The Issue The issue is whether Respondent's license to operate a family day care home should be revoked.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties The Department is the state agency responsible for licensing and regulating child care facilities, including family day care homes. The Department routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Any problems found during the inspection are noted on a report which is provided to the home's operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections -- monthly or every six weeks - - are conducted on family day care homes which have a provisional license rather than a standard license. The Department also conducts inspections in response to complaints it receives, and it has the authority to inspect family day care homes at any time with or without notice. Respondent is the owner and operator of a licensed family day care home located at 1218 Jordan Avenue in Orlando, Florida (hereafter "Respondent's facility" or "the facility"). Respondent and her husband reside at that address as well. Respondent has operated day care homes in Florida since 1992, and she has been involved in child care for approximately 21 years. As a result, she is or should be familiar with the rules regulating family day care homes. Respondent keeps children in the back portion of her home. The children also play in Respondent's backyard, which is enclosed by an approximately six-foot high wooden fence. A wooden gate in the fence connects Respondent's backyard to the backyard of the house immediately behind Respondent's home. That house has been rented by Annette Rodgers since November 2002. Respondent does not have a pool in her yard. Ms. Rodgers' yard does have a pool, which at the time of the Department's February 27, 2003 inspection (discussed below), was only partially filled with water. Ms. Rodgers' pool is not visible from Respondent's back yard because of the wooden fence and gate. The photographs and videotape received into evidence show that Ms. Rodgers' pool is now completely enclosed by a series of fences.4 The evidence does not clearly and convincingly establish that the fences were not in place on February 27, 2003. Indeed, the weeds and high grass which can be seen along the base of and around the posts of the chain-link fence and the discoloration on some of the fence posts indicate that at least that fence has been in place for quite some time.5 Previous Inspections of Respondent's Facility and Actions Taken by the Department Respondent's facility was inspected on May 28, June 14, and September 30, 2002. Several areas of noncompliance were identified during each of those inspections, including inadequate supervision of children, unsafe storage of chemicals, evidence of roaches in the home, and incomplete enrollment and health records for the children at the home. On each occasion, Respondent was given a period of time within which to correct the areas of noncompliance. The inadequate supervision for which Respondent was cited in June 14, 2002, involved several children playing unsupervised in Respondent's carport area, which has access to the street; several children playing in the backyard under the "supervision" of Respondent's mother, who was not an authorized caregiver; and several children playing unsupervised on the porch area in the vicinity of tools and small screws. The Department issued Respondent a provisional license on October 28, 2002, presumably as part of the license renewal process. The provisional license was based upon Respondent's history of noncompliance with the Department's minimum standards, and it was valid through April 2, 2003, unless Respondent applied for an received a change in license status (which she apparently did not) or "if the license is suspended or revoked by the Department." A provisional license is issued where the Department has continued concerns regarding the day care home's compliance with the applicable statutes and rules. A provisional license is issued in lieu of denying a license renewal or suspending or revoking the home's license. A provisional license gives the licensee an opportunity to correct the areas of noncompliance, and because such homes are inspected more frequently, the Department has an opportunity to monitor the licensee's progress. On October 29, 2002, Respondent was assessed an administrative fine of $100.00 based upon deficiencies identified during the May 28 and June 14, 2002, inspections. The fine was based primarily upon the incident described above involving inadequate supervision of the children at the home. Respondent apparently did not contest the administrative fine or the issuance of the provisional license rather than a standard license. Despite the provisional license and the administrative fine, the Department's inspections continued to identify areas of noncompliance at Respondent's facility. For example, the November 14, 2002, inspection identified "evidence of rodents/vermin in the home" as well as incomplete enrollment and immunization records for the children in the home. The December 18, 2002, inspection identified these same deficiencies, including "live roaches in the children's area and the kitchen," as well as the storage of plastic shopping bags and chemicals which can pose dangers to children in an unlocked cabinet accessible to the children. These violations were the same as or similar to those for which Respondent had been previously cited and which led to the imposition of the administrative fine and issuance of the provisional license. The Department did not take immediate action to suspend or revoke Respondent's license based upon the results of the November 14 and December 18, 2002, inspections. Instead, the Department continued to give Respondent an opportunity to bring her home into compliance with the minimum standards in the Department's licensing rules and statutes. Inspection of Respondent's Facility on February 27, 2003 The Department next inspected Respondent's facility on February 27, 2003. That inspection was conducted by Department employee Brandi Blanchard. Ms. Blanchard had been responsible for inspecting Respondent's facility since at least September 2002, so she was familiar with the layout of the facility and its history of noncompliance. Respondent testified that Ms. Blanchard, unlike the prior inspector, had been "very good to her." Ms. Blanchard arrived at Respondent's facility by car between 8:30 a.m. and 8:45 a.m. As she arrived, Respondent was pulling her car into the driveway/carport at the facility. Ms. Blanchard parked her car directly behind Respondent's car. Ms. Blanchard got out of her car as Respondent was getting out of hers, and she said, "Hello, Ms. Alli," to Respondent. Upon seeing Ms. Blanchard, Respondent quickly went into the house through the carport door. Ms. Blanchard followed Respondent into the facility. Ms. Blanchard lost sight of Respondent as she went down a hallway towards the back of the house where the children were located. The backdoor of the house was open, and by the time that Ms. Blanchard caught up with Respondent, Respondent was directing the children through the facility's backyard towards the back gate connecting Respondent's yard to Ms. Rodgers' yard. Several of the children, led by Ms. Rodgers' 14-year-old son carrying an infant in a car seat and Ms. Rodgers' 13-year-old son carrying a toddler had already reached Ms. Rodgers' yard. Ms. Blanchard told Respondent to stop and return to the facility with the children, which she did. Ms. Blanchard went through the open gate onto Ms. Rodgers' property and directed Ms. Rodgers' sons to return to Respondent's facility with the children, which they did. While on Ms. Rodgers' property, Ms. Blanchard saw a partially-filled swimming pool and other ongoing construction. Ms. Blanchard did not notice any fencing around the pool and saw one of the children, which she estimated to be three or four years old, walking in the construction area close to the edge of the pool. After the children had been returned, Ms. Blanchard assessed the situation and commenced her inspection of the remainder of Respondent's facility. Ms. Blanchard found roach droppings in the bathtub and in other locations in the facility. Respondent acknowledged a roach problem, but claimed that she had an exterminator working on the problem and that he was due to come out and treat the facility. Respondent did not present any documentation to Ms. Blanchard to corroborate her claims regarding the exterminator, nor did she introduce such documentation at the hearing. Ms. Blanchard found plastic bags in an unlocked cabinet accessible to the children. Respondent acknowledged at the hearing that the bags were in the cabinet and further acknowledged the suffocation danger that they posed to young children. Ms. Blanchard's review of the facility's records identified missing enrollment and immunization records for the children in the home. However, Ms. Blanchard did not document the children whose records were missing and she did not determine whether, as Respondent claimed at the time and in her testimony at the hearing, any of the missing records were for students who had enrolled in Respondent's facility within the prior two weeks. Ms. Blanchard documented the results of her inspection, including the events surrounding the movement of the children to Ms. Rodgers' yard on her inspection report. The inspection report identified each of the violations that she observed, including inadequate supervision based upon Respondent's absence from the facility, unsafe storage of materials dangerous to children (i.e., plastic bags) in a location accessible to the children, evidence of roaches, incomplete enrollment and immunization records, and more than the allowed number of children in the home. Ms. Blanchard also cited Respondent's facility for the dangers posed by Ms. Rodgers' pool since the children were being taken onto Ms. Rodgers' property. With respect to the citation for having too many children, Ms. Blanchard's inspection report did not include any detailed information about the children such as their names (or initials), ages, or descriptions. The report simply stated that Ms. Blanchard counted seven children at the facility -- i.e., "3 infants, 3 preschool and 1 school age child." Ms. Blanchard's testimony at the hearing referred to only two infants, which was consistent with Respondent's testimony on that issue. As a result, the evidence is not clear and convincing that there were seven children in Respondent's care at the facility rather than the authorized six children. During the course of her inspection, Ms. Blanchard did not see any adults (other than Respondent, who arrived as Ms. Blanchard was arriving) at the facility. It is undisputed that Respondent's husband, who is the designated substitute caregiver, was not at the facility that morning. There is no credible evidence that Respondent's 22- year-old son, Abdel, was at the facility that morning. He did not testify at the hearing, and, if as Respondent claims, Abdel was at the facility that morning, Ms. Blanchard would have seen him at some point during the commotion surrounding Respondent's rushing the children out the back door or during her subsequent inspection of the facility. In any event, Abdel was not the substitute caregiver designated by Respondent. He was not even authorized to watch the children because, although he had been background screened by the Department, he had not taken the Department's mandatory child care training program and was not certified in cardiopulmonary resuscitation (CPR). It is more likely than not that Ms. Rodgers' teenage sons were actually left to supervise the children at Respondent's facility during the time that Respondent was gone on the morning of February 27, 2003. Indeed, that is the most likely explanation of their presence at the facility and their involvement in the movement of the children to Ms. Rodgers' yard. However, the evidence on this issue is not clear and convincing. Respondent's explanation of her actions on the morning of the inspection -- i.e., that she hurried into the house upon her arrival and directed all of the children to Ms. Rodgers' yard so she could convey an important message to Ms. Rodgers -- is not credible. Her explanation of the roach droppings that Ms. Blanchard found in the bathtub -- i.e., that it was actually dirt from washing one of the children's feet -- is also not credible. By contrast, Respondent's explanation of the incomplete records -- i.e., that the missing records were for those children who had enrolled in the facility within the prior two weeks -- is reasonable. Because Ms. Blanchard's inspection report did not identify the children whose records were missing and did not document the date of their enrollment, the evidence is insufficient to prove this violation. Respondent admitted at the hearing that she "was taking a chance" by leaving the children at the facility without her husband, the designated substitute caregiver, being present. Respondent testified that she was gone only 15 minutes to drop one of her children off at school, and that she follows that same routine every day although her husband is usually at the facility while she is gone. After Ms. Blanchard completed her inspection, she discussed the results with Respondent and provided Respondent a copy of the inspection report. Ms. Blanchard then went back to her office and discussed the results of the inspection with her supervisor, Patricia Richardson. Based upon the results of the February 27, 2003, inspection and the history of noncompliance at Respondent's facility (both before and after the provisional license), Ms. Richardson determined that Respondent's license should be revoked. Thereafter, on February 28, 2003, Ms. Richardson sent a letter to Respondent informing her that her license was being revoked and advising Respondent of her right to "appeal" that decision through the administrative process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order revoking Respondent's license to operate a family day care home. DONE AND ENTERED this 12th day of June, 2003, 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 12th day of June, 2003.
