The Issue The issue is whether Respondent should be assessed a $150.00 civil penalty for violating Rule 65C-22.001, Florida Administrative Code, in three respects.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this case, Petitioner, Department of Children and Family Services (DCFS), has filed an Administrative Complaint against Respondent, Cool School, Inc., a licensed child care facility, seeking to impose a $150.00 civil penalty on Respondent for allegedly violating an agency rule in three respects. Respondent, which operates a facility at 57 College Drive, Orange Park, Florida, disputes the allegations and contends that the charges are either not true, or there are extenuating circumstances present which require dismissal of the charges or a reduction in the penalty. Rule 65C-22.001(5)(a), Florida Administrative Code, underpins this action and requires in relevant part that "[c]hild care personnel at the facility must be assigned to provide direct supervision to a specific group of children and be present with that group of children at all times." The Administrative Complaint alleges that in September 2000 Respondent violated this rule by (a) allowing a two-year-old child to exit the facility to the playground, without supervision, clad only in a shirt and shoes; (b) allowing two children under the age of thirteen to change the diaper of a seven-month-old infant in the bathroom, without supervision by the staff; and (c) allowing at least five school-aged children to leave the premises and get items from their book bags on the front porch, without supervision. The DCFS proposes to impose a $50.00 civil penalty for each violation, or a total of $150.00. DCFS has the responsibility of periodically inspecting licensed child care facilities to ensure that they are complying with agency rules and state law. To carry out this duty, DCFS typically assigns its licensing counselors a number of facilities to monitor. In this case, Susan Kipen, a licensing counselor stationed in Jacksonville, was assigned the task of monitoring more than 90 such facilities in the Jacksonville area, including Respondent. In response to a complaint filed by an unnamed parent on September 18, 2000, Kipen inspected Respondent's facility on the afternoon of September 20, 2000. The parent had reported that her two-year old child had wandered into the playground area without supervision, and that the diapers on her seven-month-old child had been changed by two school age children without appropriate supervision. During her visit, Kipen prepared a document entitled Complaint Investigation in which she recited the alleged violations for which Respondent was being charged. They included, among other things, the two complaints previously lodged by the parent, namely, that a "two year old did get outside by himself, he only had shirt and shoes," and that a "7 month [old] was changed by two schoolers." Although the licensing counselor did not actually observe the two incidents reported by the parent, she included them in her report because she says Respondent's owner, Antoinette Garrity, "confirmed" that they were true by reading and signing the report. However, Garrity understood that her signature merely confirmed that she had read the reported charges, not that she agreed with them. The only first-hand evidence on these two charges was that presented by Respondent. The complaining parent did not testify. In addition to the above two charges, the counselor also charged Respondent with allowing "at least five (5) school-aged children, one at a time, and unsupervised, [to leave] the center by the front door to get items from their book bags located on the front porch." This charge was based on a personal observation by the licensing counselor during her inspection. The first violation concerns a charge that a two- year-old left the facility unattended and was "discovered a few minutes later on the playground by the assistant director." On this issue, the evidence shows that the child was using the potty in the presence of a facility worker, Sharon Dunn, who was also changing a baby's diapers at the same time. The two-year-old suddenly jumped off the potty (without his pants), ran to the door, opened it, and went outside on the porch. Dunn, who had the child in her view at all times from the bathroom window, asked the facility's assistant director, Regina Harewood, who was nearby, "Can you get him?" Harewood acknowledged that she could and proceeded to grab the child and bring him back into into the classroom. The child was never in any danger since he was being observed at all times and was retrieved a few moments after he ran out the door. In addition, Harewood was close enough to be capable of responding to an emergency at all times. Under these circumstances, it is found that no violation of the rule occurred. The second charge concerns an allegation that "two (2) children under the age of 13 years changed the diaper of a 7-month-old infant in the bathroom and no staff was present to supervise [them]." The evidence shows that a new worker had a baby in the bathroom for the purpose of changing his diapers. Garrity acknowledged that when the worker left the room to go outside for a moment, the worker improperly allowed two schoolers who were in the same room to change the diapers. While the diapers were being changed, the baby's mother came into the room. She then complained to staff personnel and later filed a complaint with DCFS. Garrity admonished both the worker and children that this situation should never occur again. Although there was no evidence on how this set of events actually or potentially jeopardized the baby's