The Issue Did the Respondent State of Florida Department of Revenue (Department) act fraudulently, arbitrarily, or dishonestly in awarding the Child Support Enforcement (CSE) Legal Services Contract for Sarasota County, Florida to Steven Johnson, and thereby subvert the competitive bidding process?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Effective July 1, 1994, the Department became the agency of the State of Florida responsible for prosecuting Child Support Enforcement actions in the State of Florida. In furtherance of this responsibility, the Department, advertised the solicitation in June 1994. Petitioner, Intervenor, Brenda Hibbeln, Gary Gassel and Johnson each submitted timely offers in response to the solicitation. The Department considered the offers submitted in response to the solicitation by Petitioner, Intervenor, Brenda Hibbeln, Gary Gassel and Johnson as being responsive to the solicitation. By letter dated September 7, 1994, the Department advised Petitioner, Intervenor, Brenda Hibbeln and Gary Gassel that the CSE Legal Service Contract had been awarded to Johnson. Upon being advised that the CSE Legal Service Contract had been awarded to Johnson, Petitioner filed a written notice of intent to file a formal protest with the Department. Subsequently, the Petitioner filed a formal protest. Upon the existing contract for legal services expiring, the Department determined that a need for emergency legal services existed and entered into a contract with Johnson to provide emergency legal services on a temporary basis until this dispute was resolved. The Department advised Johnson of this decision by letter dated October 6, 1994. Paragraphs II, XV, XVI and XVII of the solicitation provide as follows: II. Statement of Need Through this solicitation for offers to provide legal services, the department seeks to obtain the highest possible standard of legal representation at the lowest possible cost while ensuring free and open competition among prospective offerors. * * * **Note: 2000 open files/case records will be assigned immediately and adequate storage or filing space must be available. * * * Instruction for Responding to Solicitation * * * Statement of Work Provide a specific and detailed plan which clearly demonstrates your ability to handle the anticipated volume of cases and to keep track of and to perform repetitive legal work. You should include any information which you believe relevant to demonstrating that you are able to handle a substantial number of cases in an efficient manner including any automation or special equipment which you will utilize or which you will secure for use under this contract if your offer is accepted. A description of your physical plant, its location, present or proposed adjacent square footage and any other information upon which you want the evaluator to rely in assessing your ability to fulfill the contract obligations should be included. Provide a detailed operational plan and flow chart showing how you will process and keep tract of cases from the date of receipt until all required actions are completed. Include the personnel who will be utilized and the anticipated timeframes involved. Describe Your Organization Provide a description of the attorney's qualifications and experience, indicating their abilities to manage and complete the required services. Submit a description of the staff who will be providing CSE services. List their qualifications, the number of positions, the percentage of time devoted to HRS contract work and identify those qualifying under F.S. 288.703(3) as a minority. If your business has been certified as a Minority Business Enterprise, please attach a copy of the certificate. If your business has not been certified; but has minority ownership, please identify the percentage of minority ownership. Describe how you and your staff will be made accessible to work with the department's staff, the judiciary, and clients. Mandatory Requirements The following documents, certifications, and the answers to the questions listed Attachment V and Attachment VI are mandatory requirements. If one of these requirements are not met, your offer will not be considered further. . . . A. The following certifications must also be completed and/or signed by the authorized representative of your company: * * * 3. The Statement of Authority to Bind Firm which is found in Attachment IV, number 4, must be signed by the firm's authorized representative. This statement certifies that the signee has the authority to bind the firm to the terms of this solicitation and the terms of the proposed contract. F. Certification of Malpractice Insurance Coverage. The attorney/firm must presently have or indicate by an attached binder that they will have a minimum of $100,000.00 single claim and 300,000.00 aggregate lawyers professional liability insurance. If the attorney/firm already has the indicated insurance, a copy of the policy must be included with the offer. If the attorney/firm does not have said coverage, a binder for coverage must be attached showing an effective date of at least fifteen days prior to the beginning of the contract. * * * K. The attorney/firm must be available for transition at least 30 days before the effective date of the contract. The statement to this effect is in Attachment IV, number 7. Evaluation criteria Introduction * * * The evaluation rating sheet lists evaluation criteria and specific indicators of those criteria used to assess the degree to which the provider's response meets those criteria (See Attachment V). Evaluation criteria will be grouped into the following categories: . . Category 1 - Mandatory Requirements Category 2 - Technical Requirements Category 3 - Price Category 4 - Personal Interview (Optional) Selection of the successful provider will be based on the offer that is determined to be in the best interest of the department, taking into consideration price and the other criteria listed in this solicitation. Category 1 - Mandatory Requirements Each offer will be reviewed for responsiveness to the mandatory criteria set forth in Attachment V. Offers that fail to satisfy all of the criteria in this category will not be considered further. . . . Category 2 - Technical Requirements This portion of the evaluation will address the capability of the offeror to perform the services outlined in the solicitation focusing on the volume of work and the terms indicated in the model contract. Specific areas which will be evaluated and the maximum points to be assigned to each are indicated in the evaluation rating sheets which are included in Attachment V. . . . 9. Attachment V, numbers 2, 9 and 14 of the solicitation provide as follows: CATEGORY 1 - Evaluation of Mandatory Requirements (Fatal Criteria) FATAL CRITERIA 2. Was the offer signed by an official authorized to bind the offer to the solicitation? Yes/No * * * Does the attorney/firm presently have, or indicate by attached binder that they will have, a minimum of $100,000.00 single claim/$300,000.00 aggregate lawyers professional liability insurance at least 15 days prior to the contract effective date? Yes/No * * * 14. Will the attorney/firm be available for transition by at least 30 days before the effective date of the contract? Yes/No CATEGORY 2 - Technical Information (100 points) Provide a specific and detailed plan which clearly demonstrates the ability to handle the anticipated volume of cases and perform repetitive work. (0-30) Time and personnel to be devoted to child support work. (0-15) Experience/familiarity in contract related work. (0-30) Length of time in practice. (0-5) Provide a specific and detailed plan which clearly demonstrates accessibility to and by clients, child support staff/judiciary. Identify minority ownership and/or employees assigned to perform contract work. (0-5) The Department answered yes on numbers 2, 9 and 14 above for Johnson's offer. After the initial review of Johnson's offer, including all of the Fatal Criteria, the Department found Johnson's offer to be responsive. The Department then evaluated the Johnson offer as to Technical Requirements and Price - Evaluation Categories 2 and 3 - and determined that the Johnson offer was the lowest and best offer. Johnson's proposed cost for the contract for July 1, 1994 through June 30, 1995, was $163,402.19 whereas Petitioner's and Intervenor's proposed cost for the contract for July 1, 1994 through June 30, 1995, was $192,540.83 the same as total reimbursement based on the cap set by the Department. Each of these amounts would have to adjusted to correspond to the shorter length of the contract period. Although Johnson was covered under the Professional Liability Insurance Policy issued to the Law Offices of Hernan Castro for cases which he was handling as an employee of Law Offices of Hernan Castro, Johnson was not covered under the Professional Liability Insurance Policy issued to the Law Offices of Hernan Castro for any cases he would be handling on his own in Sarasota County, not as an employee of the Law Offices of Hernan Castro. Johnson submitted the declaration page of the policy issued to the Law Offices of Hernan Castro carrying a coverage of $100,000/per claim with $300,000/aggregate. The policy period was from 12:01 a.m. July 1, 1993 through July 1, 1994. In a note attached to the offer, Johnson explained that the same policy had been extended for an additional period and was in effect at the time of the submission of his offer in response to the solicitation but that a copy of the new declaration had not been received at that time. Johnson submitted with his offer in response to the solicitation a letter from Hornbeck & Associates, Inc., Full Service Insurance and Bond, signed by Michael A. Hornbeck, which provided as follows: Sonja L. Richter Child Support Enforcement 2150 Collier Avenue, Suite H Fort Myers, FL 33901-8129 RE: STEVEN P. JOHNSON 814 Dixon Blvd, Suite 22 Cocoa, Florida 32922 Dear Ms. Richter: This is to advise that our firm is working on a Professional Liability Package for Steven P. Johnson. Providing the contract is awarded, we will issue the necessary certificate. Sincerely, s/Michael A. Hornbeck Michael A. Hornbeck On September 28, 1994, Great American Insurance Companies - the same insurance company that issued the liability insurance policy to the Law Offices of Hernan Castro that covered Johnson for his work with the Law Offices of Hernan Castro - issued to the Law Offices of Steven P. Johnson an insurance policy for legal professional liability coverage of $100,000/per claim with $300,000/aggregate. The policy period was from 12:01 a.m. September 15, 1994, through September 15, 1995. In the insurance industry, a binder is a temporary insurance contract, written or oral, with an effective date and an expiration date, that is subject to the