The Issue Is Petitioner entitled to be exempt from disqualification to work in a position of trust or responsibility, having been declared ineligible to work in that position by virtue of offenses involving child abuse and contributing to the dependency of a minor?
Findings Of Fact Petitioner has two children, M.B. and D.P. On February 11, 1993, those children were two years old and eight months old, respectively. Both children were residing with Petitioner. At that time Petitioner and the children lived in Gulf County, Florida. Around 8:00 p.m. to 9:00 p.m. on February 11, 1993, Petitioner decided to leave her apartment and go to a nearby store. At that time she left D.P. in the care of Sabina Daniels, Petitioner's step-sister, who was thirteen years old on that date. The Petitioner took M.B. to her neighbor's apartment and left that child with Dianna Harrison, an adult. However, the Gulf County Sheriff's office received a call around 10:30 p.m. on February 11, 1993, indicating that a child had been left unattended at the Pine Ridge Apartments where Petitioner resided. Officer Stacy Strickland, now a Sergeant, went to Petitioner's apartment around 10:34 p.m. and tried to get someone to answer the door to the apartment. No one answered. Consequently, Officer Strickland contacted the apartment manager who opened the door. Officer Strickland discovered D.P. standing in a baby bed. No other person was in the apartment at that time. Officer Strickland sought the assistance of other persons to help provide emergency care to the child. While waiting for that assistance, Officer Strickland remained in the apartment for fifteen to twenty minutes. When Officer Strickland and other officials departed Petitioner's apartment, they left a note for the Petitioner to call the Gulf County Sheriff's office concerning her child D.P. Petitioner called the Gulf County Sheriff's office at around 12:00 a.m., February 12, 1993. Petitioner came to the Gulf County Sheriff's office around 12:20 a.m., on February 12, 1993. At that time, Petitioner was placed under arrest for aggravated child abuse for having left D.P. unattended. Following her arrest, Officer Strickland read the Petitioner her rights under the Miranda decision, to include the right to seek counsel to aid her in confronting the charge. Although Petitioner was less than forthcoming during the hearing, concerning the disposition of the charges that arose from the incident in which D.P. had been left unattended, it is clear that Petitioner voluntarily entered a plea of guilty to child abuse and contributing to the dependency of a minor in the case of State of Florida v. Denine Pittman, in the County Court, in and for Gulf County, Florida, Number 93-133M. A judgment and sentence in that case was entered on March 3, 1993, requiring the Petitioner to serve three months' probation in which she would pay $30 per month for supervisory fees and was required to make monthly contacts with a probation officer. In addition, Petitioner was required to pay a fine in the amount of $214. It can be properly inferred that Petitioner complied with requirements in the judgment and sentence. Petitioner's assertions at hearing that she only left D.P. on the night in question for 30 minutes, that she had never been advised of her Miranda rights by Officer Strickland on February 12, 1993, and that she did not realize that she could have contested the charges through a trial are rejected. In 1995, Petitioner moved from Gulf County to Panama City, Florida. In August 1996, Petitioner was working in a child care facility in Panama City known as Phoenix Preschool. In her position she was providing direct care to children and was subjected to background screening in accordance with Chapter 435, Florida Statutes. Through the screening process Respondent discovered the disposition in Case No. 93-133M, leading to Petitioner's disqualification to work in a position of special trust with children and the contest of that determination through Petitioner's request for an exemption from that disqualification. In her testimony at hearing Petitioner expressed her desire to continue to work with children as an employee in a child care facility. The record does not reveal that Petitioner has had other circumstances involving inappropriate behavior involving her own children or claims of inappropriate behavior or treatment of other children for whom she has rendered care. On November 11, 1988, Petitioner was provided a certificate indicating the