Findings Of Fact Respondent owned and operated a licensed child care facility in Fort Myers, pursuant to a license that expired June 30, 1997. The name of the licensed facility was Patti Cake Nursery. Respondent is not presently licensed to operate Patti Cake Nursery. By final order in DOAH Case No. 97-3032 on May 1, 1998, Petitioner either revoked this license or denied an application for its renewal on grounds separate from the training violations that are the subject of this Recommended Order. In the Partial Final Order and Remand Order, Petitioner cited the following paragraphs from the Administrative Complaint dated February 11, 1997, which commenced DOAH Case No. 97-2146: 10. [sic] On June 14, 1996, an agent from the Department conducted a routine inspection. At that time, five employees were lacking the 30 hours of training. An administrative warning letter was sent on June 24, 1996, giving a deadline for corrective action of December 30, 1996, and advising that future deficiencies would result in an administrative fine of $25.00 per employee per day of every day of noncompliance. 9. On January 28, 1997, an agent from the Department conducted a recall inspection and determined that staff had completed the 20 hour training, however, the 10 hour portion of the 30 hour training had not yet been obtained. On February 3, 1997, Child Care of Southwest Florida, Inc., had no record of their enrollment for this training. 11. The acts and practices in paragraphs 9 & 10 above violate 402.305(2)(d) Florida Statutes and Rule 10M12-12.002(4) Florida Administrative Code, which requires all employees to within 90 days of employment, [sic] child care personnel shall begin training to meet the 30 hour training requirement and must complete the requirement within one year of the date on which training began. The Department imposes the minimum fine of $25.00 per employee per day of noncompliance. To date there have been 30 business days of noncompliance by 3 employees for a fine thus far of $2,250.00. This fine will continue to accrue until compliance is met. The Preliminary Statement of the Recommended Order states, in relevant part, that the material allegations were that Respondent "employed staff without the required amount of training on January 28, 1997; and employed staff without the required amount of training on June 14, 1996. Petitioner sought fines of $200 for the January 28 violations and ongoing fines of $2250, plus $25 per day times three employees, for the June 14 violations." The $200 in fines sought for the January 28 violations pertained solely to the violations of the staffing-ratio and supervision requirements; Petitioner sought no fine for the January 28 alleged training violation. The Recommended Order ultimately sustained the staffing-ratio and supervision allegations and noted that Petitioner properly sought fines totaling $200 for these two separate violations. The only fines sought for training violations pertained to the alleged June 14 violations. The Recommended Order states that the Administrative Complaint charged that, as of the June 1996 inspection, five employees lacked the required 30 hours of training, but the Administrative Complaint did not charge that these employees were employed on the corrective date of December 30, 1996, and had failed to complete the required training by that date. The Recommended Order states that the Administrative Complaint charged that, as of the January 1997 "recall inspection," unidentified staff had failed to complete the required 10 hours, which is part of the 30 hours of required training. The amount of the fine for the alleged training violations confirms that they pertain to the failure to obtain the required training by the December 30 corrective date. As noted above, the fine is $2250 and accrues at $25 daily times three employees for the June 14 violations. A fine of this amount represents 30 days of violation: $2250 divided by three employees divided by $25. Likely, Petitioner calculated the fine from December 31, 1996, which was the first day following the end of the corrective period arising from the June 14 violations. Likely, the calculation did not run through the date of the Administrative Complaint due to the lapse of time between the preparation and filing of the Administrative Complaint. The allegations are thus that three employees who had not completed their required training as of the June 14, 1996, inspection had failed to complete their required training by the corrective date of December 30, 1996. The June 14, 1996, inspection report found that unnamed employees had not completed their required training. According to the Partial Final Order and Remand Order, by letter dated June 24, 1996, Petitioner identified five employees as lacking the required training. These employees were Michelle Stroman, Westonia Walker, Debra Dorenus, Joan Grey, and Dana Royal. Clearly, the appellate court concurred with the reasoning of the Partial Final Order and Remand Order that the June 14 inspection report must be read in conjunction with the June 24 letter, and, together, these documents charge that Respondent violated the training requirements because Ms. Stroman, Ms. Royal, and Ms. Grey had not completed the required training by the end of 1996. In its opening statement, Petitioner confirmed this interpretation of the issue when its counsel asserted that she would show that three employees had not completed their required training within one year and 90 days of their date of hire, which had expired by the time of the June 14 inspection; that these three employees likewise failed to complete their required training within the additional time granted by Petitioner through the December 30 corrective date; that two of the employees had not completed their required training until April 30, 1997; and that the third employee had not completed her required training through the date of the final hearing, May 20, 1997. One of Petitioner’s witnesses was Marjorie Wilson, who was employed as the Director of Education by