conditions set forth in the binder, designed to show insurance coverage before the actual issuance or receipt of the policy. (See testimony of James E. Boyd, Petitioner's exhibit 5 and Section 627.420, Florida Statutes.) The letter from Michael A. Hornbeck does not constitute an insurance binder. However, the evidence indicated that Johnson was insurable. There was no evidence that Johnson's failure to include an insurance binder or proof of insurance in his own right with his offer in response to the solicitation placed Johnson in any competitive advantage, economic or otherwise. Furthermore, there was no evidence that the Department acted fraudulently, arbitrarily or dishonestly in accepting the information submitted by Johnson as sufficient to meet the requirement of Paragraph XVI, F of the solicitation and number 9 of the Fatal Criteria of Attachment V or that the process was subverted as a result of the Department's action. Johnson was admitted to practice law in the State of Florida on July 23, 1987 and has continuously practice law in the State of Florida since his admission. Johnson began handling child support enforcement case in July 1987, for Law Offices of Hernan Castro, In July 1988, Johnson took a position with Hillsborough County representing the Department of Health and Rehabilitative Services (HRS) through the office of Child Support Enforcement for Hillsborough County. In October 1990, Johnson was again employed by the Law Offices Hernan Castro in Brevard County to handle Child Support Enforcement cases representing HRS in Brevard, Oseceola and Seminole county. At times material to this proceeding, Johnson was not under an employment contract with the Law Offices Hernan Castro and could terminate his employment with the Law Offices of Hernan Castro at any time without notice. When Johnson submitted his offer in response to the solicitation, he did not have his own law office. However, there was nothing to prevent Johnson from opening his own law office. Johnson left employment of the Law Offices of Hernan Castro in October, 1994, and opened his own law offices so that he could begin representing the Department in Sarasota County prosecuting child support enforcement cases under the emergency temporary contract with the Department. As part of his offer in response to the solicitation, Johnson signed the certification Statement of Authority To Bind Firm set out in number 4, Attachment IV, Required Certifications, as follows: I, Steven P. Johnson, hereby certify that I the authority to bind Law Offices of Steven P. Johnson firm upon whose behalf this offer is made to the terms of this solicitation and the terms and conditions of the proposed contract in Attachment I. s/Steven P. Johnson 7-4-94 Authorized Representative Date The evidence shows that Johnson clearly had the authority at the time of his submission to bind the Law Offices of Steven P. Johnson as set out in the Statement of Authority to Bind Firm above. As part of his offer in response to the solicitation, Johnson signed the certification of Availability For Transition as set out in number 7, Attachment IV, Required Certifications, as follows: I, Steven P. Johnson, certify that the Attorney/ Firm will be available for transition at least 30 days before the effective date of the contract. s/Steven P. Johnson 7-9-94 Authorized Representative Date The solicitation indicated that the Department anticipated the contract to begin on October 1, 1994. There was no evidence to show that at the time Johnson signed the certification of Availability For Transition that his law office would not be available for transition at least 30 days before the effective date of the contract, notwithstanding that Johnson did not have office space rented, office furniture purchased or any employees, other than his wife, who were obligated to assist him in fulfilling the contract. However, Johnson did have the assurance of his former secretary that she would work for him if he was awarded the contract. It was not until the middle of September 1994, that Johnson rented office space, purchased furniture, including "tote" boxes for the case files, and office stationery. The evidence establishes that Johnson was available for transition at least 30 days before the effective date of the contract. In evaluating the technical information furnished by the offerors the Department used what is titled "Possible Evaluation Criteria" which covers the six areas set out in Category 2 - Technical Information of Attachment V. Petitioner and Intervenor contend that the Possible Evaluation Criteria sets out in more detail what technical information the Department is seeking in order to evaluate each offer. Therefore, the failure of the Department to include the Possible Evaluation Criteria with the solicitation package is unfair to the offerors. However, Paragraph XV(C) and (D) of the Solicitation above details very clearly what technical information the Department is seeking about the offers and Category 2 of Attachment V clearly provides weight the Department intends to place on that technical information. Although it may have been more beneficial to the offerors and the Department for the Possible Evaluation Criteria to have been included in the solicitation package, the evidence fails to establish that the offerors were treated unfairly because the Department chose not to include the Possible Evaluation Criteria in the solicitation package. Likewise, the evidence fails to establish that the Department acted fraudulently, arbitrarily, or dishonestly in not including the Possible Evaluation Criteria in the solicitation package or that the process was subverted by the action of the Department. The Petitioner and Intervenor contend that the Department, either consciously or inadvertently, provided Johnson with a copy of the Possible Evaluation Criteria in the solicitation package furnished to Johnson which placed all other offers, including the Petitioner and Intervenor, at a competitive disadvantage. Neither Reinhart & Moreland, Robert J. Elkins, Brenda Hibbeln nor Gary Gassel received the Possible Evaluation Criteria in their competitive negotiation package issued by the Department. After careful consideration of all the evidence in the record, the more credible evidence establishes that Johnson did not receive a copy of the Possible Evaluation Criteria before submission of his offer in response to the solicitation to the Department. The Petitioner and Intervenor contend that since they had previously submitted offers and held a contract with the Department's predecessor, HRS, the staff being virtually the same, that the Department should have considered previously obtained information without the Petitioner or Intervenor having to supply such information in their offers in response to the solicitation. There is no evidence to support this contention. In fact, Paragraph XV, C and D specifically provides to the contrary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order dismissing the Petitioner's and Intervenor's petitions and awarding the CSE Legal Service Contract for Sarasota County to Steven P. Johnson. RECOMMENDED this day 13th of March, 1995, at Tallahassee, Florida. WILLIAM R. CAVE 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 13th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5404BID The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner and Department in this case. Petitioner's Proposed Findings of Fact. 1. Each of the proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 6(2); 7-8(8); 10(8); 11(3); 12-13(9); 14(11); 16(9); 17(17); 18(9); 19(23,24); 22(8,26); and 30(29). 2. Proposed findings of fact 2 - 5, 9, 15, 20, 21, 23, 26, 27 29, 32 and 39 are neither material nor relevant or are unnecessary. Proposed findings of fact 24, 25 and 28 are not supported by the evidence in the record. Proposed findings of fact 31, 33 - 38 concern the conflict in testimony of witnesses on whether Johnson received the "Possible Evaluation Criteria" and whether Johnson was "Available for Transition". That was resolved in Findings of Fact 23, 24, 25, and 30. Department's Proposed Findings of Fact. Proposed finding of fact 1 is covered in Finding of Fact 1 and is also covered in the Preliminary Statement. Proposed findings of fact 2 - 8 are covered in the Preliminary Statement. Proposed finding of fact 9 is adopted in substance as modified in Findings of Fact 23, 24 and 25. Proposed findings of fact 10 - 13 are adopted in substance as modified in Findings of Fact 21 - 25. Proposed finding of fact 14 is adopted in substance as modified in Findings of Fact 23 - 25. Proposed finding of fact 15 is adopted in substance as modified in Finding of Fact 21. Proposed finding of fact 16 is adopted in substance as modified in Findings of Fact 17 -20. Proposed findings of fact 17 is adopted in substance as modified in Findings of Fact 30. There is no proposed finding of 18. Proposed findings of fact 19 - 22 are rejected as being argument going to the weight of testimony. Proposed findings of fact 23 - 25 are recitation of testimony and due not constitute a finding of fact. Proposed findings of fact 26 - 40, and 43 concern the conflict in testimony of witnesses on whether Johnson received the Possible Evaluation Criteria which was resolved in Finding of Fact 30. There is no findings of fact 41 and 42. Proposed findings of fact 44 - 46 are rejected as argument going to the weight of evidence. Proposed findings of fact 47 and 51 are neither material nor relevant. Proposed finding of fact 48 is rejected as being argument. See Prehearing Stipulation and Supplemental Prehearing Stipulation. Proposed findings of fact 49 and 50 are adopted in substance as modified in Findings of Fact 11 - 15. Proposed finding of fact 52 is rejected as argument. Proposed finding of fact 53 is a recitation of testimony but see Finding of Fact 31. Proposed findings of fact 54, 59 and 60 are adopted in substance as modified in Findings of Fact 8 and 31. Proposed findings of fact 55 - 58 are adopted in substance as modified in Findings of Fact 8 and 30. The Intervenor elected not file any proposed findings of fact. COPIES FURNISHED: Richard C. Reinhart, Esquire Diana L. Moreland, Esquire REINHART & MORELAND 538 Old Main Street Sarasota, Florida 34305 Thomas L. Barnhart, Esquire Brian F. McGrail, Esquire Department of Revenue Office of General Counsel Post Office Box 6668 Tallahassee, Florida 32314-6668 Robert J. Elkins, Esquire 46 N. Washington Blvd., Suite 29 Sarasota, Florida 34236-5928 Linda Lettera, Esquire General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue in this case is whether the Petitioner's request that the Respondent pay for certain supplies may be denied based on Respondent's limited funding and on Respondent's spending priorities as set forth in a Spending Plan.
