The Issue Is Petitioner entitled to be exempt from disqualification to work in a position of trust or responsibility, having been declared ineligible to work in that position by virtue of offenses involving child abuse and contributing to the dependency of a minor?
Findings Of Fact Petitioner has two children, M.B. and D.P. On February 11, 1993, those children were two years old and eight months old, respectively. Both children were residing with Petitioner. At that time Petitioner and the children lived in Gulf County, Florida. Around 8:00 p.m. to 9:00 p.m. on February 11, 1993, Petitioner decided to leave her apartment and go to a nearby store. At that time she left D.P. in the care of Sabina Daniels, Petitioner's step-sister, who was thirteen years old on that date. The Petitioner took M.B. to her neighbor's apartment and left that child with Dianna Harrison, an adult. However, the Gulf County Sheriff's office received a call around 10:30 p.m. on February 11, 1993, indicating that a child had been left unattended at the Pine Ridge Apartments where Petitioner resided. Officer Stacy Strickland, now a Sergeant, went to Petitioner's apartment around 10:34 p.m. and tried to get someone to answer the door to the apartment. No one answered. Consequently, Officer Strickland contacted the apartment manager who opened the door. Officer Strickland discovered D.P. standing in a baby bed. No other person was in the apartment at that time. Officer Strickland sought the assistance of other persons to help provide emergency care to the child. While waiting for that assistance, Officer Strickland remained in the apartment for fifteen to twenty minutes. When Officer Strickland and other officials departed Petitioner's apartment, they left a note for the Petitioner to call the Gulf County Sheriff's office concerning her child D.P. Petitioner called the Gulf County Sheriff's office at around 12:00 a.m., February 12, 1993. Petitioner came to the Gulf County Sheriff's office around 12:20 a.m., on February 12, 1993. At that time, Petitioner was placed under arrest for aggravated child abuse for having left D.P. unattended. Following her arrest, Officer Strickland read the Petitioner her rights under the Miranda decision, to include the right to seek counsel to aid her in confronting the charge. Although Petitioner was less than forthcoming during the hearing, concerning the disposition of the charges that arose from the incident in which D.P. had been left unattended, it is clear that Petitioner voluntarily entered a plea of guilty to child abuse and contributing to the dependency of a minor in the case of State of Florida v. Denine Pittman, in the County Court, in and for Gulf County, Florida, Number 93-133M. A judgment and sentence in that case was entered on March 3, 1993, requiring the Petitioner to serve three months' probation in which she would pay $30 per month for supervisory fees and was required to make monthly contacts with a probation officer. In addition, Petitioner was required to pay a fine in the amount of $214. It can be properly inferred that Petitioner complied with requirements in the judgment and sentence. Petitioner's assertions at hearing that she only left D.P. on the night in question for 30 minutes, that she had never been advised of her Miranda rights by Officer Strickland on February 12, 1993, and that she did not realize that she could have contested the charges through a trial are rejected. In 1995, Petitioner moved from Gulf County to Panama City, Florida. In August 1996, Petitioner was working in a child care facility in Panama City known as Phoenix Preschool. In her position she was providing direct care to children and was subjected to background screening in accordance with Chapter 435, Florida Statutes. Through the screening process Respondent discovered the disposition in Case No. 93-133M, leading to Petitioner's disqualification to work in a position of special trust with children and the contest of that determination through Petitioner's request for an exemption from that disqualification. In her testimony at hearing Petitioner expressed her desire to continue to work with children as an employee in a child care facility. The record does not reveal that Petitioner has had other circumstances involving inappropriate behavior involving her own children or claims of inappropriate behavior or treatment of other children for whom she has rendered care. On November 11, 1988, Petitioner was provided a certificate indicating the successful completion of twenty hours of child care training offered by the Department of Health and Rehabilitative Services and the Department of Education. On September 28, 1996, Petitioner received a certificate of completion of Dr. Jean Feldman's Classroom Management Workshop. The course lasted six hours. By the nature of the appearance of the certificate it is found to relate to training to assist in caring for children. On September 30, 1996, Petitioner received a certificate from the Department of