The Issue The issue to be determined is whether Respondent, Brian T. Hart (“Respondent” or “Mr. Hart”), failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2010), and if so, what penalty should be imposed?
Findings Of Fact No direct evidence was presented at hearing to establish that Respondent held a certification issued by the Criminal Justice Standards and Training Commission. However, at all times relevant to these proceedings, Respondent was employed by the Tallahassee Police Department (“TPD”) as a police officer. Evidence was presented that he had been hired by the Tampa Police Department, and Respondent was identified consistently as a “cop” or “officer.” It does not appear from the record that Respondent’s status as a certified law enforcement officer is in dispute in this proceeding. On or about August 15, 2011, an Order of Judgment and Sentence was filed in the Second Judicial Circuit, in Leon County, in the case of State of Florida v. Brian Hart, Case No. 2011-MM511. Although there was testimony indicating that Respondent was convicted by a jury of his peers, the Order of Judgment and Sentence does not indicate whether the judgment, for which adjudication was withheld, was a result of a plea of guilty or nolo contendere, or as a result of a trial. Respondent, his counsel, and the Assistant State Attorney signed the document, implying that it was more likely a result of a plea agreement of some sort. In any event, adjudication was withheld and Respondent was sentenced to 12 months’ probation, with no contact with the victim, and random alcohol screens.1/ Officer Gregory Wilder investigated the allegation of battery lodged against Respondent. The charge stemmed from an incident at AJ’s Sports Bar (“AJ’s”) where Respondent allegedly grabbed a female patron at the back of the neck and pushed her head down to his crotch. While Officer Wilder testified regarding his investigation of the incident leading to the battery charge against Respondent, he was not present when the alleged battery occurred and did not have responsibility for the investigation until the day after the incident. No competent evidence was presented to demonstrate the basis for the battery charge, in that no person who was involved in or a witness to the incident testified at hearing. Respondent admitted being at AJ’s the night of the alleged incident, and consuming several alcoholic beverages, but consistently denied any memory of interaction with the victim. In the course of Officer Wilder’s investigation, he received information indicating that Respondent was or had been involved in an abusive domestic relationship with his girlfriend, Lauren Bauer. Officer Wilder arranged to speak with Ms. Bauer to ask her about her relationship with Respondent. Ms. Bauer met with Officer Wilder at the police department on January 11, 2011, at his request. Consistent with her testimony at hearing, Ms. Bauer indicated that she began seeing Respondent in March 2010, and during that time she maintained her own apartment but slept most of the time at Respondent’s apartment. Respondent’s relationship with Ms. Bauer lasted for approximately ten months. During that time, the couple had discussed getting married and moving to Tampa. Ultimately, Ms. Bauer had concerns about Respondent’s drinking and problems with anger management, which led to the termination of the relationship approximately two weeks before she spoke to Officer Wilder. During the course of the relationship, Respondent was verbally and physically abusive toward Ms. Bauer. The abuse began as verbal outbursts, and escalated to physical abuse approximately 2-3 months into the relationship, when he threw a water bottle at her and hit her in the forehead. On another occasion, sometime in late summer of 2010, he held her in a chokehold in order to take his phone from her, and spit in her face repeatedly. On October 26, 2010, Ms. Bauer had planned a party at AJ’s Sports Bar for her brother’s 21st birthday. She had asked Respondent to attend the party while she was planning the event. The night before, however, the two of them had a fight. On the evening of the party, Respondent called Ms. Bauer and asked her to come over to his apartment so that they could “make up” and he could go with her to the event. However, when she arrived at Respondent’s apartment, Respondent was already intoxicated. Ms. Bauer testified that there were four bottles of wine on the table, that Respondent’s speech was slurred, and that he smelled of alcohol. Given Respondent’s condition, Ms. Bauer decided it would be better if Respondent did not attend the party, but Respondent was insistent that he would attend. When she went to her car to leave, he followed her and tried to prevent her from entering the car. While she was able to get in the car and leave the premises, it was not before he hit her car door and tried pulling her out of the car. Ms. Bauer picked up a friend and both went to the party for her brother at AJ’s. Despite her asking Respondent not to attend, he showed up at AJ’s, still clearly intoxicated, and kept trying to talk to her. She asked him to go home, and he refused, grabbing her arm and pulling her off of her barstool. Ms. Bauer did not want a confrontation and was afraid that Respondent would hit her in public. To avoid any further confrontation, she cashed out and left the sports bar. Ms. Bauer attempted to but did not obtain an injunction against Respondent to leave her alone. No competent evidence was received with respect to why the injunction was denied. From the evidence presented, Respondent and Ms. Bauer had an “on again-off again” relationship, and she had continued to see him even after experiencing abuse. However, Officer Angie Booth testified credibly that it is not uncommon for victims to continue a relationship that includes abuse. Ms. Bauer’s testimony that she hoped Respondent could resolve his anger management and alcohol issues is credited. Investigator Wilder completed a probable cause affidavit and forwarded the domestic abuse investigation to the State Attorney’s Office for review. Although charges were filed, the case was never prosecuted because of an unspecified “legal technicality” related to the timing of the charge. Once the battery charges were filed, the TPD suspended Respondent and placed him on administrative leave. In addition, the TPD initiated an internal affairs investigation, which was conducted by Investigator Angie Booth. As a result of the investigation, on April 18th, 2011, Investigator Booth completed an Internal Affairs Unit report, and recommended that Respondent violated the TPD’s General Order 46 in three respects: that he committed conduct unbecoming an officer; a violation of laws or rules; and alcohol abuse. All three recommendations were sustained, and Respondent’s employment with the TPD was terminated. Respondent contends that Ms. Bauer is simply bitter and vengeful over the break in their relationship. While he admits that they often argued, he claims that he never abused her, and points to the fact that the TPD investigation did not include physical evidence of abuse. Ms. Bauer, however, did not initiate the investigation against Respondent. She was contacted by law enforcement because of information gained from other sources pointing to an abusive relationship. Ms. Bauer testified credibly about the volatile nature of the relationship, and her testimony that she suffered abuse at Respondent’s hands is credited.
