The Issue The issue is whether Respondent violated Sections 943.13(7), 943.1395(6) and (7), Florida Statutes (2003),1 and Florida Administrative Code Rule 11B-27.0011(4)(a), and, if so, what discipline should be imposed.
Findings Of Fact Respondent was certified by the Commission in October 2002. His certification number is 204780. Respondent worked as a patrol officer for the Cape Coral Police Department from October 2002 through September 2003. Respondent was not working as a law enforcement officer at the time of the incident giving rise to this proceeding. He was working in a sales job. Respondent is a large, muscular man. He is approximately six-feet, four inches tall and between 240 and 245 pounds. He was 33 years old at the time of the final hearing. In June 2004, Respondent was living in Tampa with his then fiancée, Leah Bryant. Ms. Bryant’s four-year-old daughter, C.P., was living with them as well. Ms. Bryant was approximately three months pregnant with Respondent’s child at the time. On Saturday, June 12, 2004, Ms. Bryant went to work early in the morning and left C.P. at home with Respondent. C.P. was asleep when Ms. Bryant left. Around noon that day, Respondent was to drop off C.P. with Ms. Bryant’s parents, Michael and Sherry Frazier, in Bradenton, which is approximately half-way between Tampa and the Fraziers’ home in Ft. Myers Beach. C.P. was going to spend several days with the Fraziers. C.P.'s father, who also lived in the Ft. Myers area, was going to pick up C.P. from the Fraziers and keep her for a week with him. After Ms. Bryant left for work, Respondent got up, showered and got dressed. Then, he woke C.P. up, made her breakfast, packed her a bag of clothes for the trip, and ran her a bath. Respondent was sitting on the edge of the tub with his feet in the water while he bathed C.P. He was fully clothed, except for his socks. As Respondent was trying to get C.P. to rinse her hair with a cup of water, she shook the cup at Respondent causing the water to splash out of the cup and soak his shirt. This angered Respondent, and he pulled C.P. over his knee and “gave her a swat” on her buttocks. Respondent only spanked C.P. one time with an open hand. He testified that he did not think that he spanked her that hard, but the force of the spank was significant enough to leave red marks and bruises that, as discussed below, were clearly visible that night. C.P. cried after the spanking, but according to Respondent, she quickly stopped crying and started laughing after he started making “goofy noises.” Respondent then finished bathing C.P. without further incident. Respondent got C.P. out of the bath and helped her get dressed. Respondent then put C.P. into his car and they drove to Bradenton to meet the Fraziers. Respondent and the Fraziers met briefly at a McDonalds in Bradenton. C.P. left with the Fraziers and Respondent drove back to Tampa. After picking up C.P., the Fraziers drove back to their home in Ft. Myers Beach. On the way, they drove by a number of houses that were for sale in the Venice area because the Fraziers were considering moving to that area, which was closer to Tampa where Ms. Bryant, Respondent, and C.P. were living. The Fraziers did not get back to their home in Ft. Myers Beach until 6:30 or 7:00 p.m., which means that C.P. was in a car seat for approximately eight hours, including the time that she was in Respondent’s car from Tampa to Bradenton. The length of time that C.P. was in the car seat may have exacerbated the red marks on C.P.'s buttocks that were left by the spanking administered by Respondent. Shortly after getting to the Fraziers’ house, C.P. was in the bathroom with Lauren, her 13-year-old aunt and Ms. Bryant’s half-sister. Lauren noticed that C.P.’s buttocks had a number of red marks and bruises. Lauren immediately told her mother, Mrs. Frazier. Mrs. Frazier asked C.P. what had happened, and C.P. told her that “Nicky [Respondent] spanked me.” C.P. did not mention any sexual contact by Respondent. Mrs. Frazier immediately tried to call Ms. Bryant, but was unable to get in touch with her until approximately 10:00 p.m. that night. Mrs. Frazier took photographs of the marks on C.P.’s buttocks at approximately 8:00 p.m. The photographs, Exhibit P- D, are not very good quality, but they do show reddish marks all across C.P.’s buttocks. The photographs also show vertical marks along the inside of the cheeks of the buttocks, which look more like a rash than bruises. Mrs. Frazier told Ms. Bryant about the marks on C.P.’s buttocks and told her that she needed to come see them for herself. Ms. Bryant did so. Ms. Bryant arrived in Ft. Myers Beach after 1:00 a.m. on Sunday, June 13, 2004. C.P. was sleeping, but Ms. Bryant woke her up to see the marks on her buttocks and ask her what had happened. C.P. told Ms. Bryant the same story that she told Mrs. Frazier, i.e., that Respondent spanked her. C.P. did not mention any sexual contact by Respondent. Ms. Bryant testified that she spoke again with C.P. about the incident later on Sunday, and that all C.P. told her was that Respondent spanked her. Ms. Bryant further testified that when she left the Fraziers for Tampa on Monday, June 14, 2004, C.P. had not said anything about sexual contact by Respondent to her or anyone else. Mr. and Mrs. Frazier and Lauren all testified in their depositions that on Sunday afternoon, while Ms. Bryant was still at the Fraziers’ home, C.P. alleged that Respondent put "his pee-pee in her butt.” Ms. Bryant’s testimony on this issue is accepted over that of the Fraziers. Indeed, the more persuasive evidence establishes that Ms. Bryant would not have left C.P. and returned to Tampa on Monday had she known of the allegations of sexual abuse. Ms. Bryant's testimony on this issue is consistent with the level of concern that she exhibited for C.P. when she drove from Tampa to Ft. Myers Beach late on Saturday night after learning of the marks on C.P.’s buttocks. Ms. Bryant testified that she first learned of the allegations of sexual abuse when she received a call from Mrs. Frazier on Thursday, June 17, 2004. On that same day, C.P. was picked up from the Fraziers by her father, Steven Parker. C.P. told Mr. Parker the same story that she told the Fraziers, that Respondent spanked her and "put his pee-pee in her butt.” Later that evening, Mr. Parker’s then-fiancée (and current wife), Corin Hill-Parker, talked to C.P. about the incident. Mrs. Parker testified that at her request, C.P. drew a picture that depicted Respondent’s penis touching her butt. That drawing was received into evidence as Exhibit P-E. Ms. Bryant testified that she did not believe that C.P. drew the picture attributed to her by Mrs. Parker. Ms. Bryant’s testimony is corroborated by a comparison of Exhibit P- E to the other drawings done by C.P. (e.g., Exhibit R-3), which, in the undersigned’s view, show far less drawing skill than would be required to draw a penis and butt at the small scale they were drawn in Exhibit P-E. The