The Issue May the Department of Children and Family Services revoke Petitioners' foster home license for cause?
Findings Of Fact Petitioners Ray and Gloria Hill have operated a licensed foster care home in Gadsden County, Florida, for approximately two years. Their home is licensed by DCF through Boys and Girls Town of Tallahassee, a private, not-for-profit organization which provides foster home placements for DCF. During all or part of these two years, Petitioners had two teenage girls placed in their foster care by Boys and Girls Town. These girls were J.B. (twelve years old) and A.W. (fourteen years old). Two altercations allegedly occurred between J.B. and Gloria Hill, who were the only witnesses to either event. J.B. resided with the Hills for the better part of the two years. Two days before Christmas 2000, Mrs. Hill had an argument with J.B. as a result of J.B. having opened every holiday-wrapped Christmas present under the tree. When Mrs. Hill asked her if she had done this, J.B. would not respond. There is no dispute that J.B. had Chinese food, prepared by Mrs. Hill, in her hands at that point. J.B. denied throwing the food at Mrs. Hill and asserted that Mrs. Hill slapped the food out of J.B.'s hands, and that, after several misses, Mrs. Hill slapped J.B.'s face with an open hand, at which point, J.B. began hitting Mrs. Hill. Mrs. Hill denied "initiating" the violence, but it is uncontested and both witnesses testified to hitting each other several times at that point. Mrs. Hill requested that night that J.B. immediately be removed from her care. A mark was found on J.B.'s face when she was removed from the Hills' home by authorities that night. There is no clear evidence as to what caused the mark. According to J.B.'s initial testimony at the final hearing, Gloria Hill, in a rage, pushed J.B.'s face into the dashboard airbag area of a car driven by Mrs. Hill while J.B. was riding in the front passenger seat, causing J.B.'s lip to bleed. Gloria Hill denied doing so. J.B. did not report this alleged incident to anyone for many months. She only reported it the night she was removed from the Hills' home after the Christmas 2000 incident. After J.B.'s removal from the Hills' home, and after interrogation by Boys and Girls Town social worker, Sydney Smith, J.B. recanted her accusation that Mrs. Hill had deliberately pushed her face into the dashboard airbag area of the car. At that time, J.B. stated to Mrs. Smith that Mrs. Hill had, in fact, extended her arm to keep J.B. from falling forward into the dashboard and windshield when Mrs. Hill was forced to suddenly apply the brakes to avoid a collision. Accordingly, on the basis of the prior inconsistent statement, J.B.'s testimony about the dashboard incident is not credited as a true account, and the veracity of her version of the Christmas 2000 incident is thrown into doubt. A.W. lived with Mr. and Mrs. Hill for only part of the two years that J.B. was with them. In August 2000, contrary to Mrs. Hill's prior instructions, A.W. showed J.B. an unflattering internet jailhouse photograph of J.B.'s natural mother. The printout of this photograph also revealed J.B.'s natural mother's criminal record, which J.B. did not yet know about at that time. Although A.W. testified with less clarity than might be wished, her most coherent and credible version of subsequent events is that Mrs. Hill swung at her three times with the paper computer printout and one of those swings made contact with A.W.'s face. A.W. also asserted that Mrs. Hill slapped her once in the face with her open hand before A.W. began striking and kicking Mrs. Hill. A.W. testified that she did not know if Mrs. Hill had been trying to grab her or hit her, but that Mrs. Hill's hands were "in my face." J.B. was present during this altercation, and she corroborated A.W.'s assertion that Mrs. Hill slapped A.W. before A.W. struck Mrs. Hill. Once again, Mrs. Hill denied "initiating" any violence, but she offered no other explanation of her actions, and no specific denial that she hit A.W. with the computer photograph before the general fight broke out. It is not disputed, however, that Mr. Hill, who was in another room, heard the commotion between Mrs. Hill and A.W. over the photograph, and came to Mrs. Hill's rescue by bodily removing A.W. to another area of the house. Apparently, neither A.W. nor J.B. thought Mr. Hill's actions were out of line, although he allegedly touched A.W.'s stomach when he carried her out of the room to cool-off. A.W.'s testimony that Mr. Hill hung her upside down but placed her upright on her feet without hurting her is incredible, but also immaterial, because even A.W. admits that she was out of control, that she was unharmed by Mr. Hill, and that Mr. Hill placed her upright on her feet once she was out of striking distance of Mrs. Hill. Mrs. Hill called Boys and Girls Town and demanded that A.W. be removed the night of the incident of the photograph, due to A.W.'s violent behavior. After counseling with both of them, Boys and Girls Town authorities talked Mrs. Hill into keeping A.W. until she could be placed elsewhere. A.W.'s stay with the Hills extended to two weeks, with Boys and Girls Town's approval. This indicates to the undersigned that Boys and Girls Town's social worker had no real-world concern for A.W.'s health and safety while in the Hills' care at that time. After she was removed from the Hills' foster care, A.W. wrote a letter to Mrs. Hill thanking her for her care and apologizing for hitting Mrs. Hill. At the final hearing, A.W. insisted this missive was not inconsistent with her testimony that Mrs. Hill hit her first and she merely retaliated. The removal of J.B. near Christmas 2000, resulted in either a foster care license revocation investigation or child abuse registry investigation or both types of investigation by DCF. Moreover, it appears that Boys and Girls Town mounted an investigation of its own. The outcome of any abuse investigation was not presented at the final hearing herein. However, after DCF's licensing authorities determined that Petitioner's foster care license would not be renewed, another DCF employee contacted Mrs. Smith of Boys and Girls Town, seeking to place a third child, L.T., with Petitioners. Due to her sensitivity to confidentiality issues, Mrs. Smith gave very vague information to the DCF placement employee concerning the status of one or more of the investigations against Petitioners. DCF then either directly placed L.T. with Petitioners or placed L.T. with Petitioners through Boys and Girls Town. The placement of L.T. with Petitioners after A.W. and J.B. had complained against them does not repudiate or mitigate the foregoing Findings of Fact concerning Mrs. Hill's use of corporal punishment. The placement of L.T. with the Hills was purely a mistake which was corrected by the removal of L.T. from Petitioners' care soon thereafter. Both Mr. and Mrs. Hill testified that they had severe behavioral problems with L.T. while he was with them. It is not clear whether they asked for his removal from their home or not.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the foster care license of Joe and Fatima Landon.
