The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Sylvan L. Stahl, Jr., for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner's wife would be allowed to operate a child day care center in her home, a position she is now barred from holding because her husband has a disqualifying offense and lives in the same household. Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on February 13, 1998, a DCFS committee denied the request. Petitioner is now barred from employment in which he would have contact with children because of a disqualifying offense which occurred in September 1989. At that time, Petitioner was arrested in Citrus County, Florida, for the offense of armed robbery, a felony under Chapter 812, Florida Statutes (1989). Although the documents pertaining to the offense were not made a part of this record, Petitioner established that in September 1989, he attempted to rob a bank with a firearm. Under a plea bargain arrangement with the prosecutor, he pled guilty to the charge and was sentenced to four and one-half years in prison, to be followed by ten years of supervised probation. Petitioner served only the three-year mandatory minimum sentence, and he then successfully completed his probation after only three years. No person was injured during the incident. After being released from prison, Petitioner worked for three years with a pallet firm owned by his father, rising to the position of supervisor. During his three-year tenure with the firm, Petitioner increased the size of the company from five to twenty employees. For the last six months or so, Petitioner has been employed by Emergency One, an Ocala firm which manufactures fire trucks. He also has a second job with his brother-in-law's landscaping firm. The two jobs require that Petitioner begin his work day at 7:00 a.m. and that he continue working until 1:30 a.m. Petitioner's wife intends to operate a small day care center out of the family home. It is fair to infer that due to Petitioner's lengthy working hours, he will spend little, if any, time at his home while the children are entrusted to his wife's care. Since his arrest and plea of guilty almost nine years ago, Petitioner has had no other blemishes on his record. He has been steadily employed since 1994 in positions of responsibility. Petitioner is married to a minister's daughter, has a young child, and has recently purchased a new home. Letters received in evidence corroborate the testimony of him and his wife that he will pose no threat to children if the exemption is granted. Petitioner expressed remorse for his actions in 1989, calling his conduct "stupid," and indicating he was "confused" at that time. Given his continuous employment history, good conduct during his shortened probation period, stable family life, and the time elapsed since the disqualifying offense, it is found that Petitioner is sufficiently rehabilitated to justify granting the exemption.
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 granting Petitioner's request for an exemption from disqualification from employment in a position of special trust. DONE AND ENTERED this 14th day of May, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Sylvan L. Stahl, Jr. 11848 Southeast 71st Avenue Road Belleview, Florida 34420 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785
The Issue The issue is whether Petitioner is entitled to the renewal of her license as the operator of a child care facility.
Findings Of Fact Petitioner was licensed to operate a child care facility continuously from December 31, 1985, through June 30, 1997. Several licenses issued by Respondent to Petitioner were provisional due to Respondent's concerns about Petitioner's compliance with various statutes and rules governing child care facilities. (References to Respondent include the predecessor agency to the Department of Children and Family Services.) On June 5, 1997, Respondent notified Petitioner that it would not renew her child care facility license when it expired on June 30, 1997. Presumably because Petitioner timely requested a hearing, Respondent allowed her to continue to operate her facility past June 30. However, on July 3, 1997, Respondent issued an order of emergency suspension pending review of the decision not to renew. Petitioner has not since operated her child care facility. The two major issues in this case involve Petitioner's repeated failures to employ sufficient staff to satisfy the staff-to-child ratios and repeated failures to ensure that staff directly supervise all children. Although these standards are related in purpose, the staffing-ratio standard requires that a certain number of staffpersons be responsible for a maximum number of children, with a lower ratio for younger children, and the direct-supervision standard requires in most instances that a staffperson be in the same room as the children. As a result of 31 facility inspections, Respondent identified 40 violations of these two standards. Five of these inspections resulted in Respondent filing administrative complaints, in response to which Petitioner eventually paid relatively small fines. The remaining 26 inspections resulted in nothing more serious than Respondent issuing warning letters. The first Administrative Complaint, which is dated February 8, 1993, alleges that Respondent conducted inspections on August 9 and September 22, 1992, and found each time insufficient staff to satisfy the required ratio of staff to children. The Administrative Complaint alleges that Respondent sent Petitioner a letter on October 2, 1992, warning that further infractions of the staffing ratio could result in a fine, but Respondent's inspectors found on December 16, 1992, another staffing-ratio violation, as well as a direct-supervision violation. The Administrative Complaint seeks a fine of $30. Petitioner did not contest the allegations of the February 8 Administrative Complaint. Instead, she paid the $30 fine on April 19, 1993. Respondent filed another Administrative Complaint dated June 9, 1993. The Administrative Complaint alleges that a 15-year-old staffperson had not undergone the necessary screening. Three months later, Respondent converted the Administrative Complaint to a warning due to Petitioner's confusion concerning the screening requirements applicable to such a young staffperson. Respondent filed a third Administrative Complaint on December 9, 1993. The Administrative Complaint alleges that, on November 17, 1993, three staffpersons were supervising 37 children, in violation of the staffing ratios and Petitioner's licensed capacity. Issuing a warning as to the capacity violation, Respondent sought a $75 fine for the staffing-ratio violation. Petitioner did not contest the December 9 Administrative Complaint. Instead, she paid the $75 fine on February 17, 1994. Respondent filed a fourth Administrative Complaint on February 17, 1995. The Administrative Complaint alleges, among other things, that Petitioner did not have a sink with the required number of compartments to allow the kind of food preparation that she was undertaking at the facility. The parties settled this allegation without the imposition of a fine or other discipline. Respondent filed a fifth Administrative Complaint on May 23, 1996. The Administrative Complaint alleges that Petitioner's employees propped up three feeding bottles for infants. The Administrative Complaint seeks a $50 fine. Petitioner paid the $50 fine on June 27, 1996. Respondent filed the sixth and seventh Administrative Complaints on February 11 and 26, 1997. Petitioner contested these allegations, as well as the allegations contained in an eighth Administrative Complaint dated March 18, 1997. All three complaints were consolidated for a single hearing. The partial final order resulting from the hearing on the three complaints imposed $400 in fines against Petitioner for two violations of the staffing