Findings Of Fact The Fun and Learning Center is a child care facility operated by Altagracia Munoz (Respondent) and licensed by the Department of Health and Rehabilitative Services (Petitioner.) On November 13, 1994, an employee of the Petitioner conducted a routine inspection of the Fun and Learning Center. At the time of the inspection, the staff members present were insufficient to comply with regulations established by the Petitioner. According to the regulations, one staff member must be present for every four infants in the facility. Seven children were located in the "infants" room with one staff person present. According to the regulations, one staff member must be present for every six one-year old children in the facility. Six children were located in the "one-year" room with no staff person present. According to the regulations, one staff member must be present for every eleven two-year old children in the facility. Eleven children were located in the "two-year" room with no staff person present.
Recommendation It is hereby RECOMMENDED that the Petitioner enter a Final Order imposing a fine of $50.00 on the Respondent. DONE and RECOMMENDED this 30th day of August, 1995 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1995. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 James A. Sawyer, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 827 Orlando, Florida 32801 Altagracia Munoz Fun and Learning Center 2630 Martina Avenue Kissimmee, Florida 34744
The Issue Is it appropriate for Respondent, Department of Revenue, Child Support Enforcement Program, to garnish funds for past due child support reduced to judgment from a joint account pursuant to Section 409.25656, Florida Statutes (2001)?1
Findings Of Fact On December 20, 1985, an Order of Support was issued in Derrick v. Wright in the Hillsborough County Circuit Court; pursuant to this Order, Petitioner was ordered to pay $25.00 per week for the current support of his minor child, Mesheal Lee Wright, born on April 20, 1983, commencing December 16, 1985. On February 10, 1995, a Recommendation of Hearing Officer and a Findings of Fact and Order on Motion for Contempt in Derrick v. Wright were filed in the Hillsborough County Circuit Court, which adjudicated Petitioner’s child support arrearage in the case to be $10,639.02 as of October 7, 1994. On May 11, 1995, a General Findings and Order of Arrest Instanter in Derrick v. Wright was filed in the Hillsborough County Circuit Court, which adjudicated Petitioner’s child support arrearage in the case to be $9,463.02 as of December 31, 1994. On or about May 13, 2002, a Recommendation of Hearing Officer and a Findings and Establishing Arrears in Derrick v. Wright were filed in the Hillsborough County Circuit Court, which adjudicated Petitioner’s child support arrearage in the case to be $16,121.06 as of April 9, 2002, and ordered Petitioner to pay $167.00 per month in liquidation of his arrearage, commencing May 1, 2002. All the arrearage was owed by Petitioner to the custodial parent of the minor child; none of the arrearage was owed to the state. On October 15, 2001, Respondent mailed a Notice of Freeze in an amount up to $16,121.06 to Suncoast by certified mail, return receipt requested, regarding any accounts of Petitioner with the credit union; Suncoast received the Notice of Freeze on October 18, 2001. Suncoast confirmed a freeze on Petitioner’s joint account in the amount of $5,573.95 as of October 18, 2001. The signature card, produced as an exhibit by the Respondent, stipulated that the account was owned as a joint tenancy with right of survivorship by Petitioner and a non- obligor joint account holder, Petitioner's sister. On October 22, 2001, Respondent mailed a Notice of Intent to Levy in an amount up to $16,121.06 to Petitioner by certified mail, return receipt requested; the Notice of Intent to Levy was received and signed for at the Florida State Hospital, Chattahoochee, Florida, on October 23, 2001. The Notice of Intent to Levy advised that a non- obligor joint owner, who claimed to have an equal right to all of the money levied upon in a joint account, had a right to contest Respondent’s action. The non-obligor joint account holder did not file a petition to contest the levy nor did she appear at the final hearing. On or about November 5, 2001, Petitioner filed a Petition-Disputed Issues of Material Fact with Respondent. Respondent sent a Notice of Extension of Freeze in an amount up to $16,121.06 to Suncoast on November 9, 2001. Pursuant to the official records of the Hillsborough County Circuit Court in Derrick v. Wright, Petitioner’s child support arrearage was $16,121.06 as of November 21, 2003. Petitioner and his sister, Sandra W. Russaw, opened a joint account with survivorship rights at Suncoast on November 21, 1997. The Suncoast account had balances of less than $100.00 for 12 of the first 25 months it was open including the five