Child Care of Southwest Florida, Inc. Child Care of Southwest Florida, Inc., held a contract with the State of Florida to provide the required 30 hours of training for staff of child care facilities. However, Child Care of Southwest Florida, Inc., is not the sole provider of such training in the State of Florida. There is no central registry of information concerning who has taken the required coursework. Each training provider must search its own records for such information. In this case, Ms. Wilson testified that she searched the records of only Child Care of Southwest Florida, Inc., and found information concerning Ms. Stroman, Ms. Royal, and Ms. Gray. Ms. Wilson testified that Ms. Stroman and Ms. Royal completed their 30 hours of training on April 30, 1997. Ms. Wilson testified that Ms. Grey completed the 20-hour class on November 2, 1996, but, checking their 10-hour classes "back over a couple of years [we] saw nothing and don’t know where else we could look." Tr. p. 68. At the hearing, Petitioner’s counsel admitted that she had not deposed Ms. Stroman, Ms. Royal, or Ms. Gray. Evidently, Petitioner did not serve requests for admission concerning their training. Petitioner’s counsel accurately noted that the required certificates of completion were not in the respective personnel files of these employees, but she conceded that this omission was relevant only as proof of the lack of required training and was not alleged as a separate basis for discipline. Petitioner proved that Ms. Stroman, Ms. Royal, and Ms. Gray took classes following the June 14 inspection. It is unclear why Petitioner did not obtain the testimony of these three employees to establish that they had never completed the necessary training in the required timeframe. Absent such affirmative evidence, Petitioner invites inferences based on the absence of findings from an examination of the records of Child Care of Southwest Florida, Inc., and the subsequent enrollment in classes of the three employees. However, these sources of information do not provide the same quantum of evidence that would be provided by the testimony of the three employees. As already noted, the records of Child Care of Southwest Florida, Inc., do not purport to be the records of all persons who have completed the required training, and the testimony of Ms. Wilson at times did not inspire great confidence. Absent testimony from the three employees, their motivation in taking the classes is open to speculation. Perhaps they took the classes to obtain the required training; perhaps, having already obtained the required training, they, unaware of the legal requirements, took the classes to satisfy the demands of the inspector or Respondent. At the hearing, Petitioner attempted to establish the dates of hire for these three employees through Petitioner Exhibit 12. This document is a form completed by Petitioner’s inspector based on her review of the personnel files kept at Respondent’s child care facility. Representing herself, Respondent objected on the basis of repetitiousness, and Judge Meale overruled her objection. However, this exhibit constitutes hearsay, and findings cannot be predicated strictly on hearsay. Even if Respondent waived her objection to this exhibit, the weight of the exhibit is a matter for the Administrative Law Judge to determine. In this case, the summary document prepared by Petitioner’s inspector does not provide clear and convincing evidence of the dates of hire for these three employees. Electing not to subpoena the personnel records themselves, Petitioner has failed to establish the claimed dates of hire for these three employees: February 10, 1994, for Ms. Stroman; February 28, 1995, for Ms. Royal; and February 28, 1995, for Ms. Grey. Respondent testified briefly on the training allegations. Her testimony did not establish any hire dates. As for training, her testimony was confusing as it attempted to establish a training deadline of November 1997. She was evidently less concerned with providing factual testimony than in advancing a legal argument directed toward the "proper" calculation of the one year and 90 days within which an employee must obtain the required training. At one point (Tr. p. 205), Respondent testified: "I feel that right now I have one that has not complied with this, and that’s Mrs. Joan Gray." This apparent concession does not make Petitioner's case, even as to only Ms. Gray. First, the apparent concession does not establish the direct facts of date of hire or date of completion of training; rather, it concedes only a failure to comply with Respondent’s imperfect and somewhat incomprehensible "understanding" of the ultimate legal requirements concerning training. Second, as for Respondent's knowledge of Ms. Gray's training, it is difficult even to infer that, given her imperiousness and lack of cooperation, Respondent would have bothered to talk to Ms. Gray to find out her training status. Even if she had, Respondent's knowledge would be hearsay that is insufficient to establish the fact of training. For these reasons, Respondent's apparent concession as to Ms. Gray fails to establish, by clear and convincing evidence, her dates of hire and completion of training.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing the remainder of the Administrative Complaint against Respondent. DONE AND ENTERED this 3rd day of December, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1998. COPIES FURNISHED: Eugenie G. Rehak District Legal Counsel Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906-0085 Bruce A. Tischler Greene & Tischler, P.A. 2503 Del Prado Boulevard, Suite 402 Cape Coral, Florida 33904 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Office of the General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are whether Petitioner has demonstrated by clear and convincing evidence that she is rehabilitated from disqualifying offenses, and whether Respondent’s intended agency action to deny her request for an exemption from disqualification is an abuse of discretion.