Health and Rehabilitative Services and the Department of Education for completing a ten- hour course for developmentally appropriate practices for young children. On November 30, 1996, Petitioner received a certificate of completion of "Mr. Al's" course on "Music, Movement and More." This course lasted six hours. By the nature of the appearance of the certificate it is found to relate to children's issues. In 1996, in relation to her position of teacher-aide for the Phoenix Preschool, Petitioner received training from the Department of Health and Rehabilitative Services related to child care in-service. Ms. Gloria Lawrence testified at the hearing. She worked with Petitioner at the Phoenix Preschool, and found that Petitioner did a good job with children, in that Petitioner got along with children at the Preschool. Ms. Lawrence observed that Petitioner was trustworthy and responsible with those children. Ms. Lawrence's testimony is credited. Ms. Frances Frazier testified at the hearing. Ms. Frazier is a close friend of Petitioner and has known Petitioner during the course of Petitioner's life. Ms. Frazier finds the Petitioner to be reliable and responsible and to be good with children and believes that Petitioner has learned from the mistake that Petitioner made which formed the basis for Petitioner's disqualification to work in a position of special trust. Ms. Frazier has known Petitioner to baby-sit for Ms. Frazier's grandchildren. Ms. Frazier has not found the Petitioner to abuse children. The only incident that Ms. Frazier is aware of concerning the Petitioner leaving children unattended was the occasion under discussion here. Ms. Frazier's testimony is credited. In addition, Petitioner presented letters from Ms. Vanessa Fennell, Ms. Annie S. Fields, Ms. Dianna Harrison, Ms. Beverly Daniels, Ms. Charlotte L. Medley, Ms. Candy Robinson, and Pastor Shirley Jenkins concerning Petitioner's basic personality as a concerned person for children and the elderly.
Recommendation Upon consideration of the fact finding and conclusions of law reached, it is RECOMMENDED that a final order be entered which grants Petitioner an exemption from disqualification to be employed in a position of special trust to work with children. DONE AND ENTERED this 13th day of November, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1997. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Suite 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Denine Pittman Apartment D43 801 West 13th Street Panama City, Florida 32401 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner's application for a license to operate a child care facility should be approved.
Findings Of Fact The Department is the state agency responsible for licensing child care facilities. On June 17, 2016, Ms. Gaines filed an application for a license to operate a child care facility in Babson Park, Polk County (County). She previously worked as a caregiver for two child care facilities in the County and desires to operate a new facility known as Brighter Beginnings Learning Center. To qualify for licensure, an applicant must meet the licensing standards in section 402.305(1), Florida Statutes. Also, section 402.305(2) requires that child care personnel meet minimum requirements as to good moral character based upon a level 2 screening as provided for in chapter 435. That screening includes a check to determine if the applicant has a report on the Central Abuse Hotline. The background screening revealed that Ms. Gaines has three reports on the Central Abuse Hotline. The incidents occurred in 2010, 2014, and 2015. Based on this information, and the underlying facts surrounding those reports, the Department informed Petitioner by letter dated June 30, 2016, that her application was denied. Petitioner timely requested a hearing. On July 12, 2010, the Department received a report that Ms. Gaines (then known as Ms. Hamilton) had grabbed and pinched several children at Hope Child Development Center in Frostproof, where she was working as a caregiver. The incident was investigated by Deanna McCain, then a child protective investigator (CPI), who testified at hearing. However, the report was not verified because there were no visible injuries on the children. The facility terminated Petitioner as an employee after the incident. Ms. Gaines began working as a caregiver at Our Children's Academy in Lake Wales around October 2013. On October 12, 2014, the Department received a report that a 13- year-old child under Ms. Gaines' supervision was left unattended in a sandbox in the playground while Ms. Gaines was on a personal cell phone call in a classroom. The child suffers from autism and epilepsy and is prone to having seizures. The child suffered a seizure during Petitioner's absence. Brandy Queen, a CPI who testified at hearing, was assigned the task of investigating the incident. Her investigation revealed the child suffered a severe seizure that lasted four minutes and caused her to vomit and defecate