months immediately preceding January 20, 2000, when $3,900.00 was deposited in the account. On December 27, 1999, Petitioner had $3,655.00 deposited in a Resident Trust Account he maintained at the Florida State Hospital, Chattahoochee, Florida. These funds, which were deposited by the U.S. Treasury, were followed by a deposit of $749.00 from the same source. These funds were initial payments to Petitioner for Veteran's Administration benefits. On January 14, 2000, $4,200.00 was withdrawn in the form of a check from Petitioner's Resident Trust Account at the Florida State Hospital. On January 20, 2000, $3,900.00 was deposited in the Suncoast account. Over the next 23 months, from January 20, 2000, to November 31, 2001, $20,538.00 directly attributable to Petitioner was deposited in the Suncoast account. The money was from Veteran's Administration benefits paid to Petitioner by direct deposit. Not surprisingly, upon notification of the Notice of Freeze the monthly checks from the Veteran's Administration stopped being deposited in Petitioner's Suncoast account. On March 8, 2000, $5,000.00 was withdrawn from the Suncoast account, and on July 10 and 20, 2000, $4,990.00 was deposited in the same account. With the exception of the July 2000 deposits, only $1,490.00 in deposits to the Suncoast account are not directly attributable to Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order that: (1) levies upon the funds in Petitioner’s credit union account with Suncoast Schools Federal Credit Union, Tampa, Florida, up to the amount of unpaid child support as of November 21, 2003, i.e., $16,121.06, or to the full amount frozen, whichever is less; (2) applies the funds levied to satisfy all or part of Petitioner’s past due child support obligation; and (3) credits Petitioner for the amount so applied. DONE AND ENTERED this 22nd day of January, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 day of January, 2004.
Findings Of Fact On December 3, 1992, Ms. Linda Shaul, HRS Licensing Representative, conducted a routine inspection of PEABO Day Care Center, located at 815 Hills Alley, Orlando, Florida. Two infants were left in a bed in a back bedroom. Respondent had no staff watching and directing the infants' activities within close proximity in the same room.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that: Petitioner enter a Final Order finding Respondent guilty of the allegations in the Administrative Complaint and imposing a fine against Respondent in the amount of $100.00. DONE AND RECOMMENDED this 22nd day of April, 1993, in Tallahassee, Leon County, Florida. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1993. COPIES FURNISHED: Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Betty Gelzer, Owner PEABO Day Care Center 815 Hills Alley Orlando, Florida 32805 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner is the state agency responsible for regulating child day care facilities in Florida. Respondent, Caring Heart Preschool and Day Care, Inc. ("Caring Heart"), is licensed as a child day care facility for children, ages 1-12, pursuant to certificate number 1190-21. Respondent, Pamela McFarlane, is the owner of Caring Heart within the meaning of Section 402.302(7), Florida Statutes. 2/ Ms. McFarlane operates Caring Heart at 1408 West Michigan Street, Orlando, Florida, 32805. Michigan Street is a busy four lane street. On December 15, 1994, a four year old child left Caring Heart without the knowledge of his teacher or Ms. McFarlane. The child wandered outside the facility, left the premises, and crossed Michigan Street. The child was found by a bus driver. The bus driver returned the child to Caring Heart. Respondents failed to provide quality child care within the meaning of Sections 402.3015(1) and 402.302(3). Respondents failed to maintain direct supervision of the child within the meaning of Section 402.305(1)(d) and Florida Administrative Code Rule 10M-12.002(5)(a)2. 3/ The potential harm to the child was severe within the meaning of Section 402.310(1)(b)1. The period in which Respondents failed to maintain direct supervision of the child was substantial. The child had time to leave the premises, cross a busy four lane street, and converse with an adult who, fortunately for the child, took the time to secure the child's safety. Respondents' failure to maintain direct supervision of the child did not result in any actual harm to the child. Respondents have no history of any prior discipline.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of the charges in the Administrative Complaint and imposing an administrative fine of $500. RECOMMENDED this 6th day of October, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1995.
The Issue Whether Respondent, J & A Joyful Hearts Academy (Joyful Hearts), violated Florida Administrative Code Rule 65C- 22.010(e)1., resulting in the Class I and Class II violations alleged in the Administrative Complaint.