Findings Of Fact Parties Respondent is the state agency responsible for regulating employment of persons who provide direct service to APD clients. APD clients are a vulnerable population of individuals whose developmental disabilities include intellectual disability, autism, spina bifida, cerebral palsy, Prader-Willi syndrome, and Down syndrome. Respondent’s clients are often incapable of adequately communicating their needs or whether they have been harmed. Therefore, employment as a direct service provider to Respondent’s clients is considered a position of trust. A person seeking employment in a position of trust must undergo a pre-employment Level 2 background screening to ensure the person has not been convicted of crimes that may pose a threat to vulnerable persons. Petitioner is a 35-year-old female who seeks to qualify for employment with a direct service provider (Right Direction Christian Center, Inc.) in a position of trust. The position for which she applied required that she undergo Level 2 background screening. The Level 2 background screening revealed that Petitioner committed five disqualifying offenses between July 1, 2004, and August 4, 2005, which were described as follows: Count I: Aggravated Child Abuse with a Deadly Weapon (first degree felony); Count II: Aggravated Child Abuse by Great Bodily Harm (first degree felony); Count III: Child Neglect (third degree felony); Count IV: Child Neglect (third degree felony); and Count V: Child Neglect (third degree felony). Disqualifying Offenses The events leading to the disqualifying offenses occurred 11 years ago, when Petitioner was 24 years old. She had two biological children, a son (age 6) and a daughter (age 3), at the time of the events. Each of the disqualifying events involved Petitioner’s children. On August 4, 2005, the paternal aunt of Petitioner’s son observed injuries to the son’s foot and contacted the Leon County Sherriff’s Office to report suspected child abuse. The responding officer recorded his observations in a police report.2/ Petitioner’s son indicated that Petitioner struck him with a metal mop handle on his feet, legs, and arms as punishment. The deputy observed a three-quarters inch, circular-shaped laceration, with two smaller lacerations beside it on the inside of the son’s left heel. On August 16, 2005, a detective continued the investigation. During an interview with the detective, Petitioner’s son indicated that Petitioner struck him with a hanger causing “marks” on his back, which the detective photographed. The detective observed the “marks.” Petitioner’s son also complained of a toothache. He indicated Petitioner placed a heated hairpin in his tooth to resolve the tooth decay. The detective noted in his report that the tooth appeared to be decayed to the root. Petitioner also left her son and daughter at home without supervision, while Petitioner was at work. At the conclusion of the investigation, Petitioner was arrested and charged with child abuse and neglect. On October 26, 2005, Petitioner entered a plea of nolo contendere to all five disqualifying offenses described above. The court withheld adjudication of guilt, sentenced Petitioner to imprisonment of 70 days (with 62 days credited for time served), imposed 42 months of probation with special conditions that she: 1) follow orders of the Department of Children and Families; 2) complete parenting and anger management classes within one year; and 3) pay court costs and fees. Petitioner completed all terms and was released from probation on July 30, 2009. On May 10, 2016, Petitioner paid the civil judgment related to costs and fees imposed for her 2005 offenses and the court issued a Satisfaction of Judgment. Non-Disqualifying Offense In addition to disqualifying offenses, agencies may also consider criminal events that occur after the disqualifying offense. The background screening revealed one non- disqualifying offense. On June 13, 2006, Petitioner was charged with Violation of Probation (“VOP”) for driving without a valid driver’s license. As a result of the VOP charge, on November 16, 2006, the court issued an Order modifying the probation. The Order of modification added 30 days in jail with credit for time served and prohibited Petitioner from early termination of probation. Exemption Request/Agency Review By letter, Respondent notified Petitioner that she was disqualified from employment because of her criminal offenses. She requested an exemption from disqualification. Petitioner filed her Request for Exemption with the Department of Children and Families (“DCF”). DCF conducts the background screening and prepares an exemption investigation file on Respondent’s behalf. A DCF background screener compiled the investigation materials and forwarded the exemption review file to Respondent. Petitioner’s file was assigned to Lynne Daw for a recommendation regarding the exemption request. Ms. Daw is the regional operations manager for the Northwest region. She has been employed in that position since April 2012. Her job responsibilities include overseeing operations of the region, background screening, and eligibility for direct service providers. Ms. Daw reviewed Petitioner’s exemption request file, which included the exemption review summary, court documents, police reports and supporting affidavits, Petitioner’s exemption questionnaire, notice of termination of probation supervision, affidavit of good moral character, character reference letters, reference check verification form, high school diploma from Cornerstone Christian Correspondence School, and certificate of completion for a parenting class. Respondent considers the nature of the disqualifying offenses when evaluating a request for exemption. At hearing, Ms. Daw testified that the nature of the disqualifying criminal charges were concerning due to the vulnerability of the clients Respondent serves. In her review, Ms. Daw relied upon statements contained in the police report made by a physician who examined Petitioner’s son. Those statements are hearsay within hearsay. Because the statements do not meet any hearsay exception, they cannot be considered for a finding of fact. Respondent also considers the history of an applicant since the incident and other evidence or circumstances indicating whether the applicant would present a danger to Respondent’s clients if employment is permitted. Respondent considers counseling a factor, when the nature of the offense involves acts of anger. Ms. Daw testified that there was no evidence in the exemption packet to show Petitioner completed an anger management course. During the hearing, however, Petitioner refuted this contention and stated she completed an anger management course. The evidence in the record includes a notice of termination of supervision from Petitioner’s probation officer. Completion of an anger management course was a term of Petitioner’s probation. Therefore, a reasonable inference could be drawn that she completed the anger management course. Ms. Daw also expressed concern for safety of Respondent’s clients who could be transported by Petitioner. Of note, Petitioner’s background screening revealed several traffic violations. However, none of the violations involved injuries to passengers or others. Subsequent to the disqualifying offenses, Petitioner has furthered her education by earning a general education diploma (also known as GED) on December 1, 2011, and a certified nursing assistance (CNA) certification on November 16, 2015. She is not eligible to take the certification exam due to the Level 2 screening results. Petitioner also maintained employment after her convictions until June 4, 2015. From April 3, 2006, to June 4, 2015, Petitioner worked at Big Lots as a recovery associate. From April 8, 2012, to May 6, 2014, Petitioner worked at Vector Connect (Cutco) as a sales representative. She described her duties as selling cutlery. Petitioner provided favorable reference letters in support of her request for exemption. The first letter described Petitioner as patient, dependable, and trustworthy. The author indicated that Petitioner served as the primary caregiver for her physically disabled mother. It is not clear, however, the length of time Petitioner provided the care to the author’s mother or whether Petitioner was paid for her work. The second letter indicated Petitioner is kind and professional. The author of that letter is described as a friend. Overall, the letters indicated Petitioner may be a good employee but were not helpful on the issue of rehabilitation. Ms. Daw concluded that, considering the totality of the circumstances, there was no clear and convincing evidence that Petitioner could work in a position of trust without posing a safety risk to Respondent’s clients. As a result, Ms. Daw recommended the request for exemption be denied and submitted the exemption file to the agency director, Barbara Palmer, for final determination. The agency director issued the notice of denial on May 27, 2016, notifying Petitioner of Respondent’s determination to deny her request for exemption. Given the nature of harm due to physical abuse and the potential of harm due to neglect, Petitioner’s actions raise concern about her ability to work with vulnerable persons. Absent compelling evidence that such serious behavior will not be repeated, Petitioner has not met her burden. Ultimate Findings of Fact The evidence in this case did not clearly and convincingly establish that Petitioner has been rehabilitated from her disqualifying offenses. Despite Petitioner’s statements that she accepts full responsibility for her actions, she continues to shift blame to her son’s aunt for her arrest and continues to deny that she left her young children at home alone. To her credit, Petitioner has taken steps to improve her life by earning a GED and CNA certificate and by volunteering with the elderly in the community. However, such evidence is not sufficient clear and convincing evidence of rehabilitation. Respondent did not abuse its discretion in denying Petitioner’s request for exemption from the disqualifying offenses because, on these facts, a reasonable person would reach the same conclusion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying Petitioner, Shimika King’s, request for an exemption from disqualification. DONE AND ENTERED this 12th day of October, 2016, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 12th day of October, 2016.
