The Issue Whether the examination for licensure as a marriage and family therapist taken by Petitioner was correctly scored by Respondent.
Findings Of Fact Respondent is the state agency charged with the duty of regulating marriage and family therapists in the State of Florida. An applicant for licensure by examination must pass the examination administered by Respondent as a prerequisite to licensure in the State of Florida as a marriage and family therapist. Section 491.005(2)(d), Florida Statutes. Petitioner sat for the marriage and family therapist licensure examination on April 19, 1989. Petitioner did not pass the examination. Had Petitioner been awarded credit for her answer to the challenged question, she would have passed the examination. Petitioner timely challenged the grading of her answer to several examination questions for which she received no credit. Prior to the beginning of the formal hearing, Petitioner abandoned her challenge to the grading of her answer to all questions except Question 39. Prior to taking the examination, Petitioner was given a reading list to assist her in preparation for the examination. Question 39 is an objective, multiple choice question which contains four choices as possible answers. Question 39 required the candidate to select from the four available choices the choice that describes a particular type of family therapy. Petitioner contends that two of the four choices correctly answer Question 39. Petitioner asserts that she selected one of the two correct choices and that she should have been given credit for her choice. Respondent contends that there is only one correct choice in answer to Question 39 and that Petitioner failed to select the correct choice. The term used in Question 39 to describe the type of family therapy that is the subject of the question is a term of art that has a specific meaning in the practice of family therapy. Choice C reflects this specific meaning of the term as it is used as a term of art in the practice of family therapy. The term also has a broader, more generic meaning in the practice of psychoanalysis. Choice B reflects this broader, more generic meaning of the term as the term is used in the practice psychoanalysis. Petitioner maintains that either choice B or Choice C correctly answer Question 39. Respondent maintains that choice C is the only choice that correctly answers the question. Petitioner, a practicing psychoanalyst in New York with extensive education and experience in the field of psychoanalysis, selected Choice B, which contains the broader, more generic meaning of the term as the term is used in the field of psychoanalysis. Question 39 is not ambiguous. The question clearly requires the candidate to apply the subject term as the term is used in the practice of family therapy. Question 39 was not directed toward the use of the subject terms in other disciplines. Accordingly, Petitioner's response to the question, Choice B, was incorrect. The only correct response to Question 39 was Choice C. The question contained sufficient information to enable the candidate to correctly answer the problem. The correct answer to the problem was available to Petitioner in the reference material she was advised to use in preparation for the examination. Respondent gave Petitioner no credit for her answer to Question 39 because Petitioner gave the wrong answer to the question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent, State of Florida, Department of Professional Regulation, enter a final order which finds that Petitioner abandoned her challenges to all questions except Question 39 and which denies Petitioner's challenges to Question 39. It is further recommended that the examination question filed as exhibits in this proceeding be sealed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of February, 1990. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE No. 89-5500 The following rulings are made on the proposed findings of fact submitted on behalf of Petitioner. The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 2, 3, and 7 of the Recommended Order. The proposed findings of fact in paragraph 2 are rejected because of the need to keep the examination confidential, if possible. The examination question may be found in Hearings Officer Exhibit 1. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 7 of the Recommended Order. - 7. The proposed findings of fact in paragraphs 4 - 7 are rejected as being subordinate to the findings made. 8. - 11. The proposed findings of paragraphs 8 - 11 are rejected as being unnecessary to the findings made and the conclusions reached because the subject question limits the use of the term to the practice of family therapy. The proposed findings of fact in paragraph 12 are rejected as being contrary to the findings made. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraph 14 are rejected as being legal argument. - 16. The proposed findings of fact in paragraphs 15 and 16 are rejected as contrary to the findings made. The following rulings are made on the proposed findings of fact submitted on behalf of Respondent. The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 2, 3, and 7 of the Recommended Order. - 4. The proposed findings of fact in paragraphs 2 - 4 are adopted in material part by paragraphs 3 and 4 of the Recommended Order. 5. - 6. The proposed findings of fact in paragraphs 5 and 6 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 7 are adopted in material part by paragraphs 6 - 10 of the Recommended Order. - 9. The proposed findings of fact in paragraphs 8 and 9 are rejected as being recitation of testimony and as being subordinate to the findings made. The proposed findings of fact in paragraph 10 are rejected because of the need to keep the examination confidential, if possible. The examination question may be found in Hearings Officer Exhibit 1. The proposed findings of fact in paragraph 11 are rejected as being recitation of testimony and as being subordinate to the findings made. COPIES FURNISHED: Ira C. Hatch, Jr., Esquire Houston, Shahady & Hatch 100 Northeast Third Avenue Suite 900 Fort Lauderdale, Florida 33301 E. Harper Field, Esquire Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Linda Biedermann Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues in this case, which arises from Petitioner's application for an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes, are whether Petitioner was a prevailing small business party in a disciplinary proceeding that Respondent initiated, and, if so, whether Respondent's decision to prosecute Petitioner was substantially justified or whether special circumstances exist that would make an award unjust.