Findings Of Fact Joyful Hearts is a licensed daycare facility in Titusville, Florida. Jenail Martin is the director of the daycare, which has been open for approximately four years. Prior to the incidents giving rise to this case, Joyful Hearts had no disciplinary history with respect to its licensure. The Department is the state agency charged with the licensing and regulation of child care centers in the State of Florida. December 3, 2018 At approximately 6:00 a.m., on December 3, 2018, the Department received a report from the Florida Abuse Hotline, indicating that Jenail Martin struck M.H.2/ in the mouth with a spatula while M.H. was at Joyful Hearts. The reporting parent also indicated that a second child, J.M., was also hit by Ms. Martin with a spatula. M.H. was not at the daycare when the investigators went to Joyful Hearts, so they located him at his home. M.H. had a tiny cut on the side of his lip, as well as a pea-sized bruise. Barbara Smith interviewed M.H. as well as his mother, and based on statements he made about abuse toward other children, she interviewed a sampling of other children at Joyful Hearts. After interviewing M.H. and his mother, Tiffani Brown and Barbara Smith went to Joyful Hearts. For at least part of the day, they were accompanied by Lauren Watson, a detective with the Titusville Police Department. Detective Watson was present because the Titusville Police Department also received a complaint with respect to M.H. Upon arrival at Joyful Hearts, Ms. Brown and Ms. Smith spoke with Ms. Martin, who denied the charges against her. She claimed that M.H.’s mother was out to get her, and that M.H. and his friend were too busy bullying other children to fight each other. Ms. Smith and Ms. Brown interviewed some of the children present at the daycare, in order to see if M.H.’s injury was isolated or part of a pattern. Detective Watson was present during these interviews. Several of the children indicated that they were hit with a black shoe, a flip flop, or a belt, and that two of the children had been hit with a spatula.3/ All of the children indicated that J.M. got the brunt of the physical punishment. Ms. Martin was interviewed by Ms. Brown, Ms. Smith, and Detective Watson, and was wearing flip flops. She admitted having a belt and shoe that she kept in the kitchen, but denied hitting the children with them at Joyful Hearts. She stated that she would threaten the children with the belt and shoe, to keep them in line. She also stated that she sometimes kept J.M. in her home and claimed that she had permission from his grandmother to “pop” him when necessary, and did spank J.M., but that she only did so when keeping him at her home. Ms. Brown, however, testified that when she interviewed J.M.’s grandmother, the grandmother denied ever giving Ms. Martin permission to use corporal punishment with J.M. J.M.’s grandmother did not testify, and the conflicting statements by Ms. Martin and Ms. Brown regarding J.M.’s grandmother’s position are hearsay. There is no competent evidence to demonstrate whether Ms. Martin did or did not have permission to use corporal punishment on J.M., and no finding is made either way. Even assuming that Ms. Martin in fact had permission, use of corporal punishment at the daycare would still be a violation of section 402.305(12)(a)3., Florida Statutes, and Department rules. Shoshana Amores, a senior case coordinator for the CPT team in Brevard County, also interviewed M.H. and J.M. Ms. Amores has been trained to conduct interviews with children in order to ellicit details about what children have seen and experienced. The interviews are designed to establish a rapport with small children, and Ms. Amores generally spends some time determining whether the children are able to tell the truth, and to explain the rules. The questions Ms. Amores asked M.H. and J.M. were not leading or suggestive, and did not present as judgmental. The interviews were recorded in both audio and video form. Only the interview with J.M. is included in the record in this case. While the Department offered the video of J.M.’s interview as an exhibit in this case, it offered no evidence regarding J.M.’s availability to testify at hearing, and no evidence that requiring him to do so would result in a substantial likelihood of severe emotional or mental harm. Ms. Amores observed that M.H. had a small injury by his mouth. She reported that he was also examined medically, but it could not be determined whether the injury occurred as a result of being hit by a spatula or whether it was a result of M.H.’s fight with J.M. Based upon her interviews of the children, and the other evidence reviewed, Ms. Amores recommended that the staff at Joyful Hearts be retrained, and made a verified finding of abuse by history, in the absence of any observed injury to J.M. With respect to M.H., she also made a verified finding of abuse by history. Ms. Brown advised Ms. Martin to stay away from the daycare until the investigation was completed. This directive was not in written form; she was simply advised that Department staff would call her when the investigation was complete. As a result of the December 3, 2018, visit to the daycare, Joyful Hearts was issued an Inspection Checklist that indicated