Findings Of Fact At all times material to this proceeding, the home of Joe and Fatima Landon was licensed by the Department of Children and Family Services as a foster home, having been issued License No. 0900-17 by the Department. On January 31, 2001, the Department received a report alleging that a child in the Landons' care, K.N.F., had two scrapes on her left hand that might constitute abuse. As a result of these allegations, Harvey Clark and Kevin Daniels, Child Protective Investigators employed by the Department, went to the Landons' home on the day of the alleged incident to investigate. Deputy Steven Parker of the Clay County Sheriff's Office also went to the Landons' to investigate. At the time of the hearing, K.N.F. was seven years old. She recalled that on the day of the incident, Mrs. Landon was driving her and another foster child to school. K.N.F. was reading in the back seat of the van. K.N.F. was trying to sound out the words and was unable to sound them out properly. Mrs. Landon turned around and Mrs. Landon's hand hit K.N.F.'s hand. K.N.F. described the incident as follows, "She turned around. And I was holding my hand on the book. She was going to point to the word, but my hand was there." She perceived Mrs. Landon to be angry, but also thought that Mrs. Landon was pointing to the word and hit her hand by accident.2 K.N.F. was referred to the Child Protection Team for an examination of her injury. She was examined by Dr. Bruce J. McIntosh. Dr. McIntosh found two abrasions, or scrapes, on the back of her left hand near the thumb. It was Dr. McIntosh's opinion that the abrasions were inconsistent with the injury being an accident in that one would not be pointing at something with "such force and velocity" to produce two abrasions to the hand. Notwithstanding Dr. McIntosh's testimony, the abrasions are best described in the photographs taken the day of the incident which reveal two small reddish abrasions on K.N.F.'s left hand. The evidence is sufficient to support a finding that Mrs. Landon reaching around to K.N.F. caused the abrasions on K.N.F.'s hand. Dr. McIntosh determined that the abrasions did not require specific treatment. However, he recommended that K.N.F. and the other foster child in the car be removed from the Landons because it was his impression that the children were afraid of Mrs. Landon. This impression was based primarily on statements made to him by K.N.F. and the other foster child during his examination, which are hearsay. K.N.F. and the other foster children were then removed from the Landons' home by the Department. At the time of the incident, Tanya Lee was employed by the Jacksonville Youth Sanctuary, a private organization contracted by the Department to provide foster care services, as a foster care case worker. She was the case worker for the two other foster children in the Landons' home. She visited the home frequently and found a happy, stable environment. She found the Landons to be very supportive and nurturing of the foster children including what she witnessed with K.N.F. during her home visits. Ms. Lee conducted exit interviews of the children for whom she was the case worker when they were removed from the home after the incident. It was her impression that the children felt safe in the Landons' home and wanted to be placed back with the Landons. This impression was based on the statements made by the children during the exit interviews and are hearsay.
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 rescinding its revocation of the Landons' foster care license. DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida. 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 31st day of January, 2002.
The Issue Whether Respondent, YouthFit by BodyZone Fitness, conducts activities that constitute "child care," so that it must obtain a child care facility license in order to conduct these activities.
Findings Of Fact The Parties Petitioner DCF is the state agency responsible, pursuant to chapter 402, Florida Statutes, for regulating providers of "child care," as that term is defined in section 402.302(1). Respondent YouthFit is a Florida limited liability company. It is located at, and its business address is, 2827 North Roosevelt Boulevard, Key West, Florida. YouthFit is owned and managed by Calvin Paquette. Paquette also owns BodyZone Fitness, LLC ("BodyZone"), a Florida limited liability company that operates a fitness facility located at 2740 North Roosevelt Boulevard, Key West, contiguous to YouthFit. Information Submitted in Questionnaire On July 13, 2018, Paquette submitted a Child Care Licensure Questionnaire ("Questionnaire") to DCF on behalf of YouthFit, requesting a determination whether YouthFit conducts "child care." The Questionnaire was admitted into evidence at the final hearing. The Questionnaire provided information regarding the nature and location of YouthFit's operation; the types of activities that YouthFit provides to children; the ages of the children participating in YouthFit's activities; the type of supervision that YouthFit provides to participants; and the payment/fee arrangements to participate in YouthFit's activities. According to the Questionnaire, YouthFit is a youth fitness program consisting of instructor-led classes offered to children ranging in age from preschool to high school. The classes identified in the Questionnaire were tumbling classes; strength, conditioning, and flexibility classes; and ninja classes. A YouthFit Class Pricing Schedule attached to the Questionnaire showed that, at the time the Questionnaire was submitted, YouthFit also offered "open gym" and "parents' night out" activities. Both of these activities entailed parents dropping children off at, and picking them up from, YouthFit. The Questionnaire stated that YouthFit offered classes from 9:00 a.m. to 9:00 p.m., seven days a week. Per the Questionnaire, participation in these classes is limited to one to two hours of class per day for each child. Attendance is not required, and the same children do not necessarily attend YouthFit's classes on a regular basis. The Questionnaire stated that parents are not required to remain on the YouthFit premises at all times, although they are permitted to do so. Parents may drop children off at the YouthFit facility to participate in classes and are expected to pick them up after class is over. The Questionnaire stated that children are not permitted to enter and leave the YouthFit classes or premises unless they have permission pursuant to prior arrangement or have adult supervision. Parents are required to sign their children in and out of the YouthFit classes and premises. According to the Questionnaire YouthFit supervises all children who are participating in its classes, including the children whose parents remain on the premises. Prepackaged snacks and drinks are offered to the participants of each of YouthFit's classes. Payment for participation in YouthFit's activities is made two ways: payment through adult membership at BodyZone Fitness, and payment of a drop-in fee for persons who are not members of BodyZone Fitness. YouthFit is not operated by a public or nonpublic school and is not located on a school site. YouthFit is not affiliated with a national non-profit organization created for the purpose of providing youth service and youth development. Based on the foregoing information, DCF determined that YouthFit provides "child care," as defined in section 402.302(1); therefore, it is required to be licensed as a "child care facility" pursuant to section 402.305, unless it falls within a statutory or rule exemption from the licensure requirement. Based on its review of the Questionnaire, DCF also determined that YouthFit did not qualify for any statutory or rule exemption from licensure as a child care facility. Accordingly, DCF notified Paquette of its decision that YouthFit was required to obtain a child care facility license in order to provide its youth fitness program activities. Facts Stated in YouthFit's Request for Hearing As noted above, Paquette timely requested a hearing challenging DCF's decision that YouthFit must obtain a child care facility license. In the letter requesting a hearing, Paquette provided additional information regarding the YouthFit fitness program. This letter was admitted into evidence as Petitioner's Exhibit C. According to the letter, YouthFit classes will be offered in BodyZone's expanded premises, which accommodate both YouthFit classes and adult fitness activities. Per the letter, children ages two through 18 may take the YouthFit classes. The letter clarified that a parent must be present at all times for children ages four and under, and YouthFit may require a parent to be present for children up to age five. The letter also clarified that each child would be limited to one class per day, which may range from 45 minutes to two hours in duration. The letter stated that YouthFit would not offer "child care" services, but, instead, would "operate no different [sic] than a local gymnastics center (or martial-arts dojo) offering tumbling classes (or ju-jitsu classes)." The letter explained that the "intent is fitness activities, not child care services." Other Evidence Presented at the Final Hearing DCF presented evidence at the final hearing that included screenshots of YouthFit's website, Facebook page, and Twitter account. At the time the screenshots were taken, YouthFit's Facebook page and Twitter account advertised a range of YouthFit classes and activities, including tumbling, Zumba kids, yoga kids, ninja class, boot camp, open gym, parents' night out, and day camps. Paquette testified that the hours associated with YouthFit's program recently have changed, so that classes and activities are now offered from 3:30 p.m. to 6:00 p.m. Additionally, YouthFit no longer offers parents' night out, open gym, or day camps. Paquette also testified that YouthFit no longer advertises its activities on Facebook and Twitter. However, at the time of the final hearing, he had not been able to access these accounts, so the advertisements had not been removed from the internet. Paquette testified that the sole means by which information on YouthFit's classes and activities is disseminated is by "word-of-mouth."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order finding that Respondent, Youthfit by BodyZone Fitness, LLC, currently provides a program of classes and activities that constitute "child care," so that it is required to obtain a "child care facility" license to provide this program. DONE AND ENTERED this 6th day of March, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 6th day of March, 2019.