following day, Friday, June 18, 2004, Mr. Parker and Mrs. Frazier took C.P. to the Estero Island Medical Center to be examined by a doctor. At this point, it had been six days since the incident. The report prepared by the doctor who examined C.P. on that date reflects that there were fading bruises on C.P.’s buttocks, but no injuries to her anus or vagina. The report states that C.P. told the doctor that “Nicky spanked [her]” and that “Nicky put his pee-pee in [her] bottom.” The doctor called the Lee County Sheriff’s Office (LCSO), as he was required to do by state law in cases of alleged child abuse. LCSO dispatched deputy to the doctor’s office. The deputy advised Mr. Parker that LCSO did not have jurisdiction because the alleged incident occurred in Hillsborough County. The deputy told Mr. Parker that he should take C.P. to a hospital in Tampa that evening -- Friday, June 18, 2004 -- for evaluation. Mr. Parker did not take C.P to Tampa until Monday, June 21, 2004. He did not take C.P. to a hospital for evaluation, but rather took her to the Tampa Police Department (TPD) to file a report. The report was taken by Sgt. Jonathan Gamson. Mr. Parker gave Sgt. Gamson the photographs of C.P.’s injuries taken by Mrs. Frazier, as well as the picture that C.P. allegedly drew of Respondent’s penis and her butt. Mr. Parker told C.P. to tell Sgt. Gamson what Respondent did to her, and she told him that Respondent spanked her and "put his pee-pee in her butt.” Sgt. Gamson also took a sworn statement from Mrs. Frazier, who had accompanied Mr. Parker and C.P. to Tampa. Sgt. Gamson turned the case over to TPD’s sex crime division, namely Detectives Josaphine Baxter and Sonja McCaughey. Detective Baxter referred C.P. to the Hillsborough County Child Protection Team for a physical evaluation. She also referred C.P. to the Children’s Justice Center for a “forensic interview.” The physical examination was conducted by nurse Tamika Harris on Thursday, June 24, 2004. C.P. told Ms. Harris that Respondent “put his pee-pee in her butt.” Ms. Harris did not observe any evidence of the alleged sexual abuse, such as injury to C.P.’s anus or vagina. On this point, Ms. Harris’ report states that “the physical findings from today’s examination neither supports nor refutes allegations of child sexual abuse.” The “forensic interview,” which also occurred on June 24, 2004, was conducted by Jennifer Miller. Ms. Miller has extensive training and experience in interviewing children, including children that are victims of abuse. The interview was videotaped and was conducted by Ms. Miller according to a protocol designed to ensure the reliability of the child’s statements For example, the protocol included asking open-ended, non-leading questions. Respondent did not take issue with the methodology used by Ms. Miller. During the interview C.P. told Ms. Miller that Respondent “put his pee-pee in her butt” while they were both naked in the bath together. She also told Ms. Miller that Respondent spanked her while she was in the bath. C.P. described the spanking and the alleged sexual abuse in the same manner, i.e., “like a stinky fish.” As detailed in the Order on Motion to Admit Statement of Child Victim entered on this date, C.P.’s videotaped statements are not found to be sufficiently reliable to satisfy the requirements of Section 90.803(23), Florida Statutes (2006). The statements are, therefore, hearsay. Detective Baxter had Respondent arrested on the evening of June 24, 2004, for child abuse and sexual abuse notwithstanding Ms. Harris’ report that her physical examination of C.P. did not support the allegation of sexual abuse. Her decision to have Respondent arrested was based upon C.P.’s statements to Sgt. Gamson, Ms. Harris, and Ms. Miller about the alleged abuse, Mrs. Frazier’s sworn statement, the drawing allegedly made by C.P., and the photographs taken by Mrs. Frazier on the night of the incident showing marks on C.P.’s buttocks. Respondent waived his Miranda rights and consented to be interviewed by Detective Baxter on two occasions. During the interviews, Respondent admitted that he spanked C.P. in the bath, but denied that he “put his pee-pee in her butt” or otherwise sexually molested her. He denied that he was naked while he was bathing C.P. The story that he gave during the interviews was consistent with his testimony at the final hearing. At one point between the interviews, Respondent stated to Detective McCaughey, “oh, it happened alright,” or words to that effect, in response to her statement that he should step up and take responsibility for his actions if he did what C.P. had alleged. Respondent credibly testified at the final hearing that he did not recall making that statement, and that even if he did, the statement must have been taken out of context because he would not admit to something he did not do. Respondent’s testimony on this point is consistent with his repeated denials during the interviews with Detective Baxter. Respondent was not prosecuted for the crimes for which he was arrested. He was never charged with sexual battery, and the child abuse charge was “nol prossed.” Respondent and Ms. Bryant are no longer together. They split up shortly after the incident, and she recently married someone else. Ms. Bryant now lives in Delray Beach. She has primary custody of C.P. and her and Respondent’s son, J.W., who was born in November 2004. After this incident, the Parkers filed several abuse reports against Respondent and Ms. Bryant relating to C.P. The reports were investigated by the Department of Children and Family Services and found to be without merit. There is a custody dispute pending between Mr. Parker and Ms. Bryant in which Mr. Parking is seeking custody of C.P. as a result of the incident giving rise to this case. That action, which was initiated after the incident, has not been actively pursued by Mr. Parker. Neither he nor Ms. Bryant was sure of the status of the case. Respondent sees his son regularly, and he has a good relationship with Ms. Bryant. Respondent has had no contact whatsoever with C.P. since the incident. Ms. Bryant testified that C.P. rarely mentions the incident. Mrs. Frazier and Mr. Parker testified that C.P. has stated that she is afraid of Respondent and that she remembers that he hurt her, which is consistent with the parties’ stipulation that C.P.’s participation at the final hearing may cause her severe emotional or mental harm.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 22nd day of January, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd of January, 2007.
The Issue Does Petitioner, Manatee County School Board (Board), have just cause to terminate the employment of Respondent, Gregg Faller, based upon the conduct involving Mr. Faller's alleged failure to respond appropriately to information he had about the conduct of his subordinate, Rod Frazier, toward females, including students, as alleged in the Administrative Complaint dated October 14, 2013?