The Issue Whether the Respondent committed an act of violence or used force on any person except in the lawful protection of one's self or another from physical harm and, therefore, should have his license renewal as a Class "D" Security Officer denied pursuant to Section 493.6118(1)(j) and (2), Florida Statutes.
Findings Of Fact The Petitioner, Michael S. Snow, was at all times relevant to these proceedings a licensed Class "D" Security Officer. The Respondent is the agency that licenses and regulates security officers pursuant to Chapter 493, Florida Statutes. On or about April 12, 2003, the Petitioner filed an application to renew his license as a Class "D" Security Officer. The Respondent advised the Petitioner by letter of its intent to deny his application; the Petitioner requested a hearing; and these proceedings ensued. Subsequently, the Respondent amended its letter of denial, and the letter of August 14, 2003, (Second Amended Administrative Denial of License), constitutes the charging document. That letter states that the application is denied because of the applicant's failure to qualify under Section 493.6118(1)(j), Florida Statutes, because the applicant committed an act of violence or used force on another person that was not for the lawful protection of himself or another. At the hearing, Union County Deputy Sheriff Terry Cranford was called to testify. Deputy Cranford identified an affidavit that he had prepared on November 24, 2002, in relation to an investigation in which the Petitioner was the alleged perpetrator of abuse of an 18-month old child. The affidavit, Respondent's Exhibit numbered 1, was prepared by the deputy after he had interviewed various witnesses in the case; however, the deputy did not observe any of the alleged conduct. The deputy did observe the child on November 22, 2002, during the course of his investigation. The alleged incident, which involved the Petitioner striking the child in the face, took place on November 21, 2002, some 24 hours earlier. The deputy did not mention in his affidavit any injuries he observed. The deputy did not testify at hearing to any injuries to the child. The deputy stated that the child was too young to provide any information on the incident. The deputy's investigative focus at the time he prepared the affidavit was on the mother of the child and another relative. He did not interview the Petitioner. All the information that he obtained about the Petitioner's involvement was through the Child Protective Investigator, Ms. Joiner. The Respondent called Janice Joiner, an investigator with the Department of Children and Family Services (DCFS), who testified regarding her investigation of the incident. Like the deputy, above, Ms Joiner did not observe the incident. It is clear from her testimony and that of the child's mother, that the child's natural father reported the incident. He picked up the child from the daycare on the afternoon of November 21, 2002, and raised questions about the red handprint on the child's face. As a result of the investigation, DCFS initiated a dependency action, which precluded with the right of the child's mother to have custody of the child during the investigation, legal proceedings, and subsequent mediation between attorneys representing the child's mother and father. As a result of the investigation initiated by the child's father, his ex-wife, the child's mother, had to agree to end her relationship with the Petitioner. Ms. Joiner testified regarding what the Petitioner told her. He admitted he struck the child while putting the child in his car seat, when the child grabbed his uniform epaulet and would not let go. Ms. Joiner opined that this was abusive, and stated that the doctor who examined the child said it was abusive. Ms. Joiner did not state upon what information she based this opinion. She mentioned the handprint she saw on the day following the incident, which she described as faint. The Petitioner entered pretrial intervention on the charges brought against him, and successfully completed the program which called for him, to among other things, attend parenting and anger management classes. He was never tried; has never plead or been found guilt of any offense related to this incident; and his civil rights were never affected.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department issue the Petitioner a Class D Security Officer's license. DONE AND ENTERED this 20th day of May, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2004. COPIES FURNISHED: Michael S. Snow Post Office Box 1131 MacClenny, Florida 32063 Michael T. McGuckin, Esquire Assistant General Counsel Department of Agriculture and Consumer Services Division of Licensing Post Office Box 6687 Tallahassee, Florida 32314-6687 Brenda D. Hyatt, Bureau Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32314-6687 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32314-6687
The Issue At issue is whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what penalties should be imposed.