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 failed to maintain good moral character as defined by rule 11B- 27.0011(4)(b)3., in violation of section 943.1395(7). It is further recommended that Respondent’s certification be suspended for a period of one year, followed by probation for one year. It is also recommended that as a condition of probation, the Commission consider requiring courses and/or counseling to address anger management and substance abuse. DONE AND ENTERED this 1st day of March, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 1st day of March, 2013.
The Issue Whether Respondent's educator's certificate should be sanctioned for an alleged violation of section 1012.795(1)(b), Florida Statutes, in that Respondent knowingly failed to report actual or suspected child abuse as alleged in Petitioner's Amended Administrative Complaint. Whether Respondent's educator's certificate should be sanctioned for an alleged violation of section 1012.795(1)(j), in that Respondent violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules as alleged in Petitioner's Amended Administrative Complaint.
Findings Of Fact Based on the evidence presented and the record as a whole, the undersigned makes the following findings of material and relevant facts: Parties' Statement of Agreed Facts Respondent holds Florida Educator's Certificate 632878, covering the area of elementary education, which is valid through June 30, 2017. At all times pertinent hereto, Respondent was employed as a part-time interventionist teacher at Brownsville Middle School ("BMS"), Miami-Dade County School District. Respondent has been a certified teacher for 25 years. On March 9, 2015, Respondent was informed by Y.H., a sixth-grade female student, that her stepfather comes into her room and lays on top of her with his clothes on without touching her in any inappropriate way, when her mother was not present. On March 9, 2015, Y.H. also informed Respondent that her stepfather pushed her toward a wall causing her to fall into a chair and then he pulled her by the hair. Respondent went to Counselor Sonya Durden's office on March 9, 2015, to discuss what she had heard from Y.H. and the other two students. Respondent did not immediately report the student's accusation on March 9, 2015, to the Department of Children and Families or the Child Abuse Hotline. Facts Adduced at the Hearing The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates under section 231.2615, Florida Statutes. During Castella's 25 years of teaching, she testified that she had never received training concerning suspected child abuse or related reporting requirements. This testimony is rejected. The more persuasive and credible evidence revealed that all school employees at BMS, with no exceptions, received regular training at the beginning of each school year, which includes their reporting duties when child abuse is suspected. The more persuasive evidence also demonstrated that various posters on child abuse reporting were posted around the school to remind teachers at BMS of their reporting requirements in cases of suspected child abuse. Respondent's Exhibits B and C are examples of those posters. Respondent's Exhibit B is a colorful poster with the title Child Abuse Look for the Signs. The poster gives information on various signs of physical and sexual abuse, as well as the procedure to follow when a child speaks of abuse. The evidence revealed that this poster was posted at the designated faculty sign-in area at BMS at all times relevant to this incident. Principal Ebony Dunn testified that "all of the employees have to sign-in whether they're hourly, whether they're full-time, non-instructional." Thus, Castella would have been required to sign in at this designated area at the beginning of each day where the poster was prominently displayed. The undersigned finds that based on the more persuasive evidence, Respondent was aware of the poster's content. Respondent's Exhibit C is another poster with the title Reporting Child Abuse is Everyone's Responsibility. This poster details various signs of child abuse and how someone can report an instance of child abuse. The undisputed evidence indicated that this poster was also displayed at the student services building/main learning center at all times relevant to the incident. The more persuasive evidence and reasonable inferences drawn from the evidence indicate that Respondent was aware of both of these posters and knew of her duty to report suspected child abuse. March 9, 2015, Incident On March 9, 2015, Castella was approached by three girls at lunch, one of whom was Y.H., a sixth-grade female student. Castella observed that the other two girls were prodding Y.H. to speak to Castella. During this encounter, Castella was informed by Y.H. that her stepfather comes into her room and lies on top of her with his clothes on without touching her in any