Findings Of Fact The Petitioner is a member of a protected class for purposes of Chapter 760, Florida Statutes, because of her national origin, as a native of Iran. She maintains in her pleadings that she considered herself to be "white" and asserted her racial discrimination claim on that basis. The Petitioner testified that she, and other members of the class of native Iranians are considered to be "white or Caucasian" and members of the "Aryan" genetic or racial origin. That testimony was not refuted. However, Iran is a modern-day nation state having its boundaries entirely within the continent of Asia; and native-born Iranians such as the Petitioner could be deemed to be Asians. If the Petitioner were considered to be "white", she would not be a member of a protected class for purposes of Chapter 760, Florida Statutes, and pertinent decisional law. She would and is a member of a protected class as an Iranian national and to the extent that status includes her in the class of "Asian". The Petitioner first became employed for the Respondent at its New Beginnings Child Care Center (New Beginnings) on or about August 10, 1989. She began work as a teacher of four and five year olds at the New Beginnings pre- school located on the Florida Agricultural and Mechanical University (FAMU) campus. Later, she was re-assigned to teach two-year-old children during the 1990-91 school year. During the course of her employment there, she received a number of appreciation awards for the work she did while at New Beginnings. Her educational background is such that she has an undergraduate degree in literature and humanities from the University of Iran, a master's degree in adult education from FAMU and plans in the future to complete a Ph.D. program, which she started but has not completed. Prior to working at New Beginnings, she had approximately 12 years experience working with pre-school age children, beginning around 1980. In that year, she began working at Small World Child Care Center (Small World) as a teacher for pre-kindergarten children and later worked with two year olds at Small World. She was later hired for the position of Director of Sunrise Child Care Center (Sunrise), serving in that capacity for three years. Thereafter, she worked at Killearn Lakes Elementary School (Killearn Lakes) as a pre-kindergarten teacher for approximately one and one- half years. The Petitioner was employed for approximately a month from May 2, 1989 to May 25, 1989 at Woodville Elementary School with the Leon County school system, in a temporary position. That job ended, however, because the position was not funded after May 25, 1989. The Petitioner's next job was with the Respondent, commencing on or about August 10, 1989. She initially held a position of group child care instructor in an OPS capacity (other personal services). The parties have stipulated that the Petitioner's entire employment tenure at New Beginnings was as an OPS employee, through her last OPS appointment which expired by its contractual terms on August 2, 1991. The Petitioner held the position of "group child care instructor" until January 3, 1991, at which time she received the title "classroom group leader". Between January 3, 1991 and June 1, 1991, she retained that position as classroom group leader. Between June 3, 1991 and June 30, 1991, her title was group child care instructor, still under the OPS contract. Thereafter, on July 1, 1991 and continuing through the expiration of her OPS contract on August 2, 1991, the Petitioner was hired and titled as an "Instructional Specialist". OPS employees are temporary employees paid for the actual number of hours worked based upon time sheets and payroll certifications. They do not have reinstatement or retention rights. Thus, the Petitioner had no retention rights, as a contractual matter, as an OPS employee. She did have an expectation of re-hiring, however, based upon past policy and practice of New Beginnings and its management; and as Ms. Reva Myers candidly acknowledged, she would have been re-hired had she appeared for work at the appointed time on August 26, 1991. The Director of New Beginnings is Ms. Reva Myers, who was supervised by the Dean of Student Affairs, Henry Kirby. Dean Kirby reports to Dr. Richard Flamer, Vice-President of Student Affairs. Counsel stipulated that Ms. Myers consistently recommended the Petitioner for employment at New Beginnings from August 10, 1989 to August 2, 1991. Dr. Flamer, Dean Kirby, Ms. Myers and Mrs. Hubbard, Associate Director of Human Resources and Personnel Relations, all testified that Ms. Myers had, and has, no authority to independently hire, discharge, or re-hire any employee at New Beginnings. Based upon Dr. Flamer's, Dean Kirby's, and Ms. Myers' testimony, neither the Petitioner's race nor national origin was ever considered when decisions regarding her employment at New Beginnings were being made. When she was hired, Ms. Myers, Dean Kirby, and Dr. Flamer did not consider her race. When the decision was made not to re-hire or retain the Petitioner, as of August 26, 1991, Ms. Myers, Dean Kirby, and Dr. Flamer, according to their testimony, did not consider her race either. The amount of time of which an employee can hold an OPS appointment is limited to 2,080 hours. When that limit is reached, the services can be severed from the University; or the employee's manager can seek approval to extend the employment of that individual. It is solely within the discretion of the hiring supervisor or manager or whoever in the management hierarchy has hiring authority. In 1991, such a request was submitted and approved to allow the Petitioner to maintain employment with the University because she had reached the 2,080 hour limit as an OPS employee. The University was under no obligation to submit and approve such a request and the Petitioner's employment could have been terminated from the University at that point. The request, however, was approved and signed by Ms. Myers, submitted by her, and Dean Kirby, Dr. Flamer, and Mrs. Mary Woodruff, which resulted in the Petitioner being able to continue her employment at New Beginnings. Ms. Myers testified that the Petitioner's race was not a consideration when she signed and submitted that request to extend the Petitioner's OPS employment time period. In 1990, the Petitioner applied for a "Classroom Teacher I" permanent position. The State of Florida, Department of Education, required that a person have a valid Florida teaching certificate to be qualified for this position, as well as a degree in elementary education, early childhood education or child development, and a minimum of three years' experience working with young children. It is stipulated that the Petitioner was not qualified to fill this position because she did not have a valid Florida teaching certificate or one of the relevant degrees. The position was, therefore, filled by Ms. Naomi Griffin, who had a valid teaching certificate, a degree in elementary education or certification in early childhood. She also had a 20-hour child development course, as required by the State of Florida, and numerous years of experience in early childhood education, childhood care centers, and in the public school system. Ms. Griffin is black. In May of 1991, Ms. Griffin submitted her resignation as Instructional Specialist; and three Instructional Specialists positions, which were permanent positions, were thereupon advertised by New Beginnings and FAMU. During the time Ms. Griffin had held the position, it had been re-classified by the Board of Regents from the Classroom Teacher I position to that of "Instructional Specialist", which no longer required a teaching certificate. Upon advertising the three positions, the Petitioner and Mrs. Jill Ardley applied for the permanent positions. The three positions were ultimately not filled, however, because New Beginnings did not have the salary rate or funds to fill and pay for those positions. The Petitioner, although she was not hired for the permanent position, because of a lack of funds and, for that reason, no one else was hired, was chosen to perform that job in an OPS capacity, instead of Ms. Ardley. The Petitioner had been interviewed by a committee assembled for the purpose of interviewing applicants for the Instructional Specialists position in May of 1991 and favorably recommended. Ms. Myers, the Director of New Beginnings is black and was an ex officio member of that committee. Although no one received the permanent Instructional Specialist position, the Petitioner served in that capacity as an OPS employee through August 2, 1991. It is customary for New Beginnings and its employees to have a three- week break, with the school not operating during early August. The Petitioner and the other employees at New Beginnings would normally be required to return for the beginning of the fall school term several days prior to class resuming for the 1991-92 school year or about August 24th. The Petitioner, however, sometime in the spring or summer of 1991, requested of Ms. Myers the grant of an additional week of vacation time, so that she could travel to Europe and care for her sister's children while her sister was hospitalized for surgery. The Petitioner maintains that Ms. Myers approved the extra week of leave. Ms. Myers testified that she did not approve the Petitioner staying on vacation any longer than the starting date for the school year, which was August 26, 1991. The Petitioner maintains that she informed Ms. Myers that she would be back on August 30th or September 1st and that Ms. Myers approved that amount of vacation time and return date. The record reveals, however, that what, in all likelihood, occurred was that Ms. Myers approved the return date conditioned on the Petitioner obtaining a qualified substitute teacher to stand in for her during her absence, if she was not going to be back in time to commence employment prior to or at the beginning of class days, August 26, 1991. This tends to be borne out by the Petitioner's own testimony to the effect that Ms. Myers assisted the Petitioner by providing her a list of substitute teachers for the Petitioner to review for her to find someone to work in her absence. Thus, it appears from the totality of the testimony of the Petitioner and Ms. Myers that the understanding was that the Petitioner would obtain a substitute teacher, as the Petitioner herself admits. In fact, however, she did not obtain a substitute teacher. It is the normal custom and practice that OPS appointments expire on the last day of the school term in early August. Indeed, the Petitioner's OPS appointment expired on August 2, 1991. Those persons interested in new OPS employment appointments for the upcoming fiscal and school year are required to return to work sometime during the week prior to New Beginnings' opening for classes, which would have been on August 26, 1991. Therefore, employees were required to report sometime between August 23 and August 26, 1991 to become appointed as OPS employees, if that is their status, and to prepare their classrooms and other facilities and materials for the advent of classes on August 26, 1991. Ms. Myers indicated in her testimony that she became concerned after not having heard from the Petitioner shortly before the school session was to commence. She testified that she attempted to contact the Petitioner at her home sometime prior to August 24, 1991, but there was no answering machine to record a message or at least she did not detect such when she called. The Petitioner maintains that she had an answering machine and that her husband was still in Tallahassee, Florida, during this time period and that Ms. Myers could have contacted him to learn of the Petitioner's return plans. The evidence does not reflect that Ms. Myers, at the time, knew that the Petitioner's husband was in town, however. There is no evidence to show, on the part of the Petitioner, that she or her husband made any attempt to contact Ms. Myers during the period of time in August when she was away from Tallahassee, Florida, and immediately prior to the time she would have to report for the impending school session. The Petitioner acknowledged that she did not return to Tallahassee, Florida, until August 30, 1991. Since the Petitioner did not return on August 26, 1991 when the school opened, Ms. Myers recommended that Ms. Ardley be hired to the OPS position as an Instructional Specialist. In fact, Dean Kirby discussed with Ms. Myers the Petitioner's failure to show up for work, pursuant to earlier telephone conversations they had had on August 24th and 25th, and he agreed with Ms. Myers that New Beginnings had to have an instructor in place immediately. His memorandum of August 26, 1991 notes that the Petitioner was an OPS employee whose prior appointment had expired. Therefore, both he and Dr. Flamer agreed with the recommendation that Ms. Ardley be hired to replace the