successful completion of twenty hours of child care training offered by the Department of Health and Rehabilitative Services and the Department of Education. On September 28, 1996, Petitioner received a certificate of completion of Dr. Jean Feldman's Classroom Management Workshop. The course lasted six hours. By the nature of the appearance of the certificate it is found to relate to training to assist in caring for children. On September 30, 1996, Petitioner received a certificate from the Department of Health and Rehabilitative Services and the Department of Education for completing a ten- hour course for developmentally appropriate practices for young children. On November 30, 1996, Petitioner received a certificate of completion of "Mr. Al's" course on "Music, Movement and More." This course lasted six hours. By the nature of the appearance of the certificate it is found to relate to children's issues. In 1996, in relation to her position of teacher-aide for the Phoenix Preschool, Petitioner received training from the Department of Health and Rehabilitative Services related to child care in-service. Ms. Gloria Lawrence testified at the hearing. She worked with Petitioner at the Phoenix Preschool, and found that Petitioner did a good job with children, in that Petitioner got along with children at the Preschool. Ms. Lawrence observed that Petitioner was trustworthy and responsible with those children. Ms. Lawrence's testimony is credited. Ms. Frances Frazier testified at the hearing. Ms. Frazier is a close friend of Petitioner and has known Petitioner during the course of Petitioner's life. Ms. Frazier finds the Petitioner to be reliable and responsible and to be good with children and believes that Petitioner has learned from the mistake that Petitioner made which formed the basis for Petitioner's disqualification to work in a position of special trust. Ms. Frazier has known Petitioner to baby-sit for Ms. Frazier's grandchildren. Ms. Frazier has not found the Petitioner to abuse children. The only incident that Ms. Frazier is aware of concerning the Petitioner leaving children unattended was the occasion under discussion here. Ms. Frazier's testimony is credited. In addition, Petitioner presented letters from Ms. Vanessa Fennell, Ms. Annie S. Fields, Ms. Dianna Harrison, Ms. Beverly Daniels, Ms. Charlotte L. Medley, Ms. Candy Robinson, and Pastor Shirley Jenkins concerning Petitioner's basic personality as a concerned person for children and the elderly.
Recommendation Upon consideration of the fact finding and conclusions of law reached, it is RECOMMENDED that a final order be entered which grants Petitioner an exemption from disqualification to be employed in a position of special trust to work with children. DONE AND ENTERED this 13th day of November, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1997. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Suite 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Denine Pittman Apartment D43 801 West 13th Street Panama City, Florida 32401 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether petitioner should take disciplinary action against respondent for the reasons (other than the alleged existence of a substantiated indicated abuse report) alleged in the amended administrative complaint?
Findings Of Fact Anderson's Child Care Center at 507 Texas Avenue in Crestview was one of the day care centers Mr. Brown of the Okaloosa County Health Department routinely inspected. Respondent testified without contradiction that she has operated a child care center at her Texas Avenue home since September of 1973, with the exception of the time petitioner closed her down. See Anderson v. Department of Health and Rehabilitative Services, 482 So. 2d 491 as clarified on reh. 485 So. 2d 849 (Fla. 1st DCA 1986). From this evidence it is inferred that she holds a license for a child care center. No evidence suggested otherwise. In the summer and fall of 1985, Lucy's husband Charles lived with her and worked at the child care center. J. S. On July 18, 1985, J.S., who was born January 5, 1982, spent his first day at the Anderson Child Care Center. J.S. was "right about the age [for] learning but c[ould]n't void on command." (T.48). He lacked "the voluntary control" (T.48) to "void on command," but he had learned to restrain himself before attending the Anderson Child Care Center. Although he was toilet trained before he began attending Anderson Child Care Center, he "started having lots of accidents