inappropriate way, when her mother was not present.2/ Y.H. also informed Castella at lunch that her stepfather pushed her toward a wall causing her to fall into a chair and then he pulled her by the hair. After lunch, Castella went to another teacher, Philogene, to report the incident because "she wasn't sure what to do," and she wanted to know the other teacher's thoughts on Y.H.'s statement.3/ Castella contends that she was not aware that what Y.H. told her amounted to child abuse. However, when asked why she told Philogene about the incident, Castella responded, "I wanted to ask Ms. Philogene what she thought because what Y.H. told me was odd, weird." The record indicates that after hearing about the incident, Philogene told Castella to report the incident to Counselor Durden.4/ Castella testified that on March 9, 2015, she went to Counselor Durden's office to discuss what she had heard from Y.H. and the other two female students. However, Castella asserted that despite her efforts, she was not able to report the incident to Counselor Durden because she was not in her office. Significantly, Castella left the school that day without reporting the incident to any administrator on campus.5/ Inexplicably, Castella did not immediately report the female student's information on March 9, 2015, to the Department of Children and Families or to the Child Abuse Hotline. Respondent claims that she did not know the protocol for reporting child abuse. The undersigned rejects this claim as incredible and spurious. Rather, the credible and more persuasive evidence shows that it was common knowledge among the school staff, based on training and posted notices, that an incident of child abuse should be reported immediately. March 10, 2015, Incident The next day, Castella went to Counselor Durden's office immediately upon arriving at the school to report what Y.H. had told her the day before. According to school policy, Castella was mandated to report the incident to a school administrator. Counselor Durden was not an administrator, nor was she Castella's supervisor. After disclosing the nature of her visit, Counselor Durden questioned Castella about the incident and why Castella did not report the incident when she became aware of it the day before. Counselor Durden testified that, "[Ms. Castella] said a young lady, a sixth-grader, had told her during lunch that the stepfather comes into the room every night drunk and holds her down and climbs on her. So I said, 'She told you when?' And she said, 'Yesterday during lunch.' And I said, 'You didn't call it in?' And she said, 'No I didn't.' And I think she was talking about like, you know she's friendly with the kids, and she didn't want to lose her confidence, they trusted her." Castella testified that she was reluctant to immediately report the incident because she did not want to violate the female students' trust. Counselor Durden proceeded to call the Department of Children and Families while Castella was still in her office. Both joined in reporting to the Department of Children and Families what had occurred. Later that afternoon, the Department of Children and Families held a meeting at the school with Y.H., the other two girls who were with Y.H., and Castella to gather details of the suspected child abuse and to determine how to proceed with the incident. Contact With News or Media Outlets Castella contacted and voluntarily appeared on a number of local news broadcasts. She detailed the suspected child abuse incident and proceeded to give the name of the school. Petitioner's Exhibit 8, which is a Notice of Investigation signed by Castella and delivered to her, states that a faculty member may be terminated if they speak to a number of subjects about a pending investigation. The document specifies, "You are not to discuss this matter with any witnesses, parents, staff, students, or the complaining party to avoid interference with the investigation." Castella asserts that she did not violate the notice because it did not specify she could not speak to news stations. However, Principal Dunn testified that anyone, including the listed parties, had the ability to watch the news broadcast. Therefore, the undersigned finds that her appearance on the news stations violated the spirit and intent of the notice because it could have had an indirect, adverse impact on witnesses and interfered with the internal investigation by the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Diana Castella in violation of Counts 1, 2, and 3 of the Amended Administrative Complaint and placing her license on a one-year probationary status, during which time she be ordered to attend and successfully complete, at her expense, training related to her reporting obligations under section 1012.795(1)(b), Florida Statutes. DONE AND ENTERED this 17th day of March, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 17th day of March, 2017.