safety or well-being, a technical violation of the rule has been established since there were no supervisory personnel in the bathroom for a few moments. Finally, during her inspection, the counselor observed at least five children, one at a time, walk outside the front door to retrieve items from their book bags, which were lying on the front porch of the facility, and then return inside. At that time, it was the practice of the children to leave their book bags on the front porch when they arrived at the facility each day. This evidence was not contradicted. Because the front porch was no more than 25 or 30 feet from the sidewalk, which was used by the general public, and there was an apartment complex nearby, the children had the opportunity to gain access to areas frequented by the public. This is true even though the assistant director says that while she was on duty, she was by the front door "the majority of the time." Therefore, the children were potentially at risk when they briefly left the premises to retrieve items from their book bags. Respondent's owner admitted that she "hadn't thought of this situation," and after the incident occurred, she instructed the children that all book bags must be brought into the dayroom. Notwithstanding this corrective action, a violation of the rule has been established. In mitigation, Respondent's owner suggested that the entire matter was caused by a vindictive parent who owed her facility money and filed the charges after a heated confrontation. She also worries that each time the facility receives a civil penalty, it "kills" her business. Finally, she described her facility as a "pretty good" day care facility, and insisted that she puts safety first for the children. Respondent has been the subject of one other disciplinary action in which she was found guilty of failing to submit background screening documents within ten days of employment of seven staff members. In that matter, which was concluded after the Administrative Complaint in this case was issued, she was given a $350.00 civil penalty. See Cool School, Inc. v. Dep't of Children and Family Services, DOAH Case No. 00-1421 (Final Order, Feb. 28, 2001).
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 finding that Respondent violated Rule 65C-22.001(5)(a), Florida Administrative Code, in two respects, and that it have a $100.00 civil penalty imposed. The remaining charge should be dismissed. DONE AND ENTERED this 23rd day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ 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 23rd day of March, 2001. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Antoinette Garrity Cool School, Inc. 57 College Drive Orange Park, Florida 32065 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083
Findings Of Fact A Petitioner was tried and found guilty of a violation of Section 794.011, Florida Statutes, related to sexual battery. This finding was in the case of State of Florida vs. Claude Hiller Barton, in the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida, Case No. 85-5199CF. On June 30, 1986, he was sentenced to life with a minimum 25 year mandatory service. He took appeal to the District Court of Appeal, First District, State of Florida, and in the action of Claude Hiller Barton, Appellant vs. State of Florida, Appellee, Case No. BO-45 and by opinion filed September 25, 1987 the judgement and sentence was responded to by per curiam affirmance. The mandate to the Circuit Court concerning disposition of the appeal in Case No. BO-45, was issued on October 13, 1987. Following his conviction, Respondent, by correspondence of May 23, 1986, noticed the Petitioner of his disqualification from continuing employment in a position as a person who works with children. The correspondence reminded the Petitioner of his right to request an administrative hearing to contest the disqualification. It further stated that given that the Petitioner had been convicted of a felony that he was not entitled to exemption from disqualification and could only challenge the accuracy of the records pertaining to his conviction. The case was forwarded to the Division of Administrative Hearings for consideration through a formal hearing. At the instigation of the Petitioner and with concurrence of Respondent consideration of this dispute was forestalled pending the outcome of the appeal. The existence of the September 25, 1987 opinion of the First District Court Appeal which affirmed the judgement and sentence was first revealed at the final hearing on August 14, 1990. Prior to that occasion numerous attempts had been made to have the parties provide status reports in the administrative case concerning the outcome of the appeal as reflected in the file in this action, to no avail. Having been unsuccessful in pursuing his ordinary remedies related to the criminal court case, Petitioner sought extraordinary relief through a writ of habeas corpus alleging ineffective assistance of appellate counsel. This was in the action of Claude Hiller Barton, Petitioner vs. Richard Dugger, Secretary, Florida Department of Corrections and the State of Florida, Respondents, in the District Court of Appeal, First District, Case No. 89-02677. That petition was denied by order of February 7, 1990, and a motion for rehearing was denied on March 16, 1990. Petitioner has made a further attempt to gain relief based upon a claim of ineffectiveness of the counsel employed to pursue his original petition for writ of habeas corpus. Acknowledgment of receipt of the most recent petition for writ of habeas corpus was provided on August 10, 1990 from the Clerk of the First District Court of Appeal.