noncompliance with section 2.8B of the CCF Handbook related to child discipline (section 9, number 4), a Class II violation; and use of corporal punishment at the daycare, in violation of section 2.8A (section 9, number 2) of the CCF Handbook, a Class I violation. The same conduct was also the basis for a finding of a Class I violation by Department staff by the commission of an act that meets the definition of child abuse or neglect provided in chapter 39 or 827, Florida Statutes. Detective Watson also presented a capias to the State Attorney’s Office for child abuse. However, the State Attorney’s Office elected not to file charges. Ms. Martin acknowledged that she was advised to stay away, but that she did not. She testified that when she did not hear from Ms. Brown, she assumed it was all right for her to return to the daycare, and did so. Ms. Martin’s belief, while perhaps sincere, makes no sense in light of the directive to stay away until she was called and told it was okay to return. January 4, 2019 Ms. Brown and Ms. Smith returned to Joyful Hearts on January 4, 2019, and found Ms. Martin working. At that time, they issued her a “restriction letter,” advising her that she could not be on the premises of the daycare until the investigation was complete.4/ According to Ms. Brown, the letter restricted Ms. Martin from being at the facility during working hours. While by her own admission, Ms. Martin spent time at Joyful Hearts before and after business hours after issuance of the restriction letter, there is no persuasive evidence that she was thereafter present at Joyful Hearts during working hours. When Ms. Brown visited the facility that day, Belle Lewis was working there and appeared to be in charge. Ms. Brown had received telephone calls stating that a man named Timothy Watkins was working at the daycare, so she asked Ms. Lewis whether he had been working there. Mr. Watkins has an extensive criminal history that would prevent him from working with children. While Ms. Brown testified that Ms. Lewis told her that Mr. Watkins had been at the facility picking up trash, Ms. Lewis did not testify, and her statement to Ms. Brown is hearsay. No testimony was offered that Ms. Brown or any of the other Department staff saw Mr. Watkins there, much less saw him working with any children at Joyful Hearts. Moreover, no evidence was presented that Mr. Watkins was actually an employee of Joyful Hearts. Ms. Martin testified credibly that he was an employee of a vendor that she used for maintenance. Her testimony was corroborated by other witnesses at hearing. When Ms. Brown arrived at Joyful Hearts on January 4, 2019, there were three children on the playground on Joyful Hearts’ property. These three children were unattended. The evidence was not clear and convincing, however, that these three children were children for whom Joyful Hearts had any responsibility. While Ms. Brown testified that Ms. McCray claimed they were her grandchildren, Ms. Brown’s notes in Petitioner’s Exhibit 5 indicate that Ms. Lewis, as opposed to Ms. McCray, stated that the three children were her grandchildren, dropped off by her niece. Moreover, Ms. McCray denied having any grandchildren. In any event, the evidence as a whole suggested that these children were school-aged children as opposed to children attending the daycare, and would not be part of the ratios the daycare was required to maintain. There were, however, other problems at Joyful Hearts. The people present and working with the children on January 4, 2019, were Ms. Lewis and Ms. Angela McCray, as well as Ms. Martin before she was asked to leave. Ms. Brown asked Ms. McCray if she had been screened and she indicated that she had. Ms. Brown could not find any evidence that Ms. McCray had been screened at the facility, and asked her what she did to get screened. Ms. McCray responded that she “took a pee test (as opposed to being fingerprinted).” After checking Department records, Ms. Brown asked Ms. McCray to leave the daycare because she had not been screened. Laura Hair, a former employee who would substitute when needed, came in to replace Ms. McCray. At hearing, Ms. McCray claimed that she did not believe she needed to be screened, because she was a “board member” for Joyful Hearts. She also testified that she was quite experienced in the daycare area, having owned a daycare in the past. At the time of hearing, she stated that she had since been screened. When asked if she was eligible to work, she stated that she had “something” from 22 years ago, but her “clearance was in the works.” Ms. McCray’s claim that she did not know she needed to pass a background screening in order to work with children is not credible. Moreover, Ms. Martin acknowledged that Ms. McCray had not been screened when Ms. Martin asked her to come and help out at the daycare, but claimed that there were extenuating circumstances. It is found that Ms. McCray had not undergone background screening and that Ms. Martin asked her to work with children knowing that she had not undergone screening. Even assuming that both teachers present were properly screened, Joyful Hearts did not have the proper ratio when Ms. Brown visited on January 4, 2019. At the time she was there, there were 11 children in