Findings Of Fact The Department is authorized to regulate child care facilities pursuant to sections 402.301-402.319, Florida Statutes. Section 402.311 authorizes the Department to inspect licensed child care facilities. Section 402.310 authorizes the Department to take disciplinary action against child care facilities for violations of sections 402.301-402.319. A Step Above is a child care facility operating pursuant to License Number C07VO0425. The facility is located at 1122 Dr. Mary McLeod Bethune Boulevard, Daytona Beach, Florida 32114. Cynthia McGuire-Moore is the owner of A Step Above. Jennifer Overley works for the Department as a child care regulation licensing counselor. At the time of the hearing, Ms. Overley had worked in this position for two years. Ms. Overley was assigned to A Step Above as a licensing counselor. Among her duties was to inspect the facility on a regular basis to assure that it met the statutory and rule requirements regarding the ratio of staff to children. Ms. Overley testified that she first discovered a ratio violation at A Step Above on December 17, 2015. At the time, there was a requirement of one staff member for each four children. Ms. Overley observed a ratio of one staff member to seven children at A Step Above on that date. Ms. Overley testified that, under these circumstances, the licensing counselor is required to stay at the facility until the management brings it into ratio compliance. On this occasion, Ms. McGuire-Moore remedied the situation by having some parents come in and pick up their children. Because this was a first violation, Ms. Overley offered technical assistance and issued an administrative warning letter. Ms. Overley discovered a second ratio violation on March 30, 2016. She stated that Ms. McGuire-Moore was out of ratio in two rooms. In the first room, the ratio requirement was one staff person per four children, and the actual ratio was one staff member per seven children. In the second room, the required ratio was one staff member per four children and the actual ratio was one staff member per five children. Ms. McGuire-Moore was not at the facility when Ms. Overley first arrived. Ms. McGuire-Moore’s appearance restored the required ratio in one of the rooms. Ms. McGuire- Moore proceeded to rearrange the children in the second room to bring it into ratio. Ms. Overley testified that she issued an administrative letter to Respondent for the second violation. She also counseled Ms. McGuire-Moore regarding ratio violations and how to stay in ratio. Ms. Overley discovered a third ratio violation on June 16, 2016. At that time, a ratio of one staff person per six children was required, and she observed that the ratio was one staff person to nine children. Before Ms. Overley left the facility, another staff person arrived to bring it into the required ratio. The Department issued A Step Above a fine and another administrative warning letter. Ms. Overley testified that she discovered the fourth ratio violation on July 21, 2016. The ratio on that day was one staff member to ten children when it should have been one staff member to four children. Ms. Overley stated she stayed on-site until another staff person arrived. A Step Above was issued another fine, another administrative action letter, and was placed on six-months' probation. The probation period ran from October 2016 to February 2017. Ms. Overley also stated that during the probation period, she visited the daycare every month as required by law, and noted that A Step Above was in ratio for the entire term of its probation. Ms. Overley testified that in February 2017, the facility was placed on a provisional license because Ms. McGuire-Moore had allowed her director’s credential to lapse. Ms. McGuire-Moore received her new director’s credential in October 2017 and A Step Above was shortly thereafter returned to the status of a regular license. At the outset of the hearing, the Department stipulated that its revocation action was based only on the facility’s repeated ratio violations and not on Ms. McGuire-Moore’s lapsed director’s license. As to the fifth and final ratio violation that led the Department to seek revocation of A Step Above’s license, Ms. Overley testified that she went to the facility on September 21, 2017, to check on the status of Ms. McGuire- Moore’s director’s credential renewal. While there, Ms. Overley noted that the facility was once again out of ratio. The required ratio was one staff person per four children, and A Step Above was at one staff person per twelve children. Some of the children were infants. Because this was the fifth ratio violation, the Department began revocation proceedings. Ms. Overley testified that she had several conversations with Ms. McGuire-Moore as to the need to remain within ratio. Ms. Overley suggested that the facility reduce the need for employees by enrolling older children and declining to care for infants and one-year-olds, whose care requires more staffing. Ms. Overley testified that she conducted an inspection of A Step Above on December 15, 2017, while this formal hearing on revocation was pending. She observed the facility to be out of ratio yet again, with a ratio of one staff person per eight children, when the proper ratio was one to four. Ms. Overley was unsure how to proceed, as the revocation process was already underway and a formal hearing was scheduled. She consulted her supervisor, and together they determined that a cease and desist letter should be issued to A Step Above. Ms. Overley delivered the cease and desist letter on December 22, 2017, with directions that A Step Above should close its doors by December 29, 2017. Ms. Overley testified that she has since gone by the facility three times and has observed no activity. Family services counselor supervisor Betsy Lewis testified regarding the matrix that the Department follows when it discovers violations. Ms. Lewis testified that chapter 402 sets forth the Department's enforcement procedures and standards. Violations are classified according to their severity, with Class I being the most severe and Class III being the least severe. The ratio violations in this case are Class II violations, indicating that there is no imminent danger to a child, but there is the potential for harm. Ms. Lewis testified that Department rules provide for progressive discipline for repeated violations. As to Class II violations, a first violation would result in only a citation and technical assistance to the daycare. A second Class II violation results in a $50.00 fine, and a third Class II violation results in a $60.00 fine. A facility receiving a fourth Class II violation is usually placed on probation, as A Step Above was in this case. A fifth violation requires the Department to suspend or revoke the daycare’s license and to impose a fine of up to $100.00. Under all the circumstances, the Department chose to seek revocation and a $50.00 fine. Ms. McGuire-Moore testified on behalf of A Step Above. She did not contest the violations, but also declined to take responsibility for them. She blamed her employees for not showing up on time. Ms. McGuire-Moore also stated that she had been unaware that a daycare’s license could be revoked for repeated ratio violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order revoking License Number C07VO0425 issued to A Step Above Christian Academy, LLC, d/b/a A Step Above Christian Academy, LLC. DONE AND ENTERED this 21st day of March, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 21st day of March, 2018.