and messing in his pants" (T. 73) after July 18, 1985. When left at the center, J.S. "got where he would throw a fit. He would not want to stay. And when . . . [Mrs. S.] would go pick him up, he would still be crying." (T. 77 ) September 11, 1985, was his thirteenth and final day at the Anderson Child Care Center. On September 12, 1985, A.S.'s mother took her to Eglin Regional Hospital in order to be examined, on account of the redness of her 23-month-old vaginal area. (T.74) J.S. accompanied his mother and sister. Leslie Price Kurtz, an Air Force Officer and pediatrician who saw A.S., diagnosed a rash on her nates as impetigo. In the course of inquiring about A.S., Dr. Kurtz was told by Mrs. S (who relayed information she had received from M.S., 8-year-old brother of J.S. and A.S.) that J.S. did not like to go to the bathroom at Anderson's Child Care Center, which all three S. children attended, because of immodest conditions there. The story Dr. Kurtz got was that the children were directed to use the bathroom at specific times and had no privacy when they did. (T.50) Based on this information, and on Mrs. S's report that J.S. had once been potty trained but had recently regressed, Dr. Kurtz suggested to Mrs. S. that she remove her children from Anderson's Child Care Center. Dr. Kurtz contacted the Department of Health and Rehabilitative Services which, as far as she knew, took no action at that time. In Dr. Kurtz's opinion, "a disturbance . . . had occurred with [J.S.] . . . secondary to the child's behavior as described . . . by the mother." (T.50) J. N. On September 25, 1985, Dr. Kurtz saw J.N. who was brought to her with complaints of an ear infection. There was no mention of any problem with his hands but Dr. Kurtz noticed that J.N., who was 20 months old at the time, had red and macerated fingers. J.N., who was born January 4, 1984, began at the Anderson Child Care Center on July 15, 1985, and attended regularly through September 27, 1985, although he missed a total of nine days, for sickness and other reasons. His parents drove him to the Center on their way to work, dropping him off about seven in the morning, and returned to pick him up about quarter past four in the afternoon. The first day he was there, three or four fingers were swollen a little when his parents picked him up. But in general things seemed to go well, at first. There were no more swollen fingers for two to four weeks and his parents saw him try to sing along with songs and do exercises at home they assumed he had learned at Anderson Child Care Center. There came a point when J.N. began to cry and cling to his mother when he was dropped off at respondent's. From then on, he cried nine times out of ten when he was left at the Anderson Child Care Center and he also frequently chewed on his fingers. One day when his father came for him, J.N. was sitting on the ground looking as if he had been crying. He refused to get up even though his father called him twice. Only after Charles Anderson told J.N. to go to his father did the child go to him. His parents never noticed J.N. chew his fingers before he began at the Anderson Child Care Center and this behavior has all but disappeared since he began attending another child care center. Only during the time he attended Anderson's did his fingers become red, swollen and infected. "[I]t was almost like he had bit right through his fingernails he had been chewing on them so much." Deposition of J.N., p.ll. They have healed completely since he left Anderson's Child Care Center. J.N. was not toilet trained when he started at Anderson's Child Care Center. He was still in diapers. After he had been at the Center two weeks, Mrs. Anderson told his mother that he seemed to have "a bowel movement after naptime when he would be outside playing,"(T.115) and suggested that he "be put on the potty at that time of the day." (T.115) Mrs. N. did not object to this proposal. Thereafter J.N. was placed on the toilet "after naptime" and regularly defecated, without crying or complaining. Child care center personnel did not punish him for accidents. Only after J.N. began at Anderson's Child Care Center, however, did his parents notice J.N. at home "go behind the furniture to go potty. It seemed like he was afraid . . ." (Deposition of J.N., P. 11) J.N. also seems to fear toilets. Id., P. 2. After J.N.'s parents related his circumstances to Dr. Kurtz, Dr. Kurtz concluded that the changes in his behavior were "most likely . . . [attributable