The Issue The issue addressed in this proceeding is whether Respondent's child care facility license should be disciplined for alleged violation of chapter 402, and if so the appropriate penalties. Neither party timely submitted Proposed Recommended Orders.
Findings Of Fact Respondent Donna J. Downing owns and operates a child care facility known as the Downing House, located at 8508 Lorento Street, Panama City, Florida. The child care facility is also her family's residence. She lives with her husband, son, and daughter who help operate the facility and who have been successfully screened by HRS. Ms. Downing was licensed in 1985 and holds a currently valid license. Her license is endorsed to allow her to operate her facility during nighttime hours. In April 1988, HRS became concerned that the operation of the Downing House into the night was proving too much for the husband and wife team, since HRS regulations require an adult to be present and awake during the night. HRS, therefore, inquired of the Downings concerning their proposed arrangements to ensure the presence of an awake adult. In order to continue to operate into the night, Respondent assured HRS that either she or her husband would be awake during the night while children were present on the premises. However, the evidence established that Respondent and her husband did not always live up to Respondent's representation to HRS. A standard mode of operation by Respondent was for both she and her husband to retire in the evening, leaving the front door unlocked so that the children's parents could pick up their children without disturbing the Downings. However, occasionally one of the Downings would stay up with the children. On May 5, 1988 a two year old male child was left at the Downing House by his mother for nighttime caretaking. At approximately 11:00 - 11:15 pm., Mr. and Ms. Downing had gone to bed. There were three children present at the Downing House when the Downings retired, including the two year old male child. The three children were asleep when Ms. Downing left them in the living room. No other adults were present. Ms. Downing had made arrangements for her adult son to look after the children when he got home from work. He was expected home at about 11:30 p.m. The son arrived home at approximately 11:40 p.m. When he arrived there were two children present. No method had been established by Respondent to advise her son of the number of children who should be present when he arrived home. He therefore did not realize that one child was missing. The son laid down on the couch in the living room and went to sleep. Sometime between the Downings going to bed and the arrival of their son, the two year old male child awakened, opened the front door and left the house. The child then unlatched the front yard gate and headed down Lorento Street towards its intersection with Laurie Lane. He then proceeded down Laurie Lane. At approximately 11:15 p.m., Denise Albert was driving down Laurie Lane. About two tenths of a mile from the Downing House, at 2414 Laurie Lane, Ms. Albert saw the missing child walking down the unlit and unpaved road. He was barefoot and in his pajamas. Ms. Albert stopped and questioned the child for 15 or 20 minutes. She could not obtain any information. She therefore called the Sheriff's office. Officer Troy Johns was dispatched at 11:30 p.m. The officer picked the child up from Ms. Albert and drove him around the neighborhood, including Lorento Avenue. The child could not or would not identify where he had come from and would not give his name. The child was more interested in the officer's gun and vehicle than in his surroundings. The officer took the child to the Sheriff's station and called HRS. Debra Young an HRS protective services investigator took the call and picked the child up from the Sheriff's office. She also could not establish the child's identity or address. She placed the child in a foster home. At 4:11 a.m. the Sheriff's office received a phone call in reference to a missing male child from the Downing House. The missing child was the child the Sheriff's office had turned over to Ms. Young. The Sheriff's office contacted Ms. Young. Mother and child were reunited the next morning. The call to the Sheriff's office from the Downing House had been prompted when the child could not be found after a search. The search ensued when, at approximately 3:00 a.m., the mother arrived to pick up her son. She discovered his absence and woke Respondent's son who in turn woke Mr. and Ms. Downing. One child remained. A second child had been picked up at approximately 2:30 a.m. by that child's mother. The son did not awaken and was not aware that the second child had been taken from the room in which he was asleep. The Downings searched the neighborhood for the missing child, including checking the Lagoon which is within a few blocks of the Downing House. The call to the Sheriff's office located the child. From 1985 until May 1988, Respondent was cited for the following violations of chapter 402, F.S. and the rules related thereto: September 3, 1985 Two gates in the play yard were left unlocked making it possible for children to have access to the road, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code, in that this was an obvious hazard. Medicine was left on the kitchen cabinet within the children's reach, in violation of Rule 10M-12.003(1) and (d), Florida Administrative Code. April 22, 1986 Cleaners were on the washer and dryer within the children's reach and Lysol and Windex were on the kitchen cabinet with food within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. No fire drills, in violation of Rule 10M-12.003(8)(a), Florida Administrative Code. October 1, 1987 Clorox, detergent, charcoal, briquettes, pliers, plastic bags, cigarette and cough drops were out at several locations throughout the facility and within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. An iron was left with the cord hanging over the table within the children's reach making it possible for the iron to be reached and pulled down on top of a child, in violation of Rule 10M- 12.003(1)(a), Florida Administrative Code. March 23, 1988 A medicine bottle containing medicine and tanning accelerator within the children's reach were located inside the facility and rose dust, Progreen, Spectracide ant killer and touch up paint were at several locations on the porch at the main entrance within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. Suntan lotion and tanning accelerator and three sand filled milk cartons, all located on the patio at the back of the house leading to the play yard and all within the children's reach, in violation of Rule 10M-12.003 (1)(b) and (d), Florida Administrative Code. The gate to the play yard was unlocked allowing children access outside the play area, in violation of Rule 10M- 12.003(4)(b), Florida Administrative Code. The store room containing a lawn mower and other tools and hazardous materials was left unlocked, in violation of Rule 10M-12.003(4)(b) , Florida Administrative Code in that it was an obvious hazard, with the children having access to said store room. A throw rug was on the steps leading to the patio and was not secure making an obvious hazard, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code. To Respondent's credit, all of the above violations were corrected within the time frames established by HRS. No fines were ever levied on the Respondent for the above violations. Also, to Respondents credit, the evidence disclosed that Respondent is generally a good caretaker of children.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services revoke the nighttime operation endorsement on Respondent's license and impose an administrative fine of $1000. DONE and ENTERED this 14th day of March 1989, in Tallahassee, Lean County, Florida. DIANE CLEAVINGER 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 14th day of March, 1989. COPIES FURNISHED: John L. Pearce, Esquire 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32302 Donna J. Downing 8508 Lorento Street Panama City, Florida 32407 R. S. Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether to deny Respondent's application to renew its child care facility license and impose an administrative fine for the reasons stated in the Department's letter dated September 16, 2016.