The Issue The issue is whether Respondent should be assessed a $150.00 civil penalty for violating Rule 65C-22.001, Florida Administrative Code, in three respects.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this case, Petitioner, Department of Children and Family Services (DCFS), has filed an Administrative Complaint against Respondent, Cool School, Inc., a licensed child care facility, seeking to impose a $150.00 civil penalty on Respondent for allegedly violating an agency rule in three respects. Respondent, which operates a facility at 57 College Drive, Orange Park, Florida, disputes the allegations and contends that the charges are either not true, or there are extenuating circumstances present which require dismissal of the charges or a reduction in the penalty. Rule 65C-22.001(5)(a), Florida Administrative Code, underpins this action and requires in relevant part that "[c]hild care personnel at the facility must be assigned to provide direct supervision to a specific group of children and be present with that group of children at all times." The Administrative Complaint alleges that in September 2000 Respondent violated this rule by (a) allowing a two-year-old child to exit the facility to the playground, without supervision, clad only in a shirt and shoes; (b) allowing two children under the age of thirteen to change the diaper of a seven-month-old infant in the bathroom, without supervision by the staff; and (c) allowing at least five school-aged children to leave the premises and get items from their book bags on the front porch, without supervision. The DCFS proposes to impose a $50.00 civil penalty for each violation, or a total of $150.00. DCFS has the responsibility of periodically inspecting licensed child care facilities to ensure that they are complying with agency rules and state law. To carry out this duty, DCFS typically assigns its licensing counselors a number of facilities to monitor. In this case, Susan Kipen, a licensing counselor stationed in Jacksonville, was assigned the task of monitoring more than 90 such facilities in the Jacksonville area, including Respondent. In response to a complaint filed by an unnamed parent on September 18, 2000, Kipen inspected Respondent's facility on the afternoon of September 20, 2000. The parent had reported that her two-year old child had wandered into the playground area without supervision, and that the diapers on her seven-month-old child had been changed by two school age children without appropriate supervision. During her visit, Kipen prepared a document entitled Complaint Investigation in which she recited the alleged violations for which Respondent was being charged. They included, among other things, the two complaints previously lodged by the parent, namely, that a "two year old did get outside by himself, he only had shirt and shoes," and that a "7 month [old] was changed by two schoolers." Although the licensing counselor did not actually observe the two incidents reported by the parent, she included them in her report because she says Respondent's owner, Antoinette Garrity, "confirmed" that they were true by reading and signing the report. However, Garrity understood that her signature merely confirmed that she had read the reported charges, not that she agreed with them. The only first-hand evidence on these two charges was that presented by Respondent. The complaining parent did not testify. In addition to the above two charges, the counselor also charged Respondent with allowing "at least five (5) school-aged children, one at a time, and unsupervised, [to leave] the center by the front door to get items from their book bags located on the front porch." This charge was based on a personal observation by the licensing counselor during her inspection. The first violation concerns a charge that a two- year-old left the facility unattended and was "discovered a few minutes later on the playground by the assistant director." On this issue, the evidence shows that the child was using the potty in the presence of a facility worker, Sharon Dunn, who was also changing a baby's diapers at the same time. The two-year-old suddenly jumped off the potty (without his pants), ran to the door, opened it, and went outside on the porch. Dunn, who had the child in her view at all times from the bathroom window, asked the facility's assistant director, Regina Harewood, who was nearby, "Can you get him?" Harewood acknowledged that she could and proceeded to grab the child and bring him back into into the classroom. The child was never in any danger since he was being observed at all times and was retrieved a few moments after he ran out the door. In addition, Harewood was close enough to be capable of responding to an emergency at all times. Under these circumstances, it is found that no violation of the rule occurred. The second charge concerns an allegation that "two (2) children under the age of 13 years changed the diaper of a 7-month-old infant in the bathroom and no staff was present to supervise [them]." The evidence shows that a new worker had a baby in the bathroom for the purpose of changing his diapers. Garrity acknowledged that when the worker left the room to go outside for a moment, the worker improperly allowed two schoolers who were in the same room to change the diapers. While the diapers were being changed, the baby's mother came into the room. She then complained to staff personnel and later filed a complaint with DCFS. Garrity admonished both the worker and children that this situation should never occur again. Although there was no evidence on how this set of events actually or potentially jeopardized the baby's safety or well-being, a technical violation of the rule has been established since there were no supervisory personnel in the bathroom for a few moments. Finally, during her inspection, the counselor observed at least five children, one at a time, walk outside the front door to retrieve items from their book bags, which were lying on the front porch of the facility, and then return inside. At that time, it was the practice of the children to leave their book bags on the front porch when they arrived at the facility each day. This evidence was not contradicted. Because the front porch was no more than 25 or 30 feet from the sidewalk, which was used by the general public, and there was an apartment complex nearby, the children had the opportunity to gain access to areas frequented by the public. This is true even though the assistant director says that while she was on duty, she was by the front door "the majority of the time." Therefore, the children were potentially at risk when they briefly left the premises to retrieve items from their book bags. Respondent's owner admitted that she "hadn't thought of this situation," and after the incident occurred, she instructed the children that all book bags must be brought into the dayroom. Notwithstanding this corrective action, a violation of the rule has been established. In mitigation, Respondent's owner suggested that the entire matter was caused by a vindictive parent who owed her facility money and filed the charges after a heated confrontation. She also worries that each time the facility receives a civil penalty, it "kills" her business. Finally, she described her facility as a "pretty good" day care facility, and insisted that she puts safety first for the children. Respondent has been the subject of one other disciplinary action in which she was found guilty of failing to submit background screening documents within ten days of employment of seven staff members. In that matter, which was concluded after the Administrative Complaint in this case was issued, she was given a $350.00 civil penalty. See Cool School, Inc. v. Dep't of Children and Family Services, DOAH Case No. 00-1421 (Final Order, Feb. 28, 2001).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order finding that Respondent violated Rule 65C-22.001(5)(a), Florida Administrative Code, in two respects, and that it have a $100.00 civil penalty imposed. The remaining charge should be dismissed. DONE AND ENTERED this 23rd day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 23rd day of March, 2001. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Antoinette Garrity Cool School, Inc. 57 College Drive Orange Park, Florida 32065 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue The issue in this matter is whether the Department of Children and Families should impose an administrative fine on Respondent.