The Issue Should Respondents have their family foster home license renewed?
Findings Of Fact Petitioner issued Family Foster Home License No. 059527 to Respondents for the period of May 25, 1995 until April 25, 1996. That license allowed Respondents to care for the foster children, D.W., D.G. and T.G. Respondents wish to renew the license. Petitioner has denied the renewal based upon an allegation that Respondents tested positive for marijuana use. Respondents had been reported through the "abuse hotline" for alleged drug usage. This led Petitioner to request Respondents to submit to urinalysis to detect possible drug usage. Respondents voluntarily submitted to the test, which results led to the allegation. Petitioner, in accordance with law, insists that foster children shall be provided for in a safe environment where drugs are not abused, thus, the decision to deny the license renewal. D.W. is five and one-half years old. He has severe physical and developmental problems. He suffers from AIDS. For that reason, he has had frequent hospitalization. D.W. has cerebral palsy and cannot walk. He has neuropathy of the brain, failing kidneys, problems with infection, and nose bleeds. As described, D.W.'s care involves complex medical needs. He must be closely observed. He receives numerous medications. His care involves tube feeding. Respondents have cared for D.W. since he was six months old. D.G. is four years old. T.G. is two years old. Respondents have cared for those children for approximately two years. D.G. and T.G. are also developmentally-delayed children. T.G. has difficulty eating. It takes approximately one hour for her to eat. T.G. does not talk. She receives therapy in the home. D.G. attends a special school. Health care professionals Scott Dryer, Julie MacNamara and Kathleen McGlone have assisted Respondents in carrying for the foster children in the home. During their visits to the home those individuals have been positively impressed with Respondents' demeanor and cooperation in meeting the needs of the children. Likewise Dr. Kathleen Ann Ryan-Poirer who treated D.W. in the hospital was positively impressed with Mr. Jolly's attention to D.W. while the child was hospitalized. R.D.J. is Respondents' adult son. He is HIV positive, having been diagnosed seven to eight years ago. He does not take medication for his condition. Instead, he smokes as many as 12 marijuana cigarettes per day to help stimulate his appetite in confronting his HIV condition. He is a frequent visitor to his parents' foster care home. He visits approximately every weekend. On the visits, he smokes marijuana in the presence of his parents, but not in the presence of the foster children. On February 15, 1996, Respondents went to visit R.D.J. at his work at a local nightclub. R.D.J. and two friends went into the parking lot and entered a van. With Respondents in attendance, for a period of 30-45 minutes in the closed vehicle, R.D.J. and his friends smoked two to four marijuana cigarettes for recreational purposes. The conduct by Respondents in being in a van where marijuana was being used for recreational purposes was inappropriate, notwithstanding their efforts to visit their son. On February 16, 1996, Guy Bardell, a protective investigator for the Petitioner, visited Respondents in their home concerning the allegation that Respondents had used marijuana. At that time, Respondents were requested to take a drug test to address the allegation. On February 17, 1996, Respondent, Paul Jolly, and his son, R.D.J., went on an automobile trip that lasted for approximately two hours. During the trip, R.D.J. smoked three marijuana cigarettes in the closed vehicle. On February 19, 1996, Respondents submitted to a urinalysis to determine whether they were using marijuana. In appropriately-administered tests to confirm the presence or absence of marijuana through gas chromatography mass spectrometry (GS/MS), a scientifically-dependable test method used as evidence in court proceedings, marijuana metabolite was detected in samples provided by both Respondents. This GS/MS test method was designed to detect the metabolite for confirmation at 15 nanograms per mill (ng/mL). The results in the Paul Jolly test were 32 ng/mL. The results for Merida Jolly were 23 ng/mL. Both amounts exceeded the expected levels for individuals passively exposed to the sidestream smoke of persons actively smoking marijuana. Therefore, the assertion by Respondents that they had only been passively involved with marijuana use on the occasions described fails to explain the levels of marijuana metabolite in their systems. This creates the inference that Respondents had exposure to marijuana other than by passive means. This finding is arrived at in reliance upon the deposition testimony by Dr. Samuel E. Mathews, who holds a Ph.D. in analytical chemistry. No other explanations were made which would explain the levels of metabolite found in the samples produced by the Respondents which would lead one to conclude that those amounts were solely the product of passive inhalation of marijuana smoke. Based upon the results of the drug tests, Respondents were orally informed, on February 27, 1996, that their family foster care license would not be renewed. Further notification was provided on March 25, 1996 by correspondence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which denies renewal of Respondents' family foster home license. DONE AND ENTERED this 9th day of September, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 96-2049 Petitioner's Findings: 1-7. Subordinate to facts found. 8-9. Not necessary to the resolution of the dispute. 10-19. Subordinate to facts found. The first two sentences are not necessary to the resolution of the dispute. The remaining sentences are subordinate to facts found. 21-24. Subordinate to facts found. COPIES FURNISHED: Lucy Goddard, Esquire Department of Health and Rehabilitative Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 Anita Belle, Esquire The Justice Clinic Post Office Box 873 Gainesville, Florida 32602 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Blvd., Ste. 204-X Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1317 Winewood Blvd., Ste. 204 Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and if so, what penalty should be imposed.
Findings Of Fact The Learning Tree Child Care Development Center is a licensed child care facility owned and operated by Priscilla Johnson. On August 21, 2006, Carmen Burruezo, an employee of the Petitioner, conducted an inspection of the facility and observed several violations of statutory requirements related to operation of a child care facility. An insufficient number of staff was present to comply with applicable staffing ratio requirements, certain transportation documentation was not available for review and the outdoor play area was in unsafe condition. The inspector observed that only one staff person was in the area where 20 three-year-old children were located. According to staffing requirements, there must be one staff for every 15 three-year-old children in the area, and accordingly, an additional staff member should have been sharing supervisory responsibility for the children. The staffing violation was corrected during the course of the inspection. At the hearing, the Respondent Johnson questioned how staffing ratios could be met during times when a staff member leaves an area for various reasons including using restroom facilities, but did not offer any evidence that the inspector's observations were incorrect. During the inspection, the inspector attempted to review documentation of a vehicle inspection for the facility vehicle but none was available. Similarly, the inspector requested to review the vehicle driver's physician certification, but it was not available. Respondent Johnson provided such documentation to the Petitioner at a date subsequent to the inspection. In the outside play area, the inspector observed that there was no resilient surface under the swing set, and that the resilient surface provided elsewhere (which consisted of padded mats) was not fitted together and, therefore, presented a tripping hazard to small children. The play area was completely exposed to the sun and no shaded area was available. The inspector also observed a broken bed frame and other discarded equipment within the playground area, and found the location of the debris to be unsafe. Respondent Johnson offered no testimony disputing these observations. In previous inspections, the facility has been previously cited for the same types of infractions. Staffing ratio issues were cited in inspections dated April 21 and January 6, 2006. Inadequate transportation documentation was cited in an August 25, 2005 inspection. Unsafe playground issues were addressed in an inspection dated December 23, 2004.