Findings Of Fact Ms. Garcia operated a child care facility at 5600 Old Cheney Highway, Orlando, for almost two years. A probationary license expired on September 21, 2016. This proceeding concerns Ms. Garcia's application for renewal of her license. The Department has regulatory authority over the licensing of child care facilities. To ensure compliance with regulations, the Department conducts periodic inspections of licensed facilities. Unless violations are observed during an inspection, the Department's Orlando office annually conducts two routine and one license renewal inspection of each of the 395 licensed facilities in Orange and Seminole Counties. If a license is placed on probation because of violations, inspections are made at least once a month during the probationary period to ensure the deficiencies are corrected. Violations by a licensee of Department rules or a statute are treated as Class 1, 2, or 3 violations. A Class 1 violation is the most serious, as it "pose[s] an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child." Fla. Admin. Code R. 65C-22.010(1)(d). For example, it is a Class 1 violation for a facility operator to allow unsupervised individuals who have no current background screening to be with children. This is because all child care personnel must have a current Level 2 background screening performed before they begin work in the facility. See Fla. Admin. Code R. 65C-22.006(4)(d)1. In 2015, Respondent's facility was inspected on at least four occasions: January 13, March 20, May 18, and August 11. On each occasion, violations of Department rules and relevant statutes were observed. Because the first three inspections were performed by a non-Spanish speaking counselor, Ms. Garcia requested that her facility be inspected by a counselor who spoke Spanish. In June 2015, the Department assigned Roy Garcia (no relation to Ms. Garcia) to perform future inspections, as he is bi-lingual. Later, Ms. Garcia expressed her dissatisfaction with Roy Garcia as well. On January 15, 2016, Roy Garcia conducted an inspection of Respondent's facility. Based on violations observed during the inspection, on February 19, 2016, the Department issued an Administrative Complaint seeking to impose a $270.00 fine. See Dep't Ex. 2. The Administrative Complaint cited the following violations observed during the inspection: Two violations of sections 402.302(3) and (15) and 402.305(2) and Florida Administrative Code Rule 62C-22.006(4)(d) by failing to perform required background screening for two employees. Two violations of rule 65C-22.006(d) and (e) by failing to have background screening documents in the staff files. Three violations of the staff/ratio rule, as required by section 402.305(3) and (4) and rule 65C-22.001(4). Two violations of section 402.302(3) and rule 65C-22.001(5) by allowing a volunteer to supervise children without a qualified employee being present. Four violations of rule 65C-22.006(2) by failing to have student health examinations on file. Four violations of rule 65C-22.006(2) by failing to have required student immunization records on file. At hearing, Ms. Garcia took the position that the charges were not warranted. However, in April 2016, she paid the $270.00 fine. Even though the Department informed her that she could request a hearing, a request was not filed. Therefore, the agency action became final. On April 29, 2016, Roy Garcia conducted another inspection of the facility. Based on violations observed during the inspection, on June 30, 2016, the Department issued an Administrative Complaint seeking to impose a $125.00 fine and to convert her annual license to probationary status, given the number of recurring violations during the preceding year. See Dep't Ex. 3. The Administrative Complaint cited the following violations observed during the inspection: Three violations of section 402.305(3) and (4) and rule 65C-22.001(4) by failing to maintain a ratio of two staff personnel for each five infants under one year of age. One violation of rules 65C-22.006 and 65C-22.010 for failing to have background screening documents and employment history checks in the facility files. At hearing, Ms. Garcia disagreed with the merits of these charges. However, in August 2016, she paid a $125.00 fine. Even though the Department informed her she could request a hearing to contest the charges, a request was not filed. Therefore, the agency action became final. A probation-status license was issued on July 31, 2016, with an expiration date of September 21, 2016, which coincided with the date on which her original annual license expired. See Dep't Ex. 4. A probation-status license is issued for a short period of time during which the licensee must come back into compliance. See § 402.310(1)(a)2., Fla. Stat. On August 4, 2016, Ms. Garcia filed an application for renewal of her license. Because the license was on probation, follow-up inspections of the facility were conducted by Roy Garcia on August 26, 29, 30, and 31, 2016. Multiple inspections were conducted because he believed the safety of the children was at risk. Although Ms. Garcia contends these inspections constituted an "abuse of authority," the Department routinely performs follow-up inspections if a facility's license is on probation. Multiple violations were observed during these inspections. See Dep't Ex. 1. They included the following: Four Class I violations of section 402.305(2)(a) by allowing unscreened individuals to be left alone to supervise children in the facility's care. These violations call for a fine of $400.00, or $100.00 per violation. Three Class 2 violations of rule 65C- 22.002(3)(a) by failing to maintain 20 or 35 square feet per child in areas occupied by children. These violations call for a fine of $180.00, or $60.00 per violation. Three Class 2 violations of section 402.305(4) and rule 65C-22.001(4)(a) and (b) by failing to maintain a sufficient staff to children ratio. These violations call for a fine of $300.00, or $100.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)1. by failing to have Level 2 background screening documentation on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d) by failing to have employee CF- FSP Form 5131 on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)2. by failing to have employment history checks on file. These violations call for a fine of $150.00, or $75.00 per violation. One Class 2 violation of rule 65C- 22.003(2)(a) for a facility employee having not completed the 40-clock-hour Introductory Child Care Training. This violation calls for a fine of $75.00. One Class 3 violation of rule 65C- 22.006(2)(a) and (d) by failing to have on file student health examinations for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. One Class 3 violation of rule 65C- 22.006(2)(c) and (d) by failing to have on file immunization records for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. The Department's letter of September 16, 2016, proposes to impose an administrative fine in the amount of $1,565.00. See § 402.310(1)(a)1., Fla. Stat. Ms. Garcia did not challenge the amount or manner in which the fine was calculated. Rather, she contends the charges were not justified and therefore no fine should be imposed. However, by clear and convincing evidence, the Department has proven the allegations described in its letter. After each inspection, Roy Garcia explained the nature of each violation and how it must be corrected in order to comply with Department rules. Despite his efforts to help Ms. Garcia, repeat violations were observed. Unscreened individuals were supervising