on herself. Based on interviews with Petitioner, a teacher who witnessed the incident, and the school principal, Ms. Queen classified the incident as verified. The child was found face down in the sandbox by a teacher, Mr. Swindell, who immediately contacted the school nurse to check the child. Mr. Swindell, who testified at hearing, established that the child was alone outside for around ten to 15 minutes and that Petitioner did not go back outside to check on the child until after she had awoken from the seizure. Throughout the episode, Ms. Gaines was making a personal call on her cell phone. The facility has a policy of no cell phone usage during student contact time. Prior to the incident, the principal had spoken to Petitioner around nine or ten times about inappropriate cell phone usage. After the incident, a Letter of Concern regarding cell phone usage was placed in Petitioner's file. The mother of the student testified at hearing and stated she had no concerns about the incident and described it as "overblown." She said her daughter suffers seizures two or three times a week without warning, but they are not life- threatening. She does not blame Petitioner for the incident. The mother was under the impression, however, that her child was left alone for only a very short period of time and Petitioner immediately went back to the playground to retrieve her. The mother admitted she would be concerned had she known that her daughter had been allowed to remain alone for ten to 15 minutes and that asphyxiation could be a potential result if the child was face down in the sand. On February 25, 2015, the Department received another report of possible abuse by Petitioner, who was still employed as a caregiver at Our Children's Academy. The report indicated that Petitioner had inappropriately dragged a non-verbal child with Down Syndrome from the classroom to the playground. Two school therapists were present during the incident and testified at hearing. They confirmed that Petitioner was working with the child in an effort to get him from the classroom to the playground swings. The child was frightened by the swings and resisted her efforts. Petitioner first grabbed the child by one arm, and when he dropped to the floor, she grabbed both arms and dragged the child on his stomach out of the classroom and into the hallway. She then dragged him down a set of wooden stairs and to the playground where she forced him to sit in the swings against his will. One of the therapists observed that the child was very upset and urged Petitioner to let him calm down, but Petitioner continued dragging the child to the playground. The frightened child urinated on himself. The incident was investigated by CPI Queen, who interviewed the Petitioner, principal, and two therapists. She observed minor bruising on the child's arms but could not say definitively that the bruising was caused during the incident. She also could not establish that the child would suffer long- term emotional trauma due to the incident. Because of this, she classified the report as unsubstantiated. This meant that something happened to the child, but she could not verify that the bruising was caused by Petitioner's actions. The facility terminated Petitioner as an employee after the incident. Petitioner downplayed her conduct and generally contended that she never harmed or failed to supervise the children assigned to her care. Petitioner has five children of her own, she has a passion for children, and she wants to put that passion to good use by operating a child care center. The Department based its decision to deny the application on the facts that underlie the reports, and not the reports themselves. This includes consideration of who was interviewed by the CPI, what the statements were, whether there were any inconsistencies, how the cases were closed, the applicant's employment history, and whether there appears to be a pattern of concerning behavior. Based on this information, a Department licensing official observed a pattern of concerning behavior on the part of Petitioner as well as inconsistencies between Petitioner's statements and those of persons who witnessed the incidents. The Department considers Petitioner to be a potential risk to children unless she is supervised.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying Petitioner's application for a license to operate a child care facility. DONE AND ENTERED this 17th day of October, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2016. COPIES FURNISHED: Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Trina Gaines Post Office Box 4024 Lake Wales, Florida 33859-4024 Cheryl D. Westmoreland, Esquire Department of Children and Families 1055 U.S. Highway 17 North Bartow, Florida 33830-7646 (eServed) Rebecca F. Kapusta, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue The issue addressed in this proceeding is whether Petitioner is entitled to attorney's fees pursuant to Section 120.57(1)(b)5, Florida Statutes.