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 imposing an administrative fine of $300 against The Learning Tree Child Development Center d/b/a The Learning Tree Child Care Development Center and Priscilla Johnson. DONE AND ENTERED this 10th day of January, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 10th of January, 2007. COPIES FURNISHED: Stacy N. Robinson, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1114 Orlando, Florida 32801 Priscilla Johnson The Learning Tree Child Care Development Center, Inc. 4540 South Orange Blossom Trail Orlando, Florida 32839 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copelan, General Counsel Department of Children and Family Services Building 1, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioners' application for family foster home relicensure should be denied for the reasons set forth in the February 6, 2003, letter that Petitioners received from the Department of Children and Family Services (DCFS).
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Background Information Petitioners are husband and wife. They operated a licensed family foster home at their residence in Fort Lauderdale, Florida, for seven years until their most recent license expired. Among the foster children who were in Petitioners' home during the last of these seven years were T. G. and W. B. T. G. was placed in Petitioners' home on October 14, 2002, and was removed from the home on January 21, 2003. W. B. was placed in Petitioners' home on October 21, 2002, and was removed from the home on December 18, 2002. On November 24, 2002, Petitioners and DCFS executed a Bilateral Service Agreement (Agreement) as part of the family foster home licensing process. By signing the Agreement, which provided, in pertinent part, as follows, the Parents "agree[d] to abide by [its] terms": Purpose: The purpose of this Agreement is to identify the expectations for both foster parents and the Department of Children and Families on behalf of the children and families that are served in the foster care program. Note: for this agreement Department means Family Safety staff, Lead Agency Staff, Contract Case Management staff or Contract Licensing staff. This agreement reflects standards of care that are current requirements in Florida Administrative Code, which are based on statutory authority found in section 409.175, Florida Statutes. The premise of this agreement is that the department and foster parents must work as partners to assure safety, to provide for the physical and mental well being and to obtain permanency for each child. * * * Foster Parent Responsibilities to the child include: * * * e. To assist in setting up visits with the child's parent(s) or relatives. * * * To transport and accompany the child to medical, dental, mental health appointments and visits with parents and relatives. To provide the child his/her monthly spending allowance which is included in the board payment. To buy the child clothing . . . with the monthly board rate and clothing allowance . . . . * * * m. To adhere to the department's safety and discipline policies, see Attachment A. Failure to comply with the department's safety and discipline policies may result in the removal of children from the home. * * * To promote the following conditions for the child in the home: Opportunities and encouragement to communicate and have contact with family members, friends and other people important to the child. . . . Respect for the child's body, person, . . . . * * * 7. Provide the child with suitable clothing, [that] is appropriate for the weather, and appropriate for the age of the child. . . . Foster Parent Responsibilities to the department include: * * * j. To use the clothing allowance to buy the child clothes and shoes. * * * n. To allow the child to be removed from the foster home only by a department staff member, Guardian ad Litem, or another party granted permission by the department of the court. To verify the identi[t]y and authority of staff and other parties when not known to the foster parent. * * * p. To know where and with whom the child is staying and the type of supervision the child is receiving when foster parents approve an outing or overnight activity. Children may not remain in an unlicensed setting for any time other than a planned, supervised outing or overnight activity without the explicit approval of the department. * * * Non-compliance with any of the above provisions may result in administrative action by the Department, which could include corrective action, suspension, revocation or denial of further licensure pursuant to Chapter 120, Florida Statutes. Attachment A to the Agreement set forth the following "Discipline Policies," among others: The foster parents must discipline children with kindness, consistency, and understanding, and with the purpose of helping the child develop responsibility with self-control. * * * 3. Foster parents must use positive methods of discipline, including the following: * * * (IV) Grounding, restricting the child to the house or yard, or sending the child out of the room and away from the family activity; * * * The foster parents must not subject children to cruel, severe, humiliating or unusual punishment . . . . The foster parents must not use corporal punishment of any kind. * * * 11. The foster parents must not deny a child contact or visits with his family as punishment. * * * Alleged Violation of Rule 65C-13.010(1)(b)6.b., Florida Administrative Code There were occasions when Petitioners refused, without adequate justification, to take T. G. to scheduled doctor's appointments. On these occasions, T. G.'s DCFS case worker, Khalilah Dawes, had to take T. G. to the doctor so he would not miss his appointments. The morning of December 19, 2002, T. G. became ill at school (Lauderdale Manors Elementary School, where he was a kindergarten student). At around 10:00 a.m., he went to the school office, where he spoke to Monica Marshall, the school secretary. There was no school nurse at the school that day to care for T. G. Ms. Marshall, therefore, telephoned Mrs. Jenkins, told Mrs. Jenkins that T. G. was ill, and requested that Mrs. Jenkins come by school to pick T. G. up, which Mrs. Jenkins agreed to do. By 12:30 p.m., however, Mrs. Jenkins had not yet arrived at school. Ms. Marshall, therefore, telephoned Mrs. Jenkins again. During this second telephone conversation, Mrs. Jenkins told Ms. Marshall that, if she (Mrs. Jenkins) was not at school by the end of the school day, Ms. Marshall should just let T. G. walk across the street to the after-school program in which he was enrolled. Mrs. Jenkins did not pick T. G. up at any time during the regular school day.3 Alleged Violation of Rule 65C-13.010(1)(b)9.b., c., and d., Florida Administrative Code There were occasions when foster children in Petitioners' care, including T. G., did not go on school field trips because the children did not have money to pay for these trips. It is unclear from the evidentiary record, however, why, on these occasions, the children did not have the money they needed to go on the trips.4 Petitioners purchased school uniforms for the foster children in their care. The record evidence is insufficient to support a finding that "[o]ne of the teachers purchased the school uniforms for the foster children." Mrs. Jenkins, on occasion, did come to Lauderdale Manors Elementary School to talk with school personnel about her foster children attending the school (although, in her dealings with the school's principal, Doris Bennett, Mrs. Jenkins was, at times, "loud and boisterous," displaying a "negative and nasty attitude"). Neither Mrs. Jenkins nor her husband, however, attended "report card night" at the school last year. This was a "well-attended" event, held after school (between 6:00 p.m. and 8:00 p.m.), where parents had an opportunity to receive their children's report cards from their children's teachers. It is unclear from the evidentiary record why Petitioners were not in attendance. Alleged Violation of Rules 65C-13.010(1)(b)5.a. and 65C- 13.010(1)(b)5.f., Florida Administrative Code The record evidence is insufficient to support a finding that "Mrs. Jenkins pinche[d] T. G." or "ma[d]e[] him stand in the laundry room when he [was] bad."5 Alleged Violation of Rule 65C-13.010(2)(b), Florida Administrative Code Ann Livermore is employed as a case worker by Kids in Distress, Inc., a private entity that has contracted with DCFS to provide care case worker services to foster children supervised by DCFS. Ms. Livermore was W. B.'s case worker during the 2002 Thanksgiving holiday period. W. B.'s sister had obtained a court order allowing W. B. to go on an unsupervised visit to W. B.'s sister's home on Thanksgiving Day 2002. W. B. had not had any previous unsupervised visits with his sister during his time with Petitioners. At no time prior to Thanksgiving Day 2002 had Mrs. Jenkins had any contact with either Ms. Livermore or W. B.'s sister. At 9:00 a.m. on Thanksgiving Day 2002, Ms. Livermore received a telephone call from W. B.'s sister, who complained to Ms. Livermore that Mrs. Jenkins would not let her take W. B. from Petitioners' home. Ms. Livermore responded by telephoning Mrs. Jenkins and explaining to her that W. B. was "allowed to go with" his sister pursuant to a court order that had been obtained by the sister. Mrs. Jenkins responded that she was not aware of any court order and that, if Ms. Livermore intended to come to Petitioners' home to pick up W. B., she should bring with her appropriate identification, as well as be accompanied by the police. As Mrs. Jenkins credibly explained at the final hearing, she did not know what Ms. Livermore "looked like" and, with all the "phony stuff going on," wanted to make sure that W. B. would not fall into the wrong hands. Later that same day, Ms. Livermore, accompanied by the police, went to Petitioners' home. She took with her, to show Mrs. Jenkins, a copy of the court order W. B.'s sister had obtained. Mrs. Jenkins gave Ms. Livermore a difficult time, questioning the adequacy of Ms. Livermore's proof of identification and the authenticity of the copy of the court order that Ms. Livermore showed her. While Mrs. Jenkins may have been overly cautious in her dealings with Ms. Livermore, it does not appear that she was acting in bad faith. Ultimately, W. B. was released to the custody of Ms. Livermore, who turned W. B. over to his sister.6
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, pursuant Section 409.175(9), Florida Statutes, DCFS enter a final order denying Petitioners' application for family foster home relicensure, based on the rule violation alleged in section A. of the notice of intent to deny. DONE AND ENTERED this 30th day of June, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 June, 2003.