Findings Of Fact On August 15, 2014, Respondent Department of Children and Families ("DCF") issued an Administrative Complaint against Petitioner Children's Hour Day School (the "School"), a licensed child care facility, charging the School with two disciplinable offenses, namely denial of food as form of punishment (Violation 1) and misrepresentation (Violation 2). The allegations of material fact in support of Violation 1 were as follows: During a complaint inspection on 8/6/14, the child care facility was cited for a Class I violation of Standard #12, Child Discipline, [because] a child, to wit, S.B., was denied a snack as a form of punishment when the child allegedly hit her sister, L.B. who is also enrolled at the child care facility. The allegations of material fact in support of Violation 2 were as follows: During a complaint inspection on 8/6/14, the child care facility was cited for a Class I violation of Standard #63, Misrepresentation, when it came to the Family Safety Counselor's attention that child care personnel, K.L. misrepresented and forged information, related to the child care facility when he utilized a notary stamp belonging to a former employee, namely Albarran and submitted the 2014 application for licensure to the Department with the forged notarization. The School, which requested a hearing, was found not guilty of the charges. See Dep't of Child. & Fams. v. Child.'s Hour Day Sch., Case No. 14-4539, 2015 Fla. Div. Adm. Hear. LEXIS 8 (Fla. DOAH Jan. 9, 2015; Fla. DCF Feb. 18, 2015). The Administrative Law Judge made the following findings of material fact with respect to Violation 1: S.B. and L.B. are young sisters who stayed at Respondent's day-care center in July 2014. On July 9, 2014, one of Respondent's employees gave S.B. and L.B. a small cup of Cheez-Its as a snack. [Kevin] Lennon was present when the two girls were sharing the cup of Cheez-Its. After S.B., who is the older and bigger child, finished her share of the Cheez-Its, S.B. began to hit her sister to take her sister's share of the Cheez-Its. Mr. Lennon separated the two girls and permitted L.B. to eat her share of the Cheez-Its. Mr. Lennon testified, credibly, that he did not take the Cheez-Its from S.B. to punish S.B. Id. at 3-4 (paragraph number omitted). The Administrative Law Judge made the following findings of material fact with respect to Violation 2: On March 25, 2014, Petitioner received from Respondent an "Application for a License to Operate a Child Care Facility" (the application). Mr. Lennon completed the application on behalf of Respondent. The application contained an attestation section that required Mr. Lennon's signature to be notarized. On March 25, 2014, Petitioner received an attestation section (first attestation section) signed by Kevin Lennon on February 28, 2014. The first attestation section contains Ivanne Albarran's notary seal and a signature dated February 28, 2014. Mr. Lennon testified, credibly, that he signed the first attestation section as Kevin Lennon. Mr. Albarran testified, credibly, that he signed the first attestation section as the notary public. The application package contains a second attestation section that was received by Petitioner on March 28, 2014. The second attestation section contains Mr. Lennon's signature and a date of March 26, 2014. The second attestation section contains Mr. Albarran's notary seal and a signature dated March 28, 2014. Mr. Lennon testified, credibly, that he signed the second attestation section as "Kevin Lennon." Mr. Albarran testified, credibly, that he signed the second attestation section as the notary public. Id. at 4-5 (paragraph numbers omitted). The School's owner is a corporation, Hamilton-Smith, Inc. ("HSI"), whose principal office is located in the state of Florida.1/ Kevin Lennon, who was referred to as "K.L." in the Administrative Complaint and is mentioned in the findings of fact quoted above, is HSI's sole shareholder. HSI employed fewer than 25 persons at the time DCF initiated the underlying disciplinary proceeding, and at all relevant times thereafter. Thus, HSI is a "small business party" as that term is defined in section 57.111(3)(d)1.b., Florida Statutes.2/ DCF agrees that HSI is a "prevailing" party as that term is defined in section 57.111(3)(c)1., inasmuch as a final order dismissing the charges against the School was entered in DOAH Case No. 14-4539. It is determined, as a matter of ultimate fact, that HSI is a "prevailing small business party" entitled to recover its reasonable