Findings Of Fact The Petitioner, Bernice Simon, as a result of having spina bifida, is incontinent of both bowel and bladder. She needs incontinence supplies, and will continue to need such supplies in the future. All parties agree that the Petitioner has a medical need for the incontinence supplies she seeks to have the Respondent continue to provide. On April 19, 2001, Bernice Simon signed a Notice of Eligibility for ICF/DD and Developmental Services Home and Community-Based Services Waiver. It stated "This is to inform you that Bernice Simon has been determined eligible for ICF/DD services or the Developmental Services Home and Community-Based Services Waiver." The form indicates "Client doesn't want the Medwaiver at this time. She can apply in future if she changes her mind." On October 18, 2001, Human Services Counselor Christina Tookes notified Ms. Simon: "I regret to inform you that unless you apply for the Waiver we are unable to provide services at this time. Be also advised that the Department, at this present time, are [sic] not providing any new service to any consumers until further notices by our Legislators from Tallahassee. This is unfortunate, but we are instructed to follow guidelines and procedures mandated by our Department Heads." On March 15, 2002, Ms. Simon was notified that incontinence supplies were terminated due to insufficient funds with which to continue funding the service. The Spending Plan Instructions states include the following: The 2001 Florida Legislature appropriated additional funds for the Developmental Disabilities Program to serve additional persons and annualize services begun during state fiscal year 2000-2001. In order to accomplish the goals established by the Governor and the Legislature, it is imperative that the approved spending plan be implemented and followed. Approved prioritization schedule and policy decisions must be implemented in order to be able to serve the number of individuals funded for state fiscal year 2001-2002. Compliance with the approved Spending Plan for FY 2001-2002 is required of all Department employees. . . . The use of non- Waiver funds (Individual and Family Supports (IFS) budget category) to fund services for additional persons who are awaiting enrollment on the Waiver is prohibited. Because of limited funding and the need to maximize the use of General Revenue funds by obtaining federally matching funds wherever possible, IFS funding is no longer available for persons who are eligible to receive Waiver-funded services, but who have refused services funded through the Waiver. For those who continue to refuse services funded through the Waiver, IFS expenditures will be discontinued due to lack of funding, with appropriate due process notice. The Petitioner was informed of the scope, intensity, and duration of services for which funding by the government was available. She was notified repeatedly that services might be discontinued. By reason of their assets and income, the Petitioner and her husband are not eligible for enrollment in the Home and Community-Based Medicaid Waiver Program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing the petition in this case. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 6th day of September, 2002. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Bernice Simon 6768 10th Avenue, North, Number 101 Lake Worth, Florida 33467 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700
The Issue Whether Petitioner may be granted a family day care home registration/license.
Findings Of Fact Petitioner operated a licensed family day care home from 1992 until June 2002, when she ceased to operate a home. In late 2002 or early 2003, Petitioner applied to DCF for a new license. Petitioner's new application was denied solely because of information found during the background screening, including information from her prior licensure file. Glenda McDonald was Petitioner's day care supervisor during Petitioner's prior licensure. In that capacity, Ms. McDonald conducted regular inspections of Petitioner's day care home. On August 25, 1992, Ms. McDonald's superior sent Petitioner a letter stating that Petitioner was operating a day care facility in excess of its licensed capacity and requiring Petitioner to come into compliance by August 28, 1992. Petitioner credibly denied that she received this letter. The letter was not sent to Petitioner's address of record and no proof of the allegations in the letter were presented. During Petitioner's prior licensure, DCF generated four abuse/neglect reports related to Petitioner's day care home. None of these reports were written by Ms. McDonald, who was never a child protection investigator (CPI). Copies of these reports were included in Petitioner's old licensure file.1/ Abuse/neglect Report 1998-050246 relates to a child who wandered away from Petitioner's day care home on May 1, 1998. The report was verified for "inadequate supervision: neglect" against Petitioner. As a result of the events giving rise to the May 1, 1998 abuse/neglect report, Ms. McDonald cited Petitioner's day care home on June 4, 1998, with one count of "Class II non- compliance: lack of direct supervision," pursuant to Florida Administrative Code Rules 10M-12.020(5)(a) and 65C-22.001(5)(a). Since this exhibit was a carbon copy in Ms. McDonald's possession, it is inferred that Petitioner actually received a copy of this informal citation. Ms. McDonald also issued a warning letter to Petitioner on June 4, 1998, citing only Rule 10M-12.0202(5)(a), and saying that Petitioner could appeal after she received a subsequent fine letter for either $50.00 or $100.00. In connection with the May 1, 1998 incident, Ms. McDonald had interviewed Petitioner, who had made various admissions. After her investigation, Ms. McDonald was satisfied that a child entrusted to Petitioner's care had walked out of Petitioner's enclosed yard and further had walked beside a busy road, without Petitioner's knowledge, and that the child had been picked up by the police after nearly two hours' absence, near a busy intersection. In the course of Ms. McDonald's investigation, Petitioner had admitted her caretaker responsibility for the child but had denied that he was a paying day care client. At the hearing in the instant case, Petitioner maintained essentially the same position. Abuse/neglect Report 1999-105502 relates to allegations, arising on August 19, 1999, that Petitioner had locked day care children in a time-out room or "cubby" and that day care children had been beaten. No indicators were found by the CPI against Petitioner for corporal punishment. The report was eventually closed with "some indicators" against Petitioner as the caretaker responsible for confinement and bizarre punishment, constituting neglect. However, DCF did not classify or close this report at all until January 25, 2002. As a result, the report refers to "prior reports," but lists reports for both previous and subsequent years: 98-505246, 99-105502, 99-118736, 00-128236, and 02-006119. Because the classification of abuse/neglect report 99-105502 depended upon reports after its date of commencement, some of which cannot be assessed as to status,2/ and because no competent, credible evidence concerning the underlying August 19, 1999, event alleged in the report was presented in the instant hearing, report 1999-105502 is discounted in its entirety as evidence of any wrong-doing, abuse, or neglect by Petitioner.3/ Abuse/neglect Report 1999-118736 relates to allegations of bite marks found on a nine-month-old child in Petitioner's day care home on September 17, 1999. Petitioner was listed therein as a "significant other." The report was "closed with no on-going care needed." Abuse/neglect report 2000-128236 relates to bite marks found on one two-year-old child inflicted by another two-year old child, both of whom were in Petitioner's day care home on August 16, 2000. This report was classified only as "investigation complete," and further stated that Petitioner was the caretaker responsible. The report further noted that the CPI wanted DCF to consider "removing" Petitioner's license due to the number of abuse/neglect reports with "verified" allegations and some indicators. Yet as of the closure of this report, there appears to have been only the 1998 verified report. (See Findings of Fact 7 and 8). Due to all of the inconsistencies within the 1999 and 2000 reports, due to there being only one report (No. 98-050246) ever actually classified as "verified," and due to the legally indefinite nature of the classifications assigned by CPIs in 1999 and 2000, it is apparent that the CPIs who completed the 1999 and 2000 abuse/neglect reports had no clear understanding of the terms required by law for classifying them. Because of the vague classifications assigned to the 1999 and 2000 reports, it may be inferred that Petitioner was never provided a timely opportunity to contest them. (See also Finding of Fact 17.) Therefore, these reports cannot be called either "verified," "confirmed," "upheld," or "uncontested." (See Conclusion of Law 27). On November 24, 1999, Ms. McDonald wrote Petitioner to express DCF's concern, pursuant to Florida Administrative Code Rule 65C-22.001(5)(a), after the CPI's investigation and her own independent inspection arising from "the repeated abuse reports". Ms. McDonald's use of the plural for "abuse reports" is noted. However, her letter stated no "concern" other than the incident of September 17, 1999, on which