The Issue Whether Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, is authorized to charge and collect interest from Respondent, Florida Gaming Centers, Inc., on the unpaid value of the outsbook for the 1995-1996 meet from August 29, 1997, the date payment of the value of the outsbook was due, to September 8, 1998, the date payment was received by Petitioner.
Findings Of Fact At all times relevant hereto, the Respondent held a permit to conduct jai alai pari-mutuel wagering, under License No. 2909-D Amended, issued by the Department. Between July 1, 1995, and June 30, 1996, inclusive, Respondent held jai alai games for the purpose of conducting pari-mutuel wagering on those games. Respondent's meet for the relevant time period ended on June 30, 1996. One year and sixty days after the end of the State of Florida's (State) fiscal year of June 30, 1996, any "out" tickets that remained uncashed escheated to the State pursuant to Section 550.1645(2), Florida Statutes. Once these tickets or the value thereof escheated to the State, Respondent was required to pay the value of such tickets, as reflected on its outsbook, to the Department no later than August 29, 1997. Pursuant to the outsbook prepared by Respondent, the value of the outs for the 1995-1996 meet was $108,221.20. Nonetheless, Respondent failed to submit to the Department the value of the balance of the outsbook within the prescribed time frame and instead held these funds. On June 2, 1998, the Department served an Administrative Complaint on Respondent, alleging that Respondent had failed to timely submit the value of the outsbook to Petitioner. By letter dated September 4, 1998, Respondent submitted to the Department a check for $109,128.60 as payment for the unpaid value of Respondent's outsbook for the 1995-1996 meet. The Department received Respondent's payment on September 8, 1998. Of the total amount Respondent paid over to the Department, $108,221.20 was credited against the unpaid value of the outsbook for the 1995-1996 meet, resulting in full payment of the outstanding outsbook value. The remaining $907.40 paid by Respondent to Petitioner was an overpayment. Petitioner alleges that Respondent is responsible for interest accrued on the unpaid value of the outsbook for the period of time that amount remained unpaid. According to the Department, the interest owed by Respondent as a result of its failure to timely remit the value of the outsbook, "shall be determined at a rate per annum . . . equal to the State's average investment rate for the preceding month to the month for which interest is being calculated." The average interest rate earned on the investment of State funds as determined by the State Treasurer and/or Comptroller" for the time period of August 1997 through August 1998, was 6.73 percent. The Department determined that the interest "shall accrue on the unpaid aggregate principal amount due the State for the month(s) from the respective due date." Based on its calculations and after deducting Respondent's overpayment of $907.40, the Department asserts that Respondent owes the Department approximately $6,573.85 in accrued interest. Respondent disputes that the Department has authority to collect interest on the unpaid amount of the outsbook and alleges the powers of the Department under Section 550.0251, Florida Statutes, do not include such authority.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that (1) an administrative fine of $1,000.00 be imposed against the Respondent for the violation Section 550.1645, Florida Statutes; and, (2) Respondent shall receive a credit of $907.40 toward payment of the administrative fine. RECOMMENDED this 28th day of January, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 January, 1999. COPIES FURNISHED: Deborah R. Miller, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William P. Cagney, III, Esquire 3400 Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Eric H. Miller, Esquire Chief Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondents' application for renewal of their family foster home license should be denied on the grounds set forth in the agency's August 16, 1995, letter to Respondents?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. At all times material to the instant case, Respondents Jose and Emma Perez were licensed to operate a family foster home at their residence in Hialeah, Florida (hereinafter after referred to as the "licensed home"). Before obtaining their license, Respondents were required by the Department to sign an "Agreement to Provide Substitute Care for Dependent Children" (hereinafter referred to as the "Agreement"). Respondents signed the Agreement on or about July 1, 1994. In so doing, they agreed that they would, as licensed foster parents, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the [D]epartment." 1/ On or about January 13, 1995, Respondent Jose Perez was involved in a physical altercation with his brother-in-law. The altercation took place in the licensed home. 2/ The brother-in-law was living with Respondents in the licensed home (on a temporary basis) at the time of the incident. 3/ During the altercation, Jose threw a glass object in the direction of his brother-in-law. The object hit a wall and shattered upon impact. A piece of flying, shattered glass accidentally struck Respondents' daughter, Jessica, 4/ who was sleeping in her bedroom. Jessica sustained a cut on her forehead. Jose was subsequently arrested for aggravated battery by the Hialeah Police Department. 5/ Some time after the incident, the Department placed two foster children, A.A. and H.A., in Respondents' care. In the summer of 1995, Respondents filed with the Department an application to renew their family foster home license. The application was ultimately assigned (for review and investigation) to John Gallagher, a senior (foster) licensing counselor with the Department. On July 19, 1995, Gallagher went to the licensed home. Outside the home, on the northwest portion of Respondents' property, Gallagher observed a considerable number of, what appeared to be, discarded items. Inside the home, the floors were dirty and littered with a large amount of trash. On the floor in one of the rooms was dog feces, which Gallagher instructed Respondents to "pick . . . up immediately." During his visit to the licensed home on July 19, 1995, Gallagher had Respondents sign a "Bilateral Service Agreement," which was similar, but not identical, to the Agreement that Respondents had signed the year before. All of the necessary paperwork, however, was not completed during the visit. Upon leaving the home, Gallagher told Respondents that he would stop by again at the end of the day or on the following day to finish the paperwork. At 9:00 a.m. the next day, July 20, 1995, Gallagher returned to the licensed home. He was accompanied on this visit by Maria Siervo, another (foster care) licensing counselor with the Department. The conditions both outside and inside the home were not materially better than they had been the day before when Gallagher had paid his first visit to the home. In the clutter outside the home on the northwest portion of the property was a bucket (with no top or covering) that contained broken glass and a discarded baby diaper. On a table outside the home was a baby bottle containing congealed milk. Both the bucket and the bottle were readily accessible to A.A., the older of the two foster children in the licensed home. (A.A. was approximately two years of age.) Inside the home, the floors were still covered with a considerable amount of dirt and trash. They obviously had not been swept or mopped. A.A. was walking around on these floors without any shoes or socks on in her bare feet. There was a freestanding fan in the bedroom that A.A. and H.A. shared that did not have a protective covering. When Gallagher was in the bedroom, he saw the fan operating and A.A.'s fingers come within a few inches of the fan's exposed, moving blades. Gallagher instructed Respondents to either obtain a protective covering for the fan or remove it from the home. There were no screens on the windows of the home to keep insects out of the living area. 6/ In addition, two doors to the home were "wide open" throughout Gallagher's and Siervo's visit. H.A. was in a playpen that was old and dirty. In Gallagher's presence, a cat with sharp claws (which was not Respondents') started climbing up the side of the playpen. The cat was removed from the premises, however, before it was able to join H.A. in the playpen. The cat was not the only animal in the home on July 20, 