The Issue The issue is whether Respondent should approve Petitioner’s application for a family day care home license.
Findings Of Fact In 1996, Petitioner lived with her husband, their newborn child, three of her husband's children from a former marriage, and two of her children from a former marriage. Petitioner's stepchildren were: (a) I.M.B., a 15-year-old male; (b) S.J.B., a 14-year-old male; and (c) S.Y.B., a 13-year-old female. Petitioner's children by her former marriage were: (a) R.D.F., a six-year-old male; and (b) D.F., a five-year-old female. At the end of the school year in 1996, Petitioner spanked her stepdaughter for reasons related to her school work. She also spanked her stepsons for school-related reasons. However, the physical punishment of the stepchildren by Petitioner was not excessive. There is no competent evidence that Petitioner beat the stepchildren leaving bruises, scars, or other disfigurement. Petitioner's husband spanked his children at times, using a switch or an extension cord. After one such occasion, Petitioner's stepdaughter asked for some rubbing alcohol to treat a bruise. Petitioner has no first-hand knowledge about the bruise. There is no persuasive evidence that Petitioner's husband ever disciplined his children so severely as to scar or disfigure them. Since 1996, Petitioner completed her training as a licensed practical nurse. She continues to work part-time in that capacity. Petitioner has also earned money babysitting for other parents. Petitioner has never used corporal punishment of any kind to discipline other people's children. Petitioner has completed all necessary training to operate a family day care home. She knows that corporal punishment is not an acceptable way to discipline children in a day care facility. She understands that when children do not behave appropriately, she may do one of the following: (a) talk to the child; (b) place the child in time-out for one minute per year of age; or (c) call the child's parent. Petitioner currently lives with her husband, their son, and Petitioner's children from her former marriage. Petitioner's stepdaughter also lives with Petitioner. Petitioner's stepdaughter is 18 years of age and will be available to serve as a substitute caretaker if Petitioner is licensed to operate a family day care home facility. One of Petitioner's stepsons, I.M.B., is deceased. The other stepson, S.J.B., is in jail. S.J.B.'s son lives with Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioner a license to operate a family day care home. DONE AND ENTERED this 12th day of July, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 2002. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Kimberly Strange-Bennett Post Office Box 58 Orange Lake, Florida 32681 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issues in these cases are: whether the Davis Family Day Care Home violated provisions of chapter 402, Florida Statutes,1/ and Florida Administrative Code Chapter 65C-20,2/ and, if so, what penalty should be imposed; whether the Davis Family Day Care Home's renewal application for a license to operate a regular family day care center should be approved or denied; and whether the Davis Family Day Care Home's initial application for a license to operate as a large family child care home should be approved or denied.
Findings Of Fact The Parties The Department is responsible for inspecting, licensing and monitoring child care facilities such as the one operated by the Davis Day Care. It is also the Department's responsibility to ensure that all such facilities are safe and secure for the protection of the children utilizing those facilities. The Department routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Following such inspections, a report is provided to the operator which provides a time frame to correct any outstanding deficiencies. The Department also conducts inspections or investigations of child care facilities in response to complaints it receives. LaShandra Davis (Ms. Davis) owns and operates the Davis Day Care, a family day care facility licensed by the Department. The Davis Day Care was initially licensed in April 2007 and was in continuous operation at all times material to these issues. No testimony was offered that the facility had prior disciplinary actions against it. Ms. Davis is a nurse, has an associate of science (A.S.) degree in nursing from Polk Community College, and is attending college to obtain an A.S. degree in early childhood education. Additionally, Ms. Davis has five sons and one daughter. Their names include (from youngest to oldest): Layla Davis, Steven Davis, Devondrae Davis, Deshawn Williams, Daniel Williams, and Rafael Davis. No testimony was received regarding Ms. Davis using any other name or names from August 3, 2010, through December 2, 2010.5/ On February 23, 2011, Ms. Davis submitted an application to obtain a license to operate a large family day care home at her current location. On March 15, 2011, Ms. Davis submitted her renewal application to retain her license to operate a family day care home at her current location. October 29, 2010, AC 1 (August 3, 2010, Inspection) On August 3, 2010, the Davis Day Care was subjected to an inspection based on a complaint that it was "over-ratio." This over-ratio issue involves the number of children in the care of a family day care operation to the number of adults providing that care. The Department received a complaint that the facility was seeking meal reimbursements for more children than were allowed for the type of child care license it held. Vicki Richmond (Ms. Richmond) testified that she conducted the inspection on August 3, 2010, and cited the facility for being over the licensed capacity ratio by more than two children. Because the facility was over ratio by more than two children, it was a Class I violation. At that August inspection, Ms. Davis explained to Ms. Richmond that she (Ms. Davis) had a license to provide child care for ten children, and she had ten children in her care. Ms. Richmond explained the ratio requirement to Ms. Davis. Based on the age of the children, Ms. Davis was authorized to have a maximum of ten children provided no more than five were preschool age, and, of those five, no more than two were under 12 months of age. At this August inspection, Ms. Davis was over-ratio by two children. Ms. Davis executed and received a copy of the complaint report prepared on August 3, 2010, that discussed the over-ratio limitations. Three other technical violations were brought to Ms. Davis's attention during that inspection, and two of those violations were corrected immediately. Ms. Davis was given a two-week extension to correct the third violation involving an expired fire extinguisher.6/ Additionally, Ms. Richmond testified that Ms. Davis's mother ("Ms. Jones")7/ was visiting the facility while Ms. Richmond was conducting this August inspection. According to Ms. Richmond, Ms. Jones had been previously screened, but did not meet the Department's standards to be in a child care facility. Ms. Jones should not have been present either for a visit or to be preparing lunches as the testimony revealed. Ms. Richmond recommended to Ms. Davis that it was important to check into getting an exemption for Ms. Jones to be at the facility. Ms. Davis later testified that Ms. Jones had cleared up the screening issue, and both had been told Ms. Jones was allowed to be present at the facility. At hearing, Ms. Davis admitted that she was over-ratio on August 3, 2010. Further, she stated that she "just flat out misunderstood" the adult-child ratio requirement issue until Ms. Richmond explained it to her in August 2010. Ms. Brooks and Mr. Giordano testified that they had each individually explained the ratio requirement to Ms. Davis during prior inspections or discussions at the facility. Although there is some discrepancy between Ms. Davis's recollection and the two witnesses on this point, Ms. Davis admitted this violation and was quite candid about her lack of knowledge with respect to it. Credible testimony from both Ms. Richmond and Shelia Nobles (Ms. Nobles) established that having two or more children over-ratio was a Class I violation, which would subject any child care facility to discipline by the Department. When Ms. Davis received the Department's three-page October 29, 2010, AC 1 advising her of the Class I violation (over-ratio by two or more children) and assessing a $500 fine, she was "shocked." Ms. Davis testified that, at the time of the inspection (August 3, 2010), Ms. Richmond had stated the fine might be $50 or maybe more, leading Ms. Davis to believe the fine would not be that high. AC 1 advised Ms. Davis that the over-ratio issue was a Class I violation of section 402.302(7). AC 1 provided one Department address for two reasons, to pay the $500 fine or to request an administrative hearing. There is no language within AC 1 that advised