investigation had been closed, naming Petitioner only as a "significant other." The letter was sent certified mail to inform Petitioner that the violation was being classified as a Class II violation with a $25.00 fine for each day of violation and she could appeal when she got a subsequent fine letter. No return of certified mail receipt was offered in evidence. Ms. McDonald testified in the instant case that she was contemporaneously aware of the bites on the nine-month-old who was in Petitioner's day care on September 17, 1999, and that she also was contemporaneously aware of another child who had been bitten while in Petitioner's day care. It is inferred from her testimony that Ms. McDonald was familiar, from her regular inspections, with the events surrounding the August 16, 2000, abuse/neglect report of a two-year-old child suffering bite marks from another two-year-old child, because Ms. McDonald further testified that it was upon the second biting incident that DCF began to seriously consider revoking Petitioner's first license. (See Findings of Fact 10-11). On or about December 11, 2000, a DCF attorney drafted an administrative complaint against Petitioner. The administrative complaint sought only to impose administrative fines for violations as follows: one 65C-20.009(3)(a) violation, Class I, inadequate supervision, with a fine of $100.00; one 65C-20.009(3)(a), Class II violation, inadequate supervision, with a fine of $50.00; and one 65C-20.009(3)(a) violation, Class II, inadequate supervision, with a fine of $50.00. The administrative complaint contained no prayer to revoke Petitioner's license. The charges contained therein apparently were solely the result of the abuse/neglect reports arising from incidents on May 1, 1998 (the wandering child incident); September 17, 1999, (the bites on the nine-month-old child); and August 16, 2000, (the bites on the two-year-old child). An administrative complaint is merely an allegation. Of itself, it proves none of the charges contained therein. Moreover, there is no clear evidence that Petitioner ever received the foregoing administrative complaint so as to have an opportunity to contest the charges. However, the administrative complaint suggests, contrary to some testimony, that Petitioner had not previously been fined for these dates. It also clearly demonstrates that, as of December 11, 2000, DCF did not view the wandering child or the two incidents of biting children biting each other as Code violations worthy of revoking Petitioner's license. Ms. McDonald testified that in 2002, as a result of the foregoing administrative complaint, she told Petitioner that DCF would not renew Petitioner's license when it came up for renewal, and that consequently, Petitioner agreed to retire and never reapply for a day care license, rather than suffer administrative prosecution. Petitioner credibly denied that such a scenario had ever occurred. Petitioner testified that she had never signed anything, did not know there were charges pending against her, and only "retired" in 2002 because she had been hospitalized and unable to work for a period of time. Her husband credibly corroborated her desire to retire after hospitalization. Because the 2000 administrative complaint was apparently never served on Petitioner; because of the greater weight of Petitioner's and her husband's combined testimony; because DCF seems to have repeatedly intended to assess different degrees of noncompliance and different amounts of fines for the same alleged events; because DCF introduced warnings and citations but no fine letters containing the opportunity to appeal/contest; and because it is not credible that someone licensed for 10 years would retire and guarantee never to reapply, only to avoid what, at worst, would be a $200 fine, Petitioner and her husband are found to be the more credible witnesses on why Petitioner surrendered her first license, and it is accordingly found that Petitioner surrendered her first license without coercion by DCF and without giving DCF any promise not to reapply. Petitioner is also found credible that she did not know there were any continuing problems as a result of any of the oral or written warnings she had received. Her testimony in this respect is understood to mean that she never received a notice permitting her to contest any of the four abuse/neglect reports discussed, supra., or any formal notices to pay fines.
Recommendation Upon 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 registration for licensing as a day care home, subject to her fulfilling all the other requirements for a new license applicant. DONE AND ENTERED this 7th day of June, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. 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 7th day of June, 2004.
The Issue The issue in this case is whether the Petitioner, the Department of Health and Rehabilitative Services (HRS), should revoke or suspend the foster care license of Larry and Kathleen Abbott.
Findings Of Fact Larry and Kathleen Abbott have been licensed foster parents for a number of years. They were licensed in 1983 in HRS District 6 (Hillsborough County and Manatee County) and in 1986 in HRS District 5 (Pinellas County). Despite some criticism by HRS staff, their license was renewed annually since 1986. Their last license expired and was required to be renewed on October 25, 1991, after the commencement of this proceeding. By their Agreement to Provide Foster Care for Dependent Children, the Abbotts agreed to "hold confidential all information about the child and his family" and to "discuss such information only with representatives of the Department or with appropriate specialists at the request of the Department." On or about January 28, 1990, HRS initiated proceedings to place a female baby named Andrea, who was born on June 28, 1989, in shelter care due to her failure to thrive and her mother's lack of parenting skills. On or about February 23, 1990, the child was placed in foster care in accordance with a Performance Agreement. The goal under the Performance Agreement was to return the child to the care of her mother by August 31, 1990. (This goal was later extended to February 23, 1991.) However, meanwhile, due to the mother's lack of parenting skills and multiple allegations of abuse, the foster parents agreed not only to provide the child with adequate food, clothing, shelter, supervision and affection, but also to report to HRS any concerns regarding visitation with the mother. Since the Abbotts were not Andrea's initial foster parents, they did not sign the Performance Agreement. However, although they never signed the agreement, when they became Andrea's foster parents on or about April 30, 1990, they also agreed to the terms of the Performance Agreement. When the Abbotts got Andrea, she had a medical problem called "G.U. Reflux." HRS wanted the Abbotts to have this condition appropriately followed by a physician and wanted it documented by a physician that the problem had cleared. An appointment scheduled for this purpose had to be cancelled for some reason and, while discussing rescheduling the appointment with the physician's medical staff, Mrs. Abbott reported her observation that the problem already had cleared. Based on the report from Mrs. Abbott, the appointment was not rescheduled, and the physician closed the case based on Mrs. Abbott's report. HRS apparently feels that the Abbotts were less than impartial in their evaluation of Andrea's medical condition. HRS witnesses asserted that the Abbotts decided early on that the child's symptoms that resulted in the G.U. Reflux diagnosis actually were caused by the natural mother's physical abuse and neglect of the child. The HRS witnesses contended that the Abbotts' beliefs warped their judgment and impelled them, inappropriately, to cancel the doctor appointment based on their beliefs, and in order to prove their beliefs to be correct. But the evidence in this case did not prove HRS' contentions. From the outset of the Abbotts' foster care for Andrea, the Abbotts were very interested in knowing all of the background about Andrea, including the allegations against her natural mother. The natural mother was allowed to keep her two other children. The Abbotts were interested to know how the mother was caring for the other two children, in part as it might be relevant to the ultimate disposition of Andrea's case but also in part for the sake of the other children as well. Mrs. Abbott seemed to question whether the HRS investigations on the other children, which were closed as "unfounded," were properly conducted. But there is no evidence that the Abbotts did or said anything in these earlier time periods in their foster care for Andrea that HRS viewed to be improper. At some point relatively early in the Abbotts' foster care of Andrea, Mrs. Abbott pointed out to her HRS foster care counselor that Andrea's name was similar to that of another child living in the home, and Mrs. Abbott wanted to know if it would be permissible to call Andrea by a nickname. The HRS counselor said that would be fine. Later, near the holidays in late 1990, Andrea's natural mother expressed concern to the HRS counselor that the Abbotts had been calling Andrea by the name Nicole and that she was not responding to Andrea any more. The HRS counselor spoke to the Abbotts and asked them to stop calling the child Nicole. She explained that, when she authorized the Abbotts to call Andrea by a nickname, she did not mean