1995. Gallagher also discovered newborn puppies underneath a bed in the home. Gallagher and Siervo spoke with Respondents during their July 20, 1995, visit about the unclean, unhealthy and hazardous conditions that existed in the licensed home. They asked both Respondents why the home was not clean. Jose responded by stating that he worked all day and that it was his wife's responsibility to clean the home. Emma stated that she was planning on cleaning the home, but that she was "lazy" and had not yet gotten around to it. Later that same day, after he and Siervo had left the licensed home, Gallagher reported what he had observed on his two visits to the home to the Department's abuse hotline. Two additional reports, both alleging that there was violence in the home, were subsequently made to the abuse hotline. All three reports were assigned to Darlise Baron, a protective investigator with the Department, for investigation. As part of her investigation, which began on March 20, 1995, Baron visited the licensed home. Conditions had improved since Gallagher's and Siervo's visit to the home on July 20, 1995. As Baron stated in her investigative report: Upon PI['s] arrival at address . . ., PI did not see any immediate danger for the children. The family had clean[ed] up the house. The floor was swept, kitchen was clean, no dirty dishes in the sink or around kitchen, the bathrooms were clean, the children's room was clean, the beds [were] made w/clean sheets. Mom['s] room had clean clothes on the bed being folded to be put away. There was dog feces seen on the floors. The large bags of garbage w[ere] placed on the curb, which was fil[l]ed w/clothes and grass. The fan w/out cover was placed in mom's room w/door close[d] to be thrown away. The dirty baby's bottle was not seen. . . . Nonetheless, in view of the information that she had concerning the conditions that had previously existed in the home and the incident that had occurred in the home involving Jose and his brother-in-law, 7/ Baron determined that the reports that were the subject of her investigation should be classified as proposed confirmed and she so indicated in her investigative report. 8/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Respondents' application for the renewal of their family foster home license, without prejudice to Respondents applying for a new license after July 31, 1996. 12/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of March, 1996. STUART M. LERNER, 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 18th day of March, 1996.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent set up, promoted or conducted a lottery for money or other thing of value in violation of Section 849.09, Florida Statutes.
Findings Of Fact On August 26, 1998, the Respondent, Personal Investments, Inc., d/b/a Personal Investments (Respondent) held license no. 77-00008, Series 2-COP, authorizing it to sell alcoholic beverages. On that date Mr. Stockton Hess was a corporate officer (Vice President). Mr. Hess was also a corporate officer of the Washington County Kennel Club, Inc. (WCKC) on the above date (President). The Respondent is a business regulated by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division) because it sells alcohol. The Washington County Kennel Club (Club) is regulated by the same Department's Division of Pari-mutuel Wagering, because it operates a pari-mutuel wagering facility at the Ebro Greyhound Park Dog Track. The Ebro Greyhound Park is owned and operated by the Club. The Club is in the business of selling pari-mutuel tickets, programs and tip sheets. Personal Investments, Inc., sold alcohol at its concession stands and in the lounge and restaurant at Ebro Greyhound Park, located in Ebro, Washington County, Florida. The Respondent served as concessionaire for food and beverage services through its contract with the Club. The Club has held its pari-mutuel wagering permit and annual pari-mutuel licenses continuously for some forty years. They authorize greyhound racing operations at the Ebro track facility. On August 26, 1998, the Club conducted a game promotion at its greyhound track in which any person entering the facility, regardless of whether he or she paid an admission fee, was provided a split-ticket free of charge. One half of the ticket went into a drum located by the entrance way and the other half of the ticket was retained by the patron. Located next to the drum, and on the Club premises, was a wheel which contained representations of prizes such as t-shirts, magnets, key chains and so forth. Subsequent to the tenth race a Club employee, the front gate hostess, would draw a ticket and another employee, the track announcer, would announce the number drawn. The patron holding the other half of the selected ticket would then present himself to the front gate hostess to verify the number. The patron would then spin the wheel and win whatever prize was reflected at the point where the wheel stopped. The Club bought the wheel, paid for the prizes and its employees operated the game in question. Mr. Hess, an officer of both the Club and the Respondent corporation had knowledge of and intentionally participated in the running of the above-described game. On August 26, 1998, a drawing was conducted after the tenth, twelfth and thirteenth races. No patron responded to the number called out following the tenth race, but patrons responded after their announced numbers were called after the twelfth and thirteenth races. Each of those patrons presented a ticket, spun the wheel, and each won a T-shirt. The Division offered no evidence and was unaware, on August 26, 1998, or thereafter, including at hearing, whether those patrons entered the dog track premises by paying an admission ticket price. On August 26, 1998, three hundred ninety-one patrons attended the track. Two hundred eighty-eight of those patrons or approximately 75% attended the track for free, utilizing free passes made widely available by the Club throughout its market area. On a typical racing day or night in excess of 60% to 70% of the patrons entering the Ebro Greyhound Track facility enter utilizing such free passes, the availability of which is a matter of fairly common knowledge in the track's market area. In accordance with the Division of Pari-Mutuel Wagering requirements, the Club maintains a separate turnstile for patrons entering daily with free passes from those paying an admission fee. Respondent's Exhibit B in evidence is a daily report, submitted to the Division of Pari-Mutuel Wagering, of patrons entering for free as opposed to those who paid an admission fee, including the report for August 26, 1998. It was further the Club's policy that any patron who asks for a free pass at the cashier's window is given one and permitted to enter the track premises free. On August 26, 1998, Division Agent Lee went to the Ebro Greyhound Track, paid a $2.00 admission fee, and used his split- ticket to enter the game promotion. He observed the two patrons who had each won a T-shirt following the twelfth and thirteenth races. He made no attempt to obtain a free admission nor did he inquire as to whether the two patrons who won T-shirts had entered for free. Agent Lee testified that he was unaware at the time he visited the greyhound track on that date that the Club owned the track and conducted the Pari-Mutuel Wagering permit and license, despite the fact that the Division of Pari-Mutuel Wagering, a part of the same department, as the Division, was the source of the request to review the game promotion. Agent Lee thought that the Respondent, Personal Investments, Inc., was conducting the game promotion. In fact, that was not the case, the game promotion was conducted solely by the Club and its employees. Agent Lee testified that on August 26, 1998, as well as on the date of hearing, he had no knowledge or evidence that any agent, servant or employee of the Respondent had set up, promoted or conducted the game promotion or a lottery for money or "other thing of value." Agent Lee also testified that on August 26, 1998, and on the date of the hearing, he had no knowledge or evidence to offer to the effect that Personal Investments, Inc., or its agents, servants or employees attempted to operate, conduct or advertise any lottery scheme or device. Agent Lee was unaware of Division Training Bulletin 93-18 concerning game promotions. This was a memorandum to all District Supervisors of each district office of the Division noting that Section 849.094, Florida Statutes, authorizes game promotions in which the patron must be present to