Petitioner. Ms. Ardley was then telephoned on Sunday night, August 25, 1991, by Ms. Myers, before school was to commence on the following day. Ms. Myers indicated at that time to Ms. Ardley that she was needed to start work as a "sub" or substitute teacher on the following day in the Petitioner's classroom. When she made her recommendation that Ms. Ardley be hired to replace the Petitioner, Ms. Myers was very aware of her educational experience, qualifications, and capabilities. Ms. Ardley had previously worked in a teaching capacity and had conducted workshops and in-service workshops where she trained other teachers, including the Petitioner and other staff of New Beginnings. She had proposed and implemented a mentoring program at New Beginnings, and 90 percent of the mentors in that program were "white". Ms. Ardley had a bachelors degree in elementary education from FAMU and a certification in early childhood education. She had graduated with honors with a 3.5 average and was qualified to teach from infanthood to sixth-grade students. She had obtained a master's degree in elementary education and educational leadership and graduated from that program with a 4.0 average. She is very highly regarded by instructors and members of the Department of Education at FAMU. Based upon the testimony of Dr. Evans, the Chairperson of the Department of Secondary Education and Foundations, College of Education of FAMU, the Petitioner has taken only three courses which would appear to be pertinent to elementary education or early childhood education while attending the University of Iran, FAMU, and Florida State University (FSU). Ms. Ardley, on the other hand, took 11 courses at the undergraduate level and 12 more courses on the graduate level which appear to be pertinent to an early childhood or elementary education capability. Ms. Ardley had numerous years of experience teaching in the Leon County school system and worked as a gifted school teacher. Ms. Ardley has a number of certifications qualifying her to teach different subjects, including one qualifying her to teach gifted students. The evidence shows that Ms. Ardley, by training, education and experience, was more qualified than the Petitioner to teach early childhood education, including any of the positions for teaching or care for children at New Beginnings. While it is true that the OPS Instructional Specialist position, which the Petitioner held, and Ms. Ardley took, did not require certification as a teacher, the level of Ms. Ardley's educational attainments, certifications, and teaching experience renders her considerably more qualified than the Petitioner. Ms. Ardley submitted a leave of absence request to the Leon County school system on August 19, 1991, because she intended entering, and had registered for, a master's program at FSU. She did not enter that program and immediately began looking for work, including for other positions in the Leon County school system. Shortly before that time, she had obtained her first continuing contract with the Leon County school system and was scheduled to work at the Academic Resource Center Gifted Program with Leon County schools for the 1991-92 school year but, instead, had submitted the leave request. She did not enter the master's program because the fellowship and related funds she was anticipating obtaining to finance her master's degree program was not received. Ms. Ardley testified, in a somewhat confused fashion, about whether her husband's absence and lack of income due to being with the troops in the Desert Storm operation or whether the loss of his job with the Tallahassee Police Department resulted in her needing to immediately begin looking for work after seeking a leave of absence. Her husband's suspension from the police department did not occur until after September 13, 1991 and the Desert Storm operation had concluded by mid 1991 or approximately June of that year. However, Ms. Ardley also testified that she did not obtain her fellowship and related funds to finance her master's degree program and that was the reason she began immediately looking for work, as well. The Petitioner seems to question the motives of Ms. Ardley and Ms. Myers concerning why Ms. Ardley sought and accepted the job at New Beginnings, asserting that the Petitioner's exhibit number 32 actually indicates that Ms. Ardley was hired on August 21st, and not August 26, 1991. That, coupled with the fact that Ms. Ardley's sister was already an employee at New Beginnings, would seem, apparently in the Petitioner's view, to indicate that there was some scheme or motive by Ms. Ardley and Ms. Myers to improperly purloin the Petitioner's employment position and give it to Ms. Ardley. The Hearing Officer does not find that that is the motive behind the hiring of Ms. Ardley. Both the testimony of Ms. Myers and Ms. Ardley indicates that Ms. Ardley was not called with final instructions to report for duty until the night of August 25, 1991, for employment the following morning. Ms. Ardley testified that she was asked to report for duty then as a "sub" or a substitute teacher employee. That appears to be the date the final decision was made by Ms. Myers, after consulting her superiors, as found above, even if tentative plans to hire Ms. Ardley, in the event the Petitioner did not return, had been made several days previously between Ms. Ardley and Ms. Myers. This is borne out by the fact that Ms. Myers and Dr. Kirby both testified that the Petitioner would have been re-hired had she reported for duty by August 26, 1991. Moreover, even if Ms. Myers and Ms. Ardley had some preconceived plan to have Ms. Ardley take the position of the Petitioner before she returned from Europe and even if it worked an unfairness on the Petitioner, there is a nondiscriminatory basis for it in the preponderant evidence of record by the fact of Ms. Ardley's considerably-superior qualifications, compared to the Petitioner's. This is also shown by the fact that in the past, although she would have re-hired the Petitioner, Ms. Myers had had experience with certain deficiencies in the Petitioner's performance, at least in her view, and evidently some personality clashes with the Petitioner. These factors provide a reason for the substitution of Ms. Ardley in the Petitioner's former position, for reasons other than race or national origin discrimination. Moreover, the evidence indicates that Ms. Ardley did not have any intention of becoming a permanent employee of New Beginnings. She requested Ms. Myers to write her a letter of reference for employment purposes, and Ms. Myers wrote such a letter dated July 12, 1991 giving her a very favorable recommendation; but it was not for a position at New Beginnings but, rather, for Pineview Elementary School. Ms. Ardley held no other position except the OPS position while employed at New Beginnings and only worked as an OPS Instructional Specialist from the period of August 26, 1991 to December 31, 1991. She returned to the Leon County school system in January of 1992. During the Petitioner's employment, Ms. Myers had some concerns about her performance. She was frequently tardy and, although verbally counselled by Ms. Myers about her tardiness, she failed to modify her behavior. After verbal counselling seemed to have no effect, Ms. Myers wrote at least one letter to the Petitioner concerning her tardiness and admonished her about it. Further, the Petitioner did not plan adequate educational programs for her students. When she was hired in 1989, she was assigned to work with four year olds. However, as the year progressed, Ms. Myers realized that the Petitioner did not possess the necessary capabilities to prepare the children properly for kindergarten. Accordingly, the following year, she was assigned to work with the two year olds. Additionally, the Petitioner was in the habit of making frequent personal telephone calls, outside the designated hours for telephone calls, which was between 1:00 p.m. and 3:00 p.m. Because she was making personal telephone calls at times other than the designated time period, it meant that when she was talking on the telephone, her class was not properly supervised, which could cause a risk of violation of Department of Health and Rehabilitative Services (HRS) standards for such facilities. Ms. Josie Rivera worked at New Beginnings from its opening in 1989 until March of 1990 and served as the Petitioner's assistant. By her own testimony, Ms. Rivera is "white" and a native of Puerto Rico. She testified that she complained to Ms. Myers concerning the way the Petitioner treated and handled students. She indicated that the Petitioner was reluctant to touch the students and to change the clothing of children when they had a bathroom-related "accident". Ms. Rivera found the Petitioner deficient in providing activities for her students necessary to developing manipulative skills, as far as hand and eye coordination are concerned. According to Ms. Rivera, the Petitioner was deficient in providing the students organized play. Ms. Rivera witnessed that many times the Petitioner would use the telephone when she should have been supervising her students. In 1991, Mr. Larry Cone worked as an Administrative Secretary at New Beginnings. He remembered the Petitioner becoming frustrated at changing the clothing of students who had "accidents", and he even assisted her in changing students, particularly one student by the name of Brent Lang. He remembered the Petitioner becoming upset at changing Brent Lang frequently, and he suggested to her that he give her a hand with him and did so for approximately one week. The testimony of Ms. Naomi Griffin also corroborates the problems which Ms. Myers experienced with the Petitioner's performance in that she also witnessed the Petitioner being tardy coming to work and making personal telephone calls at inappropriate times. These problems are corroborated by the testimony of Ms. Peggy Henry, the owner and manager, and Ms. Emily Ball, the Assistant Director of Killearn Lakes pre-kindergarten. The Petitioner was employed there and her tardiness and reluctance to properly care for her students was observed during her employment at that facility. She worked at Killearn Lakes for approximately one and one-half years and was often late to work or late returning from lunch. Her tardiness caused a problem for Killearn Lakes. Ms. Henry testified that she had a history of being late and, in fact, Ms. Henry had to take over and be accountable for her class at times. Her tardiness was a problem in terms of accurately complying with HRS rules and regulations concerning a proper pupil/teacher ratio, as well as safety and health concerns. This could have potentially resulted in a disciplinary action against the facility's license by HRS. Ms. Henry and Ms. Ball testified that on separate occasions, they each had had to care for a child who was bleeding because the Petitioner would not do so. They described the Petitioner as being extremely concerned about the AIDS virus and about washing her hands and cleanliness. The testimony reveals that the Petitioner was inordinately concerned with these matters, to the extent of not properly caring for children at times because of it. She had an aversion to caring for children who had injuries. Ms. Henry would not re-hire the Petitioner if the opportunity arose because of her reluctance to touch the children in her interaction with them and because of her problem with tardiness. Both Ms. Henry and Ms. Ball are "white". In the face of the Petitioner's testimony concerning harsh treatment during her time of employment at New Beginnings, Mr. Cone denied that he had ever pushed or struck the Petitioner, and Ms. Myers denied refusing to allow her to eat and denied intentionally or knowingly spitting upon the Petitioner. Ms. Myers, Ms. Rivera, and Ms. Griffin all testified that the Petitioner freely received and made telephone calls and that her calls were not withheld from her. The Petitioner is attempting to claim that a racially-hostile working environment existed at New Beginnings, but Dr. Flamer, Dean Kirby, Ms. Myers, Mr. Cone, Ms. Griffin, and Ms. Rivera testified that they did not identify the Petitioner's race as being white. Ms. Lang, whose son was in the Petitioner's class, testified that she herself did not consider the Petitioner to be "white", and, based upon her somewhat limited experience, did not observe any racial antagonism or hostility at New Beginnings. The Petitioner has not testified that any racial slurs or ethnic slurs were made against her while she worked at New Beginnings in terms of her race or national origin. The Petitioner did testify that statements were allegedly made about "white" people and that one incident occurred involving a student at New Beginnings who was made fun of by other students. The student's skin appears to be "white", but the Petitioner herself indicated that the student is "black". The other