Findings Of Fact On or about April 7, 1989, a report of child abuse was received by the Florida Protective Services System alleging that E.S. had injured two children enrolled at the Gladys Morris Elementary School, Taylor County, Florida. On April 10, 1989, the HRS Protective Services Investigator, Linda Douglass, conducted an investigation of the circumstances. The investigation revealed that E.S. had removed C. from her third grade classroom. She held him by the scruff of his neck and his arm. During the process of removal, E.S. accidentally ran C. into a wall or door frame. No physical or mental injuries were sustained by C. as a result of E.S.'s actions. Likewise, no harm appeared to be threatened by E.S.'s method of removing C. from her classroom. No investigation was conducted to determine why C. was being removed or how much resistance C. had undertaken to avoid his removal. The second incident involved a student named D. When D. got up to sharpen her pencil without permission, E.S. shook D by the shoulder. During the shaking, D.'s nose began to bleed. D. was given some paper towels to put on her nose and was sent to the infirmary.No investigation was conducted to determine whether the nose bleed was caused by the shaking or how hard the shaking action had been. After the case had been forwarded for a formal hearing, it was discovered that the nose bleed was unrelated to D. being shaken. Other than the nose bleed, there was no physical or mental injury caused or threatened by E.S.'s actions. On April 20, 1989, the report of abuse was classified as "confirmed." In both instances, the actual abuse found was categorized under "other physical injury" and "excessive corporal punishment/beatings." The narrative in the child abuse report states: (E.S.) was observed dragging the C. child from the classroom by an arm and the back of his neck. She then ran the child's face into a brick wall. The child was crying. The teacher has shaked a child named D. until her nose bled. The children in her third grade room at Gladys Morse Elementary School are "out of control, they cut up each other's shoes," and (E.S.) -"can't control the class so she starts slapping them around and things". This has been going on for years and nobody does anything about it. Following an internal review, the data entry was completed on April 24, 1989 and the investigatory process was closed. Because of the unusual statutory process established in Chapter 415, Florida Statutes, E.S. was listed as an abuser of children on the Florida Child Abuse Registry upon confirmation of the abuse report. Her job as a teacher was thereby placed in jeopardy and she was suspended with pay. Her name would remain on the Abuse Registry for the next fifty years unless E.S. won an expunction of her record through the administrative process. On April 26, 1989, formal notification was provided to E.S. by letter notifying her that she had been "confirmed" as a child abuser and advising her that she had a right to request the amendment or expunction of the confirmed report by making a request for such within thirty days of the date of the notice. On May 18, 1989, E.S., through her counsel, requested that the record be amended and expunged since there was no evidence that any injury had occurred to the alleged victims and that the evidence was wholly insufficient to establish any wrongdoing on the part of E.S.. Although not specifically mentioned, this letter places HRS on notice that it may be facing charges of frivolousness should this matter not be resolved during the agency's review process. By letter dated May 18, 1989, the Department of Health and Rehabilitative Services confirmed receipt of Petitioner's request to expunge the confirmed report. On May 31, 1989, the Petitioner through her counsel, supplemented the request for expunction. Based upon a complete review of the HRS file, the supplement again pointed to the absence of any injury or "harm" to the children involved in the alleged abuse. Again, HRS was placed on notice of a potential claim of frivolousness should a formal proceeding be required. When more than the thirty days provided for review by the Secretary of an expunction request elapsed, the Petitioner on July 7, 1989, requested a formal administrative hearing to challenge the finding of "confirmed" abuse. This letter initiated the formal proceedings contemplated under Section 120.57(1), Florida Statutes. When an additional six week period passed without response to the first hearing request, the Petitioner made a second request for hearing on August 24, 1989. The August 24th letter to Secretary Gregory L. Coler pointed out that the Administrative Procedure Act requires a hearing request be granted or denied within fifteen days of the request's receipt. On September 12, 1989, a third request for hearing was made to the Department of Health and Rehabilitative Services. The September 12th letter outlined this proceeding's history of delay and the non-responsiveness of HRS. 1/ By letter dated September 18, 1989, counsel for the Petitioner received notification from the Department of Health and Rehabilitative Services that her request for expunction was, on that date, being denied and that if the Petitioner wished to have a hearing still another request for hearing was necessary. The letter was signed by a representative of HRS and was filed in the formal administrative proceeding by HRS. This letter constituted the action which should have been taken by HRS within 30 days of Petitioner's first request for amendment or expunction of the report. The agency's action was three months late. A