the children on two of the four days. Therefore, it was necessary for Roy Garcia to call the parents and ask that they come to the facility and pick up their children. After observing staff ratio violations on August 29, Roy Garcia returned the next day and observed the same violation. He also observed unsupervised volunteers alone with children three times (August 29, 30, and 31) during the same week.2/ When Roy Garcia asked Ms. Garcia why she was not following his instructions, she would argue with him, deny that any violation occurred, and contend he was out to shut her down and discriminate against her because she was an "entrepreneurial woman." While conceding that she made "mistakes," Ms. Garcia contended Roy Garcia was harassing her and simply trying to find violations when he inspected the facility. She also contends the violations were not serious, were technical in nature, and did not threaten the safety or welfare of the children. However, Class 1 violations were repeatedly observed. Ms. Garcia stressed the fact that her family is dependent on the income she derives from operating the facility, and she will not be able to support her family if the license is not renewed. She added that she is now in limbo on whether to prepay the rent on the building where her current facility is located. Had the facility been operated in compliance with Department rules, these concerns would not be present. Ms. Garcia also contended that Roy Garcia would not allow her husband, Elmer, to substitute for a missing teacher. However, Elmer works in the kitchen, drives a facility vehicle, and at that time did not have the minimum training necessary to qualify as a facility employee who supervises children. Ms. Garcia further contended she was never given appropriate training on how to determine if a prospective employee has current background screening, especially since she has very few computer skills. This assertion is contrary to the accepted evidence, as she could have simply called the Department's Orlando office to verify the eligibility of prospective employees or volunteers before they were hired. Notably, even after a series of administrative complaints were issued concerning unscreened employees/volunteers, as of January 5, 2017, four persons who had worked or volunteered at the facility still had no Level 2 background screening. Ms. Garcia presented the testimony of four mothers whose children used the facility when the license was active. All were pleased with the care of their children. They especially appreciate the fact that the facility is open until midnight, is located in an area convenient to where they live or work, and charges less than other child care facilities in the area.
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 denying the application to renew Respondent's license and imposing an administrative fine of $1,565.00. DONE AND ENTERED this 9th day of February, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 9th day of February, 2017.
The Issue The issue in this proceeding is whether Petitioner's application for licensure as a child care facility should be granted.
Findings Of Fact Petitioner, God's Little Blessings, applied for licensure as a child care facility on March 23, 2015. The application was completed and submitted by Leslie Fudge, the owner and proposed operator of the facility. The proposed director was Adrienne Wimas (spelling uncertain). After review of the application, the Department denied Petitioner a child care facility license on May 1, 2015. The sole reason for the denial was contained in the Department's denial letter dated May 1, 2015. The letter stated: This letter will serve to advise you that your Application . . . is hereby denied based on review of your background screening, including the Florida Central Abuse Hotline Record Search. No other reason for denial was stated in the Department's letter. While not stating the specific facts regarding the background screening and abuse record search, the evidence demonstrated that the denial was based on one confirmed report of neglect (Abuse Report 2003-031849-01) against Ms. Fudge for inadequate supervision of resident R.H., and medical neglect of residents R.G. and J.D. Both incidents occurred at about the same time on or about March 5, 2003, while Ms. Fudge was employed at Tallahassee Development Center (Center). The Center provided residential and direct care to developmentally disabled residents at its facility. At the time, Ms. Fudge was employed as care staff responsible for providing direct one-to-one care to R.H. She was not assigned to provide care to R.G. Other than Ms. Fudge, no witness with personal knowledge of these incidents testified at the hearing. Consequently, many of the statements contained in the 2003 abuse report remain hearsay which was not corroborated by any competent substantial evidence. Additionally, the age of the report, confusing allegations and lack of factual basis for its findings of inadequate supervision or medical neglect cause the abuse report to be unreliable and untrustworthy as evidence. As such, except as found below, the report by itself cannot form a basis for denial of Petitioner's application. Ms. Fudge was the only person who testified at the hearing with personal knowledge about the events of March 5, 2003. She testified, and such testimony is accepted, that on or around March 5, 2003, she was not a shift supervisor, but was assigned as a direct care aide with "one-to-one" supervision of R.H. The testimonial evidence from Ms. Fudge and other employees of the Center during 2003 demonstrated that Tallahassee Developmental Center employees were trained that one-to-one supervision meant that "the person had always to be watched" and "you could never leave [the person] alone." There was no credible evidence that the person could not be alone in the restroom, that the staff assigned to watch the person had to be within arm's length of the resident, or that such observation was not varied according to the behavior plan for an individual resident. Further, the testimonial evidence showed that staff and Ms. Fudge knew R.H. would run away usually to hide in a particular office, but occasionally with the police being called if R.H. were to leave the building and could not be found. The evidence did not demonstrate that R.H. behaviorally was aggressive or dangerous to others, but only that he would run away and hide. Finally, the testimonial evidence showed that the facility was in the process of trying to wean R.H. off of one-to-one supervision by implementing a plan of moving away from him and permitting him times of less supervision. On March 5, 2003, the testimonial evidence demonstrated that Ms. Fudge, R.H., and other residents were gathered in the living room of the house where they lived. The phone in the adjoining office rang and Ms. Fudge answered it. While on the phone she could observe R.H. through the window between the rooms. At some point, R.H. was sent to go to the restroom. It was unclear who sent him. After finishing in the restroom, he did not return to the living room, but "left out of the bathroom" to another office, locked the door and hid behind the desk. Ms. Fudge could see him in the office and called a nurse to bring the key so that the office could be unlocked. At the time, R.H. was not in danger and there was no evidence that demonstrated he was in danger. There was some evidence that another staff person mistakenly may have believed that R.H. had left the building. However, the better evidence showed that Ms. Fudge knew where R.H. was, could see R.H. in