Findings Of Fact The Department is the state agency charged with regulating licensed or registered child care facilities in Florida. Respondent is licensed to operate a child care facility in Lakeland, Florida. The Department seeks to sanction Respondent based on an incident that occurred on November 2, 2015. The Department’s Administrative Complaint specifically alleges that: The facility driver, Antuan Bunkley was looking at his phone while transporting children in the facility’s vehicle. Two witnesses observed Antuan Bunkley texting and/or scrolling while driving. The witnesses observed a phone in Antuan’s hands and him looking down several times while driving with children in the van. Several children on the van told the Department that Antuan text [sic] while he drives, plays games on his phone, and receives calls while driving. The Department asserts that Mr. Bunkley must “be able to respond to the needs of the children” and “be alert and avoid any and all distractions in order to effectively respond to those needs.” The Department categorized Respondent’s (i.e., Mr. Bunkley’s) actions as a Class I violation of a child care licensing standard. The Department desires to fine Respondent in the amount of $250 because Mr. Bunkley’s “inadequate supervision posed an imminent threat to the child, or could or did result in death or serious harm to the health, safety or well-being of a child.” The Department issued the Administrative Complaint following a complaint received from Shana Nicholes, who had observed Mr. Bunkley driving Respondent’s van. At the final hearing, Ms. Nicholes testified that on November 2, 2015, at approximately 3:30 p.m., she was driving her sports utility vehicle on Highway 98 North in Lakeland. Her brother was riding with her in the passenger seat. As she drove, her brother called her attention to Respondent’s van which was driving in front of them. He commented that the van was full of children who were not wearing seat belts. As her vehicle drew closer to the van, Ms. Nicholes observed that not only were the children not wearing seat belts, but she believed that she saw the driver (Mr. Bunkley) looking down at his cell phone while driving. Ms. Nicholes explained that Highway 98 North has four lanes through Lakeland. Over a stretch of about three to four miles, Ms. Nicholes drove in the left side lane roughly parallel to Mr. Bunkley. Ms. Nicholes testified that during that drive, she saw Mr. Bunkley holding a phone. She further stated that he looked down at the phone in his lap several times as he drove. Ms. Nicholes guessed that Mr. Bunkley lowered his eyes for approximately 10 to 20 seconds each time he glanced down. She stressed that “he wasn’t paying attention to the road.” Ms. Nicholes expressed that the two vehicles drove as fast as 45 mph. Ms. Nicholes was quite alarmed by Mr. Bunkley’s actions. As she drove next to him, she took several photographs of him with her cell phone. Copies of Ms. Nicholes’ photographs were introduced at the final hearing. The photographs show Mr. Bunkley looking down as he is sitting in the driver’s seat. However, neither Mr. Bunkley’s right hand nor a cell phone are visible in the pictures. (Respondent disputes that the van was moving at the time Ms. Nicholes took the pictures.) Ms. Nicholes was shocked by the incident. She was worried for the safety of the children in the van. She commented that if her child were riding in the van, and the driver was distracted like Mr. Bunkley was, she would be furious. Later that day, Ms. Nicholes posted her photographs of Mr. Bunkley driving Respondent’s van on her Facebook page. She added the caption, “Well, this is safe, we’re doing about 45 down 98 and this guy is texting with a van full of children. Not cool, dude.” The next morning, Ms. Nicholes was still distressed by what she had witnessed. Therefore, she decided to visit Respondent’s place of business to discuss the incident. Ms. Nicholes had no knowledge of Respondent prior to November 2, 2015. She identified Respondent from the name on the side of the van. Ms. Nicholes maintained that her only interest in approaching Respondent was to alert Respondent of the risk to the children in the van because of a distracted driver. When Ms. Nicholes arrived at Respondent’s facility, she spoke to Elizabeth Jackson. Ms. Nicholes advised Ms. Jackson that she had observed her van driver using his cell phone while driving, and she showed Ms. Jackson her photographs. Ms. Jackson informed Ms. Nicholes that the driver was her son, Antuan Bunkley. Ms. Jackson told Ms. Nicholes that she would be taking him off driving until the matter was resolved. After her meeting with Ms. Jackson, Ms. Nicholes drove to Subway for lunch. While standing in line, she was approached by a woman who identified herself as an employee of Respondent. The employee asked Ms. Nicholes if she was the one who had posted the photos of the van driver on Facebook. At that point, Mr. Bunkley entered Subway. Ms. Nicholes took a picture of Mr. Bunkley while he was standing in line behind her. The next day, Ms. Nicholes reported the incident to the Department. Upon receiving Ms. Nicholes’ complaint, the Department initiated an investigation. The case was assigned to Brandy Queen, a Child Protective Investigator. Cheryl Dishong, a Child Care Regulations Counselor, assisted her. Ms. Queen testified that she started her investigation by visiting Respondent’s facility. She was accompanied by Ms. Dishong. There, she met Ms. Jackson. During their conversation, Ms. Jackson acknowledged that her facility owned the van and that the driver was Mr. Bunkley. Ms. Jackson told Ms. Queen that Mr. Bunkley had picked up six children on the afternoon of November 2, 2015. She provided the children’s names to Ms. Queen. Ms. Jackson also allowed Ms. Queen and Ms. Dishong to examine the van. Ms. Queen and Ms. Dishong spent some time climbing through the van. The van has two bucket seats in the front row and three rows of back seats. Ms. Queen and Ms. Dishong sat in different seats to determine the vantage point of the driver by the children