Ms. Davis of an optional payment plan. Ms. Davis testified she was unaware of a payment plan option, and her only option was to appeal the decision, which she did. Ms. Richmond confirmed that the Department would accept payments as long as the total fine amount was paid in full prior to the next renewal. However, that information was not shared with Ms. Davis until the hearing. Department's March 23, 2011, Proposed Denial Application to Operate a Family Day Care Home (AC 2) and Department's April 11, 2011, Proposed Denial Application to Operate a Large Family Day Care Home (AC 3). Both AC 2 and AC 3 set forth five allegations in support of the Department's denial of the renewal application and the large family child care home application. Two alleged abuse allegations from 2007 and 2008 were included in these administrative complaints; however, as previously stated, no testimony or evidence was offered, presented or substantiated at hearing. Thus, any attempt to reference either the 2007 or 2008 allegations as fact is disregarded as unfounded and not supported by credible testimony or evidence. AC 2 and AC 3 rest on three allegations: the alleged abuse of child E.B., the alleged lying during the investigation of the alleged child (E.B.) abuse, and the inspection conducted on August 3, 2010, regarding the facility being over ratio.8/ Natalie Barton (Ms. Barton), E.B.'s mother, testified that she saw marks on E.B.'s bottom at the end of November 2010 (November 30, 2010) that "could only have occurred at the day care." Ms. Barton testified she picked E.B. up from the facility prior to 5:30 p.m. and discovered the marks on E.B.'s bottom during bath time that evening. Both Ms. Barton and Ms. Davis testified that E.B.'s mother sent a picture of the injury to Ms. Davis via her cell phone the evening the injury was first seen. At that point, Ms. Davis told E.B.'s mother that she (Ms. Davis) didn't know what or how the injury occurred and recommended taking the child to E.B.'s doctor. Ms. Davis had no hesitation in making this recommendation to Ms. Barton. Ms. Barton took E.B. to her (E.B.'s) pediatrician the morning after she discovered the injury (December 1, 2010). However, E.B.'s physician indicated he wanted to see the child in two days, as he could not make a determination what, if anything, had caused the injury as there was no bruising. Ms. Barton also testified that she took E.B. back to the Davis Day Care after she was seen by her pediatrician so she could see how E.B. reacted. While at the facility, E.B. was "in her routine," that she (E.B.) walked in and sat on the couch like she did every day. Ms. Barton did not return E.B. to her own pediatrician for further evaluation. Ms. Barton testified E.B. was seen by the child protective team the day after she was seen by the pediatrician (December 2, 2010). On December 2, 2010, after receiving information about the possible physical abuse of a child (E.B.) (documented as being received at 11:08 p.m. on December 1, 2010), Deanna McCain (Investigator McCain) contacted Ms. Barton to obtain additional information. Investigator McCain also spoke with E.B., who said she had been hit by "Ms. Shawna." After observing E.B.'s injuries and obtaining a photograph of E.B.'s buttocks, an appointment was made for E.B. to be seen by a member of the child protection team, i.e., the nurse practitioner. During the afternoon of December 2, 2010, Nurse Practitioner Connie Fleming (Nurse Fleming) performed a medical evaluation of E.B., a then two-year, nine-month old child. During E.B.'s evaluation, Nurse Fleming noticed bruising on E.B.'s buttocks. When Nurse Fleming asked E.B. what happened, E.B. responded "Ms. Shawn spanked me." Nurse Fleming stated the bruising appeared to be consistent with an outline of a hand. Pictures taken during the medical evaluation reflect red areas on E.B.'s buttocks. Based on her nine-plus years of training and experience as a nurse practitioner, Nurse Fleming determined that E.B. had suffered physical abuse; however, she never stated who caused the injury. Nurse Fleming contended that the injuries were indicative of a rapid-force compression injury, typical of a slap with a hand. Later on December 2, 2010, Investigator McCain went to the facility to investigate the alleged abuse report. Upon her arrival at the location, Investigator McCain had to wait for a local law enforcement officer (LEO) before she could enter the facility. While Investigator McCain waited for the LEO to arrive (between 3:30 p.m. and 4:45 p.m.), she spoke with parents who were picking up their children from the facility. Each parent she spoke with had supportive comments about the facility ("great day care provider," their child had "no injuries," had never seen "inappropriate behavior," "no concerns"). Whether all these comments came from one parent or multiple parents is unclear. Investigator McCain did not observe any injuries to any of the children leaving the facility. Ms. Richmond also went to the facility at approximately the same time as Investigator McCain; however, Ms. Richmond could enter the home without a LEO, and she did so. Ms. Richmond made contact with Ms. Davis and explained there was a complaint. Ms. Richmond's task at the time was to obtain information about the number of children Ms. Davis had in the facility. According to the sign in sheet, there were seven children present, plus Ms. Davis's four-year-old son. Ms. Richmond testified that Ms. Davis initially stated there were four children present, but later a sleeping child was found in a crib, and her (then) four-year-old son ran through the home.9/ Although Ms. Richmond asked for the attendance sheets for the previous month (November 2010), Ms. Davis was only able to provide the attendance sheets for December 1 and 2, 2010.10/ According to Ms. Richmond, those two attendance sheets documented that Ms. Davis's facility was again over-ratio for those two days. When Investigator McCain entered the facility with the LEO, she explained the reason for her presence to Ms. Davis. Investigator McCain testified Ms. Davis was asked how many children were present and together they conducted a "walk- through" of the facility. Investigator McCain testified that, at the time of the walk-through, she was told there were four children present, three toddlers and a small child in Ms. Davis's arms. Investigator McCain also testified that, during the walk-through, they found an additional child sleeping in a crib. She further testified that, at some later point, another young child ran through the facility, and Ms. Davis identified him as her son. On December 2, 2010, Investigator McCain questioned Ms. Davis about the alleged physical abuse of E.B. During the investigation discussion, Ms. Davis reported to Investigator McCain that "she [Ms. Davis] had no idea how they [E.B.'s injuries] occurred." Ms. Davis further reported E.B. was "fully potty trained." Ms. Davis reported that the child had a toileting accident the day before and had cleaned herself. Still, later in the investigation discussion, Ms. Davis told Investigator McCain that she (Ms. Davis) had helped clean E.B. after the toileting accident, but only from the front, and she had not observed E.B.'s buttocks. Ms. Davis also shared with the investigator that when Ms. Davis questioned E.B. about the injury, E.B. said her mother (Ms. Barton) did it (the abuse). At hearing, Investigator McCain testified that Ms. Davis was "very far along in" a pregnancy and that Ms. Davis was upset, shocked, and surprised by the presence of the investigators. Investigator McCain also confirmed that DCF's presence tends to raise anxiety levels and that people feel like they are being attacked. Further, Ms. Davis confirmed that she was two weeks from her delivery due date when this investigation started. Thus, under the circumstances, forgetfulness may be perceived by some as lying, when in reality it is simply being overwhelmed by the situation. As part of the investigation, it was Investigator McCain's responsibility to also check for any hazards in the facility and to ensure adequate supervision of the children. Although Ms. Davis initially reported there were no other adults to supervise the children, she later reported that her mother, Ms. Jones, came each day around 10:15 a.m. to make lunch for the children. Ms. Barton confirmed that Ms. Jones was sometimes present in the mornings when Ms. Barton brought E.B. to the facility. Several technical violations were noted during the December 2010 investigation; however, they are not the subject of this hearing. Ms. Davis testified she did not spank E.B. Ms. Davis testified that she did not know how the injury occurred, and the child's hearsay statement that her mother had spanked her is not supported by other testimony. However, the time lapses between when the injury was alleged to have occurred (the "end of November," or November 30, 2010, according