the room in which he was locked, and that he was not in danger at the time. Given R.H.'s behavior plan, none of these facts establish neglect by Ms. Fudge in the supervision of R.H. There was no credible, non-hearsay evidence presented at hearing as to the abuse report's allegations regarding resident R.G. or J.D. As such, the Department's evidence consisted only of an old unreliable abuse report consisting of uncorroborated hearsay about an incident involving R.G. and perhaps J.D. and the testimony of the investigator who had no personal knowledge of the facts regarding the incident or the supervisory policies of the Center. Given these facts, Respondent has failed to demonstrate that Ms. Fudge neglected, either in supervision or medically, residents who were in her care. In fact, the evidence showed that Petitioner has been caring for and/or supervising people for many years and has the character and capacity to continue to do so. Since the unproven abuse report was the only basis on which the Department based its decision to deny Petitioner's application, there was nothing in the record to support its determination that Petitioner lacked moral character or the ability to safely operate a child care facility. Therefore, Petitioner's application for such licensure should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner's application for licensure as a child care facility is granted. DONE AND ENTERED this 2nd day of November, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2015. COPIES FURNISHED: Paul Sexton, Agency Clerk Department of Children and Families 1317 Winewood Boulevard, Building 2, Suite 204 Tallahassee, Florida 32399-0700 (eServed) Camille Larson, Esquire Department of Children and Families 2383 Phillips Road Tallahassee, Florida 32308 (eServed) Leslie Fudge God's Little Blessings Apartment F-8 216 Dixie Drive Tallahassee, Florida 32304 Michael Andrew Lee, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308-5333 (eServed) Rebecca Kapusta, General Counsel Department of Children and Families 1317 Winewood Boulevard, Building 2, Room 204 Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families 1317 Winewood Boulevard, Building 1, Room 202 Tallahassee, Florida 32399-0700 (eServed)
The Issue The issues in this case are whether Respondent violated the provisions of Florida Administrative Code Rule 65C-22.001(11) (2013),2/ as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for inspecting, licensing, and monitoring child care facilities such as the one operated by Respondent. It is the Department’s responsibility to ensure that all such facilities are safe and secure for the protection of the children utilizing those facilities. The Department inspects each licensed day care center several times a year. In the event of a complaint, additional inspections and/or investigations are conducted. Respondent is a licensed child care facility located in Manatee County, Florida. On October 12, 2017, Ms. Linzmayer received a complaint from an anonymous source who said she worked at the Academy. As a result of that complaint, Ms. Linzmayer was prompted to call the Department’s abuse hotline. Ms. Clark was working as an investigator for the Manatee County Sheriff’s Office, Child Protective Investigation Unit in October 2017. When notified of the potential abuse allegation, Ms. Clark conducted an investigation on October 12, 2017. The scope of Ms. Clark’s investigation centered on the allegations that a teacher had hit a child in the mouth. Ms. Clark spoke with employees at the Academy and then met with the alleged victim (A.O.) and the child’s family at a local law enforcement office. Ms. Clark’s investigation did not substantiate the case (of actual abuse) because she did not have proof that something did or did not happen. Ms. Clark notated that the Academy had not contacted the abuse hotline regarding the suspected child abuse and there was no incident report.4/ Ms. Barna-Roche conducts health, safety, routine and renewal inspections, as well as complaint inspections of child care facilities. After receiving the hotline abuse allegation, Ms. Barna-Roche inspected the Academy and spoke with several of its employees. As a result of her inspection, Ms. Barna-Roche found that the Academy failed to report the alleged child abuse. The only first-person account of the alleged classroom events of October 6, 2017, was provided by Ms. Gonzalez, a former teacher at the Academy. Ms. Gonzalez was in the two-year-old classroom, with another teacher, Ms. Tover. Ms. Gonzalez credibly testified that she did not “pop” a child in the mouth, and that she had never told Ms. Tover she had “popped” or used physical or inappropriate force relative to A.O. Ms. Gonzalez provided a brief history of her association with Ms. Tover, which was unflattering to both. For a time Ms. Gonzalez lived in the same house with Ms. Tover and members of Ms. Tover’s family. A disagreement arose regarding Ms. Gonzalez’s dog, and Ms. Gonzalez was asked to leave the house. In order to gather her belongings from the house, Ms. Gonzalez was forced to call law enforcement for assistance. This disagreement appears to have spilled over to the Academy, where both women worked. As part of her supervisory duties, Ms. Johnson (also known as Ms. Charlotte or Charlotte Hill) makes it a point to observe the children as they enter and leave the Academy. She conducts these observations in order to address any potential issues regarding a child’s well-being and to provide excellent service to the children and their parents in the care provided. Ms. Johnson was not in the two-year-old classroom on October 6, 2017, but observed the children entering and leaving the Academy that day. Ms. Johnson did not see the alleged abuse victim, A.O., with a fat or bloody lip as he left Respondent’s facility on October 6, 2017. Ms. Johnson was aware that Ms. Gonzalez had lived in the same house as Ms. Tover and her sister, and Ms. Johnson knew that Ms. Gonzalez moved out of the house prior to October 2017. Ms. Johnson was aware of some interpersonal issues between Ms. Tover and Ms. Gonzalez that were not associated with the Academy. Both Ms. Gonzalez and Ms. Johnson acknowledged being mandatory reporters, and clearly testified that had either seen or thought there was abuse, they would have reported it. As alleged in paragraph 4 of the AC above, in one instance Ms. Tover is alleged to have “witnessed another teacher ‘popping a child on the mouth’ and informed the child’s grandmother, who also works at the facility.” Yet, in paragraph 5 of the AC, Ms. Tover “confirmed her account of the alleged abuse. At the time of the incident, she turned around when she heard a child crying.” (emphasis added). Ms. Tover did not testify at hearing. There is no evidence that any abuse occurred. The testimony provided by Ms. Linzmayer, Ms. Clark, and Ms. Barna-Roche relies upon hearsay, and in some cases hearsay upon hearsay. Their testimony is found to be insufficient to meet the burden in this proceeding. The lack of direct evidence of the alleged abuse is troublesome. The indication that Ms. Tover “witnessed” the abuse or turned around after she heard a two-year-old child cry and was told something occurred is insufficient to overcome the direct testimony of the alleged perpetrator, who denied the accusation. It is true that additional training in spotting child abuse or suspected child abuse, and reporting such abuse or suspected child abuse is warranted at the Academy; however, the evidence is not clear and convincing that any abuse, real or suspect, occurred on October 6, 2017.