Findings Of Fact Stipulated Facts The Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Manatee County (District). § 1001.32, Fla. Stat (2013). The District has employed Mr. Faller since December 8, 2009. Mr. Faller was an administrative parent liaison at Lakewood Ranch High School from December 2009 to May 2009.2/ He served as assistant principal at Manatee High School from July 2010 through July 2013. Mr. Faller served temporarily as an assistant principal at Palmetto High School from July 2013 until he was placed on paid administrative leave on August 1, 2013. At all times, Mr. Faller was required to abide by all Florida Statutes that pertain to teachers and educators, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida (Code of Ethics), and the Policies and Procedures Manual of the Manatee County School District. On August 15, 2013, Respondent was charged with: (1) Failure to Report Child Abuse (sections 39.201(1) and 39.205(1), Florida Statutes (2011)(misdemeanor)); (2) Felony Failure to Report Child Abuse (section 39.201(1) and (2) and 39.205(1), Florida Statutes (2011)(third degree felony)); and (3) False Reports to Law Enforcement Authorities (section 837.05(1), Florida Statutes (2011)(misdemeanor)). The prosecutor dismissed the charge of providing false information to a law enforcement officer. On September 25, 2013, the superintendent notified Mr. Faller in writing of the District's intent to recommend his termination from employment. The superintendent issued an Administrative Complaint against Mr. Faller that same day. On October 14, 2013, during a Board meeting, Mr. Faller was suspended, without pay, pending the outcome of an administrative hearing that he requested. On October 24, 2013, Respondent served a Request for Administrative Hearing and Respondent/Employee's Answer to Administrative Complaint. Additional Facts Florida law imposes a duty to report upon any person who has reasonable cause to suspect child abuse by a person responsible for a child's welfare.3/ The Board emphasized the importance of this obligation in Board Policy 5.2 of the Policies and Procedures Manual of the School District of Manatee County. That policy provides in part: All school employees have a serious affirmative duty to report suspected child abuse and neglect and shall do so pursuant to the guidelines developed. * * * Mandatory Duty to Report Suspected Child Abuse All employees or agents of the district school board who have reasonable cause to suspect abuse have an affirmative duty to report it . . . . * * * Complaints of Child Abuse Reported to an Employee An employee receiving a complaint or report of child abuse shall inquire of the reporting party as to the details of his/her concern but shall not investigate further. If the employee has reasonable cause to suspect that child abuse has occurred based upon the description by the reporting party, the employee must report . . . [to the Florida Child Abuse Registry]. * * * Employee Responsible for Reporting It is the responsibility of the first employee who has "reasonable cause" to suspect abuse to report it to the hotline and to do so immediately. It is unacceptable and violation of the law to simply report suspicions to any other individual (including law enforcement or your supervisor) and ask or expect them to make the report to the hotline. After making a report, the school board employee must inform the principal, supervisor, or other building administrator. If the suspected abuser is a district employee, the supervisor of the reporter will notify his/her director who will notify the Office of Professional Standards. * * * (6) Penalties for Failure to Report Any employee who is required to report and fails to do so may be found guilty of a misdemeanor . . . . Failure to report child abuse as required will also subject the employee to disciplinary action. Mr. Rod Frazier, a subordinate of Mr. Faller, was a person responsible for the welfare of female student, D.K. Mr. Faller was trained in the duty to report child abuse. He has been present with people who have called to report child abuse. He understood that if he learned of something that causes concern from another employee, he may be responsible for reporting the concern to his principal. At Manatee High School, Mr. Faller served as assistant principal. His duties included supervising four parent liaisons: Mr. Gulash, Ms. Torres, Rod Frazier, and Randy Smith. Parent liaisons handle everyday suspensions and the discipline of students. They also handle communication between parents, staff, and students and assist in the classroom. Parent liaisons also mentor some students. Mr. Faller summarized the parent liaison duties as: Their main job is to deal with referrals written by staff members that had issues with student behavior, deal with parents, phone call parents and let them know what their child was doing, basically be a mentor to some of the students if they saw students were struggling and had a relationship with them and could make an impact and try and make them get back on the right track. (Tr., pp. 319-320). The parent liaison job description identifies responsibilities that include: handling routine discipline referrals; referring serious offenses to the assistant principal; supervising students, including bus duty, parking lot, and school events; meeting and dealing effectively with staff members, students, and parents; and modeling and maintaining high ethical standards. During the 2011-2012 school year, Mr. Faller received several reports describing inappropriate conduct and improper relations with female students by Mr. Frazier. He also received a report of sexual harassment of a female parent liaison. Harassment of Adinah Torres Adinah Torres worked at Manatee High School as a parent liaison from November 2010 to July 2012. Mr. Faller was Ms. Torres' sole supervisor during that period of time. During that period, Mr. Frazier trained Ms. Torres on how to enter referrals into the District's data system. During one training session, she sat at his desk using his computer. Mr. Frazier sat on the desk with his feet and crotch toward Ms. Torres. Mr. Frazier rubbed his foot up the side of Ms. Torres' leg during the training session. She pulled away and looked at him. Mr. Frazier smirked at Ms. Torres. She left the room. Mr. Frazier's acts were inappropriate, unwelcome, and unwarranted. They made Ms. Torres uncomfortable. The acts were harassment of Ms. Torres. The following day, Ms. Torres told Mr. Faller about the incident. Mr. Faller agreed that the described conduct was inappropriate. He told Ms. Torres that he could not have these sorts of problems in the office because she might one day need someone to help her with a student disciplinary issue. "You got this?" he asked. Ms. Torres interpreted Mr. Faller's statements to mean that she should deal with the problem.4/ Mr. Faller's version of their conversation is that he told Ms. Torres he would take action if she wished to file a written complaint. Nothing in the policies and procedures of the Board requires an employee to make a written complaint of harassment. In fact, Board Policy 2.19, which establishes procedures for complaints about discrimination and harassment, requires a diametrically opposite approach. Board Policy 2.19(4) sets out an investigation, review, reporting, and appeal process that begins with a written complaint. However, the policy begins with a clear statement that imposes a specific duty upon an administrator, such as Mr. Faller, who learns of an alleged incident of discrimination or harassment. The policy states: The following complaint/grievance procedures are established to receive complaints. However, when any administrator learns of an alleged incident of discrimination/harassment, they are required to report complaints immediately to the Equity Coordinator and will not conduct an investigation. Nothing required a written complaint like Mr. Faller required of Ms. Torres. An immediate report by him is what was required. Ms. Torres spoke to Mr. Frazier and told him the behavior was unacceptable. He denied that it occurred and stormed away from her. Mr. Faller did not note the complaint in Mr. Frazier's file. He did not speak to Mr. Frazier about it or take any disciplinary action. Mr. Faller also did not report the incident that Ms. Torres alleged to anyone, including the school's equity coordinator. Ms. Peebles' Reports of Conduct of Mr. Frazier With Female Students, A.P. and D.K. In the 2011-2012 school year, Manatee High School teacher, Jacqueline Peebles, developed concerns about Mr. Frazier's conduct with two female students. One was A.P., who told Ms. Peebles about Mr. Frazier approaching her at a tiki bar one night and later texting her about the encounter. Another was D.K. and Mr. Frazier's frequent calls to the classroom asking Ms. Peebles to have D.K. report to his office. Ms. Peebles was also concerned about a text message to D.K. that appeared to be from Mr. Frazier telling D.K. to come to his office, that he had heard she