to the mother), when the injury was "discovered" (the night of November 30, 2010, according to the mother), when the alleged abuse was reported (December 1, 2010, at 11:08 p.m.), when the pediatrician's examination occurred on December 1, 2010, and when the child protective team became involved (December 2, 2010), create confusion and doubt as to when the injury actually occurred and by whom. Even taking the thought process to try to find that the events happened a day later does not relieve the doubt or confusion, nor is that supported by the Department's documentation. Investigator McCain testified that this investigation was closed with a verified finding of physical injury to E.B. However, simply finding a "verified finding of physical injury to E.B." does not establish who perpetrated that physical injury. No testimony was provided that any other possible explanation for the injury was explained. Further, other than indicating that E.B. had red marks on her bottom, no testimony was provided that indicated the degree of harm to the child. That being said, this not to say that logic has left the building with respect to some harm being caused to the child. There were marks on E.B.'s buttocks. Several current and former parents of children who attend or attended the Davis Day Care testified on Ms. Davis's behalf. Each testified that they did not have any concerns with their child attending Ms. Davis's facility. On March 11, 2011, after receipt of the facility's application for the large family day care home license,11/ the Department conducted an inspection of the facility and found it to be in compliance with all the licensing standard requirements (including those previously cited during the December 2010 inspection that were corrected). Upon completion of its investigation, the Department determined to deny Ms. Davis's renewal application and to deny her application for a large family day care license, based on "numerous complaints to our office alleging physical abuse of children in your care and Class I violations of licensing standards." There was one verified complaint of abuse, not "numerous complaints" as alleged. There was a Class I violation regarding the over-ratio issue; however, that could have been resolved with better communication skills. The misrepresentation could have been avoided. Neither notification includes any indication that the March 11, 2011, inspection was taken into consideration prior to making the denial decision. The Department presented testimony indicating that there had been past complaints regarding Ms. Davis and/or the facility. However, no documented prior complaints or final orders were submitted with respect to any prior actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: With respect to the October 29, 2010, administrative complaint, that a final order be entered by the Department of Children and Families finding that the facility was over-ratio on August 3, 2010, and imposing an administrative fine of $500 with no less than ten months to pay the fine. It is further RECOMMENDED that Ms. Davis be ordered to attend remedial classes on the financial operations and management of a child care facility; With respect to the March 23, 2011, administrative complaint, that a final order be entered by the Department of Children and Families renewing the family day care home license on probation status for six months with periodic inspections to ensure the continued safe operation of the facility; and With respect to the April 11, 2011, administrative complaint, that a final order be entered by the Department of Children and Families finding that the large family child care home application be issued a provisional license for a minimum of six months with periodic inspections to ensure the continued safe operation of the facility, with the ability for an additional six-month provisional period. In the event the large family child care home provisional license is not activated within two months of the issuance of the final order in this matter, a new application shall be required, subject to all the applicable statutory requirements. DONE AND ENTERED this 25th day of October, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 25th day of October, 2011.
The Issue Whether Respondent committed the violations in the Administrative Complaint and, if so, whether Respondent's license to operate Hoffman, Frieda Adult Family Care Home should be renewed.
Findings Of Fact Petitioner is the agency responsible for the licensing and regulation of adult family care homes in Florida pursuant to Chapter 400 Part VII, Florida Statutes. Mr. John Newton is a life safety inspector for AHCA and had conducted annual surveys of Frieda Hoffman's Adult Family Care Home over the years. As a result of a complaint received by AHCA from Adult Protective Services of Florida, Mr. Newton went to Respondent's facility to conduct a complaint investigation. The complaint involved an incident that happened in Alabama regarding a 98-year-old resident of Hoffman's facility (Resident 1) as reported by Alabama Adult Protective Services to Florida Adult Protective Services. During the course of the investigation, Mr. Newton gathered documents including a copy of a police report from the Hoover Police Department in Alabama and a hospital report from Shelby Baptist Medical Center in Alabama. He interviewed the police officer, the emergency room physician, the daughter-in- law of Resident 1, a former alternate caregiver, and another resident of the facility (Resident 2). On January 1, 2001, police officers were called to the scene at a bar in Hoover, Alabama, where Mrs. Frieda Hoffman and her daughter, Jeanette Hoffman, were intoxicated and had been fighting physically. While at the bar investigating the domestic fight, the officers went outside to where the Hoffmans' van was parked. Resident 1 had been travelling with Mrs. Hoffman and her daughter in their van. At 3:50 a.m., Resident 1 was discovered by the police officers in the rear of the Hoffmans' van wearing a nightgown, a coat, and covered by a blanket. The ignition was not on despite the snowy 20 degree weather. Resident 1 was sitting in the van next to two soiled dog cages. The police report noted that the van had a strong odor like a kennel. The only response the police officer could get from Resident 1 was that she opened her eyes. Upon inquiry, Mrs. Hoffman initially told the police officer that Resident 1 was her mother. However, she later told the officer the identity of Resident 1 and gave the officer phone numbers of Resident 1's family. Resident 1 was taken by ambulance to Shelby Baptist Medical Center's Emergency Room. The triage sheet from the emergency room nurse indicates that when Resident 1 arrived at the hospital, she was wearing a urine-soaked diaper, had a bluish color to the right hand and left shoulder, and had edema to the right hand and forearm. The emergency room physician's report indicates that when Resident 1 was admitted, she was suffering from a urinary tract infection, dehydration, hypertension, two fractured fingers, and a pressure area to the right ankle. Resident 1 also suffered from dementia with depression and confusion. When Mr. Newton went to the Hoffman adult care home as part of the complaint investigation, Mrs. Frieda Hoffman and her daughter, Jeannette, were there. Mrs. Hoffman did not cooperate with Mr. Newton's questioning. Jeannette Hoffman did attempt to answer Mr. Newton's questions, but Mrs. Hoffman became belligerent with her daughter and the two started arguing and pushing each other around. Greg Rice is employed by AHCA in the assisted living unit. His unit regulates facilities including conducting licensure and relicensure reviews. His role in this proceeding was to review Mr. Newton's findings and determine whether he concurred that the licensure renewal should be denied. He determined that the licensure renewal of the Hoffman facility should be denied based on an intentional or negligent act affecting the health, safety and welfare of adult family home care residents.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order finding that Respondent violated Section 400.628(1), Florida Statutes, and Rules 58A-14.010(1)(a) and 58A- 14.007(2)(a) and (6)(b), Florida Administrative Code, and deny Respondent's renewal of the license to operate an Adult Family Care Home. DONE AND ENTERED this 11th day of February, 2002, in Tallahassee, Leon County, Florida. 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 11th day of February, 2002. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Mail Stop No. 3 Tallahassee, Florida 32308-5403 Frieda Hoffman 5093 Okaloosa Lane Crestview, Florida 32539 Aaron B. Wentz, Esquire No. 4 11th Avenue, Suite 2 Shalimar, Florida 32579 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308
The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the family day care license of Respondents.