Recommendation Upon consideration of the evidence and testimony presented at the final hearing, and 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. DONE AND ENTERED this 25th day of April, 2018, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2018.
The Issue Whether Respondent failed to maintain good moral character, in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2015), and Florida Administrative Code Rule 11B- 27.0011(4)(a); and, if so, the appropriate penalty.
Findings Of Fact Respondent is a certified corrections officer in the State of Florida. Petitioner issued Corrections Certification No. 320518 to Respondent on December 15, 2014. The Florida Department of Corrections employed Respondent between July 1 and September 30, 2015. Between July 1 and September 30, 2015, the minor child, who was related to Respondent by marriage, resided with Respondent at his residence. Between July 1 and September 30, 2015, the minor child was 12 years of age or older, but younger than 18 years of age. The minor child’s parents each executed documents evidencing their intent that Respondent’s wife, Jessica Emanuel, act as guardian of the minor child. These documents indicated that Ms. Emanuel could enroll the minor child in school, make health care decisions, and make other decisions concerning the minor child’s general welfare. In October 2015, Monica Lange, a case coordinator for the Child Protection Team in the Children’s Advocacy Center, received a referral from the Department of Children and Families in Charlotte County, Florida, concerning the minor child. Ms. Lange testified that she conducted a video interview of the minor child on October 19, 2015, in Fort Myers, Florida (the CPT interview). Ms. Lange credibly testified that when she interviewed the minor victim, the minor victim (who was 17 years old at the time of the interview) did not appear to be impaired, appeared to have the skill set to answer the questions asked, and understood everything that Ms. Lange asked. Ms. Lange also credibly testified that the minor victim understood the concept of being truthful, and was responsive to the questions Ms. Lange asked. The CPT interview revealed the following recollections of the minor victim: Shortly after the minor victim (who was then 16 years old) began living with Respondent and Jessica Emanuel, Respondent and the minor child began consuming alcohol together and engaging in conversations of a sexual nature; Respondent and the minor child thereafter engaged in sexual activity over 30 times in Respondent’s house and truck; The minor child described many of these incidents of sexual activity with detail as to time and location; The minor child stated that Respondent and the minor child engaged in sexual activity with and without a condom; and The minor child stated that the minor child was exposed to a sexually transmitted disease during this time period. After the CPT interview, Ms. Lange contacted Jason Cook, an investigator with the Washington County Sheriff’s Office. Mr. Cook testified that he reviewed the CPT interview, and then called and scheduled appointments with Jessica Emanuel and the minor child’s mother. Based on those interviews, Mr. Cook contacted Respondent, and, on November 2, 2015, interviewed Respondent at Mr. Cook’s office for approximately two hours and 15 minutes. Mr. Cook testified that he provided Respondent with a Miranda warning, informed Respondent that he was not being charged with a crime at that time, and that Respondent was free to leave the interview at any point. The undersigned’s review of the interview confirms Mr. Cook’s testimony. Mr. Cook testified that for the first 40 to 50 minutes of the interview, Respondent’s demeanor was nervous, guarded, and defensive. However, according to Mr. Cook, Respondent later seemed to open up and spoke more freely.2/ Throughout the interview, Respondent stated that he and his wife provided the basic necessities to the minor child, including room and board. Additionally, Respondent stated that the minor child attended school. During the first 40 to 50 minutes of the interview, Mr. Cook testified that when he asked Respondent whether he engaged in sexual activity with the minor child, Respondent stated many times that he was not sure or could not remember. The undersigned reviewed Mr. Cook’s interview of Respondent. During the first approximately 40 minutes of the interview, when Mr. Cook asked Respondent whether he engaged in sexual activities with the minor child, Respondent provided various non-denials of such activity, stating, at various points: he had psychological issues, so he could not give Mr. Cook an honest answer; (b) he did not feel that he had sexual activities with the minor child; (c) he did not know if he had sexual activities with the minor child; (d) he could not believe engaging in sexual activities with the minor child was something he would do; and (e) he did not know if he engaged in sexual activities with the minor child, but it was a possibility. After approximately 40 minutes of the interview, Mr. Cook and Respondent discussed various disciplinary measures Respondent took with the minor child. After this discussion, Respondent stated that he engaged in sexual activities with the minor child. Respondent stated that these allegations were true, and that he was “tired” of trying to remember or think about this subject. Respondent further stated that he did not engage in sexual activities with the minor child more than 30 times, as the minor child reported. Instead, he stated that he engaged in sexual activities with the minor child between 10 and 20 times. Respondent also stated that the local health department prescribed him medication for either an infection or a sexually transmitted disease, but he could not recall which. At multiple times during the interview, Respondent vaguely referred to mental health issues he felt he suffered, including “bipolar schizophrenia.” When pressed by Mr. Cook, Respondent stated that he had not sought treatment for any mental health issues and had essentially self-diagnosed these issues. Respondent has not otherwise presented any evidence of such mental health issues in this proceeding and recanted this self- diagnosis at the final hearing. At the final hearing, Respondent testified that he did not engage in any sexual activity with the minor child. Respondent further stated that if he had engaged in sexual activity with the minor child, he would have been tried and convicted. Respondent testified that the state attorney dropped the charges against him in the criminal case. At the final hearing, Respondent stated that Mr. Cook did not force him to make any statements or admissions during the November 2, 2015, interview. Respondent provided various documents concerning the criminal case demonstrating that the State dismissed criminal charges concerning the same conduct alleged in this proceeding. The undersigned notes that the “Order Dismissing Charges” in the criminal case found that “the State will be unable to prove the charges against the Defendant without the testimony of the alleged victim, and the alleged victim’s testimony has been excluded by the Court because the alleged victim has repeatedly failed to appear for her deposition . . . .” The undersigned also notes that a Subpoena for Telephonic Deposition to be served on the minor victim indicates that the Charlotte County Sheriff’s Office was unable to serve the subpoena, stating, “THIS SUBJECT MOVED OUT IN MARCH, SHE IS HOMELESS LIVING IN THE WOODS SOMEWHERE, NO CONTACT INFORMATION AVAILABLE, WHEREABOUTS UNKNOWN.” The undersigned has considered evidence of the disposition of Respondent’s