ratios (alleged in the February 11 Administrative Complaint), one violation of the staffing ratios (alleged in the February 26 Administrative Complaint), and one violation of the direct-supervision requirement (alleged in the February 26 Administrative Complaint). The partial final order dismissed the March 18 Administrative Complaint and remanded allegations of inadequate training of staff. (The administrative law judge declined the remand, and the Respondent has appealed the order declining remand.) In addition to the above instances of violations of staffing ratios or direct supervision, Respondent also proved numerous other instances of violations of these two minimum- care standards. Respondent proved that Petitioner violated the following minimum-care standards: May 7, 1986 (staffing ratio); May 13, 1987 (staffing ratio and capacity limit); June 20, 1987 (staffing ratio); November 18, 1987 (staffing ratio); April 14, 1988 (staffing ratio); May 6, 1988 (staffing ratio); June 7, 1988 (staffing ratio); August 16, 1988 (staffing ratio); May 16, 1989 (staffing ratio and direct supervision); March 2, 1990 (staffing ratio); June 22, 1990 (direct supervision); October 2, 1990 (staffing ratio); October 5, 1990 (staffing ratio and direct supervision); November 5, 1990 (staffing ratio and direct supervision); November 8, 1990 (staffing ratio); November 15, 1990 (staffing ratio); May 14, 1991 (direct supervision); December 16, 1992 (staffing ratio and direct supervision); March 26, 1993 (staffing ratio); April 7, 1994 (staffing ratio and direct supervision); June 29, 1994 (direct supervision); July 28, 1995 (staffing ratio and direct supervision); December 6, 1995 (staffing ratio); January 28, 1997 (staffing ratio and direct supervision); February 17, 1997 (staffing ratio and direct supervision); June 25, 1997 (staffing ratio); and June 30, 1997 (staffing ratio). Respondent issued inspection reports for all of the violations listed in the preceding paragraph and provided Petitioner with copies of this documentation. Respondent periodically wrote letters to Petitioner advising her of the legal requirements as to staff ratios and direct supervision. Respondent repeatedly offered Petitioner technical advice regarding these crucial minimum standards for the provision of child care. There is no possibility that Petitioner did not understand the staffing-ratio and direct-supervision requirements. Petitioner's noncompliance constituted nothing less than defiance of these two minimum-care requirements over a period of 11 years. From 1986 through 1990, Petitioner violated these two standards 16 times. In 1991, she violated them only once. However, she violated them three times in 1992--resulting in the first administrative fine for the violation of these standards. Petitioner violated these standards twice in 1993--the second violation resulting in the second administrative fine for the violation of these standards. Petitioner violated the staffing-ratio and direct- supervision standards twice in 1994 and twice in 1995, but not at all in 1996. However, she violated these standards six times in 1997, including twice after the issuance of a third administrative complaint concerning the violation of these standards. These last two, particularly ill-timed violations, led directly to the decision not to renew her license and the later decision not to allow her to operate pending review of the nonrenewal decision. Although Petitioner has greatly reduced the number of her violations of the staffing-ratio and direct-supervision standards, she has nonetheless refused to comply with these important requirements designed to ensure the safety of the children for whom she is caring. Her violation of these standards while cases were still pending over earlier violations betrays a hardened resolve not to comply with these two standards. Respondent also proved that Petitioner repeatedly violated other requirements, such as for timely screening of employees and recordkeeping. However, Petitioner's repeated failures to comply with the staffing-ratio and direct- supervision requirements are sufficient to warrant the denial of her application for renewal of her license or, in the alternative, the revocation of her license.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's application for renewal of her child care facility license. DONE AND ENTERED this 8th day of April, 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 8th day of April, 1998. COPIES FURNISHED: Bruce A. Tischler Greene & Tischler, P.A. 10175 Six Mile Cypress Parkway Suite 4 Fort Myers, Florida 33912 Eugenie G. Rehak District Legal Counsel Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, 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 issue is whether the provisional license issued to Kiddie Kampus Day Care (Respondent), should be renewed.
Findings Of Fact Reatha Simmons is the owner of the Respondent facility and is licensed by Petitioner to operate a Child Care Facility under License No. DC-1320-E. As a consequence of a pattern of problems and violations at the Kiddie Kampus Day Care, Respondent was placed on provisional license status from January 20, 2000 through April 1, 2000. An inspection of the Respondent facility on January 7, 2000, revealed that the facility was "out-of-ratio" with too many children and not enough supervising employees, as well as insufficient square footage. Additional citations were made for Respondent's employee screening violations and lack of tuberculosis (TB) testing of the employees. A supervisory conference was held with Reatha Simmons and Petitioner employees on January 13, 2000, to discuss the pattern of repeat violations and non-compliance by the Respondent facility. Consequently, the facility was placed on a three-month provisional license status and Reatha Simmons was warned that it was her last chance to correct repeated violations. Another inspection on February 16, 2000, by Petitioner's representative revealed continued personnel screening violations and various facility violations. Included within the violations were two children who did not have required physicals on January 27, 2000, and were still out of compliance. An attempted review of documents at the Respondent facility by Petitioner's representative on March 6, 2000, was not possible as the documents were locked in an office in the facility at that time. Problems occurred at the Respondent facility on March 4, 2000. An underage employee was alone for approximately nine hours with children at the facility. There was a ratio violation as to the number and ages of the children at the facility. A family member was called to come and pick up a child early and the facility closed earlier than its posted hours. These matters were reported to Petitioner's personnel on March 7, 2000. At an inspection by Petitioner personnel on March 9, 2000, Respondent acknowledged the veracity of the March 4, 2000 incident. On March 16, 2000, an inspection of the facility showed additional fill dirt or ground cover was needed under the monkey bars, a piece of recreational machinery. While employee fingerprint and background verification were eventually accomplished, along with required TB tests, these actions were tardy and not expediently accomplished. Likewise, physical examinations of two children were not timely accomplished.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be entered by Petitioner confirming the decision not to renew Respondent's license. DONE AND ENTERED this 19th day of December, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2000. COPIES FURNISHED: Reatha Simmons, Qualified Representative Kiddie Kampus Day Care 1216 Portland Street Pensacola, Florida 32534 Eric D. Schurger, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue At issue in this proceeding is whether Petitioner's request for exemption from employment disqualification should be approved.