they could call her by a different proper name. The Abbotts, who now see the error of judgment that they made, immediately stopped calling the child Nicole. As the goal of reunification by February 23, 1991, approached, Mrs. Abbott began to question the propriety of going ahead according to schedule. HRS protective services had raised questions regarding the natural mother's readiness to take care of Andrea. The HRS counselor also had made statements to Mrs. Abbott which made her suspicious that the counselor's supervisor would not make the decision to reunify the family on the basis of the best interests of the child. (It was intimated that the supervisor might be more concerned with her unit's statistics.) At bottom, the Abbotts thought reunification should be postponed; HRS, especially through the counselor's supervisor, took the position that reunification should go forward as scheduled. The Abbotts also disapproved of the natural mother's male friend, who was cohabiting with her in her apartment. The HRS counselor told Mrs. Abbott that it was not permitted for the natural mother to have a male friend living with her in her apartment while she was receiving certain welfare benefits. She told Mrs. Abbott that the natural mother would be in trouble if the landlord knew. HRS asserted that Mrs. Abbott took it upon herself to tell the landlord, but there was no evidence upon which such a finding could be made.2/ One day, on or about January 11, 1991, the natural mother did not make a scheduled appointment for purposes of visitation with Andrea. Mrs. Abbott understood that the natural mother sometimes worked at the day care facility located at the apartment complex where the natural mother lived. This was the day care facility utilized by the natural mother for her other children. It was also proposed for Andrea after reunification. Mrs. Abbott identified herself to the day care director in terms of Andrea, the natural mother and the children at the day care. The natural mother was not there. No finding can be made as to the subject matter of the remainder of the conversation.3/ The day care director reported some of the conversation with Mrs. Abbott to the HRS protective services staff responsible for the children, who brought the matter of Mrs. Abbott's alleged "meddling" and "breach of confidentiality" to the attention of the HRS counselor and her supervisor. They reprimanded Mrs. Abbott, who became even more suspicious of HRS and its protective services staff. On or about April 5, 1991, Andrea was returned to the Abbotts after a scheduled weekend visitation with the natural mother.4/ Mrs. Abbott observed marked and unusual redness and swelling in the child's genital area and became concerned that the natural mother's male friend might be sexually abusing the child. Although she thought it was diaper rash, the HRS foster care counselor authorized Mrs. Abbott to have the child examined by a physician at the Bayfront Medical Center. The doctor's nurse agreed with Mrs. Abbott that the redness was too concentrated to be diaper rash, reinforcing Mrs. Abbott's beliefs. The doctor prescribed Desitin and sitzbaths, and had Mrs. Abbott call back for test results. The eventual diagnosis was that the child had a bacterial staph infection.5/ Despite the diagnosis, Mrs. Abbott continued to maintain strong feelings that the child was being physically abused. These suspicions were instigated in part by comments from the doctor that the symptoms could come from being touched by dirty hands, from Mrs. Abbott's understanding that the natural mother's male friend worked as manager of an auto service station, and from her having seen him with dirty hands as a result of his work.6/ Mrs. Abbott had several discussions with the HRS foster care counselor about her suspicions. The HRS counselor was unable to convince Mrs. Abbott to drop her suspicions in light of the absence of solid evidence of sexual abuse. Mrs. Abbott felt there were indications that Andrea was "severely traumatized" by visits with her natural mother. But HRS personnel perceived no evidence of this. At this point, HRS and the Abbotts essentially disagreed as to how Andrea's case should proceed. HRS thought that there was no basis on which to change the goal of reunification. Mrs. Abbott felt that reunification should be postponed and also suggested that it was HRS' responsibility to secure a guardian ad litem. HRS decided that a meeting should be held among all concerned to resolve the disagreement. The meeting was held on or about April 9, 1991.7/ From opening remarks made by the counselor's supervisor, Mrs. Abbott felt that the purpose of the meeting was not to discuss the issues to reach a solution but to present a united HRS front to press forward for reunification. Mrs. Abbott felt that, in that atmosphere, there was no point in her speaking against reunification, but she continued to maintain her negative feelings about it and resolved in her mind to continue to oppose reunification on other fronts. She asked the HRS counselor if it was permissible to contact the chairperson of the reunification committee directly and was told that there was nothing to prevent her from doing so. On or about April 11, 1991, the HRS counselor authorized Mrs. Abbott to have the child seen by a child protective team (CPT) physician. The CPT physician affirmed the previous diagnosis and prescribed an antibiotic. The Abbotts did not immediately fill the prescription. They told the HRS counselor that they did not have Medicaid authorization to have the prescription filled through Medicaid. The counselor thought the authorizations had been sent to the Abbots but promised to send or deliver to them another one. On one occasion, when the counselor was at the Abbott house, the counselor went to her car to get the necessary form, but discovered she did not have any with her. On another occasion, the counselor was to give Mrs. Abbott the authorization form at a meeting they were at, but they both forgot to take care of that item of business. Meanwhile, the Abbotts continued to use Desitin.8/ On or about April 19, 1991, after the redness and swelling seemed to the Abbotts to be going away, the natural mother had Andrea for another overnight visit. Still suspicious, Mrs. Abbott had asked the HRS counselor to check the child's genital area as soon as possible after the visit. When the Abbotts got the child back from the HRS counselor, Mrs. Abbott checked the child herself and was surprised and upset to see more redness and swelling. She immediately telephoned HRS and spoke with the counselor's supervisor. She was instructed to bring the child to the child protection center immediately. When the CPT physician learned that the Abbotts had not yet started the prescription from over a week earlier, she became upset and threatened to telephone the Florida abuse registry to report the Abbotts for medical neglect for failure to obtain and administer the prescription. The HRS supervisor intervened and dissuaded the physician from making the call by assuring her that the prescription would be obtained and administered immediately. The CPT physician's diagnosis was that, although sexual abuse could not be ruled out, the problem was more likely secondary to less than adequate diaper changing and persistence of the previous staph vaginitis. Mrs. Abbott did not accept the diagnosis but continued to suspect sexual abuse. She opposed further visitation with the natural mother so long as the male friend resided in the same apartment. Eventually, a reunification meeting was held. The Abbotts did not attend. It was decided to reunify the family. The Abbotts cooperated in making all necessary final arrangements to get Andrea ready. Reunification went forward on or about May 20, 1991. After reunification, Mrs. Abbott continued to show interest in Andrea. After taking a two-week vacation, Mrs. Abbott got permission from the HRS counselor to telephone once a week to see how Andrea was doing. Mrs. Abbott also asked to know the name and address of Andrea's private day care, but the counselor said she could not have that information. After five weeks, the counselor's supervisor had the counselor cut off any further contact with the Abbotts concerning Andrea. Mrs. Abbott said to let her know if HRS had to take Andrea back. She said that she and her husband had much invested in caring for Andrea and that they felt as if she were their own child. If HRS had to take Andrea back, the Abbotts wanted her back and would be interested in adoption. Later, the Abbotts asked for another assignment essentially to help take their minds off of Andrea. On two occasions, Mrs. Abbott criticized the care being provided by other foster parents and suggested that the foster children be transferred to the Abbotts. HRS viewed this as evidence that the Abbotts had become so attached to Andrea that they had lost their good judgment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services (HRS), enter a final order suspending the foster care license of Larry and Kathleen Abbott for 90 days. 9/ RECOMMENDED this 5th day of March, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 5th day of March, 1992.
The Issue Whether Amanda’s Childcare and Preschool is subject to a civil penalty and licensure action for failing to comply with staff-to-student ratios and for having tools on the daycare playground, in violation of Florida Administrative Code Rules 65C-22.001(4) and 65C-22.002(1)(a), and chapter 402, Florida Statutes.