to] conditions at Anderson Day Care Center," (T. 52) and contacted HRS. She also advised J.N.'s parents to remove him from Anderson Child Care Center immediately. J.N.'s parents sent him to Anderson Child Care Center the next day nevertheless. [T]hen we talked some more; we decided we would take him out because in -- when you're in the air force, you have your family. But in matter of speaking, the air force can run that family for you -- because if we wouldn't have taken him out of there and the doctor would have found out about it, she could have forced us to take him out of there. Deposition of J.N., P. 19. Respondent learned of dissatisfaction with the care J.N. received at the Center only after the present proceedings began. Toileting Generally In response to petitioner's interrogatories, Mrs. Anderson described toileting procedures at the Anderson Child Care Center. Petitioner offered her description in evidence: Under two years of age, after the parents agree the time for pottie training is to start, The children are exposed to the pottie usually during diaper change time. After pottie training depending on liquid ingestion, weather, child, time of day, and other variables, the children are given an opportunity periodically to use the pottie. If the children are inside they are given the opportunity every hour. If the children are outside they are given an opportunity every 1-1/2 to 2 hours. If the children need to go in the interim they are allowed to do so. If the children are going on a field trip or leave the center they are encouraged to use the bathroom before leaving. The children are also encouraged to use the bathroom right after lunch. The same procedure is employed for the children 2 through 5 and older as is the case with the children under 2 years of age after those children under 2 are pottie trained as above outlined. Usually the children are selected randomly while listening to a story for the purpose of an opportunity to use the bathroom. Petitioner's Exhibit No. 2. Mrs. Anderson's testimony at hearing was consistent with this account, as regards events after July 1, 1985. Staffing On October 9, 1985, Lucy Anderson was at Anderson's Child Care Center all day. At eight that morning Debbie Underwood and Pat Todd arrived and began work. At noon Charles Anderson came home. Thirty minutes later Debbie Underwood left the premises for lunch and at one o'clock Pat Todd left for the day. At 1:30 p.m., Debbie Underwood returned from lunch and Ann Parker reported for work. At half past two, Mr. Anderson left, but Kelley Anderson came home ten minutes later. Both Mrs. Parker and Mrs. Todd left for the day at five, but Kelley helped her mother till six. Between two and three o'clock on the afternoon of October 9, 1985, Arthur Alvin Brown, an inspector with the Okaloosa County Health Department, called at Anderson's Child, Care Center. Mrs. Anderson and three other women supervised the children while Mr. Brown was there. He stayed "probably somewhere in the neighborhood of fifteen, twenty, thirty minutes." (T.89) He counted four children inside sleeping on mats, and approximately 65 outside playing. Because he "knew the licensed capacity was fifty-five [he counted] a number of times." (T.89) Children were coming and going while he was there and he tried to take that into account. No more than five children left during his stay, however. Of the children who respondent's own records reflect were at the Center from two or earlier till three or later on the afternoon of October 9, 1985, four were ten years old, three were nine years old, eight were eight years old, two were seven years old, five were six years old, five were five years old, six were four years old, three were three years old, four were two years old and Matthew Newell was the only one-year-old. Petitioner's Exhibit No. 2. According to respondent's records, 29 other children were at the Center for some part of the time between two and three o'clock that afternoon. The age of one of the children in this group is not clear from the record. Of the others, two were two years old, only Candace Cox was three years old, two were five years old, four were six years old, eight were seven years old, three were eight years old, four were nine years old, three were ten years old and Kevin Barrow was the only eleven- year old. Petitioner's Exhibit No. 2.
The Issue The issue in this matter is whether the Department of Children and Families should impose an administrative fine on Respondent.