Findings Of Fact In or about December 1998, the Department of Children and Family Services (Department) initiated an employment screening pursuant to Chapter 435, Florida Statutes, incident to Petitioner's application for employment at a child day care center in Delray Beach, Florida. That screening revealed that on September 28, 1998, Petitioner was arrested for exposure of sexual organs, a violation of Section 800.03, Florida Statutes, and unnatural and lascivious acts, a violation of Section 800.02, Florida Statutes. The screening further revealed that on October 20, 1998, Respondent entered a plea of guilty to the charges; adjudication was withheld; and Respondent was placed on probation for a term of 6 months. Given the screening results, the Department notified Respondent by letter of December 14, 1998, that he was ineligible for continued employment in a position of special trust (working with children or the developmentally disabled), and accorded him an opportunity to request an exemption under the provisions of Section 435.07, Florida Statutes. Petitioner requested such an exemption, and the Department duly-convened a hearing to consider Petitioner's request. Subsequently, the Department advised Petitioner by letter of January 29, 1999, that his request for exemption was denied, and these proceedings ensued at Petitioner's request to challenge the Department's decision. As observed in the preliminary statement, neither Petitioner nor anyone on his behalf appeared at hearing, and no proof was offered to support his claim for exemption. Such failing is dispositive of the case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for exemption from employment disqualification. DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1999. COPIES FURNISHED: Henry C. Cornelius 2315 Southwest 22nd Avenue Boynton Beach, Florida 33445 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401 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 Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact After respondent Debra T. Acosta and her husband Joe, a noncommissioned Air Force officer, the parents of Joseph M., 16 at the time of hearing, Jason M. (13), Shawn W. (9), and Tisouli (6), applied to HRS for a day care center license, they were required to have their fingerprints taken and to undergo a background check or "screening." The background check turned up a report of an investigation Air Force personnel had conducted on account of information Carla Burrell, formerly known as Carla Knight, had supplied. The first two numbered paragraphs of the report read: On 2 Mar 88, SSgt CARLA K. BURRELL, USAF Clinic, RAF Bentwaters (RAF), UK provided the following information: She arrived at RAFB from Eglin AFB (EAFB), FL on 21 Apr 85. She was stationed at EAFB from Jan 83 until Apr 85. While stationed at EAFB, her daughter, Angela Kristen Knight, female born: 21 Jan 80, VA, Civ, SSAN: 066-70-1577 (hereafter referred to as VICTIM) stayed with a babysitter during the day. The babysitter was identified as DEBRA ACOSTA, dependent wife of SUBJECT who resides at 318 Blackjack Court, EAFB, FL. DEBRA ACOSTA babysat for several families. After arrival at RAFB, VICTIM entered school and seemed to be worried about something but BURRELL wasn't sure of what it was. According to BURRELL, VICTIM received briefings in school about sexual abuse and was told it wasn't nice for adults to touch children in certain places. This led VICTIM to confide in BURRELL that while they had been stationed at EAFB, SUBJECT would make VICTIM and other young females being babysat by SUBJECT's wife take off their clothes and lie on the bed. On numerous occasions, SUBJECT had placed his hands on VICTIM's bottom and had placed his hands between VICTIM's legs. SUBJECT had touched VICTIM's vagina but had never actually penetrated her vagina. SUBJECT has done the same thing to other female children, but VICTIM stated SUBJECT didn't do anything to boys. In addition, VICTIM told BURRELL SUBJECT would drop his pants and underwear and would place his penis between the legs of the females but did not insert his penis into their vaginas. On 6 Mar 88, VICTIM was interviewed by SA STANLEY B. CRISP and SA BETTY J. WILKINS in the presence of her mother. VICTIM provided essentially the same information as was provided by her mother on 2 Mar 88. VICTIM provided the following additional information not previously reported by her mother. SUBJECT had made her and other young females go into the bedroom at the same time, sometimes even with DEBRA ACOSTA being at home. VICTIM stated however that DEBRA didn't know what SUBJECT was doing. At other times DEBRA wouldn't be at home when the incidents took place. VICTIM couldn't recall the names of the other children who were involved, but stated there were others in the bedroom at the same time. VICTIM stated SUBJECT had never hurt her and had never threatened her with harm. SUBJECT had told the children that they shouldn't tell anyone about what he was doing to them. VICTIM said she wasn't afraid of SUBJECT. The bedroom used was described by VICTIM as an upstairs, spare bedroom. SUBJECT had never made the children go into his bedroom. VICTIM had never told anyone about the incidents until she was told in school of the actions of SUBJECT were wrong. Petitioner's Exhibit No. 7. In February of 1988, Mary Vinyard had given respondent and her husband a letter she and her husband had received from Ms. Burrell. Respondent's Exhibit No. 6. This letter reads: Tom and Mary, Remember me? . . . I'm sorry to say the reason I'm writing is because of a concern I have. I've had nothing but problems with Krissy ever since we got to England. She's doing very well in school, however her behavior has gotten to the obnoxious state. Recently she was referred to a child psychiatrist at Lakenheath (Bentwaters doesn't have one). The Dr. there seems to think part of Krissys problem is that there has been some sort of sexual abuse in the past. She makes up stories, so I have no way of being certain of what she says. Last week after talking to the Dr, on the way home, Krissy suddenly said there had been someone in Florida that had done things he shouldn't have done. She said it was Joe, Debra's husband. I at first couldn't believe it, but she went on to talk about things an 8 year old child really should have no knowledge of. I really don't know what to think however I really don't want to screw up anyone's life. We don't see the psychologist again until next week. I called him and told him of this new development, and he said after two years nothing could be done anyway. I don't believe that. The Air Force seems to be taking a rather relaxed view on this. The reason I'm writing you is to inquire if your children are still in Debra's care. Are you having any trouble with either of them, ightmares, bedwetting, whining? Please do write me back. An answer of any sort will help put my mind at ease. If it is just conjecture, no harm is done. If there is something going on, and Debra is still babysitting, it needs to stop. I just don't want any other parents to go through what I'm going through right now. You may or may not want to consider another babysitter. Please don't tell Debra I wrote, I always thought the world of her and I know the kids loved her. I don't wish to upset their family, especially if this turns out to be nothing; but I'm very suspicious. The day after the Vinyards gave this letter to respondent, Mr. Acosta took it to his commanding officer, Captain Gilmore, and protested his innocence. Captain Gilmore made a copy of the letter and launched the investigation that eventuated in the Office of Special Investigations (OSI) report, set out in part above. Petitioner's Exhibit No. 7. No action was taken against Mr. Acosta as a result of the Air Force's investigation. He has consistently denied Krissy's reported allegations, and did so under oath at the formal hearing in this case. After the OSI report came to HRS' attention, an HRS employee decided "that Debra could get licensed, to continue with the paperwork" (T.370) but as to her only. Eventually HRS did license Debra Acosta to operate Kare Free Day Care (KFDC) at 15 Eglin Street in Fort Walton Beach. KFDC opened in July of 1990. Nobody from HRS asked Mr. Acosta to agree to stay off the day care center premises and neither he nor Ms. Acosta agreed that he would. His presence during various HRS inspections elicited no official, contemporaneous response. T.406-7. Another Allegation Reported Michelle G'Sell dropped her four-year-old daughter Amber and her two- year-old son Adam off at the Acosta family home about seven o'clock in the morning on Mother's Day, May 12, 1991, in keeping with the arrangement she had made with Ms. Acosta the afternoon before, when she picked up her children at KFDC, after their first