Findings Of Fact Respondent is licensed by the Department to operate a facility known as Amanda’s Childcare & Preschool located at 123 West Rhode Island Avenue, Orange City, Florida 32763. Respondent is owned by Joseph Corneck. During the morning of January 28, 2013, Mr. Corneck was working on the construction of a climbing apparatus in a playground at Respondent’s daycare facility. There were no children playing on the playground at the time of Mr. Corneck’s construction activities. Rather, there were 20 kindergarten-aged children inside an adjacent classroom while Mr. Corneck was outside working. Near lunchtime, Ms. Carolyn, a staff member who was supervising the classroom, lined the children up so that they could use the two available bathrooms and wash up for lunch. Because of crowding by the number of children lining up for only two bathrooms, Ms. Carolyn asked seven boys in the group to line up outside the classroom along the exterior wall near the door adjacent to the playground. Ms. Carolyn asked Mr. Corneck to assist in watching the boys while they were in line. Mr. Corneck left the apparatus that he was working on, which was approximately 30 feet away, and came over to the boys to watch over them while they were in the line. Mr. Corneck left the tools that he was working with, consisting of a hammer and a cordless drill gun, back on a platform of the apparatus. The platform where he left the tools was approximately four to six feet high. He also left the materials he was working with and a ladder near the apparatus. While Mr. Corneck was watching the boys, Department family services counselor Kalyn Yeager stopped by for a routine inspection. She noticed the boys outside the classroom and apparently concluded that they had access to the tools and materials. Mr. Corneck, however, did not allow the boys to play on the playground that day. There is no evidence that the children were allowed access to the tools or playground apparatus, and there is insufficient evidence to suggest that the children otherwise had access to those tools or materials, or that they were ever in danger or potential danger because of his construction activities. After the inspection, Ms. Yeager had a conversation with Mr. Corneck in which he advised that he had shown some of the day care students how to use tools. Mr. Corneck, however, never told Ms. Yeager that he had given a demonstration to the kindergarten-aged children who were present on the day of the inspection. Rather, his reference to a tool demonstration was about another occasion or occasions when he had demonstrated the use of tools to some of the older boys in Respondent’s after- school care. At the final hearing, Ms. Yeager could not recall the number of children who were there the day of her inspection. The evidence is otherwise inadequate to show that Respondent violated any applicable staff-to-child ratio standards. In sum, the Department failed to prove the alleged violations set forth in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED 15th day of October, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, 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 15th day of October, 2013.
The Issue The issue in the case is whether Petitioner’s employment position was properly reclassified from career service to the selected exempt service pursuant to Section 110.205(2)(x), Florida Statutes (2001). All citations are to Florida Statutes (2001) unless otherwise stated.
Findings Of Fact Petitioner was employed with the Department beginning in 1988 as a Family Services Counselor. In January 2001, she was promoted to the position of Family Services Counselor Supervisor. At the time of her promotion, Petitioner’s new position was classified under the Career Service System. The position was reclassified from Career Service to Selected Exempt Service (SES) effective July 1, 2001. At the time she was promoted, Petitioner carried a full load of cases. Typically, a family services counselor would carry a case load of approximately 40 cases. After her promotion, Petitioner kept working on many of her cases, as opposed to reassigning them to family services counselors who were her subordinates. Petitioner insists that she continued to personally work on cases because there were not enough family services counselors to handle the case load and that the work needed to be done. Some of the duties she continued to perform, which were duties normally performed by family services counselors, were writing judicial reviews for court proceedings involving clients, writing case plans, and completing daycare referrals. Petitioner does not dispute that she performed some supervisory duties. At hearing, she acknowledged that she performed supervisory duties, but asserts that she spent less than 50 percent of her time in the performance of supervisory activities. Petitioner acknowledges, however, that the time she spent on non-supervisory tasks lessened as time went on and that by September 2001, more employees were added to the Department and she performed more supervisory tasks. The supervisory tasks that she performed included approving timesheets, and travel and leave requests of the employees she supervised. Petitioner also reviewed and approved reports prepared by subordinates. She had daily contact with her subordinates, in person and by telephone, providing direction and assistance when needed and encouraging employees to meet responsibilities. Petitioner held monthly staff meetings with subordinates which generally lasted one hour and coordinated the work of her unit, keeping abreast of court hearings and required reports. Petitioner’s position description is not in evidence. However, a 2001 position description of another Family Services Counselor Supervisor is in evidence and describes the duties and responsibilities of the position as follows: This is a highly responsible supervisory position regarding expertise in the management and delivery of the Department of Children and Families services for children and families. The position description also provides percentages of time regarding activities engaged in pertaining to these duties and responsibilities: 60% Supervision and training of counselors and clerical staff who administer the Protective Services and Voluntary Family Services Programs. Administrative duties include, but are not limited to: insuring programmatic policies, goals and procedures are complied with, case review and assignment, evaluates employee performance, develops corrective action plans, statistical reporting, approves leave, maintain case record controls within the unit, and reviews and approves all correspondence including court documents and reports. 15% Coordinate and maintain open communications with other C&F units, law enforcement, judicial system, school system and other public and private agencies. 15% Participate in staffings and meetings with other supervisors, administrators and outside agencies, public speaking, general community relations and training sessions. 5% Performs travel in relation to the above duties in order to provide more effective supervision of direct services staff and to evaluate and monitor the delivery of direct services to clients. Travel is also performed for purposes of attending or conducting staff meetings, conferences, training sessions, etc. and in relation to other duties as required. 5% Performs other related duties as required. Thomas Sylvester is currently Program Operations Administrator for the Department. Prior to that, he served as an Operations Manager Consultant II. During that time, Mr. Sylvester supervised Petitioner’s supervisor, which placed her in his chain-of-command from October 2000 until her resignation in November 2001. He congratulated her when she received the promotion to family services counselor supervisor and advised her to wean her caseload within 30 days. According to Mr. Sylvester, Petitioner was in charge of a foster care unit, which usually consisted of six family services counselors and a secretary. She was responsible for coordinating the activities of the counselors, reviewing the work product of the employees she supervised, giving them direction, and generally seeing that the work allocated to her unit was done correctly and in a proper manner. Mr. Sylvester considered Petitioner to be a full-time supervisor with the authority to evaluate her employees, hire or recommend hiring, promote or recommend promotion, discharge or recommend discharge, discipline or recommend discipline. Mr. Sylvester confirmed that the position description in evidence for a family services counselor supervisor is a standard position description for that position in 2001 and that the duties and responsibilities on the form would have been the same as for Petitioner. That assertion is accepted as credible. Sarah Craney is an Operations Review Specialist for the Department. In 2001, she was a Program Administrator. She was Petitioner's direct supervisor from approximately August 2001 until Petitioner's resignation in November 2001. Prior to August, Petitioner was supervised by Terry Merkerson. Petitioner recalls that in June 2001, Ms. Merkerson instructed her to remove Petitioner's name from all of the cases that she was handling, with the exception of three cases that involved the termination of parental rights. Petitioner transferred cases from her name to one of her family support counselors under her supervision, Debra Baptiste. Ms. Craney and Mr. Sylvester concur that Petitioner should not have maintained a caseload when she became a supervisor and that it was inappropriate for her to do so. Petitioner insists that Ms. Merkerson did not inform her that she needed to transfer the bulk of her cases to her subordinates until June 2001, and that Ms. Merkerson did not specify that she could no longer work on the transferred cases after transferring them to a subordinate. Petitioner's testimony that she continued to work on cases after her promotion in January 2001, which required her to perform many non-supervisory tasks, is accepted as credible. However, she was told in June 2001, the month before the position was reclassified as supervisory, to reassign all but three of her cases. It is not logical that Ms. Merkerson, who did not testify, would instruct Petitioner to transfer the cases yet expect her to continue to do the bulk of the work on them. In any event, as more employees were added, Petitioner began to spend more time on supervisory tasks so that the majority of her time was spent as a supervisor. In October 2001, Ms. Craney wrote a memorandum to Mr. Sylvester and Mr. Barry, the District Administrator, listing concerns Ms. Craney had about Petitioner's work performance as a supervisor and recommending that Petitioner be terminated from employment. Petitioner was employed by the Department until November 2, 2001, when she resigned pending being terminated. The weight of the evidence supports a conclusion that the position of Family Services Counselor Supervisor was properly classified as supervisory consistent with Section 110.205(2)(x), Florida Statutes, and that at the time the position was reclassified in July 2001, Petitioner spent a majority of her time supervising employees as contemplated by Section 110.205(2)(x), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order finding that the position held by Petitioner Janet Mitchell July 1, 2001, was properly classified into the selected exempt service. DONE AND ENTERED this 28th day of July, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 28th day of July, 2006.
The Issue Whether Petitioner's application to adopt L. H. should be granted.