incident involved statements made allegedly by Ms. Olabisi David. The Petitioner admitted, however, that she did not take those comments to be directed personally against her; and there was no showing that the Petitioner's supervisor or anyone in supervision of New Beginnings knew of or condoned any comments, such as those made by Ms. David. Additionally, the Petitioner claimed that she was not allowed to use pictures and illustrations in instructional materials of persons other than "black" persons in instructing her children. The Petitioner acknowledged, however, that she did use classroom materials that had pictures of white people, including stick figures, dolls, and posters. The Petitioner also identified many of the exhibits entered into evidence by the Respondent that had pictures and representations of "white" people, which were at New Beginnings while she was employed there and available for her use, including the series of Lady Bird's Book, Real Things Number Book, a Mother Goose book, The First Thousand Words in Spanish (book), Ella Jenkin's We Are America's Children (album cover), and Play Your Instruments and Make a Pretty Sound (album cover). The Petitioner admitted that many of these exhibits were used at New Beginnings while she was employed there. Further, Ms. Myers testified that videos, including Cinderella, Aladdin and His Magic Lamp, The Ninja Turtles, Honey I Shrunk The Kids, and Snow White, which had "white" people featured were used at New Beginnings. Consequently, a racially-hostile working environment was not shown to exist at New Beginnings in these particulars. Further, Ms. Myers made special concessions for the Petitioner in allowing her to leave work early to pick up her children from their school by allowing her to come in early to make up the time. This accommodation also tends to show that a hostile working environment on the account of race or national origin did not exist. The Petitioner was not the only non-black person employed at New Beginnings. Ms. Josie Rivera is white, and she worked at New Beginnings with the Petitioner. The Petitioner and Ms. Rivera had an altercation of some sort and had difficulty getting along with each other. Immediately after the incident, both the Petitioner and Ms. Rivera were reprimanded by Ms. Myers and informed by her that if the incident happened again, they would both be disciplined. Ms. Myers did not consider the Petitioner to be "white". Additionally, Ms. Smitah Shah, whose race is Asian and whose national origin is India, worked at New Beginnings with the Petitioner. Ms. Shah testified that she did not ever feel that Ms. Myers discriminated against her while she was employed at New Beginnings and, in fact, when she left New Beginnings, Ms. Myers recommended her highly for employment at the FSU Educational Center for Child Development. Ms. Shah had to leave New Beginnings because the money to fund her salary for her position expired. The Respondent provided the Petitioner aides and assistants to help her during her tenure working at New Beginnings. Ms. Myers named approximately 12 people who had worked in an assistance capacity with the Petitioner at various times during her tenure at New Beginnings, including people who worked as volunteers. The Petitioner also seems to have been distressed by the fact that she had to change children's diapers or soiled clothes. There is a dispute in the evidence concerning whether children in diapers were admitted to the New Beginnings as students and whether the Petitioner had to accept such children in her "class". New Beginnings, indeed, had a policy that children to be enrolled had to be "potty trained". The Petitioner maintains that she was harassed and discriminated against by being forced to accept children who were not potty trained and being solely responsible for changing their soiled clothing or, arguably, their diapers. In fact, credible evidence shows that New Beginnings had a policy against accepting children who are not potty trained, but because the Petitioner was assigned to the two-year-old age group of children, it was a nature adjunct of working with children of that age and level of development that some will frequently have "potty accidents". Consequently, although the Petitioner seems to have regarded this chore as distasteful and, indeed, it likely was so, there was no showing that she was singled out for performing such duties by reasons of harassment on account of her race or national origin or for any other reason of harassment. The Petitioner also contends that her right to have a lunch hour was curtailed or eliminated. The credible evidence indicates that the Petitioner was not denied a lunch hour. In fact, the Petitioner was provided a lunch hour. Further, the Petitioner and Ms. Myers had an agreement or understanding that the Petitioner could come in early so that she would be able to leave New Beginnings before normal working hours ended or at 3:00 p.m. or 3:30 p.m., so that she could pick up her own children, at their school location, at the end of their school day. There is no credible evidence that this privilege was offered to other teachers at New Beginnings, who had to work a normal work day from 8:00 a.m. to 5:00 p.m. The Petitioner claimed as further evidence of hostility in her working environment that she was subjected to constant harassment which caused a stress- related illness and hospitalization. She provided no medical evidence to support her testimony of that claim. Ms. Myers accompanied the Petitioner to the hospital on one occasion and established that her illness was due to medicine she was taking which made her have heart palpitations. According to the Petitioner's own testimony, she also had a history of "nerve problems" and taking blood pressure medication and had been doing so for the past 13 or 14 years. She also maintains that she was not informed of any change in her employment status before, during or after her vacation, but introduced into evidence a letter signed by Ms. Myers dated August 26, 1991 clearly indicating that her OPS contract had expired on August 2, 1991. Even without that letter, she had notice from the original appointment form that her appointment would expire on August 2, 1991. Her continued employment thus depended on her understanding with Ms. Myers, as with other OPS employees, that she arrive in time to commence the new school year or, in her own case, that she obtain a substitute if she were going to be still on vacation. She did neither. Ms. Myers made an effort to contact her before the school year started, somewhere around August 23-24, 1991, and was unable to do so. It is very questionable whether Ms. Myers had a duty to contact her in any event. It was the Petitioner's responsibility to contact her employer and insure that proper arrangements for her continued employment had been made and, if her absence was necessary, that a proper substitute had been obtained. The Petitioner failed to fulfill that duty. There has been no credible evidence that during her tenure as an employee at New Beginnings, the Petitioner was subjected to a hostile environment due to race or national origin reasons. She may have had altercations with several employees, including especially, Ms. Rivera, and maybe even Ms. Myers, but such involved questions of her performance or might be attributable to personality conflicts. They did not stem from any hostile attitude or pattern of conduct toward her based upon her race or national origin, according to the preponderant, credible evidence in this record. This finding is supported additionally by the evidence that the Petitioner and her family enjoyed a number of social occasions, such as Christmas dinners and parties with the staff of New Beginnings, including at least one occasion planned and paid for by Ms. Myers, as delineated fully in paragraph 37 of the Respondent's proposed findings of fact, which is adopted by reference herein. Ms. Jessie Aloi, Director for Graduate and International Admission, and Ms. Cynthia Seaborn, Associate Director of graduate students, work at FSU and are friends of the Petitioner. Ms. Aloi and Ms. Seaborn suggested to the Petitioner that she apply for a position as Admissions Officer I at FSU. She did so in the fall of 1991, and Ms. Aloi and Ms. Seaborn sat on the committee which interviewed her. Ms. Aloi was responsible for calling prior employers and contacted Ms. Myers. Ms. Aloi testified that the information received from Ms. Myers did not really have a negative effect upon the decision not to choose the Petitioner for the position, because the first choice of the search committee for the position was another person based simply upon that person's qualifications. Ms. Aloi stated that the recommendation from Ms. Myers more concerned the Petitioner's communication problem, posed by apparent difficulties with the English language, which was consistent with the reservation Ms. Aloi and other members of the committee had about hiring the Petitioner. The person hired was simply an excellent candidate and had superior qualifications to the Petitioner, and the supervisor of that position also was more favorable towards the applicant who was FSU's first choice. Ms. Aloi's testimony shows that the conversations she had with Ms. Myers concerning the Petitioner had no substantial impact on the Petitioner's rating for employment in that position. There were two candidates who were tied for first ranking for that position ahead of the Petitioner, who was ranked second. Both Ms. Aloi and Ms. Seaborn, the Petitioner's friends, ranked the Petitioner as the number two candidate. The information provided by Ms. Myers did not prohibit the Petitioner from mitigating her damages and seeking employment, including employment at FSU. She did not get the position simply because two candidates ahead of her were more qualified. In summary, it has not been demonstrated that a hostile, racial environment existed at New Beginnings which resulted in harassment or other derogatory, discriminatory behavior toward the Petitioner on account of her race or national origin. Further, even it be deemed that Ms. Ardley was a replacement for the Petitioner in the OPS position, which the Petitioner lost by failing to arrive timely for work after vacation, the evidence of record reflects that Ms. Ardley was clearly more qualified than the Petitioner for that position. When coupled with the fact that the Petitioner's supervisor, Ms. Myers, had reservations and difficulties with the Petitioner's performance in the past, this shows not only articulation but competent, credible evidence of a legitimate, non-discriminatory, business reason for hiring Ms. Ardley to replace the Petitioner in that OPS position. With regard to the permanent position which the Petitioner applied for and was interviewed for in May of 1991, along with Ms. Ardley, the permanent "Instructional Specialist" position, the Petitioner's apparent claim of discrimination in failing to be hired fails because no one from a racial or national origin class other than the Petitioner was chosen for it. No one was chosen since the positions were not filled for fiscal deficiency reasons. The evidence also reflects that the committee who interviewed the Petitioner and had authority to at least recommend a candidate for the position, considered the Petitioner their first choice. Consequently, in view of the preponderant, credible evidence of record, culminating in the above Findings of Fact, it has not been demonstrated that the Petitioner has been the victim of disparate treatment in the employment decision which affected her, on account of her race or national origin nor that she has been subjected to a hostile, racially-discriminatory, or national-origin-based discriminatory working environment.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations denying and dismissing the petition for relief filed herein in its entirety. DONE AND ENTERED this 9th day of November, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 9th day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7521 Petitioner's Proposed Findings of Fact 1-23. Accepted, but not dispositive in themselves of the material issues presented for resolution and subordinate to the Hearing Officer's findings of fact on this subject matter. 24-25. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 26-31. Rejected, as not entirely in accord with the preponderant credible evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. 32-39. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not as necessarily material to resolution of the issues presented. 40-44. Accepted, but not necessarily for the material import with which these proposed findings are advanced and as subordinate to the Hearing Officer's findings of fact on this subject matter. 45-46. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not accepted as to the material import with which the proposed findings are advanced. The Hearing Officer has resolved the reason Ms. Ardley was looking for employment in his findings of fact. Rejected, as immaterial to resolution of the relevant issues presented for resolution. Accepted, but not material. 49-51. Rejected, as immaterial to resolution of the relevant issues presented and as subordinate to the Hearing Officer's findings of fact on this subject matter. 52-53. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 54-71. Rejected, as not supported in a material way by the preponderant, credible evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter. 72-79. Accepted, in terms of these witnesses expressing satisfaction with the Petitioner's performance with their children but if scant materiality because of the brief period of time these witnesses had an opportunity to observe the Petitioner's performance and the operations of New Beginnings. The Hearing Officer, in any event, has found the Petitioner qualified for the duties of her position for which she was not re-hired. 80. Rejected, as immaterial. The witness referenced was only present at New Beginnings for a week and had little opportunity to observe, and rejected in the sense that this proposed finding of fact is subordinate to the Hearing Officer's findings of fact on this subject matter. 81-88. Accepted, but not necessarily of material weight in resolution of the justiciable issues presented for resolution. The Petitioner's reputation for truth and honesty may, indeed, be very good, but her perceptions can be flawed. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact numbered 1-40, to the extent they are consistent with those found by the Hearing Officer herein in this Recommended Order, are accepted. To the extent they are not so consistent, they are rejected as being immaterial, unnecessary, or as not entirely supported by the preponderant credible testimony and evidence of record. COPIES FURNISHED: Marie A. Mattox, Esquire 1333 North Adams Street Tallahassee, Florida 32303 Bishop C. Holifield, Esquire Florida A&M University 300 Lee Hall Tallahassee, Florida 32307 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact In December, 1984, Petitioner, a black female, began employment with the Respondent. The Petitioner was hired for two positions. In one position, the Petitioner was employed as a (40 percent FTE) Cook, working 40 percent of a full time 40 hour work week, or 16 hours weekly. In the other position, the Petitioner was employed as an "on-call" Mental Health Technician I. The Mental Health Technician employment was an OPS (other personnel services) position with no regularly scheduled working hours. Her place of employment was the geriatric residential treatment system (GRTS) center at Bristol, Florida. On July 11, 1986, the Petitioner was transferred from the OPS Mental Health Technician position to a (50 percent FTE) Mental Health Technician position. In the new position, which entailed completion of a six month probationary period, the Petitioner worked 50 percent of a full time 40 hour work week, or 20 hours weekly. Combined with the job as Cook, Petitioner was employed for 36 hours weekly. At some point prior to the end of 1986, the Petitioner wrote to Ronald Kirkland, executive director for the Respondent. The Petitioner apparently felt that she was the subject of discrimination. The Petitioner demanded that Mr. Kirkland meet with her. She was advised to proceed in accordance with the Apalachee Center's personnel grievance procedure. Assistance in filing a grievance was offered to her, but she refused and continued to demand that Mr. Kirkland personally meet with her. The demand was rejected. In January, 1987, the Petitioner was informed that her job performance in the Mental Health Technician position was not satisfactory. At a meeting, held January 20, 1987, the Petitioner was given a memorandum (dated January 12, 1987) detailing a number of issues which were the basis for her unsatisfactory evaluation. (R-1) Such issues generally included disagreements over working hours, noncooperation with coworkers and abusiveness towards the Program Supervisor. The Petitioner acknowledged the memorandum, and stated that she believed it to be "unreasonable." Due to the unsatisfactory nature of her performance, the probationary period was extended for three months. At the end of the three month extension, in April, 1987, she was again evaluated. She received an above satisfactory evaluation in all categories except attitude, which was satisfactory. By March, 1987, the Respondent had determined that problems existed with the day treatment program at the Bristol GRTS facility and began planning to fully evaluate the operation. The Petitioner was working in the day treatment program. Laura Harris, Day Treatment Coordinator for the Respondent, was assigned to perform the review by Dr. William Perry, Respondent's Director of Geriatric Services. The process began in April, 1987. The staff of the Bristol GRTS facility was notified that the review was being performed and that Ms. Harris would be visiting at specific times to observe their performance. Ms. Harris requested that each day treatment staff person prepare four activities for GRTS clients and attempted to schedule times to observe the staff's presentation of the activities. The Petitioner failed to respond to Ms. Harris' request and did not schedule activity observation sessions. Eventually, Ms. Harris attended one of the Petitioner's activities periods without providing advance notice. Other day treatment staff were responsive to Ms. Harris' requests and cooperated with her suggestions. The Petitioner was not cooperative. The review period continued through August, 1987. On May 5, 1987, the Petitioner resigned from her position as Cook, effective May 18, 1987, and advised her program supervisor that she was available for additional employment as an OPS Mental Health Technician. The Petitioner's requested additional employment would have been during the evening, night and weekend shifts. The request was based on the departure, several weeks earlier, of the person employed as the 11:00 p.m. to 7:00 a.m. Mental Health Technician. The 11:00 p.m. to 7:00 a.m. shift is less popular and more difficult to staff than other work periods. Janey Hall, a black female, is the Bristol GRTS supervisor responsible for securing staff coverage for the evening shifts. The OPS evening shift assignments were generally rotated among staff members. However, due to the difficulty in staffing the 11:00 p.m. to 7:00 a.m. shift, Ms. Hall proposed assigning the coverage to a single individual. The proposal was approved by the Bristol GRTS program supervisor and by Dr. Perry. Ms. Hall selected Penny Mize, a white female, to work the 11:00 p.m. to 7:00 a.m. shift until a permanent employee was hired for the shift. Ms. Mize began working the shift immediately upon the departure of the former employee. There were occasions when black employees filled in for Ms. Mize. As to the Petitioner's request for additional employment hours, the Respondent's supervisory staff was concerned about the Petitioner's ability to successfully respond to the demands of evening, night and weekend shifts. Those shifts provide less supervision of employees than does the day shift. Due to previously noted problems with the Petitioner's job performance, as reported to Dr. William Perry, it was determined that the Petitioner required greater supervision than was available to her on the OPS shifts. Accordingly, her request for additional OPS hours was rejected on May 13, 1987, by Dr. Perry. On May 21, 1987, the Petitioner filed a complaint with the Florida Commission on Human Relations, FCHR No. 87-3619, alleging that the denial of her request for OPS hours as a Mental Health Technician was based on racial discrimination. The Petitioner alleged that Ms. Mize, a white employee, was permitted to work the additional hours, 11:00 p.m. to 7:00 a.m. There was no evidence presented by the Petitioner which would indicate that the denial of her request for the additional hours was racially motivated or based on any factor other than her job performance and the decision to limit her employment to more closely supervised shifts. Subsequent to the Petitioner's filing of FCHR 87-3619, Laura Harris completed the review of the Bristol GRTS facility. Based upon her review she prepared an evaluation of the Petitioner's job performance and a corrective action plan which specified steps the Petitioner was directed to complete in order to continue her employment and improve her job skills, both dated August 26, 1987. (R-3, R-4). The evaluation was severely critical of the Petitioner's attitude, and her unwillingness to work towards improving her interaction with co-workers and facility clients. The evaluation recommended that her employment "be terminated immediately". The Petitioner received the documents on September 10, 1987. Her written comments on the documents indicate that she disputed Ms. Harris' evaluation, and noted that she alone was being required to comply with the corrective action plan. However, the plan was related to the lack of effort and cooperation the Petitioner demonstrated during the Harris review. Other employees, black and white, were cooperative and no other corrective action plans were necessary. During the summer of 1987, the Respondent determined that additional assistance in providing nursing services to Bristol GRTS clients was required. The Respondent initiated establishment of a part-time Licensed Practical Nurse position and decided to delete the Petitioner's Mental Health Technician position to fund the new LPN. On October 15, 1987, the Petitioner was advised by Dr. Perry that the Mental Health Technician position was being eliminated to provide for the LPN position. Dr. Perry proposed to the Petitioner that she accept a position as Cook which would provide 32 hours weekly employment. The Petitioner's period of employment as Cook had been satisfactory. The Petitioner did not agree or refuse to accept the position, but said she would consider it. On October 26, 1987, Laura Harris prepared a follow-up evaluation to the corrective action plan of August 26, 1988. Ms. Harris noted improvement in the Petitioner's performance, although there were substantial problems remaining. Apparently, unaware that the Petitioner's Mental Health Technician position was being eliminated to provide for an LPN position, Ms. Harris recommended that the Petitioner be reevaluated on November 30, 1987. On October 27, 1987, Dr. Perry contacted the Petitioner and informed her that she would be transferred to the Cook's position and that her salary as Cook would remain at the same level as her Mental Health Technician salary, causing no reduction in her rate of pay as could have occurred. The following day, Dr. Perry met with the Petitioner and reiterated the proposal. There was no response from the Petitioner. On November 12, 1987, Dr. Perry delivered a letter, dated November 2, 1987, from Mr. Kirkland, executive director of the Respondent, confirming the prior discussions between Dr. Perry and the Petitioner. The letter stated that her employment as Mental Health Technician would cease on November 12, 1987, and that she would be paid for two additional weeks in lieu of notice. Alternatively, the letter stated that she could begin employment in the Cook's position on November 13, 1987. At the time the letter was delivered, the Petitioner stated that, due to the lack of child care availability, she could not begin the Cook's job on November 13. Dr. Perry suggested she begin on November 16, but the Petitioner refused. The Petitioner's employment at the Bristol GRTS facility concluded on November 12, 1987. In December, 1987, she filed a complaint with the Florida Commission on Human Relations, FCHR 88-1288, alleging that the elimination of her position as Mental Health Technician was in retaliation for the filing of her earlier complaint. There was no evidence that the Respondent's decision to employ an LPN instead of a Mental Health Technician was in retaliation for the earlier complaint or based on any consideration other than to better provide nursing care to the elderly clients of the Bristol GRTS facility. The evidence indicates that the decision to eliminate the Petitioner's position, rather than the position of another Mental Health Technician, was based on the Petitioner's poor job performance during the Harris evaluation period and was made without regard to the earlier complaint. Although at the hearing, the Petitioner repeatedly accused the Respondent's witnesses of perjured testimony, there is no evidence to support the accusation.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter final orders dismissing the Complaints and Petitions for Relief in FCHR Cases No. 87-3619 and 88-1288. DONE and ENTERED this 21st day of December, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1988.