stay there. At quarter past three Sunday afternoon, Ms. G' Sell again picked Amber and Adam up at KFDC. Ms. Acosta had taken them (and her own two youngest children) to KFDC that morning after feeding Shawn and Tisouli breakfast. As Ms. G'Sell walked to her car with her children "around three steps out of the house" (T.113) Amber said, "Mommy, my twat hurts." Id. Asked when, the child "said when she pees." Id. According to her mother, when they had reached the car, Amber said, "He touched me," id., and, asked who had touched her, pointed to Mr. Acosta, who was standing on the roof of the KFDC building, "and said, 'Him.'" Id. But Jason and Mrs. Acosta (T.512) testified that Mr. Acosta was not at KFDC when Amber left, and Jason testified that his father had not been on the roof that day. T.313. The next morning Ms. G'Sell dropped Adam off at KFDC and signed Amber in, having arranged for her to be brought to KFDC later in the day. But, after somebody at work told her, "You must believe her, and you must report it," (T.115) she called her father and asked him not to take Amber to KFDC. She also reported to HRS that Mr. Acosta had sexually abused Amber the day before, and HRS began an investigation eventuating, according to HRS, in FPSS Report No. 91-050519, "alleging sexual abuse on a female child who was enrolled at KFDC . . . [allegedly perpetrated by] Joe A., the husband of D. A." HRS' Proposed Recommended Order, page 3. On May 17, 1991, Mr. Acosta was arrested on criminal charges of sexually abusing Amber, charges which remain pending. Admitted to bail on condition that he stay away from children under 18 years of age, he was rearrested for being in the presence of his own children. (Neither he nor Mrs. Acosta had realized that their children fell within the reach of the condition.) He has since been readmitted to bail and moved out of the family home. HRS also launched a separate, exhaustive investigation into the operations of KFDC which, while apparently not turning up any other allegation of sexual misconduct, gave rise to the allegations on the basis of which HRS seeks to revoke KFDC's day care center license. Husband Occasionally Helped Out While Anna Maria Root worked at KFDC in the winter and spring of 1991, Joe Acosta brought her eight-year old son to the Center after school, on the same run on which he picked up his own children. T.218. He may have brought another child, too, aside from the Root child and his own children. T.272. On two or three occasions Joe Acosta transported Shawn Holbert to school. T.379. He drove a brown van, "the one we were licensed to transport children in." T.379. After KFDC's initial licensure, Ms. Acosta requested an extension or expansion of the license to authorize KFDC to offer child care in the evening, but HRS denied the request. When KFDC closed for the day, children still there were taken to the Acosta home. A "couple of times," (Hoffman Deposition, p.9) Joe Acosta drove the van to the Acosta home after KFDC closed with as many as four or five children who were to be cared for there, id. 9, 56, "and Debra would stay and close up." Waller Deposition, p.14. Twice Mr. Acosta was alone with the children when Stacy Stowell collected her sons, Matthew and Aaron, at KFDC. T.12. But Lynn Hoffman, an employee, was never aware of his being alone with children. Hoffman Deposition, p.11. Nor was Julie Ann Merrill, who worked at KFDC from September to December 1990. Merrill Deposition, p.5, 20-21. It rarely happened. The morning after a fire at the Acosta home, Ms. Acosta sent Mr. Acosta to open up KFDC, and he was present when at least one child arrived, before either Ms. Acosta or Vicki Waller got there. Sole Supervisors Under Age and/or Uncertified When Vicki Waller, then 19 years old, began working for KFDC, neither she nor the Acostas were aware of the HRS rule forbidding leaving the children in the unsupervised care of anybody under 21 years of age. The three of them learned of the requirement in a 20-hour course they took together in the fall of 1990. Before that time, Ms. Waller had been left in charge mornings "from about 7:00 to 7:30," (Waller Deposition, p.6) and all day on one or two Saturdays. She was not left in charge after they learned of the rule against it. Ms. Waller did not have first aid or CPR certification when she took sole responsibility for children at KFDC. Chris Fitzpatrick worked as the only person caring for children at KFDC one Saturday, although she had not yet taken the first aid course she had signed up for. She also lacked CPR certification. Similarly untrained and uncertified, Denise Carla Yates had charge of the children by herself sometimes on Saturdays. Robin Lynn Bedmar was the only person responsible for the children on two or more Saturdays, even though her CPR certification had expired. Sometimes Sandra Lynn Hoffman, who did not have CPR training, was responsible for children at KFDC by herself, or shared responsibility only with Ms. Waller. Chris Fitzpatrick, Denise Caren Yates, Robin Lynn Bedmars and Sandra Lynn Hoffman were 21 or older, as far as the record shows, when they were left alone with the children. Occasionally Substandard Supervision Until a refrigerator was installed in the infant room, the worker supervising infants left them unattended in order to get milk from the kitchen. Similarly, in order to change an older (but disabled) child's diapers, the person responsible for his age group left his peers unattended to take him to a mat in another room. Sometimes only one KFDC employee supervised more than six infants for a full day. On at least four occasions, and possibly on as many as eight occasions (T.71; Waller Deposition p.9) there were more than six babies in the infant room, which had six cribs and two pallets, even after the playpen was removed at HRS's behest. T.71. Towards the end of the day infants along with older children, sometimes aggregating as many as ten or more, were left in the care of a single KFDC employee. Children played outside, sometimes without adult supervision. Twice, Jason Acosta was outside with children at KFDC "sort of keeping an eye on things while," (Waller Deposition, p.10) his mother was inside with other children. Respondent once asked Jason and Joseph to stay in the baby room with the children there. T.44. Hygiene The parents of two children complained to Ms. Acosta that their children's diapers were dirty when they picked the children up; and the grandmother of a third testified that, at least twice a week, he had "poopy pants" (T.30) when she came for him at KFDC, or at least by the time she had driven him some ten minutes away. Generally, children at KFDC with soiled diapers got fresh ones promptly. Ms. Acosta had extra diapers and clothes for the children on hand. Nutrition For every day a child who ate lunch failed to bring his own, KFDC charged his or her parents a dollar. But some or all of the food supplied these children came from the lunch bags sent with other children. Ms. Acosta or an employee opened the bags and divided the food onto plates without regard to the intended recipients' (or their parents') desires. Mornings and afternoons snacks were almost always provided to the children, but food with which to prepare snacks was occasionally unavailable to staff. The menu sometimes posted at KFDC was not always followed. Once, after two or three children drank from the same glass, respondent refilled it and gave it back to a child, perhaps unaware of its history. Before she obtained the KFDC license, Ms. Acosta registered her home as a family day care center, and the home was inspected by the fire department. T. 497. After her licensure, as before, Ms. Acosta cared for Kyle Dunbar, who has cerebral palsy, at her house, while his mother worked evening shifts. BreAnn's mother, Paige Kelso, also worked nights and left her child in respondent's care when she did. Respondent charged for taking care of these children and sometimes had them both in her home at the same time. Friends of her children spent the night sometimes, and she occasionally took care of a friend's two sons as a favor. Other Matters Ms. Acosta conducted several fire drills at KFDC but sometimes "the month would go by . . . [without one] and then she would write it in" (Waller Deposition, p. 58) anyway, as if one had actually occurred. T.113. Infants were not removed, even when fire drills did take place. Id. Whether falsified records of fire drills were ever submitted to HRS is not clear. Ms. Acosta and others on the KFDC staff relied on "time outs" as their principal disciplinary method. But Ms. Acosta once swatted a little girl's behind. The witness who testified to this incident also testified, "I'm not saying that the child did not like Debra [Acosta, the respondent] or was scared of Debra." Waller Deposition, p. 61.