criminal case in this proceeding. Despite the disposition of the criminal case against Respondent, the undersigned finds that Mr. Cook’s testimony, and the November 2, 2015, interview of Respondent in which Respondent ultimately admits to engaging in sexual activity with the minor child, corroborates the minor victim’s statements in the interview with Ms. Lange that the minor victim engaged in sexual activity with Respondent while Respondent was in a position of familial or custodial authority. The undersigned finds the testimony of Mr. Cook and Ms. Lange to be credible. The undersigned further finds the minor victim’s statements in the CPT interview to be clear, precise, and distinctly remembered. The undersigned further finds that Respondent ultimately admitted to engaging in sexual conduct with the minor victim, as alleged, and that Mr. Cook did not force or coerce Respondent to provide this admission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding that Respondent Taylor L. Landry has failed to maintain the qualifications for good moral character for a correctional officer, established under section 943.13(7), and defined in rule 11B-27.0011(4)(a). It is further RECOMMENDED that Petitioner revoke Respondent Taylor L. Landry’s Corrections Certification No. 320518. DONE AND ENTERED this 24th day of September, 2018, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 24th day of September, 2018
Findings Of Fact A. Introduction Briefly this case concerns itself with the measures taken by Respondent to effectuate its suspension of petitioner without pay during July 29, 1975, 2/ through August 22. The suspension letter dated August 8, advises the Petitioner that the disciplinary action taken against him was based on information furnished him in a letter dated July 29, 1975. (See joint exhibit #1 received and made a part hereof by reference). In essence the July 29th letter indicated that based on the results of a meeting held in Hanni's office numerous incidents involving alleged willful violations of agency rules, regulations and policies were reviewed and that while Petitioner was aware of such rules, regulations and policies, because of philosophical differences, he circumvented them. Present at that meeting on Respondent's behalf were William Clark, Pat DeNoyer, Joe Davis, Grace Scarberry and Petitioner. The Letter advised that although he received a satisfactory performance evaluation effective February 23, 1975, during that evaluation period he engaged in numerous violations of agency rules, regulations and policies. Specifically, the letter referred to an incident wherein he altered a form, DYS143, which changed the recommendation for issuance of a petition to a recommendation of no petition. That alteration, as the letter reads, was made after the supervisor had initially approved the original recommendation for issuance of a petition. This, as the letter alleges, was without the supervisor's attention and/or recommendation. The July 29th letter also indicates other instances in which pre-dispositional reports were not completed prior to court hearings on approximately three occasions and that he was issued an oral reprimand for using profanity in speaking to a neighbor who was known to Petitioner as a former DYS client on July 14; that he violated DYS rules by authorizing the release of a child from detention in violation of a judge's "hold-in-custody" order and against the judge's express wishes and instructions; that he did not notify a court psychologist of the change of a hearing date from July 16 to July 10 even though he had full knowledge that the psychologist had done a court ordered evaluation which was standard procedure which resulted in violation of State Department of Health and Rehabilitative Services, Division of Youth Services Employee Rules of Conduct and Guidelines for disciplinary action, offense no. 24, in willful violation of rules and regulations of policy. For engaging in the conduct as alleged, Petitioner was dismissed from his employment effective 5:00 P.M., July 28, 1975. During a telephone conversation on August 8, Petitioner was advised by Hanni that his supervisors had reviewed the circumstances surrounding his termination on July 28, and based on further review, it was felt that the disciplinary action taken against him resulting in termination should be reduced to a suspension without pay. Thus the initial termination was reduced to a suspension effective July 29. The Petitioner, Warren F. Shaw, holds a B.S. Degree from Florida Atlantic University and was initially employed by Respondent in June, 1973. He received permanent status in August, 1974, and was placed in the intake unit. He was initially hired by T. Waldren and was placed in Grace Scarberry's unit after she (Scarberry) had been a supervisor for approximately five months. During the time that he was employed in Mrs. Scarberry's unit, he submitted two transfer requests. When Petitioner returned to work on August 22, he was evaluated by Mrs. Scarberry on August 26 and at that time he was placed on conditional status. On that date, Mrs. Scarberry explained to Mr. Shaw the reasons why his performance was rated conditional (allegedly due to his inclination to circumvent established procedures and policies in critical areas). The letter of explanation indicated that during the early portion of his rating, he performed within satisfactory limits, however, during the latter period there was a general decline in his overall performance. It went on to state that he (Shaw) found it difficult to meet acceptable standards of performance in the areas of dependability, relationships with people, quality of work and adequate utilization of his job knowledge. It cited one occasion when he failed to place vital social information in a PDR which was allegedly "known to him" and pointed out to his supervisor resulting in an unnecessary court continuance and detention for a child. Further it cited an incident wherein another child was released from detention in violation of a court order. Also mentioned were his critical attitude regarding his relationship with people including the clerical and professional staff and clients which had been the subject of an earlier oral reprimand. See Appellant's Exhibit #2, received and made a part hereof by reference. Grace Scarberry, a camp specialist of District 10, HRS, since June 30, 1976, was initially hired in September, 1972 as a youth counselor II. Sometime during late March, 1974,she was made supervisor for youth counselors and was assigned to supervise the Petitioner sometime during September, 1974. Essentially intake counselors receive referral applications from policemen by juvenile offenders. During June 1975, the Division of Youth Services established a unit to handle juvenile matters at the Broward County Courthouse. A PDR is a summary of arrests records, impact forces, family background and generally data relative to how a child fits into his family. It is used to assist the presiding judge on the disposition of juvenile offenders. Mrs. Scarberry testified that standard rules and regulations require counselors to submit PDR's prior to the court hearing absent extraordinary circumstances. Mrs. Scarberry related the incident regarding the alleged alteration of an order by the Petitioner wherein he recommended that a petition be filed in a case which she approved and that Petitioner thereafter changed the recommendation. When the change was discovered, she counseled Petitioner. She expressed her knowledge and familiarity with the disciplinary procedures and testified that on July 22 she evaluated the Petitioner as being a satisfactory employee. She