one room, and one of those children was an infant. The age of the other children is unknown. When there is an infant present, the appropriate ratio is one adult for four children, even if there is only one infant, requiring at least two properly screened employees to be present to meet ratio. As is discussed below, Ms. Lewis was not eligible to work with children. January 11, 2019 DCF’s concerns that Ms. Martin was not complying with the restriction letter continued. Her car was seen at Joyful Hearts during the day, so on January 11, 2019, Ms. Brown returned early in the morning before Joyful Hearts opened and parked across the street from the daycare to see if Ms. Martin was there. Ms. Brown saw Ms. Martin’s car and there were lights on at the facility, but she did not see Ms. Martin. Within the hour, Belle Lewis came and knocked on the door, and someone let her inside. Ms. Brown did not see who. At approximately 7:00 a.m., children started coming to the daycare. Among the children present was a child brought by someone who at that point was identified as “Annie Pittman.” She went inside with the child, and after a while came outside with Belle Lewis to Ms. Lewis’s car. Both women coming out of the building meant that, to the best of Ms. Brown’s knowledge, there were no adults left in the daycare to supervise the children inside. Ms. Brown confronted Ms. Lewis and the woman she believed to be Annie Pittman. “Ms. Pittman,” who Ms. Brown believed to be a parent, just smiled and walked across the street. At around 9:10 a.m., Ms. Brown went into Joyful Hearts and checked worker/child ratios. At that time, “Ms. Pittman” was in the infant room with one infant. Ms. Brown asked “Ms. Pittman” if she had gone through background screening and was told that “Ms. Pittman” had been screened in Rockledge. The office door for the facility was locked, and records to substantiate background screening could not be located. When Ms. Brown checked ratios, there were eight children of mixed ages with two teachers, including Ms. Lewis. When Ms. Brown asked Ms. Lewis who was with the children when she went outside with “Ms. Pittman,” Ms. Lewis said she left the children inside so that she could give “Ms. Pittman” some money to buy hotdogs to feed the children. When asked if there were any other adults, Ms. Lewis acknowledged that she was alone. Leaving the children unsupervised meant that there were ratio violations, with no adults for three children. After the visit on January 11, 2019, Ms. Brown checked on the background screening for Belle Lewis. She discovered that Ms. Lewis had gone through background screening on May 31, 2018, but was declared ineligible on June 5, 2018, because she had multiple drug offenses from 1993 through 1995 that disqualified her from working in positions of trust. Ms. Lewis was notified that she was ineligible on June 5, 2018, and advised of the process to seek an exemption from disqualification. She applied for an exemption, but was advised by letter dated November 2, 2018, that she was ineligible because court records indicated that she still had outstanding fees due. January 14, 2019 In light of the discovery that Ms. Lewis was ineligible to work with children, Ms. Brown and Ms. Smith, accompanied by a police officer from the Titusville Police Department, returned to Joyful Hearts on Monday, January 14, 2019, for what had to be one of the most memorable and bizarre days in their careers. The trio arrived at Joyful Hearts at approximately 8:15 a.m., and they were met by “Annie Pittman,” who was reluctant to let them in the building. “Ms. Pittman” was asked if she was teaching, and she responded that she was. She was also identified as an employee of Joyful Hearts by another employee, Willa Mae Hair. “Ms. Pittman” was also asked if she was background-screened as of January 11, 2019, and she stated that she was, but would not give her date of birth. The woman identified as Annie Pittman was a young woman in her twenties. The only person in DCF’s system with that name that had been screened was born in 1970. After being confronted with this information and having some discussion with the police officer, “Annie Pittman” admitted that her name was actually Mercedes Daughtry. On February 20, 2017, Ms. Daughtry pled nolo contendere to the third-degree felony of organized fraud to obtain property less than $20,000, in violation of section 817.034(4)(a)3., Florida Statutes, in the Eighteenth Judicial Circuit, in and for Brevard County. Ms. Daughtry was sentenced to 60 months of probation. This offense disqualifies her from working at a daycare. Upon discovery of her criminal history, Ms. Daughtry was asked to leave the facility. DCF staff also confronted Ms. Lewis, who acknowledged that she knew she was disqualified from working with children. DCF staff advised her that she could not stay at Joyful Hearts. Ms. Lewis called Ms. Martin to notify her that she had to leave. With both Ms. Lewis and Ms. Daughtry gone, no staff employed by Joyful Hearts was present to take care of the children at the facility. Ms. Brown advised Ms. Martin by telephone that she needed to call the parents and ask them to pick up the children, as there was no one to care for them. Ms. Martin said that she had someone