Recommendation HRS proved several significant violations. But HRS did not prove, or even allege, that respondent's husband sexually abused a child or children. Instead, HRS alleged and proved that such allegations are the basis for pending criminal and (other) administrative proceedings. It is, accordingly, RECOMMENDED: That HRS suspend respondent's day care center license for one year, with credit for the time already elapsed in which HRS has prevented respondent from operating a day care center. That HRS place respondent's license on probation thereafter for a period of at least two years, on condition that respondent comply with all applicable statutes and rules for two years; on condition that respondent not charge for children she cares for at her home; and on condition that Mr. Acosta stay off KFDC premises while children other than his own are there, and have no contact with children who are cared for at KFDC (other than his own), until and unless he is exonerated in both the criminal and administrative proceedings now pending. DONE and ENTERED this 22 day of May, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of May, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1, 3, 4, 5, 6, 7, 10, 11, 12, 13, 17, 20 and 26 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 2, KFDC was licensed earlier than January 1, 1991. With respect to petitioner's proposed finding of fact No. 8, the court order was not in evidence. With respect to petitioner's proposed finding of fact No. 9, the substance is addressed in later proposed findings of fact. With respect to petitioner's proposed findings of fact Nos. 14 and 15, the evidence did not show routine noncompliance. With respect to petitioner's proposed finding of fact No. 16, this occurred only rarely. With respect to petitioner's proposed finding of fact No. 18, it was not clearly and convincingly shown that the screening had not be completed. With respect to petitioner's proposed finding of fact No. 19, it was not clearly and convincingly shown that the children received less than what was nutritionally necessary. Petitioner's proposed findings of fact Nos. 21, 23 and 24 were not proven. With respect to petitioner's proposed finding of fact No. 22, it was not clear that respondent "extended her day care license to her home without authority" as opposed to acting in good faith under supposed authority antedating issuance of KFDC's license. Vicki Waller did not see all those children at the same time, as far as the record shows. With respect to petitioner's proposed finding of fact No. 25, the credible evidence did not clearly and convincingly establish any improper discipline other than the swat. With respect to petitioner's proposed finding of fact No. 27, the violation consisted only of being in the presence of his own children. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 9, 11, 12, 14, 15, 17, 18 and 20 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 7, an adult was inside when the boys were asked to watch the infants, but no adult was outside three or more times when one of the Acosta sons supervised. With respect to respondent's proposed finding of fact No. 8, noncompliance with ratios was sometimes more than momentary. With respect to respondent's proposed finding of fact No. 10, diapers were changed regularly. With respect to respondent's proposed finding of fact No. 13, morning snacks were not always given. With respect to respondent's proposed finding of fact No. 16, children whose parents did not pick them up at KFDC were also brought to the Acosta home. With respect to respondent's proposed finding of fact No. 19, no improper discipline other than a single swat was proven. With respect to respondent's proposed finding of fact No. 21, this is properly a conclusion of law. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 S. J. DiConcilio, Esquire Rodney M. Johnson, Esquire P.O. Box 8420 Pensacola, FL 32505-0420 Mary Koch Polson, Esquire P.O. Box 96 Fort Walton Beach, FL 32549
Findings Of Fact Respondent corporation operates a licensed day care center in Duval County, Florida. Marie Flood owns Respondent and personally operates the day care center. She holds 51 per cent of the corporate stock for the Respondent corporation. Her husband is a 49 per cent stock holder. In the day care center is located a large room. The room is divided into smaller spaces by shelves which are called "cubbies". Those shelves are three feet high. The areas divided by the shelves constitute separate rooms for purposes of defining the proper ratio for day care staff members to children cared for in the facility. In May, 1995, an inspection was made at the day care center facility by an inspector working for Petitioner. That inspector was Joyce E. Bates. During the visit Ms. Bates observed a day care worker leave one of the small areas in the large room that was divided from other spaces in the room by the presence of the shelves. The worker went to put plates out for toddlers who were cared for at the facility. When the worker left the first area to go and put the plates in place, Ms. Bates considered that the appropriate staff ratio to children had been compromised in the area where the worker had been located. Ms. Bates indicated in her inspection report that this departure by the worker from one area where children were kept to another area where the plates were being placed constituted a deficiency in delivering the care to the children by not maintaining the proper ratio for staff and children. Ms. Flood did not believe that the departure by the worker for a brief period of time necessary to set out plates for the toddlers constituted non- compliance with the proper arrangement for staff in the requirement to monitor the children's activities. Ms. Flood believed that the worker while in another area placing the plates was still able to directly supervise the children in the area that had been left by watching and directing their activities within close proximity to the children. Given the difference of opinions Ms. Flood asked Ms. Bates to arrange for Ms. Flood to meet with Ms. Bates' supervisor to discuss the disagreement between those individuals concerning maintenance of the proper ratio for staff and children. Shortly after the May, 1995 inspection was conducted Ms. Flood met with Andrea J. Trzcinski, a supervisor for Petitioner for whom Ms. Bates worked in the child care licensure field. At this meeting Ms. Flood told Ms. Trzcinski about the concern that workers would be temporarily away from the areas in which children were located in the small spaces within the large room where care was provided. Ms. Flood explained that those short intervals where the workers were unavailable in the immediate areas where children were being attended were associated with various types of staff emergencies, staff preparing bottles for infants, or staff going to the restroom. Ms. Flood believed that to meet the exact terms for the staff to children ratio would require extra staff to meet the various contingencies where workers were absent from the discrete space where care was delivered to the children. Ms. Flood believed at the time and continues to believe that she cannot afford to have extra staff available to meet the contingency where the principal care giver has left the discrete space. Ms. Trzcinski explained to Ms. Flood that the choices which Ms. Flood had concerning the staff to children ratio were to divide the large room into discrete areas to deliver care or to leave the room as one area where care was given, thus requiring more staff than would be needed to maintain smaller areas within the large room. In