject to a civil penalty and licensure action for failing to comply with staff-to-student ratios and for having tools on the daycare playground, in violation of Florida Administrative Code Rules 65C-22.001(4) and 65C-22.002(1)(a), and chapter 402, Florida Statutes.
Findings Of Fact Respondent is licensed by the Department to operate a facility known as Amanda’s Childcare & Preschool located at 123 West Rhode Island Avenue, Orange City, Florida 32763. Respondent is owned by Joseph Corneck. During the morning of January 28, 2013, Mr. Corneck was working on the construction of a climbing apparatus in a playground at Respondent’s daycare facility. There were no children playing on the playground at the time of Mr. Corneck’s construction activities. Rather, there were 20 kindergarten-aged children inside an adjacent classroom while Mr. Corneck was outside working. Near lunchtime, Ms. Carolyn, a staff member who was supervising the classroom, lined the children up so that they could use the two available bathrooms and wash up for lunch. Because of crowding by the number of children lining up for only two bathrooms, Ms. Carolyn asked seven boys in the group to line up outside the classroom along the exterior wall near the door adjacent to the playground. Ms. Carolyn asked Mr. Corneck to assist in watching the boys while they were in line. Mr. Corneck left the apparatus that he was working on, which was approximately 30 feet away, and came over to the boys to watch over them while they were in the line. Mr. Corneck left the tools that he was working with, consisting of a hammer and a cordless drill gun, back on a platform of the apparatus. The platform where he left the tools was approximately four to six feet high. He also left the materials he was working with and a ladder near the apparatus. While Mr. Corneck was watching the boys, Department family services counselor Kalyn Yeager stopped by for a routine inspection. She noticed the boys outside the classroom and apparently concluded that they had access to the tools and materials. Mr. Corneck, however, did not allow the boys to play on the playground that day. There is no evidence that the children were allowed access to the tools or playground apparatus, and there is insufficient evidence to suggest that the children otherwise had access to those tools or materials, or that they were ever in danger or potential danger because of his construction activities. After the inspection, Ms. Yeager had a conversation with Mr. Corneck in which he advised that he had shown some of the day care students how to use tools. Mr. Corneck, however, never told Ms. Yeager that he had given a demonstration to the kindergarten-aged children who were present on the day of the inspection. Rather, his reference to a tool demonstration was about another occasion or occasions when he had demonstrated the use of tools to some of the older boys in Respondent’s after- school care. At the final hearing, Ms. Yeager could not recall the number of children who were there the day of her inspection. The evidence is otherwise inadequate to show that Respondent violated any applicable staff-to-child ratio standards. In sum, the Department failed to prove the alleged violations set forth in the Administrative Complaint.
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 dismissing the Administrative Complaint. DONE AND ENTERED 15th day of October, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 15th day of October, 2013.
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)