Recommendation Based upon a full consideration of the facts found and of the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which establishes the disqualification of the Petitioner from acting as a person who is considered as child care personnel at a child care facility or child care program. DONE and ENTERED this 24th day of October, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1990. COPIES FURNISHED: Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Charlene J. Petersen, Esquire HRS-District 4 Legal Office 5920 Arlington Expressway Post Office Box 2417 Jacksonville, FL 32231-0083 Claude Barton, #103199 Union Correctional Institution Post Office Box 221 Raiford, FL 32083
The Issue The issue is whether the proposed award of the contract for Request for Proposals (RFP) No. P2029 to Henry and Rilla White Youth Foundation, Inc. (White Foundation) is contrary to the specifications of the RFP.
Findings Of Fact DJJ issued RFP No. P2029 on April 17, 2007. The RFP solicited proposals for a “240-available slot Community-based Intervention Services program for boys and girls for Volusia, Flagler and Putnam counties ” The contract resulting from the RFP will be for a three-year term -- July 1, 2007 through June 30, 2010 -- with a renewal option for up to an additional three years at DJJ’s sole discretion. The RFP states that the maximum annual contract amount is $1,504,968, and prospective providers were required to propose a price at or below that amount. EYA and White Foundation submitted timely, responsive proposals in response to the RFP. White Foundation’s proposal offered a slightly lower price than EYA’s proposal.1 On June 18, 2007, DJJ posted notice of its intent to award the contract to White Foundation. Thereafter, EYA timely filed a notice of intent to protest and a formal written protest challenging the proposed award of the contract to White Foundation. The RFP provided that the proposals were to be evaluated and scored in three categories: technical proposal, financial proposal, and past performance. The past performance category focuses on the prospective provider’s knowledge and experience in operating non-residential juvenile justice programs. The criteria related to the past performance category 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. The focus of the dispute in this case is on Part III. A proposal could receive a total of 1,000 points if, as is the case with both EYA and White Foundation, the prospective provider operated DJJ-contracted non-residential programs in Florida. The proposal could receive up to 240 points for Attachment C, with a maximum of 40 points for Part III. The RFP states that the proposal that receives the highest overall score will be awarded the contract. White Foundation’s proposal received a total of 785.98 points, which was the highest overall score. White Foundation’s score included 40 points for Part III of Attachment C. EYA’s proposal received a total of 752.03 points, which was the second-highest overall score. EYA received zero points for Part III of Attachment C. EYA contends that White Foundation should not have received any points for Part III, which would have resulted in White Foundation’s overall score being 745.98 and would have given EYA the highest overall score. Part III of Attachment C asks whether the prospective provider currently operates non-residential juvenile justice programs that are accredited and in good standing with certain accrediting agencies, including the Rehabilitation Accreditation Commission (CARF). If so, the RFP requires the prospective provider to include supporting documentation. The prospective provider receives 10 points for each accredited program listed in Part III of Attachment C. The RFP states multiple times that the supporting documentation “must include the start and end dates [of the programs], be current dated and valid at least through the start date of the Contract that results from this RFP,” and that it must state that “the program cited is a non-residential juvenile program and that is run by the prospective Provider.” The RFP also states multiple times that a prospective provider’s failure to provide the required supporting documentation “shall” result in zero points being awarded for Part III of Attachment C, and that DJJ “is not responsible for research to clarify the prospective Provider's documentation.” EYA did not list any programs in its response to Part III of Attachment C. Its wilderness programs are accredited by the Council on Accreditation (COA), but its non-residential juvenile justice programs are not accredited by COA , CARF, or any other organization. White Foundation listed four programs in its response to Part III of Attachment C: a conditional release program in Nassau County; a conditional release program in Duval County; a conditional release program in Clay County; and an Intensive Delinquency Diversion Services program in Circuit 2. The documentation provided by White Foundation to show that the listed programs are accredited was an undated certificate from CARF and a one-page “Survey Accreditation Detail” dated June 28, 2006. The CARF certificate states that “a three-year accreditation is awarded to the [White Foundation] for the following identified services: case management/services coordination: family services (children and adolescents)" and for “out-of-home treatment: family services (children and adolescents).” The seal on the certificate includes an expiration date of August 2007. The CARF certificate does not mention any of the programs listed by White Foundation in response to Part III of Attachment C. It only certifies that that White Foundation is accredited as an organization for certain services. The Survey Accreditation Detail document makes reference to survey number 32190; company number 200190; an accreditation decision of “three-year accreditation”; an accreditation expiration date of August 31, 2007; and Correction Services of Florida, LLC as the “company submitting intent.” The document lists six “companies with programs,” including the