the conversation between Ms. Flood and Ms. Trzcinski, Ms. Flood expressed the belief that the ability to look over the tops of the dividers which were only three feet tall would meet the requirements for maintaining the proper ratios when the staff was away from the immediate area where the children were located. Ms. Trzcinski explained to Ms. Flood that Ms. Flood's perception concerning the ability to maintain direct supervision by looking over the divider walls was not providing the direct supervision that was necessary. Ms. Trzcinski made Ms. Flood aware that Ms. Trzcinski's interpretation was that direct care meant having staff in the immediate area of the infants not monitoring from some other part of the overall large room by looking over the divider walls back into the area where the infants had been left. In summary, Ms. Trzcinski told Ms. Flood that a caregiver could not leave the discrete space where the children were located and move to another area and still maintain the called for ratio for staff to children. On October 11, 1995, Ms. Bates made another visit to the facility. The visit was as a follow up to an inspection that was conducted on September 29, 1995, unrelated to proper ratios for staff to children and upon a complaint that had been made concerning care provided to a child in the facility, again, unassociated with the proper ratio of staff to children. While Ms. Bates was inspecting the facility on October 11, 1995, she observed that in the room referred to as an infant room there were five children and one staff member. One child in that room was younger than one year old. Consequently, the ratio which Ms. Bates believed was appropriate for staff to children was 1 to 4, there being a child in the group who was not a year old. During the October 11, 1995 inspection Ms. Bates spoke to Marjorie James who was in charge of the facility on that occasion and explained the problem concerning the ratio in the infant room, in that the Florida Administrative Code required a ratio of 1 staff member to 4 children, not 1 staff member to 5 children as discovered in the inspection. Ms. Bates expressed to Ms. James the importance of maintaining those ratios in an instance where infants are involved in the receipt of care. A check-list for the inspection was prepared and provided to Ms. James who signed for the document. The document pointed out the problem of the ratios for staff to children wherein an infant not 1 year old was in the group of children. Ms. Bates made Ms. Trzcinski aware that the inspection of October 11, 1995, was being conducted and the results pertaining to that inspection wherein the ratio problem for staff to children had been identified. On November 8, 1995, Ms. Flood intended to work at the facility as a caregiver. By that arrangement it would allow Ms. James to leave the facility and go to a different location to pick up children from a kindergarten and return those children to the facility for care. Before arriving at the facility on November 8, 1995, Ms. Flood called the personnel at the facility and stated that Ms. Flood was going to be late. Ms. Flood recognized that the consequence would be that the ratios for staff to children would not be met for a short period of time. The reason Ms. Flood was tardy for her assignment was based upon an automobile accident on the road between her location and the facility. Ms. Flood explained to the other caregiver at the facility that she wanted to place a 22-month old child in the front room of the facility creating a problem for the staff to children ratio in that room, while maintaining the proper ratio in another room where infants less than one year old were found. As described before, the ratio for staff to children in the infant room should be 1 staff member for 4 children. The staff member who received Ms. Flood's call abided by the instructions and moved the 22-month old child to the front room. That meant that the ratio for staff to Children should be 1 to 6. In reality the ratio of staff to children was 1 to 9. Coincidentally on November 8, 1995, beyond the point and time at which Ms. James left to pick up the kindergarten children and the ratios where modified for staff to children in the front room, Ms. Bates arrived to conduct a follow-up inspection to check the ratios of staff to children. Ms. Bates discovered that the ratio of staff to children in the front room was 1 staff member for 9 children, whereas the ratio anticipated by Ms. Bates for the front room in which the 22-month old child was found should have been 1 staff member for 6 children. When Ms. Bates arrived to conduct the inspection on November 8, 1995, Virginia Sikes was caring for the children in the front room, and another caregiver was taking care of children in the infant room. Shortly after Ms. Bates arrival Ms. Flood came into the facility to provide care, thus the problem with the ratio with staff to children was corrected. Not long after Ms. Flood arrived Ms. James returned to the facility with the kindergarten children. The inspection which Ms. Bates conducted on November 8, 1995, was unannounced. Because the problem with staff ratios for children had been observed on both October 11, 1995 and November 8, 1995, Petitioner determined to impose an administrative fine in the amount of $150.00. The fine was perceived by Ms. Trzcinski to be a fine of $50.00 for each child over the ratio allowed as discovered on November 8, 1995, in which the proper ratio was 1 staff member for 6 children as opposed to the ratio discovered which was 1 staff member for 9 children. From Petitioner's view, expressed through Ms. Trzcinski, the violation was a Class II violation. Ms. Trzcinski characterized the violation as a "middle" violation. Respondent, through Ms. Flood, takes no issue that the ratios discovered for staff to children in the inspections performed on October 11, 1995 and November 8, 1995 were incorrect. Her principle concern is that the Respondent not be required to pay an administrative fine for the events which transpired on November 8, 1995. Her reasoning is that you cannot get substitute personnel quickly when contingencies arise such as were encountered on November 8, 1995. Also, her belief is that the problem was quickly corrected making imposition of a fine uncalled for.
Recommendation Upon the consideration of the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered imposing a $100.00 administrative fine for the failure to comply with the requirements related to maintenance of ratio for staff to children on November 8, 1995. DONE and ENTERED this 24th day of May, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 24th day of May, 1996. APPENDIX CASE NO. 96-1223 The following discussion is given concerning the findings of fact by the parties: Petitioner's facts are subordinate to facts found with the exception that Paragraph 2 is not necessary to the resolution of the dispute. Respondent's submission constitutes legal argument which was considered in entering the recommended order. COPIES FURNISHED: Roger L.D. Williams, Esquire HRS District 4 Legal Office Post Office Box 2417 Jacksonville, FL 32231-0083 Marie Flood Progressive Learning Center 1855 Hamilton Street Jacksonville, FL 32210 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7 Suite 728 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether the Department of Health and Rehabilitative Services properly assessed an administrative fine in the amount of $150.00 on Lourdes Guanlao d/b/a Children's Paradise for violations of Sections 402.305(4) and 402.305(12), Florida Statutes, and Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code.