was wearing short-shorts. Ms. Peebles told Mr. Faller about all these incidents in one conversation after A.P. told her about the tiki bar encounter. Ms. Peebles told Mr. Faller that she knew A.P. was a troubled student with some discipline issues, but she felt A.P. was being truthful. Ms. Peebles provided the following information to Mr. Faller. She told him that A.P. had reported that Mr. Frazier approached her at night at a tiki bar, where she was drinking illegally. Ms. Peebles told Mr. Faller that A.P. told her that a man approached her from behind and rubbed his erection against her buttocks. A.P. said she turned and saw that it was Mr. Frazier. A.P. questioned him and told him he knew she was a student. Mr. Frazier replied, according to A.P., that she had a "nice ass" and was fair game because she was in the bar and must, therefore, be legal. The record establishes that A.P. was a student. It does not, however, establish her age. No party has asserted she was 18 or older. It is reasonable to infer from A.P.'s student status, the fact that she returned to school the following year, and the absence of dispute that she was under 18. Ms. Peebles said that she told A.P. "that sounds odd." A.P. insisted it was true. Ms. Peebles also told Mr. Faller that A.P. said that she was leaving regular school for an alternative program because Mr. Frazier would not leave her alone. A.P.'s comments and her change of schools indicate that Mr. Frazier's conduct was harmful to A.P.'s mental and emotional health. Ms. Peebles went on to tell Mr. Faller that A.P. then showed Ms. Peebles text messages on her telephone that were marked as coming from Mr. Frazier. The messages referred to the bar encounter saying, "'Oh, you have a hot ass, I really wanted you.'" After reporting the above information to Mr. Faller, Ms. Peebles told him that she believed A.P. In order to help Mr. Faller understand why she thought A.P.'s reports were credible and significant, Ms. Peebles then told Mr. Faller about an incident with Mr. Frazier that occurred before Mr. Faller assumed the position supervising Mr. Frazier. Ms. Peebles had walked into Mr. Frazier's office looking for him. She found Mr. Frazier sitting at his desk with a female student, D.K., sitting in his lap feeding him cake. She told Mr. Faller that she had reported the incident to the acting principal, Mr. Kane, and thought it had been dealt with. Finally, Ms. Peebles told Mr. Faller about her experiences with Mr. Frazier frequently calling the same female student, D.K., from class. The frequency became so great that it was disruptive to D.K.'s education. Ms. Peebles began not answering the telephone or refusing to send D.K. to Mr. Frazier's office. Later, Ms. Peebles saw D.K. texting and took D.K.'s telephone from her and placed it on her desk. D.K.'s phone buzzed with an incoming text message. Ms. Peebles told Mr. Faller that the message said something "along the lines of 'come up to my office. I hear you're wearing short-shorts again.'" D.K. was wearing short-shorts. Ms. Peebles told Mr. Faller that the telephone indicated that the message was from Rod Frazier. This event preceded the conversation with A.P. that Ms. Peebles reported to Mr. Faller. Ms. Peebles told Mr. Faller that Mr. Frazier's texting students frequently was a problem. With D.K., it was especially troublesome because she was missing so much class time. Mr. Faller acknowledges texting is not the proper way for the parent liaisons to contact students during school hours. Mr. Faller said he would talk to Mr. Frazier about the texting. Mr. Faller denies that Ms. Peebles told him about the tiki bar incident. The undersigned finds the testimony of Ms. Peebles credible and persuasive on this issue. A day, or a day and a half, later, Mr. Faller passed Ms. Peebles in the hall. He said, "Hey, I took care of that." After that, Mr. Frazier was unfriendly to Ms. Peebles and rarely spoke to her or handled her referrals. But Mr. Frazier's personnel records contain no indications that Mr. Faller spoke to Mr. Frazier about these incidents or took any action. The credible persuasive evidence proves that Mr. Faller did not report these assertions to the child abuse registry to the administrators or law enforcement, investigate them, or act upon them. Ms. O'Dell's Reports of Mr. Frazier's Conduct With Female Students, D.K. and D.W. Another teacher, Keltie O'Dell, told Mr. Faller of similar problems with Mr. Frazier texting two female students, D.K. and D.W., asking them to leave her classroom. When she would not release them, he called to have the students sent to his office. Ms. O'Dell told Mr. Faller that D.K. and D.W. confirmed to her that they had texted Mr. Frazier asking him to get them out of class. Ms. O'Dell told Mr. Faller of a time when Mr. Frazier brought lunch to D.K. in her classroom so that Mr. Faller would not see her out of compliance with the dress code in the cafeteria. The conduct of Mr. Frazier that Ms. O'Dell reported to Mr. Faller was unprofessional, inappropriate, and improper. Mr. Faller did not report these concerns to any other administrators or to law enforcement authorities. He also did not speak directly to Mr. Frazier about the issues. Mr. Faller only spoke to all of the parent liaisons as a group, generally, about the inappropriateness of texting students to come from class. The file contains no information or notes indicating that Mr. Faller spoke to Mr. Frazier about the incidents, disciplined, or counseled Mr. Frazier. Concerns Reported by Steve Gulash Steve Gulash, an administrative parent liaison in Manatee High School's discipline office, brought similar, but much more general concerns about Mr. Frazier to Mr. Faller. He once told Mr. Faller that he should take note of the fact that Mr. Frazier only signed up as an administrator on duty for female games. He also told Mr. Faller that "this damn guy's probably done some stuff that could put him in jail." Mr. Gulash did not identify specific incidents. Mr. Faller did nothing to inquire into Mr. Gulash's concerns. Mr. Faller's Approach to the Multiple Reports of Mr. Frazier's Improper Behavior The following excerpt, with emphasis added, from the transcript of Detective Marines' interview of Mr. Faller, articulates Mr. Faller's view of responsibility and his method for avoiding responsibility for the supervision of Mr. Frazier and caring for the female students of Manatee High School. Q: Okay. Now is it, is it, uh, you said you were over discipline. A: Uh hum. Q: Is it common for the parent liaison's to text students to get them out of class when they have an issue, they, they A: Is it common? Q: Yeah. A: No. Q: No? A: No. Q: Okay. So what, what is the common uh, like if, if Mr. Frazier wants to see you soon, and talk to him about a referral, I'm assuming that's what you guys do, right? A: We call the classroom. Q: Call the classroom? A: Yeah. Q: Talk to the teacher? A: That would be the norm. Um, Q: How long would he have been? A: You know? Q: How long had he been doing that for? Like texting students out of class? A: I don't know. Q: You don't know? Okay. Uh, did you ever talk to him about it? A: Didn't know about it, except for through a teacher. Q: Through Ms. O'Dell? A: Never witnessed it myself, never had a kid come to me. Yeah, other than that one incident, um, that supposedly took place in her class, you know, she saw the kid using the phone, and then all of the sudden, you get up and say I have to go to Frazier. So she's putting two and two together, so I can't, I mean I can't say, you know, that it definitely happened. Q: Uh hum. A: Um, that's a, that's a teacher, um, believing that it may have occurred. Um, and I'm not in the business of, of, figuring those things out. You know? Q: No, I A: I mean the bottom line is Q: know. I completely. [sic] A: Um, Q: Did you ever talk to him about it or no? He just didn't bother. A: There's nothing to address. If I don't know for sure that he's doing it, then I'm not gonna address it. I mean, uh, Q: Okay. A: You know? But, I mean if it was happening, um, I had no direct knowledge. Nobody's ever told me directly that they know for a fact that this is going on. (emphasis added). (P. Ex. 18, 2/11/13, pp. 7 & 8). Mr. Faller chose to ignore the information. Eventually, through the efforts of people other than Mr. Faller, the reports of Mr. Frazier's activities with female students reached responsible authorities triggering an administrative and criminal investigation of Mr. Frazier. Those investigations subsequently expanded to examine the actions and inactions of Mr. Faller, Principal Gagnon, former Assistant Principal Matt Kane, and assistant superintendent for District Support, Scott Martin, when they received complaints about Mr. Frazier. Ultimately, Mr. Frazier resigned from Manatee High School.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order terminating the employment of Respondent, Gregg Faller. DONE AND ENTERED this 29th day of August, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 29th day of August, 2014.