Findings Of Fact The Department is the state agency charged with regulating licensed or registered child care facilities in Florida. Respondent is licensed to operate a child care facility in Lakeland, Florida. The Department seeks to sanction Respondent based on an incident that occurred on November 2, 2015. The Department’s Administrative Complaint specifically alleges that: The facility driver, Antuan Bunkley was looking at his phone while transporting children in the facility’s vehicle. Two witnesses observed Antuan Bunkley texting and/or scrolling while driving. The witnesses observed a phone in Antuan’s hands and him looking down several times while driving with children in the van. Several children on the van told the Department that Antuan text [sic] while he drives, plays games on his phone, and receives calls while driving. The Department asserts that Mr. Bunkley must “be able to respond to the needs of the children” and “be alert and avoid any and all distractions in order to effectively respond to those needs.” The Department categorized Respondent’s (i.e., Mr. Bunkley’s) actions as a Class I violation of a child care licensing standard. The Department desires to fine Respondent in the amount of $250 because Mr. Bunkley’s “inadequate supervision posed an imminent threat to the child, or could or did result in death or serious harm to the health, safety or well-being of a child.” The Department issued the Administrative Complaint following a complaint received from Shana Nicholes, who had observed Mr. Bunkley driving Respondent’s van. At the final hearing, Ms. Nicholes testified that on November 2, 2015, at approximately 3:30 p.m., she was driving her sports utility vehicle on Highway 98 North in Lakeland. Her brother was riding with her in the passenger seat. As she drove, her brother called her attention to Respondent’s van which was driving in front of them. He commented that the van was full of children who were not wearing seat belts. As her vehicle drew closer to the van, Ms. Nicholes observed that not only were the children not wearing seat belts, but she believed that she saw the driver (Mr. Bunkley) looking down at his cell phone while driving. Ms. Nicholes explained that Highway 98 North has four lanes through Lakeland. Over a stretch of about three to four miles, Ms. Nicholes drove in the left side lane roughly parallel to Mr. Bunkley. Ms. Nicholes testified that during that drive, she saw Mr. Bunkley holding a phone. She further stated that he looked down at the phone in his lap several times as he drove. Ms. Nicholes guessed that Mr. Bunkley lowered his eyes for approximately 10 to 20 seconds each time he glanced down. She stressed that “he wasn’t paying attention to the road.” Ms. Nicholes expressed that the two vehicles drove as fast as 45 mph. Ms. Nicholes was quite alarmed by Mr. Bunkley’s actions. As she drove next to him, she took several photographs of him with her cell phone. Copies of Ms. Nicholes’ photographs were introduced at the final hearing. The photographs show Mr. Bunkley looking down as he is sitting in the driver’s seat. However, neither Mr. Bunkley’s right hand nor a cell phone are visible in the pictures. (Respondent disputes that the van was moving at the time Ms. Nicholes took the pictures.) Ms. Nicholes was shocked by the incident. She was worried for the safety of the children in the van. She commented that if her child were riding in the van, and the driver was distracted like Mr. Bunkley was, she would be furious. Later that day, Ms. Nicholes posted her photographs of Mr. Bunkley driving Respondent’s van on her Facebook page. She added the caption, “Well, this is safe, we’re doing about 45 down 98 and this guy is texting with a van full of children. Not cool, dude.” The next morning, Ms. Nicholes was still distressed by what she had witnessed. Therefore, she decided to visit Respondent’s place of business to discuss the incident. Ms. Nicholes had no knowledge of Respondent prior to November 2, 2015. She identified Respondent from the name on the side of the van. Ms. Nicholes maintained that her only interest in approaching Respondent was to alert Respondent of the risk to the children in the van because of a distracted driver. When Ms. Nicholes arrived at Respondent’s facility, she spoke to Elizabeth Jackson. Ms. Nicholes advised Ms. Jackson that she had observed her van driver using his cell phone while driving, and she showed Ms. Jackson her photographs. Ms. Jackson informed Ms. Nicholes that the driver was her son, Antuan Bunkley. Ms. Jackson told Ms. Nicholes that she would be taking him off driving until the matter was resolved. After her meeting with Ms. Jackson, Ms. Nicholes drove to Subway for lunch. While standing in line, she was approached by a woman who identified herself as an employee of Respondent. The employee asked Ms. Nicholes if she was the one who had posted the photos of the van driver on Facebook. At that point, Mr. Bunkley entered Subway. Ms. Nicholes took a picture of Mr. Bunkley while he was standing in line behind her. The next day, Ms. Nicholes reported the incident to the Department. Upon receiving Ms. Nicholes’ complaint, the Department initiated an investigation. The case was assigned to Brandy Queen, a Child Protective Investigator. Cheryl Dishong, a Child Care Regulations Counselor, assisted her. Ms. Queen testified that she started her investigation by visiting Respondent’s facility. She was accompanied by Ms. Dishong. There, she met Ms. Jackson. During their conversation, Ms. Jackson acknowledged that her facility owned the van and that the driver was Mr. Bunkley. Ms. Jackson told Ms. Queen that Mr. Bunkley had picked up six children on the afternoon of November 2, 2015. She provided the children’s names to Ms. Queen. Ms. Jackson also allowed Ms. Queen and Ms. Dishong to examine the van. Ms. Queen and Ms. Dishong spent some time climbing through the van. The van has two bucket seats in the front row and three rows