coming in at 9:00 a.m. Ms. Brown reminded her that she would still be out of ratio, given the number of children present. Ms. Martin said she had someone coming in the afternoon as well, but even if true, that would not address the immediate problem of insufficient staff. At 9:00 a.m., Willa Mae Hair came to Joyful Hearts to work in the baby room.5/ She sat down until several of the parents had picked up their children. When there were only three children left, Ms. Hair stated that she was leaving, and she would take one of the children with her, leaving the DCF staff with the other two. Ms. Brown would not allow her to take the child, because Joyful Hearts is not a transporting facility, and she did not believe that Ms. Hair was on the list of approved individuals allowed to pick up the child. Tanisha Whitehead, the child’s mother, came to pick up the child, but was frustrated that Ms. Hair was not allowed to bring her home. Ms. Whitehead testified that the list of people approved to pick up her child could not be found, but that Ms. Hair was on it. She felt that DCF staff was disrespectful and would not provide any real explanation of what was going on. The pick-up list was not offered into evidence by either party, so whether Ms. Hair was on the list is unknown at this point. It is understandable that parents would be upset at having to come get their children because the daycare was not properly staffed. The issue here, however, is not whether Ms. Hair was on Ms. Whitehead’s list of approved adults for pick-up, but rather, the fact that her leaving the facility meant there were no employees there to care for the remaining children. Ms. Smith and Ms. Brown prepared lunch for the children and remained at Joyful Hearts until approximately 11:45, when the last two children were picked up for the day. They checked the facility to make sure that no one remained, and then left. Joyful Hearts closed as of January 15, 2019, and was not open as of the date of the hearing. Ms. Martin’s Defenses Ms. Martin testified on her own behalf and her statements have been carefully considered, given the gravity of the allegations against Joyful Hearts. Ms. Martin admitted that she has spanked J.M., but insists that she has only done so in her home when she has kept him in the evenings or on weekends. This claim is not credible, given her admission that she kept a belt and spatula at the daycare in order to keep the children in line. Moreover, while the statements of other children have not been considered for the truth of those statements, it is illogical that the other children would know of any spankings occurring at Ms. Martin’s home as opposed to something happening in their presence at the daycare. Ms. Martin admitted to going to the daycare before receiving the restriction letter. She stated that after receiving the letter, she would go into the daycare before and after hours to clean up and set things up for the day. Given that the restriction letter was not offered into evidence, and Ms. Brown’s testimony that she could not be there during hours Joyful Hearts was open, it appears that Ms. Martin being there when the daycare was closed would be permissible. Ms. Martin also admitted that while she was absent, she kept the door of the office locked, but put the books with records in a chair, upside down outside the office. Neither party offered evidence that DCF staff asked Ms. Martin for the whereabouts of the records and that she refused to provide them. Given that she was not allowed to be at the facility when the DCF staff was there, it would be incumbent upon them to inquire of her where to locate any records that they needed. DCF presented no evidence that its staff inquired, so Ms. Martin cannot be faulted for not providing the appropriate records. Ms. Martin claimed that Mercedes Daughtry was a volunteer as opposed to an employee, and that she would volunteer when they were short of staff. This claim is not credible. Ms. Daughtry was in the daycare at times when no other adult was present in the room where she was located, working directly with children. She was identified as an employee of the daycare by another employee. It is found that Ms. Daughtry was teaching at Joyful Hearts without proper screening. Even if she did volunteer when they were short of staff, she was working unsupervised by a screened employee, which is impermissible. Ms. Martin acknowledged that Ms. Lewis was ineligible to work with children, but claimed that she was hired to be a cook. Given that on more than one occasion, she was one of the only workers present and was clearly supervising children, this claim is not credible. With respect to Mr. Watkins’ presence at the daycare, Ms. Martin testified that he was an employee of a vendor that she used, and was not employed by the daycare. Her testimony is consistent with others who testified, and moreover, no one testified seeing Mr. Watkins interacting with children or working near them. The only testimony placing Mr. Watkins on the premises of the daycare was hearsay. Ms. Martin acknowledged that she knew Ms. McCray was not screened when she asked her to pitch in at Joyful Hearts, but felt there were extenuating circumstances. She also claimed that some of her workers did not show up for work because Ms. Brown told them if they came to work, they would go to jail. However, no person to whom Ms. Brown allegedly made this extraordinary statement testified, and no one asked Ms. Brown if she had made such a statement. Without someone with first-hand knowledge testifying to it, the statement is hearsay that cannot be considered. Even if true, if there are not enough screened employees to meet ratios for the care of children, the proper course of action is not to bring in unscreened people, but to close until properly screened workers can be retained.