fourth demand for formal hearing was made by letter dated September 25, 1989. Referral of the expunction request was forwarded to the Division of Administrative Hearings and a hearing was scheduled to be held on November 15, 1989. Prior to hearing, the parties prepared and filed an undated prehearing stipulation outlining the issues which remained for resolution. The stipulation established the following issues for resolution at the hearing: 7. Issues of Fact to be Litigated - Whether the Respondent engaged in any activity which caused "harm" [as defined in Chapter 415] to any child over which she exercised control; Whether any child was injured as a result of the actions or inactions of the Respondent; The Respondent asserts whether information deemed confidential by Section 415.51, Florida Statutes (1988), was disclosed to unauthorized recipients is an issue; the Petitioner disagrees; and, Whether there is competent and substantial evidence to retain a confirmed abuse finding on the Florida Protective Services System. On November 6, 1989, the deposition of Linda Douglass was taken by Petitioner, E.S., in preparation for the November 15, 1989, hearing. The deposition was filed at the evidentiary hearing on Petitioner's Motion For Attorney's Fees. Since a Section 120.57(1)(b)5., Florida Statutes, motion is part of the original child abuse action, Ms. Douglass' deposition was filed in the initial proceeding for purposes of a motion for attorney's fees under this section. Ms. Douglass' deposition constitutes the primary evidence in this case and comprises the entire investigation of this matter by HRS. After a review of this deposition, there can be no question that this case was poorly investigated with very important and essential facts not looked into; facts made essential because they are required by the statute in order to make a "confirmed" finding of child abuse. Essential facts not investigated were the connection between any alleged injuries and Petitioner's actions, whether there was any significant emotional harm to the alleged victims resulting from the alleged abuse, or, in the case involving C., what C. was being disciplined for and whether such "punishment" was excessive. 2/ See B.B. v. Department of Health and Rehabilitative Services, 542 So.2d 1362 (Fla. 3d DCA 1989). Failure to investigate such essential facts constitutes a failure to conduct a reasonable inquiry. On the facts revealed in the deposition, which were not materially different from the investigative report, this case should never have been confirmed. The evidence necessary to support a case of confirmed child abuse was never developed or investigated. Of greater concern, however, is that this case was confirmed for reasons other than the criteria contained in Chapter 415, Florida Statutes. One such reason, apparent from the deposition, was that Ms. Douglass did not think Petitioner should be teaching and did not want to chance her daughter being taught by Petitioner. In other words, this case was confirmed in order to affect Petitioner's future employment with the school or any other school because there was a very real difference in philosophy between Ms. Douglass and Petitioner on how to handle the children in her class. Such a confirmation is completely improper. However, the evidence does not demonstrate that the agency was aware of its investigator's motives until her deposition testimony. What the agency should have been aware of was the obvious lack of any substantial evidence on the statutorily required areas noted above. Failing to adduce such evidence and rubber-stamping its investigator's confirmation, thereby forcing a formal hearing, when the statute affords an agency a second chance to review the merits of its case needlessly increases the cost of litigation and is a failure to conduct a reasonable into the matter at hand. The foregoing is especially true when the statute specifically provides HRS with an abuse classification which covers situations in which abuse is indicated but cannot be confirmed with substative evidence. The classification is known as an indicated abuse report. The report is maintained in the Abuse Registry for seven years. There is no right to a formal administrative hearing when a report is classified as "indicated." On November 8, 1989, counsel for the Department of Health and Rehabilitative Services notified counsel for the Petitioner that the Department had determined to reclassify the "confirmed" report as "indicated" and therefore moved to dismiss the pending proceedings. The main proceeding was dismissed with jurisdiction reserved on the issue of attorney's fees. On these facts, Petitioner would ordinarily be entitled to an award of attorney's fees pursuant to Section 120.57(1) (b)5. However, in addition to demonstrating that there was no reasonable inquiry, Petitioner has the burden to show that the Department's case was totally without merit, both legally and factually. In this case, there was some, although highly tenuous, evidence present that supported the Department's allegations under Chapter 415. Having some basis in fact for the continued maintenance of its case, the Department's pursuit of this matter to the point at which it reclassified the report cannot be said to be totally without merit and Petitioner is not entitled to an award of attorney's fees and costs.
The Issue The issue addressed in this proceeding is whether Respondent's child care facility license should be disciplined for alleged violation of chapter 402, and if so the appropriate penalties. Neither party timely submitted Proposed Recommended Orders.