Findings Of Fact Respondent has been registered with the Department as a family home day care provider since September of 2001. A registered family home day care does not have to meet all of the requirements that a licensed day care home must meet. However, the same background screening and training requirements must be met. Registered family day care homes are not inspected as often as licensed homes. Each year, the registered provider must complete a renewal application that, among other things, identifies household members and substitute care-givers. The operator of the home and all household members are required to pass a Level 2 background screening. Additionally, registered family home applicants must pass a 30-hour family day care home training, a five-hour early literacy course, and each year, complete 10 hours of in-service of continuing education. Operators of the registered homes must designate a substitute care provider who is also required to go through the background screening. Ms. Huewitt designated Teresa Clary as her substitute care provider on her 2007, 2008, and 2009 applications. Previous Disciplinary Action On three occasions in the fall of 2008 and on one occasion in February 2009, Respondent was found to be out of compliance with ratio requirements, i.e., caring for more children than allowed. Additionally, in November 2008, the Family Services Counselor from the Department called the home and the phone was answered by one of Ms. Huewitt’s adult daughters. That daughter informed the Family Services Counselor that Ms. Huewitt was not home and would be back shortly. The Department then determined that this violated the substitute care requirement as Teresa Clary was designated as the substitute care provider. As a result, the Department issued an Administrative Complaint on January 12, 2009, regarding two incidents of being out-of-ratio and for violation of “listed substitute requirements.” A $300 fine was imposed and the registration was placed on probationary status in February 2009. In a letter dated August 27, 2009, the Department informed Ms. Huewitt that the Probationary Registration was lifted effective August 9, 2009, because “the Operator has been in compliance with ratio and capacity requirements during periodic monitoring/inspections while on probationary registration.”2/ Facts concerning the Amended Notice of Administrative Action Ms. Huewitt has three adult children: Jennifer Oliver, Stephanie Oliver, and Anthony Oliver. Jennifer Oliver was listed as an “other family/household member” on the 2007, 2008, and 2009 applications. As a result, a background screening was conducted on Jennifer. The background screening revealed a disqualifying offense. Jennifer requested an exemption from disqualification, but was denied. Consequently, Jennifer Oliver was not permitted to be in the home during the operational hours of the day care. On February 2, 2009, Ms. Huewitt entered into a safety plan in which she agreed not to allow her daughter, Jennifer, to supervise the children while in her care, or even to allow Jennifer to be in the residence while children are in her care during business hours. Despite this, on August 11, 2009, at approximately 9:25 a.m., the Family Services Counselor, Miatta Jalaber, went to Ms. Huewitt’s home and saw Jennifer in the home. Jennifer exited the home as Ms. Jalaber did her walk-through. As a result, Ms. Jalaber called her supervisor, who instructed Ms. Jalaber to write another safety plan for Ms. Huewitt. The August 11, 2009, safety plan was hand-written by Ms. Jalaber while at Ms. Huewitt’s home day care and states, “I Alisa Huewitt understand that my daughter, Jennifer Oliver, must not be present in my residence [address] during operating hours 7:30 a.m.-6:00 p.m. M-F while I have children in care.” The safety plan was signed by both Ms. Jalaber and Ms. Huewitt. Ms. Jalaber made subsequent visits to Ms. Huewitt’s home on October 30, 2009, December 29, 2009, January 29, 2010, February 5, 2010, February 19, 2010, and March 30, 2010. No other persons were present and Ms. Huewitt’s home was in ratio during those visits. She did observe Jennifer in the home on April 16, 2010, but the day care was closed that day. Stephanie Oliver is not listed on any of the applications as a person residing in the home, but has been seen at Ms. Huewitt’s during hours when the day care is open. While there was some testimony that both Stephanie and Ms. Huewitt’s son Anthony have some sort of criminal background and that they have been seen at the day care during business hours, the record is insufficient to establish that their criminal records contain disqualifying offenses, or that they actually live in the home. What is clear is that Ms. Huewitt is of the belief that it is not necessary to list persons who do not actually reside in the home, but who frequently visit the home, on her applications under the category “Other Family/Household Members.” There were instances in which Ms. Jalaber went to the day care home and was led to believe that Jennifer Oliver was Stephanie Oliver. Ms. Jalaber only learned that the daughter she saw and spoke to at the home was Jennifer, who was not supposed to be there during working hours, when she attended Jennifer’s exemption from disqualifying fact-finding meeting. While the record is insufficient to clearly support a finding that Ms. Huewitt lied to Ms. Jalaber about her daughter’s identity, she was not forthcoming with clarifying the confusion. In July 2009, the Department received an abuse report that Ms. Huewitt’s grandson, Kory Hill, Jr., sustained a skull fracture in her residence during business hours. Ms. Jalaber went to Ms. Huewitt’s home, not to investigate the abuse report, but because there was concern that Kory Hill, Sr., who reportedly was taking care of Kory Hill, Jr., on the day of the incident, was residing in the home. Kory Hill, Jr., is Jennifer’s son. Ms. Jalaber addressed her concerns with Ms. Huewitt.3/ During this visit, Ms. Jalaber learned that there was a separate structure in back of Ms. Huewitt’s house. Ms. Jalaber describes it as being just three steps in back of the main house. The structure contains a large room, a closet, and a bathroom and will hereinafter be referred to as “the apartment.” Ms. Jalaber observed clothes in the apartment’s closet and throughout the apartment, and sofa cushions on the floor. It appeared to Ms. Jalaber that someone was residing in the apartment. Ms. Huewitt denies that Mr. Hill, Sr., resided in her home. However, Ms. Huewitt acknowledges that her infant grandson, Kory Hill, Jr., was injured while in the care of his father, Kory Hill, Sr., and that the injury took place in the apartment in back of her house. The injury took place during the day while children were in her care in the main part of her house. Jhaismen Collins is a Child Protective Investigator with the Department. She was assigned to investigate the abuse report regarding this incident. Her investigation began July 1, 2009, at the emergency room where Kory Hill, Jr., had been taken. While there, she spoke to Ms. Huewitt and other family members present in the emergency room. She then made several visits to Ms. Huewitt’s home to follow-up, after the baby was discharged from the hospital. During the follow-up visits, Ms. Collins observed Stephanie in the home and observed Kory Hill, Sr., packing his belongings to leave the home. While the evidence is inconclusive as to whether Mr. Hill actually resided in the apartment behind Ms. Huewitt’s home, it is clear that he frequented the home and the apartment behind the home to visit his son. His son, Kory, Jr., and another son, Kentavious, who is also Ms. Huewitt's grandson, are now attending Ms. Huewitt’s day care. Ayuana Hale is a Dependency Case manager for the Department. Her job is to provide needed services to the child and family in the case of a verified finding of abuse, neglect, or abandonment. She was assigned to the case involving Kory Hill, Jr., after the abuse investigation was closed as verified. Ms. Hale testified that Mr. Hill is currently incarcerated. She has knowledge of this because she is obligated to try to offer Mr. Hill services while he is incarcerated. Parents of children who attend Ms. Huewitt’s home day care are extremely complimentary of the care their children receive, and are not concerned with the safety of their children while there.