The Issue The issue in this proceeding is whether Petitioner's application for licensure as a child care facility should be granted.
Findings Of Fact Petitioner, God's Little Blessings, applied for licensure as a child care facility on March 23, 2015. The application was completed and submitted by Leslie Fudge, the owner and proposed operator of the facility. The proposed director was Adrienne Wimas (spelling uncertain). After review of the application, the Department denied Petitioner a child care facility license on May 1, 2015. The sole reason for the denial was contained in the Department's denial letter dated May 1, 2015. The letter stated: This letter will serve to advise you that your Application . . . is hereby denied based on review of your background screening, including the Florida Central Abuse Hotline Record Search. No other reason for denial was stated in the Department's letter. While not stating the specific facts regarding the background screening and abuse record search, the evidence demonstrated that the denial was based on one confirmed report of neglect (Abuse Report 2003-031849-01) against Ms. Fudge for inadequate supervision of resident R.H., and medical neglect of residents R.G. and J.D. Both incidents occurred at about the same time on or about March 5, 2003, while Ms. Fudge was employed at Tallahassee Development Center (Center). The Center provided residential and direct care to developmentally disabled residents at its facility. At the time, Ms. Fudge was employed as care staff responsible for providing direct one-to-one care to R.H. She was not assigned to provide care to R.G. Other than Ms. Fudge, no witness with personal knowledge of these incidents testified at the hearing. Consequently, many of the statements contained in the 2003 abuse report remain hearsay which was not corroborated by any competent substantial evidence. Additionally, the age of the report, confusing allegations and lack of factual basis for its findings of inadequate supervision or medical neglect cause the abuse report to be unreliable and untrustworthy as evidence. As such, except as found below, the report by itself cannot form a basis for denial of Petitioner's application. Ms. Fudge was the only person who testified at the hearing with personal knowledge about the events of March 5, 2003. She testified, and such testimony is accepted, that on or around March 5, 2003, she was not a shift supervisor, but was assigned as a direct care aide with "one-to-one" supervision of R.H. The testimonial evidence from Ms. Fudge and other employees of the Center during 2003 demonstrated that Tallahassee Developmental Center employees were trained that one-to-one supervision meant that "the person had always to be watched" and "you could never leave [the person] alone." There was no credible evidence that the person could not be alone in the restroom, that the staff assigned to watch the person had to be within arm's length of the resident, or that such observation was not varied according to the behavior plan for an individual resident. Further, the testimonial evidence showed that staff and Ms. Fudge knew R.H. would run away usually to hide in a particular office, but occasionally with the police being called if R.H. were to leave the building and could not be found. The evidence did not demonstrate that R.H. behaviorally was aggressive or dangerous to others, but only that he would run away and hide. Finally, the testimonial evidence showed that the facility was in the process of trying to wean R.H. off of one-to-one supervision by implementing a plan of moving away from him and permitting him times of less supervision. On March 5, 2003, the testimonial evidence demonstrated that Ms. Fudge, R.H., and other residents were gathered in the living room of the house where they lived. The phone in the adjoining office rang and Ms. Fudge answered it. While on the phone she could observe R.H. through the window between the rooms. At some point, R.H. was sent to go to the restroom. It was unclear who sent him. After finishing in the restroom, he did not return to the living room, but "left out of the bathroom" to another office, locked the door and hid behind the desk. Ms. Fudge could see him in the office and called a nurse to bring the key so that the office could be unlocked. At the time, R.H. was not in danger and there was no evidence that demonstrated he was in danger. There was some evidence that another staff person mistakenly may have believed that R.H. had left the building. However, the better evidence showed that Ms. Fudge knew where R.H. was, could see R.H. in the room in which he was locked, and that he was not in danger at the time. Given R.H.'s behavior plan, none of these facts establish neglect by Ms. Fudge in the supervision of R.H. There was no credible, non-hearsay evidence presented at hearing as to the abuse report's allegations regarding resident R.G. or J.D. As such, the Department's evidence consisted only of an old unreliable abuse report consisting of uncorroborated hearsay about an incident involving R.G. and perhaps J.D. and the testimony of the investigator who had no personal knowledge of the facts regarding the incident or the supervisory policies of the Center. Given these facts, Respondent has failed to demonstrate that Ms. Fudge neglected, either in supervision or medically, residents who were in her care. In fact, the evidence showed that Petitioner has been caring for and/or supervising people for many years and has the character and capacity to continue to do so. Since the unproven abuse report was the only basis on which the Department based its decision to deny Petitioner's application, there was nothing in the record to support its determination that Petitioner lacked moral character or the ability to safely operate a child care facility. Therefore, Petitioner's application for such licensure should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner's application for licensure as a child care facility is granted. DONE AND ENTERED this 2nd day of November, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 2nd day of November, 2015. COPIES FURNISHED: Paul Sexton, Agency Clerk Department of Children and Families 1317 Winewood Boulevard, Building 2, Suite 204 Tallahassee, Florida 32399-0700 (eServed) Camille Larson, Esquire Department of Children and Families 2383 Phillips Road Tallahassee, Florida 32308 (eServed) Leslie Fudge God's Little Blessings Apartment F-8 216 Dixie Drive Tallahassee, Florida 32304 Michael Andrew Lee, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308-5333 (eServed) Rebecca Kapusta, General Counsel Department of Children and Families 1317 Winewood Boulevard, Building 2, Room 204 Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families 1317 Winewood Boulevard, Building 1, Room 202 Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether J.A. knowingly and willfully made a false report of abuse on November 29, 2003 (Abuse Report No. 2003-380412), contrary to Section 39.206, Florida Statutes.