also related other instances wherein PDR's were not filed prior to the hearing and circumstances wherein social files contained inaccurate and incomplete material. She also indicated the problem regarding the lateness in which the Petitioner submitted files which normally should be completed approximately two to three days after a judge's order is entered and received. For this alleged infraction, Petitioner was asked to write a memo explaining his lateness in filing reports and in that memo he replied that such was occasioned by his heavy case load and other pressing matters. Scarberry also related the incident wherein Petitioner allegedly violated a judge's holding order by releasing a child who was ordered to be retained until he was transferred to a drug program. She testified that Petitioner explained that the judge had ordered the youth released on the date in which the release occurred. She requested that Petitioner file a memo explaining his actions regarding the release whereupon she explained to him that although he violated the rules, no disciplinary action would be taken. Frank William Schueler, a police information officer for Ft. Lauderdale, testified that his son is the subject of the Petitioner's alleged violation of the judge's "hole-in-custody" order. He was somewhat vague in his testimony but generally indicated that he was of the opinion that the Petitioner followed the judge's order in releasing his son. H. Squier Hanni, Regional Director for the Division of Youth Services during times material, testified that he terminated Petitioner on July 29, 1975. He testified that on or about July 16, he along with Petitioner, Mrs. Scarberry, DeNoyer and others, during a meeting determined the basis for the charges. At that meeting, Mrs. Scarberry stated that the Petitioner circumvented rules, policies and procedures whereupon he reviewed the reports of his work in certain cases. A further meeting was held on July 28 and at that meeting, Petitioner, according to him, wanted the matter ended. Accordingly, the allegations were read to him and he responded that they were ridiculous. When the allegations were read to him, Petitioner indicated that he followed the rules and regulations and in certain instances wherein there was a departure, he should be compared to Kennedy and other employees who had not consistently followed procedures as they were "standardized". Thereafter, Petitioner was excused from the room and the parties jointly agreed that he was guilty as alleged and various options were discussed among them. One option discussed was to have Petitioner placed in the conditional status for approximately 30 to 45 days. That option was not utilized and they decided to terminate him. On or about August 8 the dismissal was substituted for a suspension based on consultation with Art Adams, Personnel Director for the Division of Youth Services, who persisted that the action warranted suspension rather than termination. He explained to Hanni that attitude should not be an operative factor in a disciplinary action. On cross examination, he testified that he was aware of no other employee who had been reprimanded for the conduct allegedly engaged in by the Petitioner and that he did not point out to Petitioner when specifically requested by him, the rules and regulations which he allegedly violated. He admitted that philosophical differences without question played a factor in his reasons for dismissing the Petitioner. He further admitted that Petitioner requested to be transferred to another unit and he refused. Joe Davis, Staff Developmental Trainer-Consultant since April 15 testified that he was aware of the Petitioner's alleged violation of a hold-in- custory order which was stated as one of the reasons for his separation. He spoke to the judge who indicated that the order was predated to prevent Petitioner from "getting into trouble". Pat DeNoyer, a Program Specialist, testified that she prepared a list of all employees who were to attend training meetings. Petitioner was not included on the list to attend training meetings in her opinion due to a clerical mistake. (See Exhibit A, received and made a part hereof by reference). She related the problems regarding social file discrepancies and admitted that no corrective action was taken to correct this problem and further that there were discrepancies in almost all of the files that were reviewed. She failed to recall having voiced this to Petitioner or indicating that he should institute some corrective action to see that the discrepancies did not continuously occur in social files. She admits to having received two transfer requests from Petitioner and was aware of his special evaluation in which he was rated above satisfactory on June 17, 1976. She expressed the opinion that Tom Waldren is an experienced supervisor. Jean Tillman, a District Intake Specialist, also related the problems regarding social file discrepancies. She recalled that verbal requests for corrective actions regarding the social file discrepancies were made by Mr. W. H. Clark. She indicated that the social files were considered late if they were not presented by 8:00 A.M. on the day prior to the court hearing. Several employees testified, including James Robinson, Kate Woodby, and Betty A. Conrad who was employed through January 31, 1976 as an employee in the VISTA program which was then connected with DYS. She testified that Petitioner went over and above his call of duty by assisting her and performing special counselling for the VISTA program. Tom Waldren, a youth counselor supervisor and the person who originally hired the Petitioner, testified that he rated Petitioner above satisfactory. He also indicated that it was not uncommon for interchanges to occur verbally at times when a social file was not timely presented. Ronald Nelson, a youth counselor since approximately April of 1972, testified that he has known Petitioner for approximately three years. He has worked along with Petitioner on numerous felony cases and indicated that he and Petitioner have been criticized for handling judicial cases. He worked very closely with the Petitioner since July of 1975 and would rate his work performance above satisfactory. Shaw testified that he submitted the two transfer requests because of the philosophical differences that he and Mrs. Scarberry had. He related his being placed on conditional status when he returned to work on August 26, 1975, and at that time he requested that he be transferred. He indicated that on or about July 28 the problem of PDR's was raised for the first time and he admits that he had been orally spoken to about the lateness in which he filed PDR's. In explaining his conduct surrounding the change in the recommendation, he indicated that he first made the recommendation to Scarberry that a recommendation be filed in the case. He testified that he was asked to go see the then assistant state attorney, John King, who was not in at the time. Upon reflection of the matter, he changed his recommendation and the matter was brought to King's attention who did not file a petition. He testified that this change in the recommendation centered around the fact that is was a sex case involving two neighbors who were, in his opinion, being vindictive. He spoke to Scarberry about the change sometime in January. He indicated that he was baffled by Scarberry's continuous indication that while he was being orally reprimanded, the reprimands continuously turned up in his personnel file. Regarding his alleged failure to have a court psychologist present, he explained that court psychologists were not needed in all cases and that he was unaware of any