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 James D. Alford, III, was initially employed by the Board of Education in the Public Schools of Duval County, Florida during January of 1973. Respondent holds teacher's certificate no. 333009, graduate, rank 3 and is a graduate of Tuskegee Institute where he received a B.S. Degree in Industrial Arts. For approximately two and one-half years subsequent to January, 1973, he was assigned to southside Junior High School as an Industrial Arts Special Education Teacher in a pilot program. It appears that there is no difference in the qualification required for teachers of industrial arts in special education programs as opposed to other industrial arts teachers that are certified in industrial arts. In addition to his employment with the Duval County School Board, Respondent served in a student teacher training program for nine weeks in Montgomery, Alabama. Respondent, during his assigned duties for the Duval County School Board, taught a special education industrial arts class consisting of seventh, eighth and ninth grade students. He trained students how to safely use tools and to perform projects requiring the use of industrial arts tools. He assigned students projects based on their manipulative skills. He noted that "special ed" students had to be trained to use even the simplest tools such as hand saws. Respondent testified that discipline was a major problem in teaching "special ed" students and that for the first and/or minor offense, he attempted to discipline students by verbal commands and that when that failed he sent students to the Dean's Office. He denied ever using physical force to punish students for unruly conduct. His testimony is that his only physical contact with students was to restrain them from physical acts and it suffices to say that he denied all of the allegations filed by the Council in its petition to revoke his teaching certificate. Respondent was aware of the Board's policy respecting discipline and testified that he never administered corporal punishment to students. Following altercations with two students during late 1974, Respondent was offered transfers on at least two occasions which he declined because he "had recently received approximately $5,000.00 of new shop equipment" and further that he wanted to remain at Southside for a sufficient period in order to administer in a smooth and efficient manner the special ed industrial arts program at Southside. The first significant incident involving the Respondent occurred during December of 1974 during an altercation with one of his students i.e., Gary Roary. According to Respondent, Roary initially hit him whereupon he retaliated by striking him back. Roary then left the room, picked up a two by four and returned to the classroom where Roary attempted to hit Respondent. Respondent, in an effort to snatch the two by four from Roary, shoved him causing him to fall on a saw. Roary sustained an injury which required three sutures at the emergency room at a local hospital. Respondent states that he did not know that Roary had injured himself until he was later called to the office where he was told to meet with Mr. Buford Galloway. The Principal, J. R. McDaniel, investigated the incident involving Gary Roary and concluded that Respondent was "rather rough with Gary". See Petitioner's Exhibit #1. Respondent testified that the incident occurred during a demonstration of a "boomerang" that he had constructed to motivate students to make one. He first threw the boomerang and then a student threw it. When the student threw the boomerang, it struck a teacher's car which resulted in a scratch. One of the students relayed this information to the teacher involved, Ms. Williams, whose car was parked near the shop area. A brief uproar resulted when the boomerang struck Ms. William's car and Respondent grabbed Willie Critton, another student by the front of his shirt. Roary yelled for Critton to hit Respondent and evidence revealed that Respondent retorted by saying "hit me, hit me," when Roary said "hit him". Respondent released Critton and grabbed Roary and this brought about the above incident in which Roary sustained the cut. Respondent admits to pushing Roary and striking him on the right shoulder stating that this was done in self- defense. He acknowledged that it was probably a mistake for him to hit Roary. Following this incident, Respondent was transferred to another school for the remainder of the school term. Marilyn Bagby, a program coordinator for mentally retarded for the Duval County School Board testified that she has known Respondent since 1972, and that during a visit to one of his classes, she saw a student roaming the hallway in front of his class. She testified generally that she was able to determine that students had been left out in the hall for periods up to approximately three weeks. However Mrs. Bagby was not specific in her testimony respecting these incidents and for these reasons, little weight can be attached to her testimony. Lowell T. Hudson, Industrial Arts Superintendent for the Duval County School Board, testified that the Respondent's class was properly equipped and that during his visits to Respondent's class, he noticed discipline problems. Mr. Hudson was involved in one conference concerning the disciplinary procedures utilized by Respondent and during a subsequent incident, Respondent was transferred. Joseph R. McDaniels, the Prinicpal at Southside High for approximately four years and an employee for approximately 19 years testified respecting approximately five conferences concerning Respondent and his disciplinary techniques. On three of these conferences, he wrote memos respecting the details of such conferences. He explained the City wide disciplinary policy to Respondent and cautioned him against using corporal punishment to discipline students. He recalled that two conferences occurred during May of 1974 and a third conference occurred during December of 1974. Ms. Eleanor Williams, the instructor whose car was struck by the boomerang which was thrown by one of Respondent's students, testified that Respondent assisted her on one occasion in a dispute with a student who was fighting another student. Respondent requested that Ms. Williams go to his office to obtain his stick which she refused and thereafter he asked the students to go get his stick. She testified that one student who was involved in the altercation had a paring knife. Respondent, in an effort to break up the students, swung at one student and missed striking a refrigerator and a bread box resulting in a dent in the refrigerator of approximately eight inches. Respondent, according to Ms. Williams, never requested that the students stop fighting. Instead Respondent kicked one of the students, Tim Walden, and Don Jones, the other student who was involved was struck in his face. At that time, several instructors were summoned who restrained Respondent from further hitting the students. 1/ Willie J. Critton, a 16 year old eleventh grade student attended shop classes with Respondent during his eighth grade school year. He testified that on numerous occasions, Respondent bent his fingers back and twisted his fingers. He further testified that it was common practice for Respondent to expel students from his class room and force them to stand outside in the hallway. Gary Roary was called and testified substantially as other witnesses who gave testimony on the boomerang incident during December of 1974. Specifically, he testified that Respondent hit Willie Critton and thereafter grabbed him. During the above incident, he was shook by Respondent and struck in the mouth. When he broke away from Respondent, he left the classroom, obtained a stick and entered the room. Upon his return, he swung at Respondent and fell when Respondent shoved him and his head struck a saw. This resulted in the cut referred to above which required three stitches. Betty Allison, a qualified expert in mental retardation, testified that while discipline is a problem in teaching EMR students (Educable Mentally Retarded), she objected to the disciplinary procedures utilized by Respondent calling them inappropriate in EMR situations. She testified that to be effective, EMR instructors must devise well organized lesson plans and that classroom instruction must be motivating in order to secure and retain the students' attention. Other witnesses testified that EMR students cause more discipline problems than others and generally testified that Respondent was effective as most instructors in teaching EMR students. Section 231.28, Florida Statutes, 1975, empowers the Department of Education to suspend or revoke a valid Florida Teaching Certificate held by an individual who is committing or has committed certain acts or omissions which justify revocation or suspension on grounds enumerated in the statute. One of the grounds as provided in the statute exist when the teacher, upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board. Here the Petitioner seeks revocation of the Respondent's teacher's certificate based on the fact that he has allegedly engaged in numerous offensive activities, which has seriously impaired and reduced his effectiveness as an employee. After careful consideration of all the evidence adduced herein, the testimony of witnesses and the arguments of counsel, I conclude that the disciplinary measures used by the Respondent departed from the county's established procedure for disciplining students and despite repeated warnings that he refrain from corporally punishing students, he continued to do so. His conduct in the Gary Roary and Willie J. Critton incident on December 3, 1974, is exemplary of his disciplinary methods. Based thereon and the entire record herein, I find that Respondent's usefulness as a teacher-employee has been reduced within the meaning of Section 231.28, Florida Statutes.