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent guilty of five Class I violations and two Class II violations. It is further recommended that Respondent be fined a total of $1,350.00 ($250 for each Class I and $50 for each Class II), and that its license to operate as a daycare facility be revoked. DONE AND ENTERED this 19th day of June, 2019, 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 19th day of June, 2019.
The Issue Whether Amended School Board Policy 2262 is an invalid exercise of delegated legislative authority under section 120.52(8), Florida Statutes (2013)1/.
Findings Of Fact The School Board has the constitutional duty to operate, control and supervise the public schools within Collier County, Florida. Art. IX, § 4(b), Fla. Const. (2014); see also § 1001.32, Fla. Stat. Sports Club is a private, non-profit Florida corporation, whose principal business activity is providing before and after school child care. Sports Club is located in Collier County, and offers its child care services at its own private facilities, as well as at certain District elementary schools. Parents Rock is a private, non-profit Florida corporation formed on June 24, 2013, for the purpose of representing parents’ interests in education, and advocating for legislation, regulations, and government programs that improve parents’ rights and choices in local education. Parents Rock’s membership consists of approximately 700 individuals, mostly parents of children attending schools in the District. A substantial number of these parents use the child care programs located at the District facilities. Moreover, a substantial number of Parents Rock’s members routinely attend School Board meetings and advocate for parental involvement in their children’s education and issues of importance, like the District’s child care program. Amended School Board Policy 2262, which is part of the School Board’s Bylaws and Policies, is titled: Before and After School Child Care. The challenged policy contains paragraphs lettered “A through L” which provides for the following issues: Parents and the community being given an opportunity to make recommendations concerning the operation and funding of child care programs prior to the approval by the School District; Child care programs and services being available to students both prior to and after the school day; Child care programs having an emphasis on providing educational opportunities and “variety of activities that promote the social, intellectual, and physical development of children in the program[;]” Adequate attention being given to the child care programs having an environment that meets the needs and well-being of the children, ensuring the children’s safety, security, that the children are clothed, fed, and “hav[ing] an opportunity for a variety of social, intellectual, and physical activities[;]” Vendors or other organization contracted to provide the child care programs having adequate liability insurance, and “maintaining appropriate adult-child ratios, provide quality child care, and in general, complying with the procedures established by the State and the District[;]” Notifying parents and families about the child care programs and procedures for enrollment; Continuing program assessments by staff, participating parents, and other stakeholders during the course of the child care program; Fees for the child care services being applied only to those schools involved in vendor run or school based programs; Recognizing that a parent may notify the child care providers of the parent’s preference that a child receiving either additional physical or academic activities, and “every reasonable effort shall be made to accommodate the request[;]” Parents, whose children participate in the child care programs, giving “feedback concerning the program” and requiring that the District’s manager of after school child care consider the information; A procedure for surveying and collecting information from parents evaluating the child care programs; and Providing that “[a]ny terms, conditions, or issues enumerated in the District’s RFQ 115-4113 [sic], whether express or implied, related to this policy, are hereby adopted and incorporated by reference in the policy during the duration of RFQ 115-4113 including any renewal period provided for in said RFQ.” Amended School Board Policy 2262 then states that to “implement this policy, the Superintendent will develop and/or revise administrative procedures consistent with the RFP/RFQ process relative to child care service.” The School Board wholly adopted School Age Child Care Services, RFQ #115-4/13 (RFQ), into its Policy. Consequently, a short explanation of