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 placing the license on probation, requiring Respondent to attend further training in the requirements of applicable statutes and rules regarding who must be listed on her applications, requiring those listed to undergo background screening, and requiring successful completion of such training, with no further incidents, prior to approval of Respondent's application for renewal of her registration. DONE AND ENTERED this 24th day of June, 2010, 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 24th day of June, 2010
The Issue Whether Petitioner, the holder of a family day care home registration, has violated Respondent's minimum standards for child care providers by failing to directly supervise an infant in her care on March 22, 2006, and whether her registration should be revoked, pursuant to Section 402.310(1), Florida Statutes.1
Findings Of Fact Petitioner, Jacqueline Bizzell, has been operating a child care facility in her home, at the same location, since 1992. She has been a registered family day care home with Respondent since January 30, 2001. As a part of her application to be a registered family day care home provider, Petitioner sent Respondent verification that she completed the required training for child care providers, which includes knowledge of Respondent's rules and regulations in the area governing child care. On January 26, 2006, Petitioner was informed that her family day care home was again registered for one year, effective January 30, 2006. In the letter, Petitioner was informed that she must maintain her registration in accordance with Section 402.313, Florida Statutes (2005). On March 24, 2006, Respondent received an allegation of neglect or abuse that took place at Petitioner's family day care home on March 22, 2006. Rivers Lewis (Lewis) was a child protective investigator for Respondent on the date of the allegation. He conducted an investigation of the allegation and completed a report. As a part of the investigation, Lewis spoke directly with Petitioner who stated that on March 22, 2006, the child was the only child in her care the day of the incident, and that she left him sleeping on her bed and went into the hallway in front of another room to do laundry or to do something else. Petitioner told Lewis that as soon as she heard the child cry, she stepped back into the room to find that he had fallen from the bed. Petitioner said, first, that the child had fallen off the bed, but later stated that the child had been on the side of the bed and was hanging onto the covers. Lewis submitted his investigative report on April 27, 2006, concluding that the case could be closed with verified indicators of "inadequate supervision" by Petitioner. Shortly after Lewis submitted his report, Ivette Garcia, Child Care Licensing Administrator, received a copy and reviewed it with another worker. She sent Petitioner a letter, dated May 10, 2006, stating that: "The purpose of this letter is to advise you that effective immediately, your family day care home is closed and that your registration is no longer valid." The closure was based upon the incident that occurred on March 22, 2006, wherein the investigative report, submitted by Lewis, confirmed indicators of inadequate supervision. No further investigation or other action was conducted by the child care licensing section in DCF's District 7 before the letter was sent. Although Garcia testified at the hearing that inadequate supervision of a child is a Class I violation, the highest violation, Petitioner was not specifically advised of such classification in the May 10, 2006, letter, nor was a finding made of an immediate serious danger to the health, safety, or welfare of the children who are enrolled in Petitioner's home. Respondent's District 7 Child Care Licensing office did not go to Petitioner's home to inspect or verify the report. It had no further communication with Petitioner after said date. Petitioner was not charged with causing injury to a child under her supervision. Garcia testified that due to the limitations of the registration statute (§ 402.313, Fla. Stat.), Respondent had only one option to deal with a Class I violation: immediately close the home and invalidate the registration. Petitioner's family day care home operated under the name: Hi Granny Day Care. She had only one child in her home on March 22, 2006, the eight-month-old boy, Markel. The child had been fussy and throwing up all day. At about 4:00 p.m., she put the child in the middle of her bed when he finally went to sleep. The bed was by the door. She stepped across the hall to do some chores and while standing at the door, in front of the playroom for about 14 or 15 minutes. When she heard a noise, she immediately stepped back into the room. She admits that she said to the investigator that he fell out of the bed, but that he really did not fall to the floor, but slid off of the bed and was dangling from the bed when she came back into the room; and a blanket broke his fall. She provided a handwritten diagram of her home as it appeared on the date of the incident. Petitioner had been taking care of Sherina Clemons' eight-month-old son, Markel, for over two months when the incident occurred. On March 22, 2006, Petitioner called her between 4:45 p.m. and 5:00 p.m. asking Clemons to not be mad at her. Petitioner told her that the child had been asleep when she placed him on her bed, but that when she walked out of the room, he must have awakened and fallen off of the bed landing on a pallet of covers. According to Latoya Marion, Children's Home Society, the Petitioner's reputation in the community was very good as a child care provider. Latisha Rashawn Bell has known Petitioner for about three years and Petitioner cared for her daughter in 2006. She came to Petitioner's home on March 22, 2006, later in the evening, and knocked on the door. Petitioner came to the door, holding the child, who was whining or crying. Petitioner told her that the child had fallen out of the bed, but had not landed on the floor. Chakera Angelette Faniel is a child care provider, who is not employed by Petitioner. Petitioner cared for Ms. Faniel's daughter for the first three years of her daughter's life, but no longer does. She has known Petitioner for about five years and knows her to be a caring and loving person. Petitioner has a very good reputation in the community as a child care provider. The clear and convincing evidence demonstrates that late in the afternoon of March 22, 2006, Petitioner placed a sleeping eight-month-old boy in the middle of her king-size bed, which was located in her bedroom near the door. Petitioner stepped across the hall and did some chores, while standing in front of the playroom for about 14 or 15 minutes. Although she was only three or four feet from the child, Petitioner could not see the child from where she was standing. When she heard the child cry, she immediately stepped back into the room and found the child lying on some covers on the floor. She picked the child up, who did not appear to be injured. Shortly thereafter, Petitioner contacted the child's parents and reported the incident to them. The child's mother arrived later and took the child home. The evidence is clear and convincing that Petitioner failed to provide direct supervision of the child while he was napping, in the late afternoon, on March 22, 2006. The evidence is clear and convincing that Petitioner is a long-term child care provider, who obviously gives compassionate care to the children in her care. There have been no prior reported incidents of neglect or abuse filed against Petitioner, nor were prior deficiencies listed. Petitioner enjoys a good reputation as a child care provider in her community. Except for the incident on March 22, 2006, no evidence was presented that Petitioner presented an immediate serious danger to the public health, safety, or welfare to the children who are enrolled in her family day care home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Secretary of the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of a single violation of the provisions of Florida Administration Code Rule 65C-22.001(5)(a) and (b) on March 22, 2006; Imposing an administrative fine of $100; and Immediately reinstating Petitioner's family day care home registration for a period of 264 days and permitting Petitioner the opportunity to submit an application for renewal of her family day care home registration at the appropriate time. DONE AND ENTERED this 13th day of April, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 13th day of April, 2007.
The Issue Was Petitioner properly disqualified from working in a position of special trust pursuant to Section 435.04, Florida Statutes, on the basis of a July 21, 1996, incident? If Petitioner was properly disqualified as a result of the July 21, 1996, incident, has she been sufficiently rehabilitated so as to be eligible for an exemption to work in a position of special trust, pursuant to Section 435.07(3), Florida Statutes?
Findings Of Fact Petitioner was licensed through Leon County as a family home day care provider in 1995. Since 1996, she has been operating her family day care home pursuant to an exemption from disqualification by a 1973 disqualifying felony (manslaughter). Petitioner is a high school graduate. She was schooled and certified in New York as a nurse technician. She is certified as a home health aide in Florida. When she sought to renew her license in 2000, Petitioner was required to sign an Affidavit of Good Moral Character. The 2000 Affidavit of Good Moral Character read: By signing this form, I am swearing that I have not been found guilty or entered a plea of guilty of nolo contendere (no contest), regardless of the adjudication, to any of the following charges under the provisions of the Florida Statutes or under any similar statute of another jurisdiction. I also attest that I do not have a delinquency record that is similar to any of these offenses. I understand I must acknowledge the existence of criminal records relating to the following list regardless of whether or not those records have been sealed or expunged. I understand that I am also obligated to notify my employer of any possible disqualifying offenses that may occur while employed in a position subject to background screening under Chapter 435, Florida Statutes. The 2000 Affidavit then listed a number of offenses and the corresponding statute numbers. Among the offenses listed were: Sections 741.30 domestic violence and injunction for protection. 