of back seats. Ms. Queen and Ms. Dishong sat in different seats to determine the vantage point of the driver by the children riding in the van. They wanted to see if the children could have observed Mr. Bunkley texting while he drove. Ms. Dishong climbed into the back rear seat. Taking into account that she is taller than the children who rode in the van, Ms. Dishong slouched down to simulate a child passenger. Ms. Queen stated that Ms. Dishong believed that a child could adequately see the driver from the back, rear seat. However, Ms. Queen conceded that during their inspection of the van, no one was sitting between the rear back seat and the drivers’ seat. Neither did a driver sit in the front seat to determine whether Mr. Bunkley’s body would prevent a clear view of his hand while he was driving (particularly, a driver as large as Mr. Bunkley as discussed below). Next, Ms. Queen interviewed the six children who had been riding with Mr. Bunkley on the afternoon of November 2, 2015. At the final hearing, Ms. Queen explained that, before she asked the children about Mr. Bunkley’s driving, she presented several preliminary questions to ascertain whether the children understood the difference between telling the truth and telling a lie. Ms. Queen testified that she believed the children were telling her the truth during her interview. However, the children’s statements were not given under oath.3/ Ms. Queen stated that, based on the evidence she gathered, which included the children’s statements, Ms. Nicholes’ pictures,4/ and her own observations of the van, she “verified” that Mr. Bunkley’s conduct constituted inadequate supervision. Ms. Queen further stated that Mr. Bunkley’s driving while distracted caused concern since he ran “the risk of getting into a wreck.” She believed that he had placed himself and the children in his care “at risk of harm, of dying.” Of the six children, the Department presented A.O. at the final hearing to tell her story.5/ A.O. was seven years old at the time of the incident. (She was eight years old on the date of the final hearing.) A.O. testified that she had attended Respondent’s child care facility for about a year. A.O. was familiar with Mr. Bunkley and identified him in Ms. Nicholes’ photographs. A.O. relayed that three to four different people had driven her in Respondent’s van, including Mr. Bunkley. A.O. stated that on the afternoon in question, Mr. Bunkley picked her up after school in Respondent’s van. At the final hearing, A.O. demonstrated proficient knowledge of the functions of a cell phone. A.O. described various uses of a cell phone including talking, texting, playing games, and looking at Facebook. A.O. testified that Mr. Bunkley used his cell phone when he drove the van. A.O. stated that Mr. Bunkley texts while driving. By “texting,” A.O. recounted that she observed Mr. Bunkley moving his fingers on the phone at the same time he was driving. A.O. also described seeing Mr. Bunkley looking at Facebook on his cell phone while he was driving the van. A.O. added that sometimes when she was riding with Mr. Bunkley, he swerved off the road while he was using his phone. She also described how the van would sometimes get near other cars on the road. She commented that Mr. Bunkley occasionally drives the van with his knees. She imparted that the way he drove scared her sometimes. A.O. expressed that when she rode in the van, she sat in the very back seat on the right side. A.O. conveyed that, despite sitting in the very back row, she could still see Mr. Bunkley hold and use a cell phone. At the final hearing, Mr. Bunkley acknowledged that he was driving Respondent’s van on November 2, 2015, and was the individual seen in Ms. Nicholes’ photographs. Mr. Bunkley also confirmed that he was transporting children in the van at that time. Mr. Bunkley firmly denied that he was texting while driving Respondent’s van. He denied ever using his phone while driving the van. Mr. Bunkley admitted that he does carry his cell phone when he drives. However, he claimed that he routinely keeps his phone in his pocket. Mr. Bunkley asserted that he would only use his cell phone in the case of an emergency. Mr. Bunkley expressed that Ms. Nicholes must have seen him looking down at his transportation log when she observed him on November 2, 2015. Mr. Bunkley explained that his log sheet registers when and where he is to pick up and drop off children. Mr. Bunkley relayed that he periodically reviews the log sheet as he transports children. However, he only checks the transportation log when the van is stopped. He remarked that Ms. Nicholes must have taken her pictures of him on Highway 98 North when they were stopped at a stoplight. Mr. Bunkley stated that he is 5’11” tall and weighs 330 pounds. Because of his large size, he did not believe that it was possible for A.O. to see anything he held in his lap from her seat in the right rear of the van. Mr. Bunkley offered his cell phone records to support his assertion that he was not texting on the afternoon of November 2, 2015. However, the phone records do not confirm whether Mr. Bunkley was accessing or reading text messages as he was driving. Nor do they provide any information regarding his alleged “scrolling” or using Facebook. Respondent is owned and operated by Ms. Jackson. She is also Mr. Bunkley’s mother. Ms. Jackson did not believe that Mr. Bunkley was texting on his cell phone while he was driving the van. Instead, she posited that the van was stationary when Ms. Nicholes took her pictures, and that Mr. Bunkley was looking down at his transportation log. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record does not establish that Mr. Bunkley was scrolling and/or texting on his cell phone while driving Respondent’s van on November 2, 2015. Accordingly, the Department failed to meet its burden of proving that Respondent committed “inadequate supervision” which would support an administrative fine under section 402.310.