win, provided that the game promotion does not require an entry fee, payment or proof of purchase as a condition for entering the game promotion. Tickets to enter the game promotion are given away without charge by the Club to any patron attending the facility. It is the Division's apparent position that, since Agent Lee paid a $2.00 admission fee to the track and thereafter received his game promotion ticket, that such admission fee constitutes a fee, payment or proof of purchase required as a condition precedent to entering into the subject game promotion. Since almost 75% of the patrons attending the track on the date in question entered free, and since every person entering the track on that date received, without charge, a game promotion ticket, the game promotion ticket cannot be determined to have, as a condition precedent, any fee, payment or proof of purchase as a condition for entry into the game promotion. The "Bud Bowl '99 Sweepstakes" is a common type of game promotion used as an exemplar by the Respondent, the rules of which are depicted in Respondent's Exhibit C, in evidence. That game promotion is approved by the Florida Department of State pursuant to its authority in Section 849.094, Florida Statutes. It is a game promotion in which some but not all participants in fact pay a purchase price and, as part of the purchase, receive a game promotion ticket or piece. The rules of the game contained in Respondent's Exhibit C, reflect that of the 4,429,350, entry forms made available, approximately half are contained within specially marked packages of Anheuser-Busch beer products, which can only be obtained through purchases at stores holding alcoholic beverage licenses. However, one may also enter the "Bud Bowl '99" contest without a purchase and thus in accordance with Section 849.094(2)(e), Florida Statutes, the game promotion does not require, as a condition of entry into it, a fee, payment or proof of purchase. The Ebro game promotion did not award prizes greater than $5,000.00. Thus, unlike the "Bud Bowl '99" game promotion, it did not have to meet applicable requirements for a game promotion offering prizes in excess of such value, including registration with the Florida Secretary of State. It did, however, share the same common requirements as the "Bud Bowl '99" promotion, which is that any entry fee, payment or proof of purchase as a condition of entering the game promotion was not required. Mr. Hess, who testified at hearing for the Respondent, paid $7.48 for a twelve-pack of Anheuser-Busch beer, which contained a "Bud Bowl '99" sweepstakes game promotion ticket therein. He did so without that game promotion being in violation of Section 849.094, Florida Statutes, as determined by the Secretary of State in registration of that promotion. Similarly, Agenct Lee paid $2.00 to enter the Ebro Greyhound Track, and in doing so acquired no more or no less right and opportunity to participate in the Ebro game promotion than did the majority of patrons who entered without having to pay an admission fee. The rules of the "Bud Bowl '99" sweepstakes game promotion submitted to or approved by the Department of State clearly reflect that approximately 50% of entry fees would be contained within Anheuser-Busch product packages which can only be obtained by purchase. The remaining 50% of the entries were made available without a purchase requirement.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and argument of the parties, it is RECOMMENDED: That the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a final order dismissing the amended administrative action against Personal Investments, Inc. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 31st day of March, 1999. COPIES FURNISHED: Harold F. X. Purnell, Esquire 210 South Monroe Street, Suite 420 Tallahassee, Florida 32301 Bart Schneider, Esquire Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Deborah R. Miller, Director Division of Alcoholic Beverages And Tobacco Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda Goodgame, General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue The issue is whether any of the respondents is guilty of discriminating against Petitioner on the basis of her sex in connection with her rental of a lot in the Galaxy Mobile Home Park, in violation of the Florida Fair Housing Act, section 760.23(2), Florida Statutes.
Findings Of Fact In September 2010, Petitioner, a 54-year-old female, moved into Galaxy Mobile Home Park, 5810 U.S. Highway 92, West, Plant City, Florida. Since her arrival at the park, Petitioner has occupied her lot based on a month-to-month rental agreement. The park consists of 33 mobile home lots, four cabins, six RV lots, and one house. At present, 27 females and 22 males live there; most residents are 55 years old and older. The park manager is Respondent Adams, an 85-year-old female. She and her late husband moved to Galaxy Mobile Home Park in 1988. Initially, she was not the manager, but her husband performed all of the maintenance and lawn mowing. Ownership and property-management duties lie with Respondent David and Respondent PGM; one of them employs Respondent Adams and pays her $300 per month to serve as the park manager. In 2002, Respondent Adams moved out of the park and into a nearby residence. She works mornings in a small office located at the park, although, if needed, she remains at the park until as late as 4:00 p.m. or returns to the park in the afternoon. Her duties include cleaning the laundromat, collecting rents, showing prospective tenants available lots, and arranging for repairs. She is paid $300 per month for her services. Respondent Perez, a male reportedly 68 or 70 years old, formerly was the maintenance man at the park--the lawn mowing responsibilities having been assigned to another person. Using supplies provided by Respondent David or Respondent PMG, Respondent Perez performed maintenance work around the park as needed. No one recorded his time, and he did not work according to a set schedule. At times, he would travel and be gone for extensive periods, during which minor maintenance duties were apparently deferred until his return, sometimes months later. Respondent Perez lived in a mobile home at the park, and his sole compensation was free lot rent of about $300 per month. This obviously was a part-time job. When she first moved to Galaxy Mobile Home Park, Petitioner owned an RV, so she rented lot 148, which is an RV lot. Petitioner first arrived at the park late in the day when the office was closed, so, the next morning, she and Respondent Adams were speaking in front of Petitioner's RV. After Petitioner had paid the first-month's rent, Respondent Adams was describing the park amenities to Petitioner when Respondent Perez approached the two women, cursing loudly. Few incidents involving Respondent Perez acquired much clarity in the record, and the first of these is no exception. As Respondent Perez approached Petitioner and Respondent Adams, he appeared to be concerned about an item of potentially dangerous maintenance equipment that Petitioner may have lent to another resident. Pointing a finger at Petitioner, evidently from some distance from the two women, Respondent Perez warned her that if she lent this equipment to someone, "it is on your fucking ass," implying that she, not he, would be responsible if the resident injured himself using the equipment. For emphasis, Respondent Perez then pounded his chest, shouting, "I'm a fucking man." Petitioner replied, "and I'm a fucking woman." Later that day, two male residents were helping Petitioner set up her RV. Driving by, Respondent Perez shouted a warning to Petitioner from his vehicle, "if you let those fucking men in your yard, you'll have a yard-full of fucking men." The following morning, Respondent Perez knocked on Petitioner's door. This appears to have been the only time that he did so, and he never entered Petitioner's home at any time. When Petitioner answered the door, Respondent Perez told her that everyone was "fucking complaining" that she was using too much toilet paper, plugging up the sewage system at the park. Petitioner replied that, due to problems with her holding tank, she did not flush her toilet paper, but disposed of it in her trash, and invited Respondent Perez to take a look. Respondent Perez declined, saying, "Well, I don't know. That's what the fuck they say." In October 2011, when a resident left her mobile home to move north, Petitioner moved into the mobile home, which was at lot 163. The mobile home had a screen porch, where Petitioner would often