Findings Of Fact Respondent Donna J. Downing owns and operates a child care facility known as the Downing House, located at 8508 Lorento Street, Panama City, Florida. The child care facility is also her family's residence. She lives with her husband, son, and daughter who help operate the facility and who have been successfully screened by HRS. Ms. Downing was licensed in 1985 and holds a currently valid license. Her license is endorsed to allow her to operate her facility during nighttime hours. In April 1988, HRS became concerned that the operation of the Downing House into the night was proving too much for the husband and wife team, since HRS regulations require an adult to be present and awake during the night. HRS, therefore, inquired of the Downings concerning their proposed arrangements to ensure the presence of an awake adult. In order to continue to operate into the night, Respondent assured HRS that either she or her husband would be awake during the night while children were present on the premises. However, the evidence established that Respondent and her husband did not always live up to Respondent's representation to HRS. A standard mode of operation by Respondent was for both she and her husband to retire in the evening, leaving the front door unlocked so that the children's parents could pick up their children without disturbing the Downings. However, occasionally one of the Downings would stay up with the children. On May 5, 1988 a two year old male child was left at the Downing House by his mother for nighttime caretaking. At approximately 11:00 - 11:15 pm., Mr. and Ms. Downing had gone to bed. There were three children present at the Downing House when the Downings retired, including the two year old male child. The three children were asleep when Ms. Downing left them in the living room. No other adults were present. Ms. Downing had made arrangements for her adult son to look after the children when he got home from work. He was expected home at about 11:30 p.m. The son arrived home at approximately 11:40 p.m. When he arrived there were two children present. No method had been established by Respondent to advise her son of the number of children who should be present when he arrived home. He therefore did not realize that one child was missing. The son laid down on the couch in the living room and went to sleep. Sometime between the Downings going to bed and the arrival of their son, the two year old male child awakened, opened the front door and left the house. The child then unlatched the front yard gate and headed down Lorento Street towards its intersection with Laurie Lane. He then proceeded down Laurie Lane. At approximately 11:15 p.m., Denise Albert was driving down Laurie Lane. About two tenths of a mile from the Downing House, at 2414 Laurie Lane, Ms. Albert saw the missing child walking down the unlit and unpaved road. He was barefoot and in his pajamas. Ms. Albert stopped and questioned the child for 15 or 20 minutes. She could not obtain any information. She therefore called the Sheriff's office. Officer Troy Johns was dispatched at 11:30 p.m. The officer picked the child up from Ms. Albert and drove him around the neighborhood, including Lorento Avenue. The child could not or would not identify where he had come from and would not give his name. The child was more interested in the officer's gun and vehicle than in his surroundings. The officer took the child to the Sheriff's station and called HRS. Debra Young an HRS protective services investigator took the call and picked the child up from the Sheriff's office. She also could not establish the child's identity or address. She placed the child in a foster home. At 4:11 a.m. the Sheriff's office received a phone call in reference to a missing male child from the Downing House. The missing child was the child the Sheriff's office had turned over to Ms. Young. The Sheriff's office contacted Ms. Young. Mother and child were reunited the next morning. The call to the Sheriff's office from the Downing House had been prompted when the child could not be found after a search. The search ensued when, at approximately 3:00 a.m., the mother arrived to pick up her son. She discovered his absence and woke Respondent's son who in turn woke Mr. and Ms. Downing. One child remained. A second child had been picked up at approximately 2:30 a.m. by that child's mother. The son did not awaken and was not aware that the second child had been taken from the room in which he was asleep. The Downings searched the neighborhood for the missing child, including checking the Lagoon which is within a few blocks of the Downing House. The call to the Sheriff's office located the child. From 1985 until May 1988, Respondent was cited for the following violations of chapter 402, F.S. and the rules related thereto: September 3, 1985 Two gates in the play yard were left unlocked making it possible for children to have access to the road, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code, in that this was an obvious hazard. Medicine was left on the kitchen cabinet within the children's reach, in violation of Rule 10M-12.003(1) and (d), Florida Administrative Code. April 22, 1986 Cleaners were on the washer and dryer within the children's reach and Lysol and Windex were on the kitchen cabinet with food within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. No fire drills, in violation of Rule 10M-12.003(8)(a), Florida Administrative Code. October 1, 1987 Clorox, detergent, charcoal, briquettes, pliers, plastic bags, cigarette and cough drops were out at several locations throughout the facility and within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. An iron was left with the cord hanging over the table within the children's reach making it possible for the iron to be reached and pulled down on top of a child, in