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 against Respondent, The Early Years Child Development Center. DONE AND ENTERED this 30th day of March, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 30th day of March, 2017.
The Issue The issue is whether Petitioners' application for relicensing as a foster home should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this licensing dispute, Petitioners, Leo and Connie Smith (the Smiths), seek to have their foster care license renewed. In a preliminary decision rendered on October 8, 1999, Respondent, Department of Children and Family Services (Department), denied the request on the ground that Petitioners improperly used corporal punishment on a child under their care, and that the Department "cannot [be] assured that [Petitioners] will not lose control again and use excessive corporal punishment." The underlying facts are relatively brief. Petitioners were first issued a therapeutic foster care license in September 1998. Thereafter, and until their application for renewal was denied, they used the license to care for two therapeutic foster children, a type of foster child that has far more severe emotional problems than a regular foster child. On July 25, 1998, or before the license was issued, Connie Smith (Connie) was babysitting a two-year-old child in her home. When the child "messed in its pants" a second time after being previously warned not to do it again, Connie struck the child with a ruler which left bruises on the child's buttocks. The incident was investigated by the Department and culminated in the issuance of an abuse report on October 9, 1998, which is identified as abuse report number 98-084291. Apparently, that report was not contested, for it remains a confirmed report in the abuse registry. Because the Department's background screening on the Smiths was completed in May 1998, or before the abuse incident occurred, the Department was unaware of the matter when it issued the license in September 1998. The abuse report contains an admission by Connie to the mother of the child that "she had lost her temper with the baby" and struck him. At hearing, however, she denied that she "lost control" and maintained instead that the spanking was simply a form of discipline for the child. Even if Connie's version of events is accepted, the fact remains that the child was struck so hard that he suffered bruises on his buttocks. Through accepted testimony presented at hearing, the Department expressed the concern that if Connie lost control supervising a normal two-year-old child, she would have far more difficulty with older children having severe emotional problems, such as therapeutic foster children. This is a legitimate concern, and Petitioners failed to demonstrate that this concern was not well-founded.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioners' request for renewal of their foster care license. DONE AND ENTERED this 21st day of November, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2000. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Leo and Connie Smith 12134 County Road 684 Webster, Florida 33597 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
The Issue The issue in this case is whether Respondent should approve Petitioner's registration to operate a family day care home.