the RFQ is required here. In the RFQ, the District sought to qualify child care providers to operate child care programs at the District’s elementary schools. The RFQ that was released by the District, on May 2, 2013, provided for: uniform fees for all program services;2/ no credit for fees paid, if a child was unable to use the child care program due to an absence;3/ a $10.00 surcharge on each registered student that a private vendor provided financial assistance to attend the after school program;4/ and standards and criteria for the child care programs that required the programs to be staffed by certified teachers.5/ Finally, and importantly, the RFQ allowed elementary school principals to decide whether or not to offer child care through private providers or for the school to operate its own “in-house” child care program.6/ Sports Club participated in the RFQ process, and was identified as a qualified provider. Based on its approval as a qualified provider, Sports Club was given an opportunity to present its services to the District’s elementary school principals in a webinar. Following the presentation, on May 29, 2013, five elementary school principals chose Sports Club as child care provider for their schools. However, Sports Club was not chosen as a provider for six other elementary schools that it had previously served under a contract with the District. In some instances, like Veterans Memorial Elementary School, the principal had decided to operate an “in-house” program, rather than selecting Sports Club. After the selection process, Sports Club informed parents about the impending changes, and asked the parents to contact the School Board if they wanted to keep Sports Club as a child care provider. The School Board was to ratify the elementary school principals’ decisions at a June 11, 2013, School Board meeting. Many parents, on learning about the RFQ’s terms and that Sports Club would no longer be providing child care at their child’s elementary school, became extremely upset. A particular concern was the District’s decision not to seek any parental involvement in the formulation of the RFQ and provisions setting the uniform fees, which increased the child care costs for the parents. On June 3, 2013, the RFQ became the subject of an unadopted rule challenge brought by a parent. Rather than proceeding to a final hearing, the School Board elected to initiate rulemaking concerning the unadopted rule challenge on September 13, 2013. In the initial Notice of rulemaking, the School Board specifically stated that although a proposed text of the rule was not available, the RFQ’s provisions regarding fees and program content would serve as a reference point. During the rulemaking workshops on October 16, 2013, and November 13, 2013, the District’s rule proposals amended certain provisions within the RFQ. Specifically, the proposals amended the RFQ’s terms concerning the amount of the uniform fees to be charged;7/ the granting of credits in the limited instance when a child has a medical excuse for not attending the after school child care;8/ setting out a parental survey for assessing the child care programs;9/ and reducing the fee paid by private providers for using the District’s facilities during the summer months.10/ The School Board at its December 10, 2013, meeting, enacted Amended School Board Policy 2262, which incorporated the RFQ completely into the policy in paragraph “L.” On its face, the School Board’s language in paragraph “L” is not clear as to which version of the RFQ was incorporated. However, the testimony and attachments to the Amended School Board Policy show that the School Board’s reference is referring to the RFQ, as the School Board had amended it during the rulemaking process. Amended School Board Policy 2262, with the RFQ’s terms setting out the uniform fees and program criteria, only applies to child care programs located at the District’s elementary schools. Amended School Board Policy 2262 has no application for child care services off-site. The facts here show that Sports Club owns its own facility, and provides transportation to the Sports Club’s private facility for students from some of the elementary schools that elected to provide “in-house” services. Parents sign a permission form, and Sports Club’s bus transports the child from the elementary school to Sports Club’s facility. At its private facility, Sports Club is free to offer child care programs at rates that it decides are appropriate, without any regard to the challenged rule. Sports Club’s claimed economic losses are the result of its decision to participate in the RFQ process, not the challenged rule. Sports Club was selected as a child care provider under the RFQ at the June 11, 2013, School Board meeting, and Sports Club subsequently entered into a contract with the District to provide child care services under the RFQ, on August 16, 2013. These events occurred months before the School Board adopted the challenged rule here at its December 10, 2013, meeting. Moreover, the undersigned found that Mr. Brettholtz credibly testified that the financial records provided by Sports Club did not follow accepted accounting practices, and could not be used to support Sports Club’s claimed economic losses.