Findings Of Fact The Department is charged by statute to maintain the state's abuse hot line and investigate reports of abuse. It is also charged with investigating false reports of abuse, and is authorized to levy civil fines against those who willfully and knowingly make false reports of abuse. It does this sparingly because it has a chilling effect upon the reporting of abuse. The Department investigated three reports of abuse initiated by J.A. Each of the reports was thoroughly investigated, and each of the reports was determined to be unfounded. J.A. had at one time been the babysitter for G.V., the child about whom the reports were made. J.A. and her husband were also friends with the parents of G.V., for whom J.A.'s husband, Thomas, acted as a translator. When G.V.'s grandmother joined the family, J.A.'s services as a babysitter were no longer needed, and she no longer saw the child frequently. It was apparent from J.A.'s testimony and her actions that she had an emotional attachment to G.V. On March 10, 2003, J.A. made the first abuse report, No. 2003-034565, which alleged that there had been five to eight months of domestic violence between G.V.'s mother and father. It was alleged that this domestic violence occurred several times a week, and that the most recent incident had occurred within the past several days. The mother was alleged to have chased the father with a machete in one hand and G.V. in the other arm. It was alleged that the mother beat G.V. It was alleged that the mother had attempted to jump, while holding G.V., out of the car being driven by the father. The mother was described as being an unsafe and inappropriate caregiver. The child was described as having rotting and broken teeth, which the mother failed to do anything about. This report was investigated by Charles Castell, assisted by Ms. Ehlers. Ms. Ehlers examined the child on March 10, 2003 and found nothing to support the allegations made by J.A. Collateral witnesses, such as neighbors who would have been in a position to corroborate the allegations, were interviewed. Fernando Ramirez, an alleged witness, was interviewed. No witness identified by J.A. or through the investigators' efforts provided any support for the allegations made by J.A. The report was closed with no positive findings on any of the allegations, together with a statement that it appeared to be a false report. The second report of abuse of G.V. made by J.A. was on May 6, 2003. J.A. alleged that the parents of G.V. were engaged in domestic violence, and that G.V.'s mother had chased her father around the yard with a machete while he was drunk. The mother was alleged to be mentally unstable, having a short, bad temper, and beating G.V. J.A. alleged that G.V. father was a drunk who gave G.V. alcoholic drinks and who smoked marijuana and blew the smoke in G.V.'s face. J.A. also alleged that G.V.'s teeth were rotting and one was broken off, and G.V. was poorly nourished and had a flat affect. Gina Ehlers investigated this complaint. She found no indication that G.V. was malnourished or had a flat affect. Ehlers again spoke with neighbors and other witnesses and found no evidence of domestic violence or inappropriate behavior by the mother. Ehlers visited the family on several occasions, including a Friday night at 10:30 or 11:00 p.m., when one might expect to find the father drunk and a cause for domestic violence. Ehlers never found anyone impaired or any evidence of domestic violence or abuse of G.V. Ehlers interviewed J.A., who indicated that she wanted custody of the child and was going to purse whatever avenues were necessary to take the child away from the parents. On November 17, 2003, J.A. made an abuse report to the Department's hotline regarding G.V. J.A. alleged that G.V. was living with her mother and father at the father's mother's home. alleged that everyone but G.V.'s mother abused her physically. J.A. alleged that the father got drunk and hit the child in the mouth, and the child was injured and bruised from this. J.A. alleged that the father gave the child alcoholic beverages to drink. J.A. alleged that the father battered the mother in front of the child. J.A. alleged that the child was at risk with everyone except her mother, Gloria. Steven Shaver investigated this report. Shaver, who examined the child within three hours of the report, found no evidence to support the allegations. He examined G.V. on three separate occasions and looked for bruises or other evidence of physical injury or abuse. He found none. He also observed the child with the parents and did not find that the child was restrained or fearful of the father or his mother. Upon completing his investigation, Shaver reported that J.A. had reported this same information previously and that it was obvious that J. A. was harassing the family of G.V. Kasey Hart testified at hearing. She is now and was a neighbor of the family when the last report of abuse was made in November 2003. She never saw any activity of the type alleged in the abuse report made by J.A. She observed the family interact from time to time, and never saw any abusive conduct. She opined that the child seemed under-disciplined and spoiled as opposed to abused. Steve Lampros, the Child Protective Investigations Supervisor who supervised the investigators who investigated these abuse reports testified. All the investigations conducted were thorough and complete, and included interviews with family and neighbors and physical examination of the child. This included medical examination of the child for injury. All three investigations revealed no evidence that would support a finding that any abuse had occurred. Had there been any indications of abuse, the report would have been labeled "some indicators." J.A. told Lampros that she wanted custody of the child, and would file reports until the Department did something. Lampros warned J.A. that filing false reports was a felony, and that the three reports she had filed had been determined to be without indicators of abuse, that is, unfounded. J.A. stated that her reports were not false and that she would continue to make them. Lampros referred the Abuse Report No. 2003-380412 for false reporting because seven of his investigators had investigated five reports, three within the same year, without discovering any evidence of indicators of abuse. The reports were similar; the investigations were thorough; the reporter appeared to be motivated by a desire to remove the child from the home in the hopes of obtaining custody; and there had been no evidence of abuse. J.A. testified at hearing that she did not see the child from June or July 2003 until a few days prior to the time she made the November abuse report, when she saw the family at Wal-Mart. At that time, they did not see her, and she was not close enough to them to speak. The granddaughter of J.A. testified. She had not seen the child, G.V., since Easter 2004. Her testimony dealt with the period after the time frame involved in the allegations of false reporting. J.A.'s husband testified about his assisting the police with reports of domestic violence between G.V.'s parents in 2001 and 2002, before the time frame of the allegations of false reporting. Susan Mulvey, a neighbor of J.A., testified. Mulvey was at J.A.'s house at times when G.V.'s family came to pick her up when J.A. babysat for G.V. Mulvey observed that G.V. did not want to leave J.A. when her parents came for her. She also observed that the child's teeth had severe cavities.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order levying a civil fine of $5,000 against the Respondent. DONE AND ENTERED this 16th day of February, 2005, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 16th day of February, 2005. COPIES FURNISHED: Lucy Goddard-Teel, Esquire Department of Children and Family Services Post Office Box 3, Box 3 Gainesville, Florida 32602 J. A. (Address of record) Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0800 Joe Garwood, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0800
The Issue Whether Respondent failed to maintain good moral character, in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2015), and Florida Administrative Code Rule 11B- 27.0011(4)(a); and, if so, the appropriate penalty.