Findings Of Fact The Department issued a Child Day Care Facility license to Lourdes Guanlao to operate a facility known as Children's Paradise on October 9, 1991. From 1991 to 1994 Petitioner conducted routine facility inspections at Children's Paradise. These inspections included a determination whether the facility was operating with appropriate staff-to-child ratios. On April 1, 1992, Sandy Looney, Respondent's Senior Children's and Families' Counselor, conducted an inspection of Children's Paradise. When Ms. Looney arrived at the facility, Jeane Weiss was the only staff member present. There were seven children present in the center. Two children were under the age of one year and two children were between one and two years old. There should have been two staff members at the facility for the grouping of children present. Within ten minutes of Ms. Looney's arrival, Ms. Guanlao, arrived at the facility thereby correcting the staffing violation. Ms. Guanlao signed the inspection checklist. Ms. Looney discussed the staffing violation with Mrs. Guanlao and left a copy of the checklist with her. On July 27, 1993, Ms. Looney conducted an inspection of Children's Paradise. There were two staff members present at the facility, Ms. Weiss and Ms. Tan. There were sixteen children present in the center. Three children were under the age of one year, six children were between one and two years old. Three staff members were required for the grouping of children present. Ms. Weiss signed the inspection checklist. Ms. Looney left the checklist with staff. Before Ms. Looney left the premises, a staff member arrived for work thereby correcting the staffing violation. On August 17, 1994, Ms. Looney conducted a re-licensure inspection of Children's Paradise. There were two staff members present at the center, Ms. Weiss and Ms. Guanlao. There were twenty-one children present in the center. Seven were under the age of two. Three staff members were required if the children were separated in groups and four staff members were required if the children were all together. Ms. Weiss signed the inspection checklist. Mrs. Looney discussed the violation with Mrs. Guanlao who advised there was no substitute or other staff member available to call to work. Correction of the staffing violation was due on August 18, 1994. On August 18, 1994, Ms. Looney returned to Children's Paradise to determine if Ms. Guanlao had corrected the staffing violation. At that time there were eighteen children present. Six children were under the age of two. The same two staff members were present, Ms. Weiss and Ms. Guanlao. Mrs. Guanlao called a ten year old child to assist and again indicated that there was no adult available to call. Each time that Ms. Looney inspected Respondent's facility, she actually counted the number of children present and asked staff to verify their age. Evidence to the contrary is not persuasive. On August 29, 1994, Petitioner issued an Administrative Complaint imposing a fine in the amount of $75.00 for the August 17, 1994, staffing violation which Respondent had not corrected at the time of reinspection on August 18, 1994. This complaint properly advised Respondent of her right to a proceeding pursuant to Section 120.57(1), Florida Statutes. By letter dated September 13, 1994, Ms. Looney advised Ms. Guanlao that if she disputed the imposition of the fine, she could request an administrative hearing. The letter further stated that if Ms. Guanlao did not dispute the fine, she could pay it by mailing a check or money order. Ms. Guanlao tendered check number 1839 dated September 22, 1994, in the amount of $75.00 with "Adm. Fine" noted thereon. Ms. Looney transmitted this check to the fiscal office for deposit on or about October 7, 1995. There is no persuasive evidence that Ms. Looney told Ms. Guanlao she had to pay the administrative fine or risk losing her license. Gerald Stephens, Protective Investigator for Petitioner went to Children's Paradise on November 18, 1994. The purpose of his visit was associated with an investigation unrelated to this proceeding. When Mr. Stephens arrived at the facility, Ms. Guanlao was the only staff member present. He observed ten children in the center. The youngest child present at the center was eighteen months old. This number of children required at least two staff members to be present at the facility. Mr. Stephens interviewed one of Ms. Guanlao's staff members on the morning of November 18, 1994. There is no persuasive evidence that Mr. Stephens prevented the staff member from showing up for work that morning by telling her he was going to shut the facility down. Seven witnesses testified that they were volunteers at the center and had agreed to act as substitute staff on an as needed basis. Only two of these people had been properly screened and trained to work in a day care center or with children. One of these two volunteers did not receive her certification to work in a day care facility until October 3, 1994. Some of the volunteers had other full time jobs. Consequently, the times they were available to help Ms. Guanlao was limited. There is no evidence that Ms. Guanlao called any of these people to substitute on April 1, 1992, July 27, 1993, August 17, 1994, August 18, 1994 or November 18, 1994. Ms. Guanlao attended a training course that Ms. Looney conducted prior to October 9, 1991. One purpose of the course was to familiarize participants with the rules regulating child day care centers. During the training Ms. Looney provided Ms. Guanlao with written material including the Child Care Standards contained in Rule 10M-12, Florida Administrative Code. This rule sets forth staffing requirements and child discipline standards. Ms. Looney and Ms. Guanlao discussed subsequent changes in the rules related to staffing requirements. Ms. Looney also explained to Ms. Guanlao that the staffing requirements applied at all times the children were in the center regardless of the activity that was taking place. In other words, the staff-to- child ratios applied even if the children were napping. On August 19, 1994 Ms. Looney received a complaint involving the day care center on an unrelated licensing issue. As a result of the subsequent investigation, Ms. Looney was at the facility on August 24, 1994. During that visit, Ms. Guanlao admitted that she sometimes slapped the children on the hands as punishment.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That Petitioner Department of Health and Rehabilitative Services enter a Final Order imposing an administrative fine on Respondent Lourdes Guanlao d/b/a Children's Paradise in the amount of $150 for violating Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code. DONE and ENTERED this 16th day of October, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1996. COPIES FURNISHED: Frances S. Childers, Esquire District 3 Legal Office Department of Health and Rehabilitative Services 1000 NE 16th Avenue, Box 3 Gainesville, Florida 32601 Michael M. Naughton, Esquire 3840-4 Williamsburg Park Boulevard Jacksonville, Florida 32257 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 204-X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue for consideration in this hearing is whether Petitioner should be granted an exemption from disqualification from certain employment.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Children and Family Services, was the state agency responsible for screening the employment of individuals employed in certain occupations within this state. Petitioner, Jose Ramon Arazo, is married to Stephanie Arazo, who at the time and for a number of years prior to the marriage, operated a child day care center in Largo, Florida. Under the provisions of Chapter 435, Florida Statutes, various positions of trust require screening of federal and state law enforcement records to see if the applicants for such positions have a record of charge or disposition. Various positions have differing requirements for screening. Those positions classified as Level II require a finger print and agency check with the Federal Bureau of Investigation and the Florida Department of Law Enforcement. Those positions classified as Level I do not. If the agency check discloses the applicant has been charged with a criminal offense, the Department then determines the disposition of the allegation and obtains court records regarding the court action and verifying any probation imposed. The Department's District V Director has promulgated a policy to be followed in that District that stipulates that an exemption from disqualification will not be granted to any individual who is on probation after conviction of a felony and for three years after release from probation. If probation is not imposed by the court, the same policy provides that an exemption will not be granted within three years of a felony conviction, as is provided for in the statute governing exemptions. Petitioner has been charged with several felonies in the past. On July 18, 1983, he was