violation of Rule 10M- 12.003(1)(a), Florida Administrative Code. March 23, 1988 A medicine bottle containing medicine and tanning accelerator within the children's reach were located inside the facility and rose dust, Progreen, Spectracide ant killer and touch up paint were at several locations on the porch at the main entrance within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. Suntan lotion and tanning accelerator and three sand filled milk cartons, all located on the patio at the back of the house leading to the play yard and all within the children's reach, in violation of Rule 10M-12.003 (1)(b) and (d), Florida Administrative Code. The gate to the play yard was unlocked allowing children access outside the play area, in violation of Rule 10M- 12.003(4)(b), Florida Administrative Code. The store room containing a lawn mower and other tools and hazardous materials was left unlocked, in violation of Rule 10M-12.003(4)(b) , Florida Administrative Code in that it was an obvious hazard, with the children having access to said store room. A throw rug was on the steps leading to the patio and was not secure making an obvious hazard, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code. To Respondent's credit, all of the above violations were corrected within the time frames established by HRS. No fines were ever levied on the Respondent for the above violations. Also, to Respondents credit, the evidence disclosed that Respondent is generally a good caretaker of children.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services revoke the nighttime operation endorsement on Respondent's license and impose an administrative fine of $1000. DONE and ENTERED this 14th day of March 1989, in Tallahassee, Lean County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1989. COPIES FURNISHED: John L. Pearce, Esquire 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32302 Donna J. Downing 8508 Lorento Street Panama City, Florida 32407 R. S. Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioner is a single male, 39 years of age. He has been a resident of Broward County for the past six years and is self-employed in real- estate management and maintenance. He holds a master's degree from Ohio State University and is in apparent good health. In addition to about twelve traffic violations, Petitioner has been arrested for wrongful influence of a minor in 1976, and soliciting a lewd and lascivious act in 1977. The 1977 charge was dropped, but the 1976 charge resulted in a $25 fine. Petitioner's experience as a parent is limited. He did, however, provide a home to a son (born out of wedlock) for the child's final two years of high school. Petitioner met the dependent child, Richard Price, on the beach in August, 1980. Richard was then 14 years and ten months of age. After determining that Richard was "living on the street," Petitioner offered to share his condominium apartment with him. Richard accepted and remained with Petitioner until February, 1982, when he was removed by Respondent. Petitioner did not notify Respondent, who had custody of Richard, when he brought the child to his home in August, 1980. However, Respondent did not actively attempt to locate Richard and was not aware of his situation until over a year later, despite Richard's dependent child status. During his first year with Petitioner, Richard's adjustment and behavior were satisfactory. He attended high school and travelled with Petitioner on a family visit to Ohio and a group education tour to England. He gained weight and received medical attention as needed during this period. In the summer of 1981, Richard formed a relationship with another dependent child who had moved into Petitioner's condominium building. His behavior deteriorated thereafter, at least partly as a result of this relationship. On September 28, 1981, the police were called to Petitioner's residence regarding an argument between Petitioner and Richard. As a result of the police report, Respondent became aware of Richard's unapproved status. However, Respondent issued Petitioner a provisional license as a foster parent and Richard was allowed to remain in petitioner's custody. On November 6, 1981, Richard threatened Petitioner with a knife. The police were again summoned and Richard was temporarily placed in the South Florida State Hospital. On this occasion, Richard was returned to Petitioner's custody by court action. On February 6, 1982, Petitioner and Richard had an argument which culminated in a physical fight. In the struggle, Petitioner bit Richard rather severely, in what he contends was self-defense. Petitioner concedes that he bit Richard during an earlier altercation, also in claimed self-defense. As a result of the February 6 incident, Respondent removed Richard from Petitioner's custody and subsequently denied his application for licensure as a foster parent. Both Richard and Petitioner seek to resume the previous custody arrangement. Although Petitioner did not achieve a father-son relationship with Richard, he did provide a home-type setting in which Richard, for the most part, prospered. Richard is known to Respondent as having a "hot temper" and is at least partly responsible for the above described incidents.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a final order denying the petition. DONE and ENTERED this 28th day of July, 1982 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1982. COPIES FURNISHED: William F. Zamer, Esquire Suite 200 1421 East Oakland Park Boulevard Oakland Park, Florida 33334 Harold Braynon, Esquire District X Legal Counsel Department of HRS 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue is whether to deny Respondent's application to renew its child care facility license and impose an administrative fine for the reasons stated in the Department's letter dated September 16, 2016.