Recommendation Based on the foregoing finding of facts and conclusions, I hereby RECOMMEND: 1. That the Respondent's teaching certificate be suspended for a period of one year. DONE AND ENTERED this 10th day of May, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Respondent is guilty of the deficiencies alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent is a licensed, skilled nursing home facility located in Key West, Florida. Respondent was at all times pertinent hereto a long-term Medicare provider; was licensed by Petitioner; and was required to comply with Chapter 400 Part II, Florida Statutes, Chapter 59A-4, Florida Administrative Code, and Title 42, Section 483, Code of Federal Regulations. Petitioner is the agency of the State of Florida with the responsibility to regulate skilled nursing homes and to administer the federal Medicaid and Medicare programs in Florida. Petitioner surveys nursing home facilities to evaluate their compliance with established rules and conducts federally mandated surveys of long-term care facilities receiving Medicare and Medicaid to ensure compliance with federal statutory and rule requirements. Petitioner classifies any deficiency noted by a survey according to the nature and scope of the deficiency. The severity of the deficiency determines the amount of any administrative fine and whether the licensure status of the facility should be "standard" or "conditional." A licensee’s failure to comply with an applicable statute or rule is a deficiency. A survey results in a report, commonly called a Form 2567, which lists each deficiency that is found, identifies the applicable regulatory standard that the surveyor believes has been violated, provides a factual basis for the alleged violation, and indicates the scope and severity of the deficiency. Petitioner conducted a survey of Respondent during the period January 20-24, 2003. Arlene Schweitzer, who is a registered nurse and an experienced surveyor, conducted the survey on behalf of Petitioner. The survey included a review of the facility’s records, observation of residents, and interviews of residents, their family members, and members of the facility’s staff. As a result of Nurse Schweitzer’s survey, Petitioner filed the Administrative Complaint containing the allegations at issue in this proceeding. At the times material to this proceeding, A.V. was a 39-year-old female who was afflicted with cancer that had metastasized to multiple organs. A.V. was bedfast and her condition was terminal. A.V.’s bed included an air mattress to make her more comfortable and to protect against pressure sores. At the times material to this proceeding, Dr. Michael R. Derouin, Dr. Michael G. Simmons, and Dr. John J. Schoppe, Jr., were physicians practicing in the same practice group in the specialty of podiatric medicine. All examinations conducted by these doctors on A.V. were in her room at Respondent’s facility. In response to a request from Respondent’s staff, Dr. Derouin examined A.V. on January 3, 2003. On that date, Dr. Derouin observed that A.V. had a pressure sore on her left heel.2 Based on his observation, Dr. Derouin described the pressure sore as being approximately one centimeter by one centimeter (at hearing Dr. Derouin testified that the pressure sore was about the size of a dime). Dr. Derouin further described the pressure sore as being superficial with no clinical signs of infection. On January 3, 2003, Dr. Derouin treated A.V. by applying to the pressure sore antibiotic ointment followed a normal saline wet to dry dressing. Dr. Derouin ordered Respondent’s staff to continue that treatment on a daily basis. In addition, Dr. Derouin ordered that a protective and pressure relieving apparatus referred to as a waffle boot be applied to A.V.’s left foot. He further ordered that Respondent’s staff continue to elevate A.V.’s left foot off of her bedding. In addition to the examination discussed above, Dr. Derouin examined A.V. on January 6, 13, 20, and 27, and February 3, 2003. Dr. Simmons examined A.V. on January 10 and 24 and February 7, 2003. Dr. Schoppe examined A.V. on January 30, 2003. Each of these doctors generated a report following his examination of A.V. None of the reports describe the pressure sore as being anything other than superficial, and none note the presence of infection. On February 3, Dr. Derouin considered the pressure sore to be healed. Petitioner established that Respondent was dilatory in obtaining a waffle boot for A.V. Although Respondent does not stock waffle boots as part of its inventory, waffle boots were readily available from a hospital that is adjacent to Respondent’s facility. Dr. Derouin was aware that Respondent did not stock waffle boots as part of its inventory. He noted on January 6, 13, and 20, that a waffle boot had been ordered and would be applied when available. On January 27, Dr. Derouin noted that the waffle boot had arrived and had been applied to A.V.’s left foot. Dr. Derouin testified that he found it acceptable for Respondent’s staff to elevate A.V.’s left foot by using a pillow until the waffle boot arrived. The facility failed to document that it complied with Dr. Derouin’s order to treat A.V.’s pressure sore by applying antibiotic ointment followed by a normal saline wet to dry dressing on January 4, 5, 6, 12, and 15. On all other dates, Respondent’s staff documented that the wet to dry treatment was administered. Dr. Derouin administered the wet to dry treatment during his examination on January 6, which relieved Respondent’s staff of that responsibility on that date. Petitioner established that Respondent’s staff failed to comply with Dr. Derouin’s treatment order on January 4, 5, 12, and 15. Petitioner did not establish that A.V. suffered an ill effect from either the missed treatments or Respondent’s delay in obtaining a waffle boot.3 Respondent’s delay in obtaining a waffle boot for A.V. and the fact that some treatments were undocumented (and therefore found by the undersigned not to have been performed) did not cause A.V.’s pressure sore to worsen.4 Prior to January 1, 2003, each long-term care facility, including Respondent, was required to have sufficient certified nursing assistant staffing to provide 2.3 hours of direct care per resident per day. Pursuant to Section 400.23(3)(a), Florida Statutes (2002),5 the minimum direct care staffing requirement increased from 2.3 hours per day to 2.6 hours per day on January 1, 2003. At all times pertinent to this proceeding, a shortage of certified nursing assistants existed in Key West. Since approximately 1997, Respondent has used certified nursing assistants plus registered nurses to meet the minimum direct care staffing requirement.6 For each of the four units in the facility, Respondent’s staff posted an assignment list naming the individuals who were responsible during a particular shift for the direct care of the residents of the unit. Because there was no requirement that such lists be retained, the lists were not retained and were not available for Petitioner’s review. There is no rule as to the type of records a facility must keep to document the direct care staffing requirements set forth in Section 400.23(3)(a), Florida Statutes.7 At the times pertinent to this proceeding, Respondent’s payroll records reflected that an employee had worked a particular shift, but they did not reflect whether a registered nurse or a salaried employee had performed direct care to residents during that shift. Respondent pays a registered nurse at his or her regular hourly rate (plus any overtime) whether the registered nurse worked as a registered nurse or as a direct care provider. Moreover, Respondent’s payroll records do not document what duties a salaried employee performed during a particular shift. Based on the documentation submitted during her survey, Nurse Schweitzer calculated that Respondent had not met the minimum direct care requirement on January 2, 4, 5, 6, 7, 9, 11, 12, and 15. Nurse Schweitzer testified that she did not receive payroll information for January 1 or January 8 and, consequently, made no determination as to those two dates. In making her calculations, Nurse Schweitzer disallowed certain hours of direct care Respondent claimed were performed by salaried employees or registered nurses. In the absence of definitive documentation and after talking with certain members of Respondent’s staff, Nurse Schweitzer concluded that the documentation was a sham. She believed that the salaried employees Respondent claimed were performing direct care for patients were actually performing their usual non- nursing duties. She also believed that the registered nurses Respondent claimed were performing direct care for patients were actually performing traditional nursing services. Respondent’s witnesses established that the facility had used registered nurses and salaried employees to meet the direct care staffing requirements found in Section 400.23(3)(a), Florida Statutes. Consequently, it is found that Nurse Schweitzer should not have deleted the hours of direct care provided by registered nurses and salaried employees. Petitioner established that the records submitted to Petitioner in response to the survey failed to document compliance with the direct care staffing requirements. Respondent established at the formal hearing that notwithstanding its inadequate documentation, it had met or exceeded those minimum direct care staffing requirements by using registered nurses and salaried employees as direct care providers.
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 Facts and Conclusions of Law set forth herein. It is further RECOMMENDED that Petitioner find Respondent guilty of an isolated, Class III deficiency based on Count I of the Administrative Complaint and that Petitioner find Respondent not guilty of the violation alleged in Count II of the Administrative Complaint. It is further RECOMMENDED that Petitioner assess an administrative fine against Respondent in the amount of $1,000.00 for the Class III deficiency found in Count I of the Administrative Complaint. It is further RECOMMENDED that Petitioner make no change to the status of Respondent’s licensure. DONE AND ENTERED this 11th day of March, 2004, in Tallahassee, Leon County, Florida. S 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 11th day of March, 2004.