784.03 battery, if the victim was a minor. The 2000 Affidavit is DCF's attempt to paraphrase Section 435.04, Florida Statutes, listing disqualifying offenses. It is flawed and could be misleading because domestic violence can occur without an injunction for protection. Petitioner signed the 2000 Affidavit on January 25, 2000, in the portion declaring herself free of any disqualifying statutory violations and also signed the Affidavit in the portion stating, "To the best of my knowledge and belief, my record may contain one or more of the foregoing disqualifying acts or offenses." Petitioner testified in the instant case that she did not divulge the July 21, 1996, incident on her 2000 Affidavit because she did not think it constituted domestic violence, but why she signed contradictory statements was not explained. Petitioner's day care license was renewed, despite Petitioner's contradictory declarations on her 2000 Affidavit. She was notified of her disqualification when the five-year background screening turned-up an offense that had occurred on July 21, 1996. The Year 2000 background screening results which DCF received from the Florida Department of Law Enforcement indicated that Petitioner had been found guilty of "battery," on the basis of the July 21, 1996, incident. The Department's Background Screening Coordinator then obtained additional documentation from the file of the Leon County Court. Based on the information in the court file, the Department's District II Office concluded that Petitioner was disqualified because of a "domestic battery" offense. Petitioner exhausted informal procedures and timely requested an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes (2000). The instant case followed. The instant case is the second occasion Petitioner has appeared before the Division of Administrative Hearings requesting an exemption from disqualification to work in a position of special trust. The first occasion Petitioner appeared before the Division occurred in September 1996, when she sought an exemption because she had been disqualified due to her 1973 felony manslaughter conviction in New York. Petitioner had failed to disclose the 1973 felony conviction on her 1995 affidavit when she first applied to be a child care worker.1 That disqualifying offense showed-up in the initial screening procedures applicable to such applicants. Petitioner was granted an exemption for the 1973 manslaughter conviction in Harris v. Department of Health and Rehabilitative Services, DOAH Case No. 96-2010 (Recommended Order entered September 10, 1996; Final Order entered October 30, 1996), as more fully described below in Findings of Fact 34-36. She has been a licensed day care provider ever since. In 1996, Petitioner and Frank Fields had a romantic involvement bounded by Mr. Fields' keeping most of his belongings at his sister's apartment and merely sleeping over at Petitioner's home two to three nights per week, on a sporadic basis.2 On these occasions, he brought with him, and occasionally left in Petitioner's home, only his underwear and some music CDs. At all times material, Frank Fields was an adult male. Although younger than Petitioner, he was not a minor. On July 21, 1996, Petitioner, who was then 47 years old, was two months' pregnant with Frank Fields' child. She testified that at that time she was very upset and confused because of her pregnancy; because Mr. Fields was not helping with household expenses; and because she had heard that Mr. Fields was moving from his sister's apartment to an apartment of his own. On July 21, 1996, Petitioner was driving her car on Blountstown Highway. She noticed Mr. Fields' van and also noticed that there was a female in the passenger's seat of the van. Apparently, Petitioner believed that Mr. Fields was romantically involved with his female passenger. Petitioner had one adult daughter; the adult daughter's three children, all under the age of nine years, and her own eight-year-old daughter with her in her car. According to Petitioner's testimony, none of the four children in her car were young enough to require a car seat and none of her day care children were in her car. According to the police officer who later arrested Petitioner, there were six "children" in the back seat of Petitioner's car, not six people in the whole car. Regardless of this discrepancy in testimony, it is undisputed that there were no car seats and insufficient car safety belts for the number of passengers in Petitioner's car on July 21, 1996. Without approving either Petitioner's motivation or her reasoning, I find credible her testimony that she would not have taken her next actions had there been any day care children in her car because if day care parents found out about it, Petitioner could be "put in jeopardy"; she "could be in a lot of trouble"; and she would not have had day care children with her over a weekend. July 21, 1996 was, in fact, a Sunday. In making the immediately foregoing Finding of Fact, I have not overlooked Ms. Brantley's testimony that on occasion Petitioner has kept Ms. Brantley's children in Petitioner's home on nights and weekends while Ms. Brantley traveled. However, even assuming arguendo, but not ruling, that six rather than four children were in Petitioner's car on July 21, 1996, there is no direct evidence that any of them were also day care clients. Petitioner drove her car, filled with passengers, following Mr. Fields' van. Mr. Fields turned onto Nekoma Lane and pulled over to the side of the road. Petitioner pulled over and intentionally bumped her car into the back of Mr. Fields' van. Petitioner and Mr. Fields exited their respective vehicles, and Petitioner demanded to know who Mr. Fields' female passenger was, even though Petitioner knew the passenger was named "Melissa." Some screaming ensued, and Petitioner and Mr. Fields "tussled," hitting and scratching each other. Petitioner and her adult daughter testified that they did not know who struck the first blow. The non-hearsay evidence is insufficient to establish that on this occasion Petitioner left a bite mark on Mr. Fields' arm. When Mr. Fields began to wield a stick he had picked up from the side of the road, Petitioner's adult daughter got between him and her mother. Petitioner then drove her car, still containing its passengers, so as to follow Melissa, who had walked around the corner. Petitioner then "had a conversation" with Melissa. There is no evidence that the children were anywhere except inside Petitioner's car during either her confrontation with Mr. Fields or with Melissa. When the police arrived on the scene, Petitioner was arrested for battery and for driving with a suspended driver's license. The suspended license charge arose because, when questioned by the police, Petitioner gave her name as "Veronica L. Wynn." Petitioner's legal name was, in fact, "Veronica Harris." Petitioner also told the officer that her date of birth was September 19, 1959, and that she lived at 2106 Monday Street. Petitioner's true date of birth is September 19, 1949, and her true address was 1229 Elberta Street. When the officer could not find a driver's license record for "Veronica L. Wynn," Petitioner told him that the name on her license might be "Veronica Lee Harris Wynn." After she gave him the name "Veronica Lee Harris Wynn," the officer found Petitioner's driver's license record and learned that her driver's license had been suspended. Petitioner had recently been divorced and had "gone back" to her maiden name, but she testified herein that on July 21, 1996, she deliberately gave incorrect information to the police because she knew her driver's license was suspended and the police were going to check on it. Mr. Fields was provided with a pamphlet explaining his right to request domestic abuse protection and prosecution. Apparently, he did nothing about it. Petitioner was charged, in an Information which recited the statutory language of both Subsections 784.03(1) (a) and (b), Florida Statutes (1995), with "battery (M1)," meaning "first degree misdemeanor battery." The Information cited only "Section 784.03, Florida Statutes," for that offense. The Information also charged Petitioner with "driving while license suspended or revoked (M2)" also a misdemeanor, under Section 322.34(1), Florida Statutes (1995). On August 28, 2000, Petitioner entered a "no contest" plea to both charges. Petitioner was adjudicated guilty of misdemeanor battery and was ordered to serve 12 months of probation with the following conditions: (1) no contact with Frank Fields; (2) $155.00 court costs; and (3) $100.00 fine. She was also required to pay a monthly supervision fee while on probation and a fee for the services of the public defender. There was no charge, plea, or sentence stating "domestic violence" or citing a domestic violence statute. Petitioner was not required to attend a batterers' intervention program, pursuant to Section 741.281, Florida Statutes. No evidence was presented to show that the sentencing court had made written, factual findings that attendance at a batterers' intervention program would be an inappropriate condition for her probation. Petitioner's probation was terminated in December 1997. Petitioner miscarried her child conceived of Frank Fields before a live birth. Petitioner's emotional connection with Mr. Fields seems to have terminated with the July 21, 1996, incident. At the September 9, 1996, formal exemption hearing in Harris v. Department of Health and Rehabilitative Services, DOAH Case No. 96-2010 (see Finding of Fact No. 12) Petitioner and her witnesses did not divulge that six weeks earlier, on July 21, 1996, Petitioner had been arrested for her altercation with Frank Fields or that less than two weeks earlier, on August 28, 1996, Petitioner had pled "no contest" to battery of Frank Fields. Petitioner testified in the instant case that she did not divulge the July 21, 1996, incident during the 1996 formal exemption proceeding before the Division because "it was not part of my day care home and had nothing to do with day care children."3 The Recommended Order in DOAH Case No. 96-2010 observed that "Petitioner, now a grandmother, testified tearfully to her errant behavior at the age of 21, over 24 years ago in New York. Petitioner has never been charged with any legal violation since that time, with the exception of traffic tickets . . .since the [1973] incident, . . . Petitioner has lived an exemplary life . . . ." That Order recommended granting an exemption. The outcome of the Final Order, entered October 26, 1996, was that Petitioner was exempted from the 1973 felony disqualification.4 Petitioner contends that she never committed "domestic violence" and even if she did, she has been "rehabilitated" since July 21, 1996. She feels that she should be granted an exemption because she is sorry for what she did; because if she had been thinking, she would not have done it; and because she loves her day care children. Since 1996, Petitioner has operated her family day care home and has pursued her goal of becoming a Master Provider of day care. In order to become a Master Provider, one must have taken the Second Helping Course (a refresher course for experienced day care providers); have either a Child Development Associate Certificate or national accreditation; and have five years' experience. Currently, there are only two Master Providers in Leon County. In 1998, Petitioner received a $500.00 Caring for Kids Mini-Grant which she used to purchase day care toys. In March 2000, Petitioner received a scholarship from the T.E.A.C.H. Early Childhood Project, which she had planned to use to take classes at Tallahassee Community Hospital towards her Child Development Associate certification. Petitioner has put this project on "hold" during the pendancy of the instant case. In May 2000, Petitioner completed the Second Helping Course. In Leon County, only approximately 20 family home day care providers have taken this course. In 2000, Petitioner received a $275.00 Caring for Kids Mini-Grant which she used to help pay for her Second Helping Course. Petitioner was selected to receive a Kids Incorporated Infant/Toddler Initiative Grant of $3,000, which she intended to use to purchase toys and equipment for her day care home. Petitioner was hand-picked by Kids Incorporated because of her genuine love and concern for the children and