attorney's fees and costs from DCF "unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust." § 57.111(4)(a), Fla. Stat. In defending against the administrative charges, HSI incurred attorney's fees in the amount of $4,515.00 and costs totaling $434.50, for which it now seeks to be reimbursed. DCF does not contest the amount or reasonableness of either sum. DCF contends, however, that an award of attorney's fees and costs is unwarranted because its actions were substantially justified. It is therefore necessary to examine the grounds upon which DCF made its decision to charge the School with the offenses alleged in the Administrative Complaint. The disciplinary action had its genesis in an anonymous complaint that, on August 6, 2014, was phoned in to the local DCF licensing office in the School's vicinity. DCF counselor Michaelyn Radcliff went out that same day to investigate, and she met Tajah Brown at the School. Ms. Brown, an employee of the School, revealed to Ms. Radcliff that she had made the complaint, which involved the ratio of staff to children. Mr. Lennon, who was Ms. Brown's boss, happened to be out of town at the time and hence was not present for Ms. Radcliff's inspection. For the next six hours or so, Ms. Brown described for Ms. Radcliff every regulatory violation or offense she could think of, which she believed the School might have committed. One such offense was the alleged withholding of S.B.'s snack. Ms. Brown had not witnessed this incident, but she knew the child's mother, E.B., and offered to ask the mother to give a statement about it, which Ms. Radcliff agreed was a good idea. E.B. met Ms. Radcliff at the School, accompanied by her daughter S.B., who was then two years old. E.B. did not have personal knowledge of the alleged denial-of-snack incident, but she had been told about the event by her sister (S.B.'s aunt) who had picked S.B. and L.B. up from day care the evening of its alleged occurrence. The aunt did not have personal knowledge of the matter either, having arrived afterward. Rather, according to E.B., the aunt had told E.B. that Mr. Lennon had told her (the aunt) that S.B. had hit L.B. and thrown a tantrum. Ms. Radcliff did not speak to the aunt, however, whose testimony about what Mr. Lennon told her actually might have been admissible at hearing under an exception to the hearsay rule3/; instead, she accepted E.B.'s statement about the incident, which was based on hearsay (Mr. Lennon's declaration) within hearsay (the aunt's declaration) and had no evidential value on its own. Ms. Radcliff did question one eyewitness: two-year- old S.B., who denied hitting her sister, complained that Mr. Lennon would not give her a snack, and accused Mr. Lennon of hitting her. S.B.'s statement, such as it was, was the only independently admissible evidence Ms. Radcliff had. She never spoke with Mr. Lennon, who was the only adult eyewitness to the alleged denial-of-snack incident.4/ As for the alleged misrepresentation, Ms. Brown informed Ms. Radcliff that she (Ms. Brown) had observed Mr. Lennon using a notary stamp belonging to Ivanne Albarran, a former employee of the School, to "notarize" signatures in Mr. Albarran's name when he was not around. Ms. Brown did not, however, identify any specific documents that she claimed to have seen Mr. Lennon fraudulently notarize in this fashion.5/ Nor, apparently, was she asked whether she was familiar with either Mr. Albarran's or Mr. Lennon's signature or if she could identify anyone's signature on any document. Ms. Radcliff herself compared the signatures on documents purportedly signed by Mr. Albarran during the time when Mr. Albarran was an employee of the School with some of his purported signatures on documents executed after his employment had ended. She concluded that the signatures looked different. Ms. Radcliff is not a forensic document examiner, however, and she has no discernable expertise in handwriting analysis. Based on her layperson's opinion about the signatures, Ms. Radcliff determined that Mr. Albarran had not executed some notarized documents that the School had submitted with its recent application for renewal licensure, even though his stamp, seal, and purported signatures appeared on them. Based on Ms. Brown's claim to have seen Mr. Lennon use Mr. Albarran's notary stamp, Ms. Radcliff concluded that Mr. Lennon had forged these signatures. Ms. Radcliff never asked Mr. Albarran whether he had signed the documents in question, nor did she speak with Mr. Lennon about the matter.