rule that required the presence of a court psychologist in the cases such as the particular case in question. As regards the alleged violation of the judge's "hold-in-custody" order, Petitioner testified that when he spoke to the judge, he concurred with his disposition of this matter. Specifically, he testified that he called the drug program to see if the subject juvenile could be expedited into the drug program. Upon learning that the juvenile could be expedited into the drug program, he released him to the father, and he was then placed in a "hold- release" situation. During his exit interview, Petitioner testified that Hanni related the problems which essentially were his dissatisfaction with the philosophical differences existing between he and Scarberry. He talked to Art Adams the day prior to his reinstatement and Adams indicated to him that he initially felt that Hanni was correct but upon reconsideration, determined that the action taken was a bit harsh for the alleged infractions of the various rules, regulations and policies. Petitioner was unaware of any rule which required that PDR's be in writing prior to submission of the case to court for hearing. He was requested to, and prepared a document explaining his actions surrounding the alleged violation of the judge's "hold-in-custody" order. In explaining his alleged withholding of cases, Petitioner indicated that for the majority of his cases, he submitted them to the supervisor within two or three days following the close of the hearing. He testified that his case files did not always include rules of probation due to other pressing reasons, for example other cases which were in court for final hearing. As regards the reprimand that he received for using profanity, he denied that he made any profane statements in the presence of a female. He testified that it was in his opinion, up to the counselor's discretion to see what manner or means a youth should be transported to a detention center. Finally he testified that the judge authorized the release to the juvenile's father. In resolving the issue posed here, the undersigned has examined the documentary and other evidence and viewed such in light of the Respondent's alleged reasons cited for prompting the Petitioner's suspension. In so doing, I am forced to conclude that the suspension was caused, at least in part, based on Petitioner's philosophical differences with his supervisor, Grace L. Scarberry. H. Squier Hanni, the Deputy District Administrator who ordered the suspension admitted as much in his testimony. In fact he testified that the philosophical differences existing between Petitioner and Scarberry played a major part in his decision to discharge Petitioner. Thereafter on the following day, Hanni consulted with HRS Personnel Director, Art Adams, who correctly pointed out that philosophical differences should not play any part in a decision to discharge an employee. When Hanni was persuaded to reduce the disciplinary action to a suspension, the undersigned is of the opinion that the appropriate corrective action was not taken for the following reasons. By his own admission, Hanni indicated that Petitioner's philosophical differences unquestionably played a factor in his decision to discharge Petitioner. The evidence also reveals that the alleged violations of rules, policies etc., which formed the basis of the decision to terminate Petitioner were the same type conduct which other employees engaged in without any disciplinary action being taken against them for such conduct. This is clearly disparate treatment and lends support for a conclusion that the cited reasons for the discharge were pretextual and the real reason was the philosophical differences. Even if it was less clear that other employees had engaged in the kind of conduct which led to Petitioner's suspension without any disciplinary steps taken, the suspension is still suspect in view of Hanni's forthright testimony that the philosophical differences played a major part in his decision which ultimately led to Petitioner's suspension. Further support for this conclusion rests in an examination of the remarks contained in Scarberry's letter to Petitioner indicating that while he had been performing satisfactorily, his critical remarks were part of the reasons that she evaluated his performance as conditional (See Appellant's Exhibit #2). This evaluation was made immediately following Petitioner's return to work and after the suspension. At that time, Petitioner again requested a transfer which was denied. He was finally permitted to transfer in mid- September, 1975, and he was evaluated above satisfactory in November 1975, by his supervisor, Tom V. Waldren. Based on the above and the entire record in this case, I find that Petitioner was suspended at least in part due to his philosophical differences with supervisor Grace L. Scarberry. Inasmuch as the suspension rested in part on this fact, I therefore conclude that the suspension was improper and should have been retracted. I shall so recommend. 3/
Recommendation Based on the above findings of fact and conclusions of law, I recommend that Respondent make whole its employee, Warren Frederick Shaw, for any loss in earnings plus reasonable attorney fees and costs as provided in Chapter 110.061(3), F.S., that he suffered during the above referenced period in which he was suspended. I further recommend that his personnel records be expunged of any material relative to the suspension. DONE and ENTERED this 20th day of September, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1976.
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
The Issue The issue at the hearing was whether Petitioner is entitled to an exemption from disqualification of employment as a person who has direct contact with aged or disabled adults.
Findings Of Fact In 1993, Petitioner was 25 years old. Petitioner was employed by Sunland to care for its disabled clients. Petitioner's duties included direct contact with the clients of Sunland. The background screen revealed that on November 9, 1993, Petitioner plead guilty to two counts of battery (domestic violence). The conviction was the result of a physical altercation between Petitioner and Petitioner's live-in boyfriend, during which Petitioner threw an iron at her boyfriend missing him and striking her 3 year-old child. As a consequence of the conviction, Petitioner was fined the minimum amount and sentenced to two years' probation. She was adjudicated guilty. Contrary to Petitioner's testimony, the evidence showed that Petitioner has had at least two other encounters with the criminal justice system. The greater weight of the evidence showed that Petitioner has a problem with controlling her anger and in controlling her violent response thereto. Based on the record in this case, Petitioner has not established by clear and convincing evidence that she will not be and is not a danger to disabled or elderly persons with which she might come into contact and that she has not learned to control her anger and use of physical aggression. The Petitioner is therefore not entitled to an exemption from disqualification from employment.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying Petitioner, Tammie Collins, an exemption from disqualification from employment. DONE AND ENTERED this 11th day of February, 1999, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1999. COPIES FURNISHED: Steven Wallace, Esquire Department of Children and Family Services Suite 252 2639 North Monroe Street Tallahassee, Florida 32399-2949 Tammie Collins Post Office Box 208 Greenwood, Florida 32444 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