Findings Of Fact Petitioner, Debby Sclafani (Sclafani), is a former foster parent for Respondent, Department of Children and Family Services (Department). On March 4, 1998, L. H., a foster child born on December 18, 1993, was placed in Sclafani's home. L. H. had been sexually abused when she lived with her biological mother. When she came to live with Sclafani, L. H. acted out sexually, including masturbating. L. H. also engaged in self-mutilating behavior and had nightmares. L. H. was being seen by Marion Koch, a therapist at the Center for Children in Crisis. In midsummer of 1998, Sclafani also began seeing a therapist, Gloria Watt, at the Center for Children in Crisis. During the therapy sessions with Sclafani, Ms. Watt became concerned with Sclafani's preoccupation with L. H.'s sexual behavior. Ms. Watt told the therapist that she had asked L. H. which finger she used when masturbating and to demonstrate what she did. The child complied with Sclafani's request. If Sclafani caught L. H. masturbating, she would take the child's stuffed toys away as punishment. Ms. Koch and Ms. Watt attempted to educate Sclafani about parenting and child development, including ways to redirect L. H.'s sexual behavior. The therapists told Sclafani to stop focusing on L. H.'s masturbation, but Sclafani was unable to deal with the child's sexual behavior and could not follow the suggestions of the therapists. In September 1998, the Center for Children in Crisis shut down, and the therapy sessions with L. H. and Sclafani stopped. Sometime during the fall of 1998, the parental rights of L. H.'s mother were terminated. It was the Department's policy that once a parent's rights are terminated, the foster parent should not talk to the child again about the parent. However, after L. H.'s mother's rights were terminated, Sclafani continued to pray with L. H. for L. H.'s mother's sins. Sometime after L. H.'s mother's parental rights were terminated, L. H.'s father's parental rights were also terminated. L. H. became a candidate for adoption, and her case was transferred to the adoption section of the Department. Sclafani applied to the Department to adopt L. H. L. H. was given a pre-adoptive psychological evaluation by Dr. Shelia King. L. H. told Dr. King that Sclafani spanked her and slapped her face. L. H. had been told by Sclafani not to tell the doctor that she had been spanked. When L. H. was returned home after the evaluation with Dr. King, L. H. told Sclafani, "The doctor knows that you whoop me." When Sclafani became L. H.'s foster parent, she signed an "Agreement to Provide Substitute Care for Dependent Children" and agreed to abide by the following provisions of the agreement: This child is placed in our home on a temporary basis and is at all times under the supervision of the Department. We are fully and directly responsible to the Department for the care of the child. We will take no action to acquire legal custody or guardianship of the child. We will hold confidential all information about the child and his family and will discuss such information only with a representative of the Department or with appropriate specialists at the request of the Department. * * * 8. We will participate with the Department in planning for the child, which may include adoption placement, transfer to another foster home, or return to parent(s) or relative(s). * * * We will comply will all requirements for a licensed substitute care home as prescribed by the Department. We will immediately report any injuries or illnesses of a child in our care to the Department. * * * 19. We will abide by the Department's discipline policy which we received during MAPP training. Sclafani agreed to and executed the Department's discipline policy which states, "The substitute care parents must not use corporal punishment of any kind." Sclafani admitted to spanking L. H. on several occasions. The Department referred Sclafani to Dr. Shelia King for a psychological evaluation on January 5, 1999. In her evaluation report, Dr. King stated: . . . [Sclafani] would come to expect a child to fill her needs as opposed to her filling the child's. Should a conflict arise, Ms. Sclafani would put her own needs first. As an aside, she would not accept or believe this was occurring. Due to her inability to take care of herself emotionally, she will become depressed and withdrawn from time to time. * * * It must be noted that no small measure of concern results from the fact that Ms. Sclafani attempted to prep this child prior to her (the child's) evaluation by admonishing her not to advise this psychologist of the fact that Ms. Sclafani spanks her upon occasion. This indicates that while aware that this is not a behavior which would be acceptable to the Department of Children and Families, she nevertheless will engage in it as a method of discipline. More distressing is that she then not only will lie about it herself but also encourage the child to do something which is clearly wrong and tell a lie by omission in order to protect herself. A more appropriate response would be to merely admit that she believes spanking is an appropriate form of punishment and seek advice on how to handle misbehavior in a more acceptable fashion. * * * The area of concern most prominent in this evaluation is Ms. Sclafani's relationships. Testing indicates someone who is narcissistic and dependent upon others, including her child, for validation and self-esteem. Her history suggests a lack of boundaries between her own parent and herself. Some of Ms. Sclafani's comments suggest this same lack of awareness and boundaries with her foster child. While she does seem open to listening to interpretations and looking at her own behavior, testing also indicates that while she may appear to do so, anger and resentment build, eventually causing her to deny any problems or to reach out for help, and inhibit what appears to be genuine insight. Dr. King recommended that the adoption proceedings be delayed and that Sclafani enter individual psychotherapy. Sclafani had begun working at a child care center, and her medical benefits did not begin until April 1999. Due to the lack of insurance, Sclafani postponed seeing a therapist until April. She attended therapy sessions two times. In May 1999, Sclafani engaged in a verbal altercation with her supervisor at the day care center where she worked. She told her supervisor that she was giving her thirty-day notice and quitting her job. The supervisor informed her that was not necessary because she was fired. The bottom line was that Sclafani was without a job and medical benefits. She had inherited some money from her father's estate and decided to take a vacation. When the Department learned that Sclafani was without a job, a decision was made to remove L. H. from Sclafani's foster home. On May 21, 1999, L. H. was removed from her day care center and placed in another foster home with a couple who have applied to adopt her. Sclafani was asked to pack a suitcase for L. H. with her clothes and other belongings. Sclafani did pack the suitcase, but she also hid notes to the child among the clothes in the suitcase. A few days after L. H. was removed from Sclafani's care, Sclafani met with L. H., her guardian ad litem, and representatives from the Department to bring closure to the placement. Sclafani became very emotional during the meeting, which upset the child. On July 1, 1999, Sclafani went to the day care center where L. H. had been placed by her new foster parents to see L. H. Sclafani told the assistant director of the day care center that she was inquiring about the pre-kindergarten class for a neighbor's child. The assistant director took her to the classroom where L. H. was in class. Sclafani immediately walked over to L. H. and asked her if she were happy. Sclafani told L. H. that if L. H. was not happy that she would fight for her. L. H. began to cry hysterically. The assistant director realized who Sclafani was and asked her to leave the building. On the same day as the day care incident, L. H. and her foster father were eating ice cream outside an ice cream shop located in a shopping plaza. L. H. told her foster father that she saw Sclafani, who was in her car turning up a lane in the parking lot. A few minutes later, Sclafani drove by again in the opposite direction, waved at L. H., and left the shopping plaza. Prior to the incidents at the day care center and the shopping plaza, L. H. had been transitioning to her new home very well. Following the incident at the day care center, L. H.'s play in therapy became aggressive, and L. H. told her therapist that she was afraid Sclafani would take her and expressed anxiety about the likelihood of this happening. Because of Sclafani's actions, the Department sought a restraining order against Sclafani. On July 29, 1999, Judge Ronald V. Alvarez entered an Order Granting Emergency Petition for Injunction, ordering that Sclafani refrain from contacting L. H. wherever the child may be found while the court had jurisdiction over the child. In the order, the court stated: . . . Contact with Ms. Sclafani will hinder the child's future attachment with another family and create more, further damaging confusion in the child's life. The child's permanency is undermined by Ms. Sclafani's contact or attempted contact with her. The granting of a protective order is necessary to prevent such acts from happening. Permanency with her new family cannot be attained until [L. H.] is free to live without the fear of interruption by Ms. Sclafani. This order is necessary to protect the child's emotional and mental health from being at risk of grave and lasting harm and to support her permanency. Since L. H. has been removed from Sclafani's home, she has ceased masturbating and no longer self-mutilates. She is happy and well adjusted in her new home. According to her guardian ad litem, L. H. has blossomed and is now being a child in contrast to her actions when she was with Sclafani, where L. H. appeared to be "cowed" by Sclafani. L. H. has always wanted a daddy, and now she has a foster father in her new home. Sclafani had chosen a friend to be L. H.'s father figure. Unfortunately, her choice had an active, non-expiring domestic violence restraining order against him. L. H. loves her new foster parents and wants to be adopted by them. The new foster parents love L. H. and want to adopt her. Since L. H. has been with her new foster parents, she has not asked to see Sclafani. Sclafani had listed her pastor and his wife as a reference on her application for adoption. The pastor and his wife indicated on the reference that they did not know Sclafani well enough to make a recommendation that she was qualified to adopt a child. In order to process the adoption application, the Department looks at the applicant's medical history. Sclafani's medical records reflect a high frequency of doctor visits and current, on-going prescriptions for anti-anxiety medications. The evidence was unclear if Sclafani had found gainful employment since the termination of her employment in May 1999. The evidence did show that while she was a foster parent for L. H. that she worked for three different employers and was unemployed when L. H. was removed from her care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Debby Sclafani's application to adopt. DONE AND ENTERED this 9th day of November, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 9th day of November, 1999. COPIES FURNISHED: Mary Jane Fitzgerald, Esquire Harvey Building, Suite 1300 224 Datura Street West Palm Beach, Florida 33401 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401 Debby Sclafani 7581 West Lantana Road Lake Worth, Florida 33467 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 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 is whether Petitioner is eligible for exemption from disqualification from working as a caretaker for children under Subsection 435.07(3), Florida Statutes.