sit, enjoying watching television and smoking cigarettes, which she tried not to smoke inside. From time to time, Respondent Perez would walk by the screen porch, and sometimes he would utter unpleasantries to Petitioner, warning her that no one could do his work. On one occasion, Petitioner complained to Respondent Adams that Respondent Perez was disturbing her by his use of a flashlight as he walked through the park at night. Respondent Adams spoke to Respondent Perez, who replaced the flashlight with a brighter lantern. The evidence does not establish that Respondent Perez was walking at night to bother Petitioner; given the location of their lots, he would have to pass her lot as he walked or drove toward the front of the mobile home park where amenities were located. Also, Respondent Perez was in an intimate relationship with a woman named Mrs. Miller, and Petitioner's lot was between the lots of Respondent Perez and Mrs. Miller. ("Mrs. Miller" is a pseudonym to protect the privacy of the resident.) In the spring of 2012, while Petitioner was talking to a male resident at the picnic area, Respondent Perez drove up and began talking to the man, evidently ignoring Petitioner. Respondent Perez told him that, the prior evening, he had met a woman in a bar. Professing to be a Christian, she had told him that she did not believe in sex before marriage. But Respondent Perez loudly proclaimed that he had had sexual intercourse with the woman that very night. At this point in the story, Respondent Perez laid face down in the grass and began violently thrusting, in a pantomime of sexual intercourse, explaining that "when I get a woman, I can go all night." Other problems arose between Petitioner and Respondent Perez. When she moved from the RV, Petitioner placed a PVC pipe from the RV in her new yard, keeping it for the new owner of the RV. Respondent Perez removed the pipe, likely as part of his duties in keeping the park clean and thinking that the used pipe had been discarded. Petitioner called Respondent Adams, accused Respondent Perez of stealing the pipe, and threatened to call the sheriff's office. Respondent Adams told her that would not be necessary, and she would buy whatever PVC pipe the new owner required to connect his RV to the park's plumbing. At some point, dissatisfied with Respondent Adams' handling of her complaints about Respondent Perez, Petitioner demanded a meeting with Respondent David. Respondent David, Respondent Adams, and Petitioner met at the park. They were talking while looking at a repair job that Respondent Perez had done, suggesting that the focus of Petitioner's complaints at least included poor workmanship on Respondent Perez's part. But when Petitioner tried to talk about Respondent Perez, Respondent David declined to do so unless Respondent Perez was present. Respondent David and Petitioner had no further conversations. The final incident coincided with the death of a neighbor, according to Petitioner, who testified that Respondent Perez's animosity toward her intensified at this time. The death seems to have taken place in July 2013. The record is insufficiently developed to find any possible connection between the resident's death and Respondent Perez's increased animosity. However, at some point, Mrs. Miller died, and Respondent Perez and Respondent Adams believed that Petitioner and another neighbor entered Mrs. Miller's mobile home after the ambulance had removed her body to rifle through her medications in order to steal those that they wanted. Petitioner admitted that she was in the mobile home going through the medications, but only to assist the emergency medical technicians in their effort to identify Mrs. Miller's prescriptions. The record is poorly developed in other respects. Petitioner testified to a steady verbal barrage from Respondent Perez, seemingly on every occasion that the two met, usually featuring epithets describing Petitioner as a "whore" or "prostitute." Petitioner called as a witness her brother, who could recall only that Respondent Perez complained about where he and his son had parked and that Respondent Perez was always "on" his sister about something, although he could not recall anything in specific. The nephew also testified, adding only that Respondent Perez often told them that they could not "fucking park" where they had parked, and he generally swore a lot. The neighbor who had joined Petitioner in Mrs. Miller's mobile home testified that she had once overheard Respondent Perez say to a male resident that all women are "whores and prostitutes." On another occasion, she overheard Respondent Perez say to Respondent Adams, as he pointed to a woman some distance away, "there's another one of those whores over there." And the neighbor overheard Respondent Adams reply, "I told you to keep that word from your mouth." A deputy who was called out in response to a complaint made by Petitioner could not remember a single detail of the call. By contrast, Respondent Adams proved to be a memorable witness. Demonstrating the danger of compound questions posed to aged witnesses, when asked by her attorney if Respondent Perez drove by Petitioner's home every day and harassed her, Respondent Adams answered that he had to--meaning that he had to drive by Petitioner's lot. When asked by her attorney (twice) if Respondent Perez harassed Petitioner, Respondent Adams answered definitively, yes. She explained that he harassed everyone, but also denied that he harassed anyone. As Respondent Adams saw it, the relationship between Petitioner and Respondent Perez was that of two residents, not a resident and the park maintenance man. On occasion, though, Respondent Adams directed Respondent Perez to watch his language. One such occasion has been noted above; on another occasion, she said that Petitioner "has a name. It is Lisa. Use it." Respondent Perez's reference to Petitioner that prompted this directive is undisclosed. Respondent Adams also witnessed occasions during which Petitioner employed profanity toward Respondent Perez, as well as at least one other individual. On one such occasion, when a male tree-trimmer at the park warned Petitioner to keep a safe distance from his work area, she responded, "You son of a bitch. Drop a limb on me and I will sue you." It is difficult to characterize Respondent's state of mind at the time of his vulgar utterances, of which some, it is safe to assume, were uttered at Petitioner. The present record supports findings that Petitioner and Respondent Perez had a poor relationship. It is impossible to determine whether either party was at fault for this relationship or the degree of any fault that each party bore. However, from Respondent Perez's point of view, Petitioner's behavior was, on one occasion, substantially unjustified, as in the case of the removed PVC pipe from the yard, and, on another occasion, open to justifiable suspicion, as in the handling of the prescription medicines after Mrs. Miller's death. The present record supports a finding of abusive verbal exchanges between Petitioner and Respondent Perez, but not their frequency. If Petitioner's recounting of them were fully credited as all of them, there were very few such exchanges over the three years in question. Undoubtedly, Respondent Perez's swear words and other insults were grounded in gender relations or gender, as in his use of the words, "fuck" or "fucking," "bitch," and "whore." Respondent Perez was unable to direct a park visitor to move his car without uttering "fucking," employed either as an adverb to intensify the verb (i.e., "move") or an adjective to intensify the object (i.e., the "car")--or, of course, both. Most importantly, though, the present record in no way supports a finding that these exchanges were so frequent or intense as to deprive Petitioner of the use and enjoyment of her home and the amenities in the park.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition. DONE AND ENTERED this 23rd day of March, 2015, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 23rd day of March, 2015. COPIES FURNISHED: Yaron M. David Properties Group Management, LLC 5810 U.S. Highway 92, West Plant City, Florida 33567 Rachel K. Beige, Esquire Cole, Scott and Kissane, P.A. 2nd Floor 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 (eServed) C. Martin Lawyer, III, Esquire Bay Area Legal Services, Inc. 1302 North 19th Street, Suite 400 Tampa, Florida 33605-5230 (eServed) Melissa Ann Craig, Esquire Bay Area Legal Services, Inc. 18238 U.S. Highway 301, South Wimauma, Florida 33598 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