Findings Of Fact The Parties Petitioner is a 25-year-old female who admittedly has been providing unlicensed child day care in her home for the past several years. While she has no formal training in child care, she has been employed in the child care field for many years and obtained her GED in 1995. Petitioner has been married to her husband, A.P., for six years, and they live together. Respondent is the state agency responsible for regulating child care facilities pursuant to Chapter 402. The Application On September 18, 2002, Petitioner submitted an application to Respondent seeking licensure to operate a registered family day care within her home located at 6351 Redwood Oaks Drive in Orlando, Florida. Respondent processed the application and effectuated the required background screening of the individuals living within the household, including Petitioner and A.P. The screening of Petitioner revealed that on October 3, 2000, a young girl, living within Petitioner's home and under her supervision, was removed following a report to the abuse hotline and the subsequent investigation by Donald Griffin, a protective services investigator employed by Respondent. The screening of A.P. revealed that he was arrested in October 2000 on charges of lewd, lascivious assault or act on a child; prostitution; lewd or lascivious molestation; renting space to be used for prostitution; and lewd or lascivious conduct. The screening further revealed that on May 15, 2002, the State Attorney's Office determined that the case was not suitable for prosecution and filed a "No Information Notice." Upon receipt and consideration of the screening results, Respondent denied Petitioner's application on January 23, 2003, advising her that: . . . the Department is unable to approve your application to operate a family day care due to safety concerns for children that may be placed under your care for the following reasons: Background screening revealed that a child was removed from your care following an allegation of abuse or neglect. Background screening revealed that a member of your household lacks moral character due to their arrest record involving minors which would place the children at risk of harm. With respect to Petitioner's screening results, Petitioner admits that a child was removed from her home, but alleges that the removal was at her request. Petitioner denies any allegation of abuse and insists that the removed child, her friend's daughter, was "extremely unruly and too difficult to handle." As a result, Petitioner claims that she requested that Respondent remove the child and Respondent complied. Respondent's investigator, Mr. Griffin, testified otherwise. Investigator Griffin stated that he personally investigated Petitioner following a report to Florida's child abuse hotline. He separately interviewed both Petitioner and the child and noticed clear bruises and welts on the child. Investigator Griffin determined that Petitioner's home was not suitable for the young girl and removed her from the residence. Mr. Griffin's testimony was more credible. No evidence was offered to support Petitioner's assertion. With respect to the screening results of A.P., Respondent presented compelling evidence that A.P. lacks the requisite good moral character. First, Respondent demonstrated and Petitioner admits that A.P. occasionally gets angry and lacks self-control. In fact, the local police department has responded to domestic disturbance calls from the family home on at-least two occasions. In addition, the evidence surrounding A.P.'s arrest demonstrates that A.P. lacks good moral character. Specifically, A.B., the alleged victim of A.P., credibly testified at hearing that in October 2000, at age 12, she and her minor female friend, L.M. were walking near their school during the early evening when an unknown black male, later identified as A.P., driving a green sports utility vehicle, offered them a ride. The female minors entered his S.U.V. and were taken to a convenience store and then to a hotel. A.B. testified that while in the hotel room, the male inappropriately touched her butt, pushed her on the bed and solicited her to have sex with him for money. A.B. said "no" to his offer and asked him to stop. Shortly thereafter, the male departed the hotel and abandoned the girls in the hotel room with the room key. The police were contacted and investigator Rick Salcido conducted an investigation. After interviewing the girls, Mr. Salcido acquired physical evidence at the hotel linking A.P. to the room and supporting A.B.'s allegations. He retrieved a copy of A.P.'s driver's license and hotel credit card used at check-in from the hotel manager. In addition to the physical evidence linking A.P. to the hotel, A.B. positively identified A.P.'s photo as the perpetrator. Moreover, the investigator determined, and Petitioner admits that A.P. owned and drove a green sports utility vehicle at the time of the alleged incident. While Petitioner asserts that she and A.P. were out of town and on vacation on the date of the incident, she admits that they returned home at approximately 7:00 p.m. that evening. Although A.P. was subsequently arrested, the State Attorney's Office later declined to prosecute and filed a "No Information Notice." At hearing, counsel for A.P. indicated that the statute of limitations had not expired and A.P. invoked his Fifth Amendment privilege to remain silent. A.P. declined to testify and answer questions related to his moral character and the circumstances of his arrest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for a registration to operate a child care facility. DONE AND ENTERED this 29th day of August, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 29th day of August, 2003. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Jeremy K. Markman, Esquire 800 North Ferncreek Avenue Orlando, Florida 32803 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