Findings Of Fact Respondent is a certified corrections officer in the State of Florida. Petitioner issued Corrections Certification No. 320518 to Respondent on December 15, 2014. The Florida Department of Corrections employed Respondent between July 1 and September 30, 2015. Between July 1 and September 30, 2015, the minor child, who was related to Respondent by marriage, resided with Respondent at his residence. Between July 1 and September 30, 2015, the minor child was 12 years of age or older, but younger than 18 years of age. The minor child’s parents each executed documents evidencing their intent that Respondent’s wife, Jessica Emanuel, act as guardian of the minor child. These documents indicated that Ms. Emanuel could enroll the minor child in school, make health care decisions, and make other decisions concerning the minor child’s general welfare. In October 2015, Monica Lange, a case coordinator for the Child Protection Team in the Children’s Advocacy Center, received a referral from the Department of Children and Families in Charlotte County, Florida, concerning the minor child. Ms. Lange testified that she conducted a video interview of the minor child on October 19, 2015, in Fort Myers, Florida (the CPT interview). Ms. Lange credibly testified that when she interviewed the minor victim, the minor victim (who was 17 years old at the time of the interview) did not appear to be impaired, appeared to have the skill set to answer the questions asked, and understood everything that Ms. Lange asked. Ms. Lange also credibly testified that the minor victim understood the concept of being truthful, and was responsive to the questions Ms. Lange asked. The CPT interview revealed the following recollections of the minor victim: Shortly after the minor victim (who was then 16 years old) began living with Respondent and Jessica Emanuel, Respondent and the minor child began consuming alcohol together and engaging in conversations of a sexual nature; Respondent and the minor child thereafter engaged in sexual activity over 30 times in Respondent’s house and truck; The minor child described many of these incidents of sexual activity with detail as to time and location; The minor child stated that Respondent and the minor child engaged in sexual activity with and without a condom; and The minor child stated that the minor child was exposed to a sexually transmitted disease during this time period. After the CPT interview, Ms. Lange contacted Jason Cook, an investigator with the Washington County Sheriff’s Office. Mr. Cook testified that he reviewed the CPT interview, and then called and scheduled appointments with Jessica Emanuel and the minor child’s mother. Based on those interviews, Mr. Cook contacted Respondent, and, on November 2, 2015, interviewed Respondent at Mr. Cook’s office for approximately two hours and 15 minutes. Mr. Cook testified that he provided Respondent with a Miranda warning, informed Respondent that he was not being charged with a crime at that time, and that Respondent was free to leave the interview at any point. The undersigned’s review of the interview confirms Mr. Cook’s testimony. Mr. Cook testified that for the first 40 to 50 minutes of the interview, Respondent’s demeanor was nervous, guarded, and defensive. However, according to Mr. Cook, Respondent later seemed to open up and spoke more freely.2/ Throughout the interview, Respondent stated that he and his wife provided the basic necessities to the minor child, including room and board. Additionally, Respondent stated that the minor child attended school. During the first 40 to 50 minutes of the interview, Mr. Cook testified that when he asked Respondent whether he engaged in sexual activity with the minor child, Respondent stated many times that he was not sure or could not remember. The undersigned reviewed Mr. Cook’s interview of Respondent. During the first approximately 40 minutes of the interview, when Mr. Cook asked Respondent whether he engaged in sexual activities with the minor child, Respondent provided various non-denials of such activity, stating, at various points: he had psychological issues, so he could not give Mr. Cook an honest answer; (b) he did not feel that he had sexual activities with the minor child; (c) he did not know if he had sexual activities with the minor child; (d) he could not believe engaging in sexual activities with the minor child was something he would do; and (e) he did not know if he engaged in sexual activities with the minor child, but it was a possibility. After approximately 40 minutes of the interview, Mr. Cook and Respondent discussed various disciplinary measures Respondent took with the minor child. After this discussion, Respondent stated that he engaged in sexual activities with the minor child. Respondent stated that these allegations were true, and that he was “tired” of trying to remember or think about this subject. Respondent further stated that he did not engage in sexual activities with the minor child more than 30 times, as the minor child reported. Instead, he stated that he engaged in sexual activities with the minor child between 10 and 20 times. Respondent also stated that the local health department prescribed him medication for either an infection or a sexually transmitted disease, but he could not recall which. At multiple times during the interview, Respondent vaguely referred to mental health issues he felt he suffered, including “bipolar schizophrenia.” When pressed by Mr. Cook, Respondent stated that he had not sought treatment for any mental health issues and had essentially self-diagnosed these issues. Respondent has not otherwise presented any evidence of such mental health issues in this proceeding and recanted this self- diagnosis at the final hearing. At the final hearing, Respondent testified that he did not engage in any sexual activity with the minor child. Respondent further stated that if he had engaged in sexual activity with the minor child, he would have been tried and convicted. Respondent testified that the state attorney dropped the charges against him in the criminal case. At the final hearing, Respondent stated that Mr. Cook did not force him to make any statements or admissions during the November 2, 2015, interview. Respondent provided various documents concerning the criminal case demonstrating that the State dismissed criminal charges concerning the same conduct alleged in this proceeding. The undersigned notes that the “Order Dismissing Charges” in the criminal case found that “the State will be unable to prove the charges against the Defendant without the testimony of the alleged victim, and the alleged victim’s testimony has been excluded by the Court because the alleged victim has repeatedly failed to appear for her deposition . . . .” The undersigned also notes that a Subpoena for Telephonic Deposition to be served on the minor victim indicates that the Charlotte County Sheriff’s Office was unable to serve the subpoena, stating, “THIS SUBJECT MOVED OUT IN MARCH, SHE IS HOMELESS LIVING IN THE WOODS SOMEWHERE, NO CONTACT INFORMATION AVAILABLE, WHEREABOUTS UNKNOWN.” The undersigned has considered evidence of the disposition of Respondent’s criminal case in this proceeding. Despite the disposition of the criminal case against Respondent, the undersigned finds that Mr. Cook’s testimony, and the November 2, 2015, interview of Respondent in which Respondent ultimately admits to engaging in sexual activity with the minor child, corroborates the minor victim’s statements in the interview with Ms. Lange that the minor victim engaged in sexual activity with Respondent while Respondent was in a position of familial or custodial authority. The undersigned finds the testimony of Mr. Cook and Ms. Lange to be credible. The undersigned further finds the minor victim’s statements in the CPT interview to be clear, precise, and distinctly remembered. The undersigned further finds that Respondent ultimately admitted to engaging in sexual conduct with the minor victim, as alleged, and that Mr. Cook did not force or coerce Respondent to provide this admission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding that Respondent Taylor L. Landry has failed to maintain the qualifications for good moral character for a correctional officer, established under section 943.13(7), and defined in rule 11B-27.0011(4)(a). It is further RECOMMENDED that Petitioner revoke Respondent Taylor L. Landry’s Corrections Certification No. 320518. DONE AND ENTERED this 24th day of September, 2018, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER 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 24th day of September, 2018