Findings Of Fact After respondent Debra T. Acosta and her husband Joe, a noncommissioned Air Force officer, the parents of Joseph M., 16 at the time of hearing, Jason M. (13), Shawn W. (9), and Tisouli (6), applied to HRS for a day care center license, they were required to have their fingerprints taken and to undergo a background check or "screening." The background check turned up a report of an investigation Air Force personnel had conducted on account of information Carla Burrell, formerly known as Carla Knight, had supplied. The first two numbered paragraphs of the report read: On 2 Mar 88, SSgt CARLA K. BURRELL, USAF Clinic, RAF Bentwaters (RAF), UK provided the following information: She arrived at RAFB from Eglin AFB (EAFB), FL on 21 Apr 85. She was stationed at EAFB from Jan 83 until Apr 85. While stationed at EAFB, her daughter, Angela Kristen Knight, female born: 21 Jan 80, VA, Civ, SSAN: 066-70-1577 (hereafter referred to as VICTIM) stayed with a babysitter during the day. The babysitter was identified as DEBRA ACOSTA, dependent wife of SUBJECT who resides at 318 Blackjack Court, EAFB, FL. DEBRA ACOSTA babysat for several families. After arrival at RAFB, VICTIM entered school and seemed to be worried about something but BURRELL wasn't sure of what it was. According to BURRELL, VICTIM received briefings in school about sexual abuse and was told it wasn't nice for adults to touch children in certain places. This led VICTIM to confide in BURRELL that while they had been stationed at EAFB, SUBJECT would make VICTIM and other young females being babysat by SUBJECT's wife take off their clothes and lie on the bed. On numerous occasions, SUBJECT had placed his hands on VICTIM's bottom and had placed his hands between VICTIM's legs. SUBJECT had touched VICTIM's vagina but had never actually penetrated her vagina. SUBJECT has done the same thing to other female children, but VICTIM stated SUBJECT didn't do anything to boys. In addition, VICTIM told BURRELL SUBJECT would drop his pants and underwear and would place his penis between the legs of the females but did not insert his penis into their vaginas. On 6 Mar 88, VICTIM was interviewed by SA STANLEY B. CRISP and SA BETTY J. WILKINS in the presence of her mother. VICTIM provided essentially the same information as was provided by her mother on 2 Mar 88. VICTIM provided the following additional information not previously reported by her mother. SUBJECT had made her and other young females go into the bedroom at the same time, sometimes even with DEBRA ACOSTA being at home. VICTIM stated however that DEBRA didn't know what SUBJECT was doing. At other times DEBRA wouldn't be at home when the incidents took place. VICTIM couldn't recall the names of the other children who were involved, but stated there were others in the bedroom at the same time. VICTIM stated SUBJECT had never hurt her and had never threatened her with harm. SUBJECT had told the children that they shouldn't tell anyone about what he was doing to them. VICTIM said she wasn't afraid of SUBJECT. The bedroom used was described by VICTIM as an upstairs, spare bedroom. SUBJECT had never made the children go into his bedroom. VICTIM had never told anyone about the incidents until she was told in school of the actions of SUBJECT were wrong. Petitioner's Exhibit No. 7. In February of 1988, Mary Vinyard had given respondent and her husband a letter she and her husband had received from Ms. Burrell. Respondent's Exhibit No. 6. This letter reads: Tom and Mary, Remember me? . . . I'm sorry to say the reason I'm writing is because of a concern I have. I've had nothing but problems with Krissy ever since we got to England. She's doing very well in school, however her behavior has gotten to the obnoxious state. Recently she was referred to a child psychiatrist at Lakenheath (Bentwaters doesn't have one). The Dr. there seems to think part of Krissys problem is that there has been some sort of sexual abuse in the past. She makes up stories, so I have no way of being certain of what she says. Last week after talking to the Dr, on the way home, Krissy suddenly said there had been someone in Florida that had done things he shouldn't have done. She said it was Joe, Debra's husband. I at first couldn't believe it, but she went on to talk about things an 8 year old child really should have no knowledge of. I really don't know what to think however I really don't want to screw up anyone's life. We don't see the psychologist again until next week. I called him and told him of this new development, and he said after two years nothing could be done anyway. I don't believe that. The Air Force seems to be taking a rather relaxed view on this. The reason I'm writing you is to inquire if your children are still in Debra's care. Are you having any trouble with either of them, ightmares, bedwetting, whining? Please do write me back. An answer of any sort will help put my mind at ease. If it is just conjecture, no harm is done. If there is something going on, and Debra is still babysitting, it needs to stop. I just don't want any other parents to go through what I'm going through right now. You may or may not want to consider another babysitter. Please don't tell Debra I wrote, I always thought the world of her and I know the kids loved her. I don't wish to upset their family, especially if this turns out to be nothing; but I'm very suspicious. The day after the Vinyards gave this letter to respondent, Mr. Acosta took it to his commanding officer, Captain Gilmore, and protested his innocence. Captain Gilmore made a copy of the letter and launched the investigation that eventuated in the Office of Special Investigations (OSI) report, set out in part above. Petitioner's Exhibit No. 7. No action was taken against Mr. Acosta as a result of the Air Force's investigation. He has consistently denied Krissy's reported allegations, and did so under oath at the formal hearing in this case. After the OSI report came to HRS' attention, an HRS employee decided "that Debra could get licensed, to continue with the paperwork" (T.370) but as to her only. Eventually HRS did license Debra Acosta to operate Kare Free Day Care (KFDC) at 15 Eglin Street in Fort Walton Beach. KFDC opened in July of 1990. Nobody from HRS asked Mr. Acosta to agree to stay off the day care center premises and neither he nor Ms. Acosta agreed that he would. His presence during various HRS inspections elicited no official, contemporaneous response. T.406-7. Another Allegation Reported Michelle G'Sell dropped her four-year-old daughter Amber and her two- year-old son Adam off at the Acosta family home about seven o'clock in the morning on Mother's Day, May 12, 1991, in keeping with the arrangement she had made with Ms. Acosta the afternoon before, when she picked up her children at KFDC, after their first stay there. At quarter past three Sunday afternoon, Ms. G' Sell again picked Amber and Adam up at KFDC. Ms. Acosta had taken them (and her own two youngest children) to KFDC that morning after feeding Shawn and Tisouli breakfast. As Ms. G'Sell walked to her car with her children "around three steps out of the house" (T.113) Amber said, "Mommy, my twat hurts." Id. Asked when, the child "said when she pees." Id. According to her mother, when they had reached the car, Amber said, "He touched me," id., and, asked who had touched her, pointed to Mr. Acosta, who was standing on the roof of the KFDC building, "and said, 'Him.'" Id. But Jason and Mrs. Acosta (T.512) testified that Mr. Acosta was not at KFDC when Amber left, and Jason testified that his father had not been on the roof that day. T.313. The next morning Ms. G'Sell dropped Adam off at KFDC and signed Amber in, having arranged for her to be brought to KFDC later in the day. But, after somebody at work told her, "You must believe her, and you must report it," (T.115) she called her father and asked him not to take Amber to KFDC. She also reported to HRS that Mr. Acosta had sexually abused Amber the day before, and HRS began an investigation eventuating, according to HRS, in FPSS Report No. 91-050519, "alleging sexual abuse on a female child who was enrolled at KFDC . . . [allegedly perpetrated by] Joe A., the husband of D. A." HRS' Proposed Recommended Order, page 3. On May 17, 1991, Mr. Acosta was arrested on criminal charges of sexually abusing Amber, charges which remain pending. Admitted to bail on condition that he stay away from children under 18 years of age, he was rearrested for being in the presence of his own children. (Neither he nor Mrs. Acosta had realized that their children fell within the reach of the condition.) He has since been readmitted to bail and moved out of the family home. HRS also launched a separate, exhaustive investigation into the operations of KFDC which, while apparently not turning up any other allegation of sexual misconduct, gave rise to the allegations on the basis of which HRS seeks to revoke KFDC's day care center license. Husband Occasionally Helped Out While Anna Maria Root worked at KFDC in the winter and spring of 1991, Joe Acosta brought her eight-year old son to the Center after school, on the same run on which he picked up his own children. T.218. He may have brought another child, too, aside from the Root child and his own children. T.272. On two or three occasions Joe Acosta transported Shawn Holbert to school. T.379. He drove a brown van, "the one we were licensed to transport children in." T.379. After KFDC's initial licensure, Ms. Acosta requested an extension or expansion of the license to authorize KFDC to offer child care in the evening, but HRS denied the request. When KFDC closed for the day, children still there were taken to the Acosta home. A "couple of times," (Hoffman Deposition, p.9) Joe Acosta drove the van to the Acosta home after KFDC closed with as many as four or five children who were to be cared for there, id. 9, 56, "and Debra would stay and close up." Waller Deposition, p.14. Twice Mr. Acosta was alone with the children when Stacy Stowell collected her sons, Matthew and Aaron, at KFDC. T.12. But Lynn Hoffman, an employee, was never aware of his being alone with children. Hoffman Deposition, p.11. Nor was Julie Ann Merrill, who worked at KFDC from September to December 1990. Merrill Deposition, p.5, 20-21. It rarely happened. The morning after a fire at the Acosta home, Ms. Acosta sent Mr. Acosta to open up KFDC, and he was present when at least one child arrived, before either Ms. Acosta or Vicki Waller got there. Sole Supervisors Under Age and/or Uncertified When Vicki Waller, then 19 years old, began working for KFDC, neither she nor the Acostas were aware of the HRS rule forbidding leaving the children in the unsupervised care of anybody under 21 years of age. The three of them learned of the requirement in a 20-hour course they took together in the fall of 1990. Before that time, Ms. Waller had been left in charge mornings "from about 7:00 to 7:30," (Waller Deposition, p.6) and all day on one or two Saturdays. She was not left in charge after they learned of the rule against it. Ms. Waller did not have first aid or CPR certification when she took sole responsibility for children at KFDC. Chris Fitzpatrick worked as the only person caring for children at KFDC one Saturday, although she had not yet taken the first aid course she had signed up for. She also lacked CPR certification. Similarly untrained and uncertified, Denise Carla Yates had charge of the children by herself sometimes on Saturdays. Robin Lynn Bedmar was the only person responsible for the children on two or more Saturdays, even though her CPR certification had expired. Sometimes Sandra Lynn Hoffman, who did not have CPR training, was responsible for children at KFDC by herself, or shared responsibility only with Ms. Waller. Chris Fitzpatrick, Denise Caren Yates, Robin Lynn Bedmars and Sandra Lynn Hoffman were 21 or older, as far as the record shows, when they were left alone with the children. Occasionally Substandard Supervision Until a refrigerator was installed in the infant room, the worker supervising infants left them unattended in order to get milk from the kitchen. Similarly, in order to change an older (but disabled) child's diapers, the person responsible for his age group left his peers unattended to take him to a mat in another room. Sometimes only one KFDC employee supervised more than six infants for a full day. On at least four occasions, and possibly on as many as eight occasions (T.71; Waller Deposition p.9) there were more than six babies in the infant room, which had six cribs and two pallets, even after the playpen was removed at HRS's behest. T.71. Towards the end of the day infants along with older children, sometimes aggregating as many as ten or more, were left in the care of a single KFDC employee. Children played outside, sometimes without adult supervision. Twice, Jason Acosta was outside with children at KFDC "sort of keeping an eye on things while," (Waller Deposition, p.10) his mother was inside with other children. Respondent once asked Jason and Joseph to stay in the baby room with the children there. T.44. Hygiene The parents of two children complained to Ms. Acosta that their children's diapers were dirty when they picked the children up; and the grandmother of a third testified that, at least twice a week, he had "poopy pants" (T.30) when she came for him at KFDC, or at least by the time she had driven him some ten minutes away. Generally, children at KFDC with soiled diapers got fresh ones promptly. Ms. Acosta had extra diapers and clothes for the children on hand. Nutrition For every day a child who ate lunch failed to bring his own, KFDC charged his or her parents a dollar. But some or all of the food supplied these children came from the lunch bags sent with other children. Ms. Acosta or an employee opened the bags and divided the food onto plates without regard to the intended recipients' (or their parents') desires. Mornings and afternoons snacks were almost always provided to the children, but food with which to prepare snacks was occasionally unavailable to staff. The menu sometimes posted at KFDC was not always followed. Once, after two or three children drank from the same glass, respondent refilled it and gave it back to a child, perhaps unaware of its history. Before she obtained the KFDC license, Ms. Acosta registered her home as a family day care center, and the home was inspected by the fire department. T. 497. After her licensure, as before, Ms. Acosta cared for Kyle Dunbar, who has cerebral palsy, at her house, while his mother worked evening shifts. BreAnn's mother, Paige Kelso, also worked nights and left her child in respondent's care when she did. Respondent charged for taking care of these children and sometimes had them both in her home at the same time. Friends of her children spent the night sometimes, and she occasionally took care of a friend's two sons as a favor. Other Matters Ms. Acosta conducted several fire drills at KFDC but sometimes "the month would go by . . . [without one] and then she would write it in" (Waller Deposition, p. 58) anyway, as if one had actually occurred. T.113. Infants were not removed, even when fire drills did take place. Id. Whether falsified records of fire drills were ever submitted to HRS is not clear. Ms. Acosta and others on the KFDC staff relied on "time outs" as their principal disciplinary method. But Ms. Acosta once swatted a little girl's behind. The witness who testified to this incident also testified, "I'm not saying that the child did not like Debra [Acosta, the respondent] or was scared of Debra." Waller Deposition, p. 61.