Findings Of Fact Under Subsection 402.305(1), Florida Statutes, Department of Children and Family Services is the agency responsible for establishing licensing standards for child care facilities and child care personnel. Petitioner applied to Respondent to be licensed as a family day care facility. As a result of Petitioner's application, Respondent conducted a Level 2 background screening to determine if Petitioner qualified as a person of "good moral character" as required by the licensing minimum standards. The background screening and Petitioner's testimony determined the following: In 1990, in Bergen County, New Jersey, the Petitioner was charged with possession of cocaine and pled guilty; she was sentenced to three years probation which she successfully completed. In 1993, in Osceola County, Florida, Petitioner was charged with petty theft, which charge was dismissed. In 1995, in Orange County, Florida, Petitioner pled nolo contendere to felony possession of cocaine. She served one day in jail and one year probation which she successfully completed. In 1997, in Orange County, Florida, the Petitioner was charged with domestic battery; the charge was dismissed. Petitioner acknowledged that she had a "drug problem" from 1994 to 1996. She successfully completed a drug treatment program in 1997 and has been drug-free ever since. Petitioner married her present husband, Ivan, in 1997 and has a two-year-old son from this marriage. She is the custodial parent of a 14-year-old daughter. Petitioner's 19-year-old son attends college. As required by law, as a part of her background screening, Petitioner filed an Affidavit of Good Moral Character in which she asserted that she had "not been found guilty, or entered a plea of guilty or nolo contendere (no contest), regardless of adjudication, to any of the following charges. . . . Chapter 893 drug abuse prevention and controls only if the offense was a felony or if any other person involved in the offense was a minor." The statement immediately above Petitioner's signature on the Affidavit of Good Moral Character reads: Under the penalty of perjury, which is a first degree misdemeanor, punishable by a definite term of imprisonment, not exceeding one year and/or a fine not exceeding $1,000 pursuant to ss. 837.012, or 775.082, or 775.083, Florida Statutes, I attest that I have read the foregoing, and I am eligible to meet the standards of good moral character for this caretaker position. The statement contained in the Affidavit of Good Moral Character was untrue and Petitioner's explanation for having filed the false affidavit was not persuasive and reflects her refusal or inability to understand the importance of this document, having sworn to the truth of the inaccurate statements contained in the document. When she was advised that she had been disqualified from working as a caretaker for children and, as a result, her application for a registered family day care facility had been denied, she requested an exemption as provided in 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(s), nature of harm to victim(s), 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 Petitioner's exemption request based, in part, on the fact that not enough time had elapsed since the 1997 felony conviction and that there was little evidence of rehabilitation. This denial was a proper exercise of the authority vested in the Exemption Review Committee. Petitioner has made a good start on a self-structured rehabilitation program. Apparently, she has a good marriage and a supportive husband. On February 27, 2001, she completed a 30-hour Family Child Care Training Course. She completed a pediatric basic first-aid course on January 16, 2001. She is enrolled in a GED high school equivalency program. She has letters of support from friends and neighbors. Some of the very positive indicators of rehabilitation have occurred since she appeared before the Exemption Review Committee. Although Petitioner has provided evidence indicating a positive direction in her life, she has failed to provide clear and convincing evidence of rehabilitation at this time.
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 denying Petitioner, Veronica Smith, an exemption from disqualification from employment as a caretaker for children. DONE AND ENTERED this 25th day of May, 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 25th day of May, 2001. COPIES FURNISHED: Eric D. Dunlap, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Veronica Smith 500 Sunrise Drive Casselberry, Florida 32707 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 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Should Petitioner's request for enrollment to provide services under the Developmental Services Home and Community- Based Services Waiver be denied?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Petitioner has three children, one of whom is developmentally disabled. This child is 21 years of age but mentally functions as a one-year old. This child is basically confined to a wheelchair. However, this child can sit on the floor and pull himself around by his arms. The other children, ages two and 12, function normally. Petitioner, with the help of her mother, aunt, and several other caregivers, has been seeing to the needs of this disabled child. The services provided to this child by Petitioner are similar to those services which Petitioner would provide to other individuals in need if the Application is granted. In addition to seeing to the needs of her disabled child, Petitioner has been, for approximately 10 years, working as a caregiver providing services, similar to those listed in the Application, to individuals in need outside her home. Presently, Petitioner is working a 12-hour shift seven days a week as a caregiver providing services similar to those services listed in the Application to a person 84 years of age. In order to provide the services applied for, Petitioner will: (a) provide those services to individuals in her home with or without the child being present, when appropriate; or (b) provide those services to individuals outside of her home when necessary and the child can be properly taken care of by another caregiver or is in school. The care of the child, when he is not in school or when Petitioner is not available to care for him, will be provided for by Petitioner's mother, aunt, or husband, or by another qualified caregiver. In the letter denying the Application, the Department states that "Concerns found in reviewing background screening" was the basis for denial. Ms. Linda Brophy, Human Services Program Specialist, the person who apparently made the decision for the Department to deny the Application, testified that she reviewed three different "Hotline reports" concerning Petitioner and relied solely on that review to deny the Application. Ms. Brophy further testified that she did not interview the person or persons making the reports, the persons or persons who investigated the reports, or Petitioner to determine if the allegations made in the report were in fact true. Hotline Report Number 1999-07785 alleges that the Petitioner's disabled child had been left alone. The facts surrounding this report were: (a) Petitioner had carried the child out to the porch to be picked up by the bus to carry him to school; (b) Petitioner's baby was just inside the door and began to cry; (c) Petitioner stepped back inside the house to care for her baby; and (d) while Petitioner was inside seeing to the needs of her baby, the school bus driver and assistant took the disabled child from the porch and carried him to school. Hotline Report Number 2000-089952 alleges that Petitioner left the disabled child with a caregiver that was not qualified to handle the child. The facts surrounding the report were: (a) Petitioner had left the disabled child with a qualified caregiver; (b) the caregiver had an emergency and left the child with another caregiver but failed to leave instructions as to how to get in touch with Petitioner in the event of an emergency; (c) the child had a seizure; and (d) due to the caregiver not having proper instruction, the child's seizure was not timely attended to. However, upon being made aware that the child had suffered a seizure, Petitioner attended to the child. The initial caregiver no longer cares for the child. Hotline Report Number 2001-030947 alleges that while the disabled child was being cared for by Petitioner's mother he suffered a seizure and was taken to the hospital by Petitioner's mother. Petitioner's mother had never witnessed the child having a seizure and was somewhat confused by the event. Apparently, the child very rarely suffers from a seizure, maybe once a year. In any event, Petitioner went to the hospital to see about the child upon being advised that the child had suffered a seizure. There is no evidence that the Department concluded that the allegations contained in any of the above Hotline Reports were founded. The Department did not deny Petitioner's Application based on the lack of qualifications. However, Petitioner has shown that she is qualified to provide those services applied for in the Application. Petitioner has also shown that she is capable of safely and adequately serving individuals to whom she provides those services applied for in the Application. Petitioner intends to operate as an independent vendor, in that she will bill for and be reimbursed only for services personally rendered by Petitioner.
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 approving Petitioner's application for enrollment as a qualified provider under the Developmental Services Home and Community-Based Waiver, Services for the services set forth in the Application. DONE AND ENTERED this 20th day of December, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2001. COPIES FURNISHED: Jack Emory Farley, Esquire District 14, Legal Counsel Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Angenette Frasier 1914 Indian Trails Court Lakeland, Florida 33813-3725 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