Findings Of Fact The abuse incident central to the underlying proceeding in this case was a sexual assault against a female child by an older male child, both of whom were residents at the Lee County Children's Home where L. T. was employed as a caregiver. The abuse occurred while the residents were on a trip to the beach with other residents of the facility. Three adults, one male and two female, accompanied a total of 19 residents to the beach. The residents did not remain together once at the beach. The males residents went with the male adult and the females remained with the females. A series of events resulted in L. T. being the only one of the three who was able to visually locate the residents. She became aware that not all the residents were accounted for and began to search for the missing children. She discovered that a sexual assault had taken place. Subsequent to the abuse incident, the DHRS received an abuse report related to the matter. The investigative report in this matter incorrectly indicates that an investigation was performed by Michael B. Gregory. Another investigator, Mike Hally, investigated the incident, and apparently forwarded the materials to his supervisor for review prior to closing the case. A substantial period of time passed without DHRS action on the matter, during which time Mr. Hally transferred to another DHRS job. Agency officials eventually decided to classify the case as "proposed confirmed." Because Mr. Hally was, for technical reasons, unable to close out the case file, the matter was brought to Mr. Gregory by Jane Pigott, a DHRS official, who directed Mr. Gregory to close the case as "proposed confirmed." L. T. was apparently notified of the matter and requested that the report be expunged. By letter dated November 21, 1991, the Department of Health and Rehabilitative Services informed Respondent L. T. (through counsel) that her request to expunge the report of abuse was denied. The letter stated, "[o]n August 20, 1990, the department received a report that your client failed to ensure proper supervision resulting in injury to a child. A child protective investigation took place and was classified as proposed confirmed. As a result of your request, the record was reviewed and determined to be classified correctly." Respondent L. T. requested an administrative hearing to challenge the classification of the report. The Department forwarded the case to the Division of Administrative Hearings, which scheduled and noticed the proceeding. At hearing, the evidence failed to establish that the injury to a child was a result of any failure by L. T. to ensure proper supervision of the child.
The Issue The issue in this proceeding is whether the Respondent committed the offenses described in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact Respondent, Child Care 2000, Inc. No. 2, is a licensed child care facility located in Wildwood, Florida. Clark Henning is employed by the Department and is responsible for overseeing child care facilities in Wildwood, Florida. Mr. Henning went to Respondent's facility on January 25, 2005, to perform a routine inspection. While conducting the routine inspection, he observed a group of 11 children of mixed ages and one staff member. He observed two of the children, which he believed to be between one and two years old, in the group of 11. The inspection report reflects that there were a total of 15 children and two staff members in the day care facility at the time of the report. When making inspections, Mr. Henning counts the children present and, if he has any question as to a child's age, he checks the facility's records to determine the child's age. He is not certain that he checked the facility's records on January 25, 2005, but believes there is a "high degree of possibility" that he did so. As a result of his observation of what he believed to be two one-year-olds in the group of 11 children, Mr. Henning found Respondent to be in violation of the required staff-to- children ratio. The staff-to-children ratio was the only category which he found to be in non-compliance on his written inspection checklist. He signed the inspection checklist and gave it to a staff member. The section of the inspection report entitled "Due Date" states, "Correction made at time of inspection." According to Mr. Henning, he did not seek to impose a fine because the Department does not routinely impose a fine on a first violation. Michelle Mayo is the staff member who signed for the January 25, 2005, report. Ms. Mayo disagrees with Mr. Henning's observations regarding the ages of the children present in the group of 11 children on January 25, 2005. Ms. Mayo was caring for four of the 15 children in the infant room. She took an infant and three one-year-olds with her to the infant room, leaving no children in the group of 11 under the age of two. Mr. Henning did not ask Ms. Mayo about the ages of the children. While both Mr. Henning's and Ms. Mayo's testimony were equally credible, Ms. Mayo was in a position of knowing first- hand the ages of the children she was caring for. Accordingly, the weight of the evidence does not establish that a staff-to- children ratio violation existed on January 25, 2005. On or about January 31, 2005, the Department received a complaint regarding Respondent's facility. On February 4, 2005, Mr. Henning went to Respondent's facility to make a surprise inspection. During the February 4, 2005, inspection, Mr. Henning found no evidence to support the allegations raised in the complaint he was investigating. However, he did observe fifteen children and only one staff member present. Mr. Henning identified the children's ages to be one infant, one one-year- old, and three two-year-olds. According to Mr. Henning, there should have been three staff members for this group of children for an appropriate child-to-staff ratio. His written report of the February 4, 2005, complaint inspection found Respondent to be in violation of staff-to- children ratio requirements. Again, the section of the report entitled "Due Date" states, "Correction made at time of inspection." A staff-to-children ratio violation is classified as a Class 2 violation in that there is potential harm to the children. As a result of his finding a class 2 violation, he issued an Intent to Impose Administrative Action which was again signed for by Ms. Mayo. Mr. Henning recommended imposing a fine upon Respondent to his supervisor, Diana McKenzie, because he found this to be a second violation of the same type. Ms. McKenzie made the final decision to impose a fine of $100 against Respondent. While the Administrative Complaint only references the February 4, 2005, incident, it is clear from the evidence presented that the Department's decision to impose a fine was based on the finding that this was a second violation of the same type. Alicia Barrett is President of the corporation which owns Child Care 2000, Inc. Ms. Barrett acknowledges that there was a brief period of time on February 4, 2005, when the facility was out of compliance concerning the staff-to-student ratio. According to Ms. Barrett, the problem was the result of a staff member whose car broke down on the way to work. One staff member arrived to open the facility. A second staff member was scheduled to arrive ten to 15 minutes later. However, it was that staff member whose car broke down. A third staff member arrived and left briefly to pick up the second staff member whose car had broken down nearby. Mr. Henning arrived after the staff member left to pick up her co-worker. After the February 4, 2005, incident, Ms. Barrett fired the staff member who left the facility to pick-up her co- worker while she should have been watching the children in her care. Prior to the incidents described herein, Respondent's facility had not received a citation for a staff-to-children ratio violation. The Department's Enforcement Fact Sheet reads in pertinent part as follows: The Department is given enforcement authority by sections 42.310, 402.311, 402.312, [sic]and 402.313, 402.3131, Florida Statutes, and shall take the following actions in accordance with the following guidelines: Require corrective action. -Corrective action plan documents all standards cited for non-compliance with corrective action, task, and due dates. * * * Impose an administrative fine. -If corrective action is not completed within specified time frame, an administrative fine may be levied.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order dismissing the Administrative Complaint issued against Respondent. DONE AND ENTERED this 3rd day of August, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 3rd day of August, 2005.