Recommendation HRS proved several significant violations. But HRS did not prove, or even allege, that respondent's husband sexually abused a child or children. Instead, HRS alleged and proved that such allegations are the basis for pending criminal and (other) administrative proceedings. It is, accordingly, RECOMMENDED: That HRS suspend respondent's day care center license for one year, with credit for the time already elapsed in which HRS has prevented respondent from operating a day care center. That HRS place respondent's license on probation thereafter for a period of at least two years, on condition that respondent comply with all applicable statutes and rules for two years; on condition that respondent not charge for children she cares for at her home; and on condition that Mr. Acosta stay off KFDC premises while children other than his own are there, and have no contact with children who are cared for at KFDC (other than his own), until and unless he is exonerated in both the criminal and administrative proceedings now pending. DONE and ENTERED this 22 day of May, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II 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 day of May, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1, 3, 4, 5, 6, 7, 10, 11, 12, 13, 17, 20 and 26 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 2, KFDC was licensed earlier than January 1, 1991. With respect to petitioner's proposed finding of fact No. 8, the court order was not in evidence. With respect to petitioner's proposed finding of fact No. 9, the substance is addressed in later proposed findings of fact. With respect to petitioner's proposed findings of fact Nos. 14 and 15, the evidence did not show routine noncompliance. With respect to petitioner's proposed finding of fact No. 16, this occurred only rarely. With respect to petitioner's proposed finding of fact No. 18, it was not clearly and convincingly shown that the screening had not be completed. With respect to petitioner's proposed finding of fact No. 19, it was not clearly and convincingly shown that the children received less than what was nutritionally necessary. Petitioner's proposed findings of fact Nos. 21, 23 and 24 were not proven. With respect to petitioner's proposed finding of fact No. 22, it was not clear that respondent "extended her day care license to her home without authority" as opposed to acting in good faith under supposed authority antedating issuance of KFDC's license. Vicki Waller did not see all those children at the same time, as far as the record shows. With respect to petitioner's proposed finding of fact No. 25, the credible evidence did not clearly and convincingly establish any improper discipline other than the swat. With respect to petitioner's proposed finding of fact No. 27, the violation consisted only of being in the presence of his own children. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 9, 11, 12, 14, 15, 17, 18 and 20 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 7, an adult was inside when the boys were asked to watch the infants, but no adult was outside three or more times when one of the Acosta sons supervised. With respect to respondent's proposed finding of fact No. 8, noncompliance with ratios was sometimes more than momentary. With respect to respondent's proposed finding of fact No. 10, diapers were changed regularly. With respect to respondent's proposed finding of fact No. 13, morning snacks were not always given. With respect to respondent's proposed finding of fact No. 16, children whose parents did not pick them up at KFDC were also brought to the Acosta home. With respect to respondent's proposed finding of fact No. 19, no improper discipline other than a single swat was proven. With respect to respondent's proposed finding of fact No. 21, this is properly a conclusion of law. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 S. J. DiConcilio, Esquire Rodney M. Johnson, Esquire P.O. Box 8420 Pensacola, FL 32505-0420 Mary Koch Polson, Esquire P.O. Box 96 Fort Walton Beach, FL 32549
The Issue Whether Respondent, YouthFit by BodyZone Fitness, conducts activities that constitute "child care," so that it must obtain a child care facility license in order to conduct these activities.
Findings Of Fact The Parties Petitioner DCF is the state agency responsible, pursuant to chapter 402, Florida Statutes, for regulating providers of "child care," as that term is defined in section 402.302(1). Respondent YouthFit is a Florida limited liability company. It is located at, and its business address is, 2827 North Roosevelt Boulevard, Key West, Florida. YouthFit is owned and managed by Calvin Paquette. Paquette also owns BodyZone Fitness, LLC ("BodyZone"), a Florida limited liability company that operates a fitness facility located at 2740 North Roosevelt Boulevard, Key West, contiguous to YouthFit. Information Submitted in Questionnaire On July 13, 2018, Paquette submitted a Child Care Licensure Questionnaire ("Questionnaire") to DCF on behalf of YouthFit, requesting a determination whether YouthFit conducts "child care." The Questionnaire was admitted into evidence at the final hearing. The Questionnaire provided information regarding the nature and location of YouthFit's operation; the types of activities that YouthFit provides to children; the ages of the children participating in YouthFit's activities; the type of supervision that YouthFit provides to participants; and the payment/fee arrangements to participate in YouthFit's activities. According to the Questionnaire, YouthFit is a youth fitness program consisting of instructor-led classes offered to children ranging in age from preschool to high school. The classes identified in the Questionnaire were tumbling classes; strength, conditioning, and flexibility classes; and ninja classes. A YouthFit Class Pricing Schedule attached to the Questionnaire showed that, at the time the Questionnaire was submitted, YouthFit also offered "open gym" and "parents' night out" activities. Both of these activities entailed parents dropping children off at, and picking them up from, YouthFit. The Questionnaire stated that YouthFit offered classes from 9:00 a.m. to 9:00 p.m., seven days a week. Per the Questionnaire, participation in these classes is limited to one to two hours of class per day for each child. Attendance is not required, and the same children do not necessarily attend YouthFit's classes on a regular basis. The Questionnaire stated that parents are not required to remain on the YouthFit premises at all times, although they are permitted to do so. Parents may drop children off at the YouthFit facility to participate in classes and are expected to pick them up after class is over. The Questionnaire stated that children are not permitted to enter and leave the YouthFit classes or premises unless they have permission pursuant to prior arrangement or have adult supervision. Parents are required to sign their children in and out of the YouthFit classes and premises. According to the Questionnaire YouthFit supervises all children who are participating in its classes, including the children whose parents remain on the premises. Prepackaged snacks and drinks are offered to the participants of each of YouthFit's classes. Payment for participation in YouthFit's activities is made two ways: payment through adult membership at BodyZone Fitness, and payment of a drop-in fee for persons who are not members of BodyZone Fitness. YouthFit is not operated by a public or nonpublic school and is not located on a school site. YouthFit is not affiliated with a national non-profit organization created for the purpose of providing youth service and youth development. Based on the foregoing information, DCF determined that YouthFit provides "child care," as defined in section 402.302(1); therefore, it is required to be licensed as a "child care facility" pursuant to section 402.305, unless it falls within a statutory or rule exemption from the licensure requirement. Based on its review of the Questionnaire, DCF also determined that YouthFit did not qualify for any statutory or rule exemption from licensure as a child care facility. Accordingly, DCF notified Paquette of its decision that YouthFit was required to obtain a child care facility license in order to provide its youth fitness program activities. Facts Stated in YouthFit's Request for Hearing As noted above, Paquette timely requested a hearing challenging DCF's decision that YouthFit must obtain a child care facility license. In the letter requesting a hearing, Paquette provided additional information regarding the YouthFit fitness program. This letter was admitted into evidence as Petitioner's Exhibit C. According to the letter, YouthFit classes will be offered in BodyZone's expanded premises, which accommodate both YouthFit classes and adult fitness activities. Per the letter, children ages two through 18 may take the YouthFit classes. The letter clarified that a parent must be present at all times for children ages four and under, and YouthFit may require a parent to be present for children up to age five. The letter also clarified that each child would be limited to one class per day, which may range from 45 minutes to two hours in duration. The letter stated that YouthFit would not offer "child care" services, but, instead, would "operate no different [sic] than a local gymnastics center (or martial-arts dojo) offering tumbling classes (or ju-jitsu classes)." The letter explained that the "intent is fitness activities, not child care services." Other Evidence Presented at the Final Hearing DCF presented evidence at the final hearing that included screenshots of YouthFit's website, Facebook page, and Twitter account. At the time the screenshots were taken, YouthFit's Facebook page and Twitter account advertised a range of YouthFit classes and activities, including tumbling, Zumba kids, yoga kids, ninja class, boot camp, open gym, parents' night out, and day camps. Paquette testified that the hours associated with YouthFit's program recently have changed, so that classes and activities are now offered from 3:30 p.m. to 6:00 p.m. Additionally, YouthFit no longer offers parents' night out, open gym, or day camps. Paquette also testified that YouthFit no longer advertises its activities on Facebook and Twitter. However, at the time of the final hearing, he had not been able to access these accounts, so the advertisements had not been removed from the internet. Paquette testified that the sole means by which information on YouthFit's classes and activities is disseminated is by "word-of-mouth."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order finding that Respondent, Youthfit by BodyZone Fitness, LLC, currently provides a program of classes and activities that constitute "child care," so that it is required to obtain a "child care facility" license to provide this program. DONE AND ENTERED this 6th day of March, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2019.