four programs listed by White Foundation in its response to Part III of Attachment C. The bottom of the Survey Accreditation Document includes the notation “page 1 of 2.” The second page of the document is not included in the portion of White Foundation’s response to the RFP that was received into evidence, nor is it included in the exhibit attached to the deposition of Paul Hatcher, the DJJ employee who evaluated the responses to the RFP with respect to Attachment C. Mr. Hatcher testified that he interpreted the Survey Accreditation Detail document to be “a summary of the prospective provider’s programs that received accreditation based on the CARF award letter.” That interpretation, while not implausible, is not adequately supported by the evidence of record. First, there is nothing on the Survey Accreditation Detail document to demonstrate that it was prepared by CARF, and Mr. Hatcher acknowledged that he did not know who prepared the document. Second, it cannot be determined from the Survey Accreditation Detail document whether the “three-year accreditation” referred to in the document relates to all of the “companies with programs” listed on the document, or just to Correction Services of Florida, LLC, which is identified as the “company submitting intent.” Indeed, each of the listed “companies with programs” has a different six-digit number in parenthesis following its name and only the number following Correction Services of Florida, LLC, matches the “company number” referenced at the top of the Survey Accreditation Detail document. Third, the record does not reflect the relationship, if any, between White Foundation and Correction Services of Florida, LLC. Indeed, Mr. Hatcher testified that he did not know anything about Correction Services of Florida, LLC, except that it appeared to have the same address as White Foundation. The CARF certificate and the Survey Accreditation Detail document do not on their face reflect whether the listed programs are non-residential programs (as compared to residential programs) or whether they are juvenile justice programs (as compared to juvenile programs that do not involve the juvenile justice system). However, Mr. Hatcher testified that all of the services identified on the CARF certificate correspond to non-residential facilities and that he was familiar with the listed programs and knew that they were juvenile justice programs. It cannot be determined from the CARF certificate and Survey Accreditation Detail document whether the four programs listed by White Foundation in its response to Part III of Attachment C are accredited. Indeed, Mr. Hatcher candidly acknowledged as much in his testimony.2 If DJJ had scored White Foundation’s proposal in accordance with the specifications of the RFP, the proposal would have received zero points for Part III of Attachment C, which would have resulted in EYA’s proposal receiving the highest overall score.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that DJJ issue a final order rescinding the proposed award of RFP No. P2029 to White Foundation. DONE AND ENTERED this 14th day of December, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 14th day of December, 2007.
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
Findings Of Fact Respondent owns and operates a licensed child care facility known as Toddler Village. The license number is 889- 15. On October 1, 1991, at approximately 10:45 a.m., the facility had one adult supervising two children up to 12 months old, one adult supervising 11 children between 12-24 months old, and one adult supervising 17 children over two years old with the majority being four years old. The inspector gave the inspection report to Shirley Davenport and explained that Respondent had to correct the deficiency immediately. Ms. Davenport is the president of Respondent and, with her mother, owns the company. The inspector ordered Respondent to report on compliance by October 2, 1992. The evidence establishes that, following receipt of the letter, Respondent failed to reduce the number of children in the 12-24 months age group that each staff person was supervising. On January 16, 1992, the inspector again visited the facility. The ratios were one adult supervising two children up to 12 months old, one adult supervising 10 children between 12 and 24 months old, and one adult supervising 25 children over two years old with the majority being four years old. The inspector left an inspection report with Melissa Davenport, who is Shirley Davenport's daughter and was an adult employee of the facility at the time. The report ordered Respondent to provide proof of sufficient staff ratios by January 20, 1992, or else Respondent would face administrative action. On January 30, 1992, at approximate 9:25 a.m., the inspector again visited the facility. In the interim, Respondent had reported to Petitioner other corrective actions concerning alleged violations that are not involved in this case. However, Respondent failed to report corrective actions concerning the ratio of adults to children. The ratios on January 30 were one adult supervising six children up to 12 months old, one adult supervising nine children between 12 and 24 months old, and one adult supervising 21 children from two to four years old. The Administrative Complaint was signed by the District Administrator on February 3, 1992. There are 124 days between October 1, 1991, and February 3, 1992.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order finding Respondent guilty of violating the staff-child ratio for 121 days and imposing an administrative fine of $1210. ENTERED this 28 day of July, 1992, in Tallahassee, Florida. COPIES FURNISHED: Robert B. Williams, Secretary ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28 day of July, 1992. Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 James A. Sawyer, Jr. District 7 General Counsel Department of Health and Rehabilitative Services South Tower, Suite S827 400 West Robinson Street Orlando, FL 32801 Shirley Davenport 6510 Edgewater Drive Orlando, FL 32810