riding in the van. They wanted to see if the children could have observed Mr. Bunkley texting while he drove. Ms. Dishong climbed into the back rear seat. Taking into account that she is taller than the children who rode in the van, Ms. Dishong slouched down to simulate a child passenger. Ms. Queen stated that Ms. Dishong believed that a child could adequately see the driver from the back, rear seat. However, Ms. Queen conceded that during their inspection of the van, no one was sitting between the rear back seat and the drivers’ seat. Neither did a driver sit in the front seat to determine whether Mr. Bunkley’s body would prevent a clear view of his hand while he was driving (particularly, a driver as large as Mr. Bunkley as discussed below). Next, Ms. Queen interviewed the six children who had been riding with Mr. Bunkley on the afternoon of November 2, 2015. At the final hearing, Ms. Queen explained that, before she asked the children about Mr. Bunkley’s driving, she presented several preliminary questions to ascertain whether the children understood the difference between telling the truth and telling a lie. Ms. Queen testified that she believed the children were telling her the truth during her interview. However, the children’s statements were not given under oath.3/ Ms. Queen stated that, based on the evidence she gathered, which included the children’s statements, Ms. Nicholes’ pictures,4/ and her own observations of the van, she “verified” that Mr. Bunkley’s conduct constituted inadequate supervision. Ms. Queen further stated that Mr. Bunkley’s driving while distracted caused concern since he ran “the risk of getting into a wreck.” She believed that he had placed himself and the children in his care “at risk of harm, of dying.” Of the six children, the Department presented A.O. at the final hearing to tell her story.5/ A.O. was seven years old at the time of the incident. (She was eight years old on the date of the final hearing.) A.O. testified that she had attended Respondent’s child care facility for about a year. A.O. was familiar with Mr. Bunkley and identified him in Ms. Nicholes’ photographs. A.O. relayed that three to four different people had driven her in Respondent’s van, including Mr. Bunkley. A.O. stated that on the afternoon in question, Mr. Bunkley picked her up after school in Respondent’s van. At the final hearing, A.O. demonstrated proficient knowledge of the functions of a cell phone. A.O. described various uses of a cell phone including talking, texting, playing games, and looking at Facebook. A.O. testified that Mr. Bunkley used his cell phone when he drove the van. A.O. stated that Mr. Bunkley texts while driving. By “texting,” A.O. recounted that she observed Mr. Bunkley moving his fingers on the phone at the same time he was driving. A.O. also described seeing Mr. Bunkley looking at Facebook on his cell phone while he was driving the van. A.O. added that sometimes when she was riding with Mr. Bunkley, he swerved off the road while he was using his phone. She also described how the van would sometimes get near other cars on the road. She commented that Mr. Bunkley occasionally drives the van with his knees. She imparted that the way he drove scared her sometimes. A.O. expressed that when she rode in the van, she sat in the very back seat on the right side. A.O. conveyed that, despite sitting in the very back row, she could still see Mr. Bunkley hold and use a cell phone. At the final hearing, Mr. Bunkley acknowledged that he was driving Respondent’s van on November 2, 2015, and was the individual seen in Ms. Nicholes’ photographs. Mr. Bunkley also confirmed that he was transporting children in the van at that time. Mr. Bunkley firmly denied that he was texting while driving Respondent’s van. He denied ever using his phone while driving the van. Mr. Bunkley admitted that he does carry his cell phone when he drives. However, he claimed that he routinely keeps his phone in his pocket. Mr. Bunkley asserted that he would only use his cell phone in the case of an emergency. Mr. Bunkley expressed that Ms. Nicholes must have seen him looking down at his transportation log when she observed him on November 2, 2015. Mr. Bunkley explained that his log sheet registers when and where he is to pick up and drop off children. Mr. Bunkley relayed that he periodically reviews the log sheet as he transports children. However, he only checks the transportation log when the van is stopped. He remarked that Ms. Nicholes must have taken her pictures of him on Highway 98 North when they were stopped at a stoplight. Mr. Bunkley stated that he is 5’11” tall and weighs 330 pounds. Because of his large size, he did not believe that it was possible for A.O. to see anything he held in his lap from her seat in the right rear of the van. Mr. Bunkley offered his cell phone records to support his assertion that he was not texting on the afternoon of November 2, 2015. However, the phone records do not confirm whether Mr. Bunkley was accessing or reading text messages as he was driving. Nor do they provide any information regarding his alleged “scrolling” or using Facebook. Respondent is owned and operated by Ms. Jackson. She is also Mr. Bunkley’s mother. Ms. Jackson did not believe that Mr. Bunkley was texting on his cell phone while he was driving the van. Instead, she posited that the van was stationary when Ms. Nicholes took her pictures, and that Mr. Bunkley was looking down at his transportation log. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record does not establish that Mr. Bunkley was scrolling and/or texting on his cell phone while driving Respondent’s van on November 2, 2015. Accordingly, the Department failed to meet its burden of proving that Respondent committed “inadequate supervision” which would support an administrative fine under section 402.310.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Administrative Complaint against Respondent, The Early Years Child Development Center. DONE AND ENTERED this 30th day of March, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 30th day of March, 2017.