because Kids Incorporated felt that Petitioner only needed additional toys and equipment in order to improve her day care home. However, because of the instant case, Kids Incorporated has not yet disbursed this money to Petitioner. Kids Incorporated wants to be assured the money will go to someone who will be a day care provider for the long-term. Petitioner has volunteered for the school readiness program sponsored by Kids Incorporated, which has resulted in additional visits and evaluations of her day care home. Her day care children have all scored "above average" in the program. Katherine Schmidt, a Family Child Care Specialist with Kids Incorporated, testified that she has evaluated and assessed Petitioner's day care home in her capacity with Kids Incorporated and during the period she was helping Petitioner obtain the grants mentioned above. Ms. Schmidt believes Petitioner is an excellent day care provider and would not be a danger to the children in her care. Ms. Schmidt also believes Petitioner would be a benefit to the children and their families. The Leon County Home Day Care Providers Association and Support Group meets monthly, and Petitioner regularly attends. Two day care providers wrote letters in support of Petitioner. Cicely Brantley is a professional music education teacher in Leon County's public school system. Ms. Brantley's two children attend Petitioner's family day care home. She has seen Petitioner briefly at least five days per week for the last two years. Ms. Brantley's older child is two and one-half years old and has been in Petitioner's day care home since he was nine months' old. Her younger child is 15 months old and has been in Petitioner's day care home since she was eight weeks old. Ms. Brantley testified that she trusts Petitioner with her children and that she trusts and values Petitioner's judgment when it comes to the children. Ms. Brantley often asks Petitioner's advice about parenting, discipline, and health issues involving her children. Ms. Brantley testified that other than her husband, Petitioner is the person she trusts the most with her children and that Petitioner goes above and beyond what most day care providers would do, both in education and care. Ms. Brantley was aware of the battery incident that occurred between Petitioner and Mr. Fields, but it did not change her opinion of Petitioner. She does not believe that Petitioner would ever be a danger to her children. Ms. Brantley really does not want to have to find other child care if Petitioner is unsuccessful in getting an exemption, and it is apparent that this concern has influenced her testimony. Versee Hoffman is a Pioneer with the Jehovah's Witnesses. This means that she has committed to serving 70 hours per month with her ministry. Ms. Hoffman met Petitioner approximately five years ago through church. Ms. Hoffman and Petitioner studied the Bible together periodically. At that time, Ms. Hoffman felt that Petitioner was not really committed to the church or its moral standards, and their studies ended. Thereafter, Ms. Hoffman did not see Petitioner for approximately two years. In early 1999, Petitioner approached Ms. Hoffman and told Ms. Hoffman that she wanted to renew their Bible studies. Ms. Hoffman agreed, and they have been studying the Bible together weekly ever since. Ms. Hoffman testified that the Jehovah's Witnesses expect their members to attend five weekly meetings and that Petitioner consistently attends those meetings. Ms. Hoffman testified that Petitioner has grown spiritually and personally since Ms. Hoffman first met her five years ago. Ms. Hoffman believes that Petitioner is truly committed to leading a spiritual life and to meeting the Jehovah's Witnesses' moral standards against violence. Ms. Hoffman believes that Petitioner will continue to meet these standards.
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 determining that Petitioner is not disqualified from working in a position of special trust solely on the basis of her 1996 battery conviction. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 13th day of November, 2000.
The Issue Whether Petitioner's license to operate a family day care home should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Parties Respondent is the state agency responsible for licensing and regulating child care facilities, including family day care homes. Respondent routinely conducts inspections of licensed family day care homes to determine whether the homes are in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report, which is provided to the home's operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on family day care homes which have a provisional license rather than a standard license. Respondent also conducts inspections in response to complaints it receives, and it has the authority to inspect family day care homes at any time with or without notice. Petitioner is the owner and operator of a licensed family day care home located at 1502 North Kettles Avenue, Lakeland, Florida (hereinafter "Petitioner's facility" or "the facility"). Petitioner resides at that address as well. Petitioner has operated a day care home at the above address for approximately three years. Petitioner has taken all required training in order to be licensed. As a result, she is, or should be, familiar with the rules regulating family day care homes. Petitioner keeps children in her home, and children also play in Petitioner's backyard. This area is enclosed by a fence. Inspections and Resulting Actions by Respondent Petitioner's facility was inspected on February 4, 2003, by Respondent's inspector, Timothy Graddy, who found Petitioner caring for children. Several areas of noncompliance were identified during this inspection. Violations noted included unsafe and unsecured storage of materials dangerous to children, namely, bleach and other household cleaning chemicals were left out in the kitchen and a bathroom cleaning product was observed in the tub; paper and trash were littered around the home's back door which leads to the playground area; water that had collected in the sandbox, which presented a drowning hazard; no written evidence of a fire drill having been conducted on a monthly basis; and some of the children's immunization records were found to be out-of-date, which presented a health safety issue. A re-inspection was conducted on February 6, 2003, all violations had been corrected, and no fine or other penalty was imposed at that time. On August 26, 2004, Respondent's inspector, Tricia Step, went to Petitioner's family day care home to carry out a routine inspection, and she observed five children in the home at that time. Several areas of noncompliance were identified. The lock on a kitchen cabinet did not catch, allowing children access to household cleaning products stored there; the children's play area contained litter (empty chip bags and soda cans); an extension cord was lying on the ground in the playground area; the play areas in the home were not clean and stacked against a wall were toys and "stuff," which could fall on the children; at the time of the inspection, children were observed sleeping on blankets with no mats under them, which is in violation of the requirement that each child be provided with a mat, at least one inch thick, covered with an impermeable surface; Petitioner could not provide a record of fire drills being conducted within the previous six months; and an up-to- date and age-appropriate immunization record was missing for a child in her care. After Ms. Step completed her inspection, she discussed the results with Petitioner and provided Petitioner a copy of the inspection report. Petitioner made the corrections required prior to the due date listed on the report. Petitioner's premises were inspected for re-licensure by Mr. Graddy on January 15, 2004, and several areas of noncompliance were identified. Mr. Graddy observed a hammer, motor oil, and a plastic garbage bag on the front stoop area, which are hazardous and dangerous to children; litter, including aluminum cans and paper, was observed in areas where children play; a gap in the required 4-foot fence was observed, which would permit children in the outdoor play area access to a trafficked street; a written record of fire drills for the months of December 2003 and January 2004 were not provided; Petitioner was unable to produce a student health examination file on two children in her care; and the current enrollment information was incomplete on four children. The results of the inspection were discussed with Petitioner, and she was given a copy of the report. Graddy then went back to his office and discussed the results of the inspection with his supervisor, Patricia Hamilton. Based upon the results of the January 15, 2004, inspection and the prior incidents of noncompliance at Petitioner's facility, Ms. Hamilton determined that Petitioner's license should not be renewed. Although Petitioner attempted to do so, Respondent did not give Petitioner an opportunity to bring her home into compliance with the minimum standards in Respondent's licensing rules and standards before deciding to issue a letter of denial. Thereafter, on March 2, 2004, Mr. Graddy sent a letter to Petitioner informing her that her license was not being renewed and advising Petitioner of her right to "appeal" that decision through the administrative process. At the hearing, Ms. Hamilton testified that she was particularly concerned about Petitioner's repeat violations, namely Petitioner allowing the children access to toxic and other dangerous materials, repeated failure to conduct fire drills, and to keep health and enrollment records current. She characterized these as serious child safety violations. These were the primary reasons she recommended that Petitioner's child care license not be renewed. Petitioner, in her testimony, did not deny committing the violations noted in the inspections of February 4, 2003, August 26, 2003, and January 15, 2004. However, she did demonstrate that a re-inspection of her facility listed her to be in compliance with all violations listed in the report. Petitioner's testimony is credible, especially when bolstered by her friends, family, and client's testimonials, that she is a loving and caring person who goes out of her way to care for the children she keeps in her home. The evidence is clear and convincing that Petitioner violated several code provisions, including repeated violations of the rules regarding toxic and hazardous materials; trash and dangerous conditions in the children's play area; failure to conduct fire drills; and failure to have current health and enrollment records on file for each child. Respondent withdrew its allegation that Petitioner was not a person of good moral character. Petitioner has shown mitigating evidence that she is a concerned and loving caregiver and has demonstrated that her license for a family day care home should not be denied or revoked but that a lesser penalty should be imposed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of violating the provisions of Florida Administrative Code Rules 65C-20.010(1)(b) (three counts), 65C-20.010(1(e) (three counts), and 65C-20.010(3)(b)4. (three counts). Finding Petitioner not guilty of violating the provisions of Section 402.301, Florida Statutes. Issuing Petitioner a provisional license. DONE AND ENTERED this 30th day of July, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 30th day of July, 2004.