Findings Of Fact The Respondent is a 120 bed skilled nursing home facility for the chronically ill. It has over 80 employees, and is owned by H.M.O. of Brandon, Florida. It is an employer within the meaning of Pinellas County Ordinance 84-10. The Petitioner is a mature, black woman who worked for Respondent as a certified nursing assistant for 14 years. She received average and above average evaluations during her tenure with Respondent, which ended on September 28, 1988. Other than the matters set forth herein, there were no other reports of patient abuse involving Petitioner during her employment with Respondent. By her demeanor and testimony at hearing, it is found that Petitioner had a sincere concern for the welfare of her patients, and was a dedicated employee whose life centered around her job and her patients. All of the witnesses testifying on behalf of the Respondent, as well as the patient involved in the alleged incidents which lead to the Petitioner's termination, are white. According to an incident report completed by Diane Roberts, former Director of Nursing, a patient at Respondent's nursing home, M.T., complained on September 28, 1988, that a black female aide fitting Petitioner's description had squeezed her hand very hard, causing her pain. While looking into this matter, Respondent's former Administrator, Barbara Johnson, learned of an earlier alleged slapping incident, which Roseanne Ingroia, a nursing aide, then confirmed. An incident report was completed about the slapping incident by Antoinette Clausi, Director of Nursing, on September 29, 1988. Ingroia testified that she heard the Petitioner and the patient, M.T., arguing on September 11, 1988, and that she heard a slap. She did not appear clear and certain in her testimony, however, and her testimony about her exact location when this incident occurred was contradictory. As a result of these allegations of abusive conduct toward the patient, M.T., Petitioner was called at home on September 28, 1988, and was told she was being terminated by Respondent. Respondent acted without giving Petitioner an opportunity to even address the charges being made against her. The allegations were taken at face value, and without any meaningful investigation at all, Respondent terminated the 14 year employment of this dedicated employee. This allegation of abuse was eventually reported to the Department of Health and Rehabilitative Services (Department) sometime after Petitioner was terminated, and after preliminary investigation, the Department initially classified the report as "confirmed". However, on January 24, 1989, the classification of this report was changed to "indicated", and the Petitioner is no longer identified as the "alleged perpetrator". However, since Petitioner was terminated prior to any report of alleged abuse being filed with the Department, the appearance of Petitioner's name on the abuse registry as a result of the filing of this allegation could not have been a factor in the Respondent's decision to terminate her. The Respondent acted precipitously, without any reasonable investigation, and before any report of alleged abuse was filed with the Department. On or about October 5, 1988, Petitioner filed a complaint of discrimination with the Clearwater Office of Community Relations against Respondent alleging that she was unlawfully terminated due to her race, black. After investigation by staff, a recommendation of probable cause was made, and after conciliation efforts failed, the matter was referred by the Office of Community Relations to the Division of Administrative Hearings for formal hearing. It was established that patient abuse or neglect is set forth in the Respondent's Personnel Policies as a specific cause for immediate termination without prior warning. Employees who are terminated for cause are ineligible for rehire. No testimony was received from anyone who witnessed the alleged hand squeezing incident, and Ingroia's testimony about the alleged slapping incident was not convincing, especially in view of the reclassification of this report of abuse by the Department of Health and Rehabilitative Services from "confirmed" to "indicated". The former Director of Nursing, Diane Roberts, who apparently interviewed the patient, M.T., did not testify, nor did the former Administrator who actually terminated Petitioner, Barbara Johnson. Thus, there is no competent substantial evidence in the record which would support a finding that Petitioner abused the patient, M.T., and that therefore Respondent had cause to terminate her. As such, Respondent's action is inconsistent with, and violates its Personnel Policies. Thus, Petitioner is not ineligible for rehire since she was not terminated for cause. Respondent terminated Petitioner immediately, and without notice on September 28, 1988. A report of abuse had not yet been filed against Petitioner with the Department of Health and Rehabilitative Services, and therefore, at the time of her termination, there was no reasonable appearance of a legitimate, non-discriminatory reason for the action taken by Respondent. With the reclassification of this report by the Department to "indicated", and with the Respondent's failure to establish at formal hearing that Petitioner abused M.T. in any way, there is no legitimate, con-discriminatory basis for Respondent's action, and for its refusing to rehire Petitioner.
Recommendation Based upon the foregoing, it is recommended that the City of Clearwater, Community Relations Board, enter a Final Order finding that Respondent unlawfully discriminated against Petitioner based upon race, and ordering that upon the occurrence of the next available vacancy, Respondent reinstate Petitioner to her former position at her former salary, plus any salary increases which have been granted in the interim, and with full back pay and benefits from the date of her termination to the date of her rehire. DONE AND ENTERED this 15 day of February, 1990, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 15 day of February, 1990. COPIES FURNISHED: Barbara Forbes 508 East Boyer Street Tarpon Springs, FL 34688 David A. Crosby, Administrator Tarpon Springs Convalescent Center P. O. Box 1058 Tarpon Springs, FL 34688-1058 Ronald McElrath, Manager Office of Community Relations P. O. Box 4748 Clearwater, FL 34618 Miles A. Lance, Esquire P. O. Box 4748 Clearwater, FL 34618
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 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)