arraigned on a charge of grand theft, to which he pleaded not guilty. However, on August 29, 1983, he changed his plea to guilty and was placed on probation for three years. Thereafter, in December 1985, a warrant was issued for his arrest alleging various violations of the conditions of his probation, including such offenses as being delinquent in the payment of the cost of his supervision; moving from his residence without the prior consent of his probation supervisor; failing to work diligently at a lawful occupation; and failing to make required restitution. In July 1986, he was again the subject of an arrest warrant for ten further probation violations of a similar nature. No evidence was presented as to what action was taken for those violations, but on April 4, 1986, he pleaded guilty in Circuit Court in Pinellas County to grand theft and was again placed in a community control program for two years. There is also evidence in the record to indicate that in September 1986, he was sentenced to confinement for 18 months as a result of the grand theft in Pinellas County. In May 1989, Petitioner was arrested in Hillsborough County and charged with possession of cocaine, a second degree felony, and with obstructing an officer without violence, a first degree misdemeanor. He entered a plea of guilty to the offenses and on May 2, 1989, was sentenced to three-and-a-half years in Florida State Prison. In an indictment dated December 3, 1991, Petitioner was charged with one count of grand theft in Hillsborough County. He entered a plea of nolo contendere and on October 14, 1994, was sentenced to five years imprisonment. When Petitioner was released from prison in 1998, he was placed on probation for a period of two years and is currently on probation status. He indicates he has successfully participated in this period of probation and was told the probation authorities plan to recommend his release from probation in the near future. No independent evidence to support this contention was offered, though Petitioner presented a statement from correctional officials who supervised him while he was incarcerated at the Tampa Community Correction Center and at the institutional level, that he has shown a significant reformation of character and a good ability to deal with everyday problems in a professional manner. From their joint unsworn statement, it would appear these individuals consider Petitioner a likely candidate to be a productive member of society in the future. Petitioner's wife has been put out of business because Petitioner lives with her in their home which was her place of business. Because of his presence, even though he works outside the home most of the time the children are there, she cannot care for children in the home because of regulations prohibiting it. She has been in business for a number of years and apparently her center has a good reputation in the community. One client, Mrs. Perry, by unsworn written statement commends Mrs. Arazo's performance and indicates that even though she saw Petitioner only a few times, he was one of her daughter's favorite people. He also had a positive influence on her son, preaching the virtue of hard work. Mrs. Perry does not consider Petitioner a threat, and she has no fear of his being near her children. In fact, she is of the opinion it a good thing for the children to see the loving and supportive interplay between Petitioner and his wife. Another client, Mrs. Mineo, has been a foster parent to a number of children over the years, many of whom she has placed in Mrs. Arazo's care, agrees. During the time she has known Petitioner, she has never seen him to be other than very professional. She describes him as a hard worker, well-mannered, and deserving of a chance. She believes him to be trying hard. Mrs. Arazo asserts that Petitioner is no threat to the well-being of any of the children who attend her center. He has, to her knowledge, never hurt a child, and she would have nothing to do with anyone who would. His relationship with the children in her care is very positive, and the children love him when he is there, which is not often. He is not an employee of the center and, in fact, has nothing to do with it. He has made mistakes in the past, has paid for them, and has worked hard to overcome them. In her opinion, he deserves a chance. Petitioner admits he has done wrong in the past on multiple occasions, and he is not proud of the things he has done wrong. He does not believe in rehabilitation except in the physical sense, but he believes in the power of an individual to recognize his wrong ways and reform himself. He believes he has done this. He took the opportunity to learn better life-skills while he was in jail and has reformed his way of thinking and his attitudes. During the total six years he spent in prison, he was given only one disciplinary referral. He learned a trade and has a full-time job. He is doing the best he can and wants a chance to prove himself, so as not to hurt his wife's business.
The Issue The issue is whether Petitioner, Basedeo Ramassar, is eligible for exemption from disqualification from working in a registered or licensed family day care center under Subsection 402.302(3), Florida Statutes.
Findings Of Fact Under Sections 402.301-319, Florida Statutes, the Department of Children and Family Services is the agency responsible for establishing licensing standards for child care facilities and child care personnel. Petitioner, Basedeo Ramassar, is married to Cathy Ramassar; they both reside at 2707 West Airport Boulevard, Sanford, Florida. Cathy Ramassar applied to Respondent to renew her license as a family day care facility at her home at 2707 West Airport Boulevard, Sanford, Florida. As a result of her application, Respondent conducted a Level 2 background screening. As a result of the screening, it was determined that, on March 20, 2000, Basedeo Ramassar had pled nolo contendere to the charge of assignation to commit prostitution, a violation of Section 796.07, Florida Statutes. When Cathy Ramassar was advised that her license would not be renewed because of her husband's violation of Section 796.07, Florida Statutes, she requested an administrative hearing and, shortly thereafter, Mr. Ramassar requested an exemption pursuant to Section 435.07, Florida Statutes. Michael Ingram, District 7 Screening Coordinator, convened a three-person Exemption Review Committee which considered the circumstances surrounding the disqualifying criminal incident, nature of harm to victim, amount of time since the last criminal incident, and the applicant's general history. The Exemption Review Committee relies on the applicant to provide information on rehabilitation. The Exemption Review Committee denied Mr. Ramassar's exemption request based, in part, on the fact that not enough time had elapsed since the 1999 offense and the March 20, 2000, nolo contendere plea and a 1990 domestic battery arrest which occurred prior to his current marriage. This denial was a proper exercise of the authority vested in the Exemption Review Committee. Mr. Ramassar testified that during the afternoon hours of November 26, 1999, he approached an undercover female police officer and "offered her $20 for straight sex." This resulted in his arrest and ultimately, his nolo contendere plea to assignation to commit prostitution. With the help of a supportive wife and members of their church, which he regularly attends, Mr. Ramassar has made a good start on a rehabilitation program. Apparently, he has a good marriage which has withstood the humiliation of public knowledge of his infidelity and criminal involvement; each witness testified to awareness of his criminal involvement. As a part of the exemption process, Subsection 435.07(3), Florida Statutes, requires an assessment of "the nature of the harm caused to the victim"; the only "victim" in this case is Mr. Ramassar's wife, who has not only suffered the public humiliation of her husband's infidelity, but has been denied a license renewal for her day care facility. Mr. Ramassar is regularly employed as a mason and, as a result, except on rare occasions, is away from the day care facility during its normal working hours. Witnesses who had children enrolled in Mr. Ramassar's wife's day care facility expressed little concern with the knowledge that Mr. Ramassar had pled nolo contendere to assignation to commit prostitution.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner, Basedeo Ramassar, an exemption from disqualification from employment as a caretaker for children and granting Cathy Ramassar a renewal of her license. DONE AND ENTERED this 12th day of September, 2001, in Tallahassee, Leon County, Florida. 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 12th day of September, 2001. COPIES FURNISHED: Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 George B. Wallace, Esquire George B. Wallace, Esq., PA 700 West First Street Sanford, Florida 32771 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