Findings Of Fact Ms. Garcia operated a child care facility at 5600 Old Cheney Highway, Orlando, for almost two years. A probationary license expired on September 21, 2016. This proceeding concerns Ms. Garcia's application for renewal of her license. The Department has regulatory authority over the licensing of child care facilities. To ensure compliance with regulations, the Department conducts periodic inspections of licensed facilities. Unless violations are observed during an inspection, the Department's Orlando office annually conducts two routine and one license renewal inspection of each of the 395 licensed facilities in Orange and Seminole Counties. If a license is placed on probation because of violations, inspections are made at least once a month during the probationary period to ensure the deficiencies are corrected. Violations by a licensee of Department rules or a statute are treated as Class 1, 2, or 3 violations. A Class 1 violation is the most serious, as it "pose[s] an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child." Fla. Admin. Code R. 65C-22.010(1)(d). For example, it is a Class 1 violation for a facility operator to allow unsupervised individuals who have no current background screening to be with children. This is because all child care personnel must have a current Level 2 background screening performed before they begin work in the facility. See Fla. Admin. Code R. 65C-22.006(4)(d)1. In 2015, Respondent's facility was inspected on at least four occasions: January 13, March 20, May 18, and August 11. On each occasion, violations of Department rules and relevant statutes were observed. Because the first three inspections were performed by a non-Spanish speaking counselor, Ms. Garcia requested that her facility be inspected by a counselor who spoke Spanish. In June 2015, the Department assigned Roy Garcia (no relation to Ms. Garcia) to perform future inspections, as he is bi-lingual. Later, Ms. Garcia expressed her dissatisfaction with Roy Garcia as well. On January 15, 2016, Roy Garcia conducted an inspection of Respondent's facility. Based on violations observed during the inspection, on February 19, 2016, the Department issued an Administrative Complaint seeking to impose a $270.00 fine. See Dep't Ex. 2. The Administrative Complaint cited the following violations observed during the inspection: Two violations of sections 402.302(3) and (15) and 402.305(2) and Florida Administrative Code Rule 62C-22.006(4)(d) by failing to perform required background screening for two employees. Two violations of rule 65C-22.006(d) and (e) by failing to have background screening documents in the staff files. Three violations of the staff/ratio rule, as required by section 402.305(3) and (4) and rule 65C-22.001(4). Two violations of section 402.302(3) and rule 65C-22.001(5) by allowing a volunteer to supervise children without a qualified employee being present. Four violations of rule 65C-22.006(2) by failing to have student health examinations on file. Four violations of rule 65C-22.006(2) by failing to have required student immunization records on file. At hearing, Ms. Garcia took the position that the charges were not warranted. However, in April 2016, she paid the $270.00 fine. Even though the Department informed her that she could request a hearing, a request was not filed. Therefore, the agency action became final. On April 29, 2016, Roy Garcia conducted another inspection of the facility. Based on violations observed during the inspection, on June 30, 2016, the Department issued an Administrative Complaint seeking to impose a $125.00 fine and to convert her annual license to probationary status, given the number of recurring violations during the preceding year. See Dep't Ex. 3. The Administrative Complaint cited the following violations observed during the inspection: Three violations of section 402.305(3) and (4) and rule 65C-22.001(4) by failing to maintain a ratio of two staff personnel for each five infants under one year of age. One violation of rules 65C-22.006 and 65C-22.010 for failing to have background screening documents and employment history checks in the facility files. At hearing, Ms. Garcia disagreed with the merits of these charges. However, in August 2016, she paid a $125.00 fine. Even though the Department informed her she could request a hearing to contest the charges, a request was not filed. Therefore, the agency action became final. A probation-status license was issued on July 31, 2016, with an expiration date of September 21, 2016, which coincided with the date on which her original annual license expired. See Dep't Ex. 4. A probation-status license is issued for a short period of time during which the licensee must come back into compliance. See § 402.310(1)(a)2., Fla. Stat. On August 4, 2016, Ms. Garcia filed an application for renewal of her license. Because the license was on probation, follow-up inspections of the facility were conducted by Roy Garcia on August 26, 29, 30, and 31, 2016. Multiple inspections were conducted because he believed the safety of the children was at risk. Although Ms. Garcia contends these inspections constituted an "abuse of authority," the Department routinely performs follow-up inspections if a facility's license is on probation. Multiple violations were observed during these inspections. See Dep't Ex. 1. They included the following: Four Class I violations of section 402.305(2)(a) by allowing unscreened individuals to be left alone to supervise children in the facility's care. These violations call for a fine of $400.00, or $100.00 per violation. Three Class 2 violations of rule 65C- 22.002(3)(a) by failing to maintain 20 or 35 square feet per child in areas occupied by children. These violations call for a fine of $180.00, or $60.00 per violation. Three Class 2 violations of section 402.305(4) and rule 65C-22.001(4)(a) and (b) by failing to maintain a sufficient staff to children ratio. These violations call for a fine of $300.00, or $100.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)1. by failing to have Level 2 background screening documentation on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d) by failing to have employee CF- FSP Form 5131 on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)2. by failing to have employment history checks on file. These violations call for a fine of $150.00, or $75.00 per violation. One Class 2 violation of rule 65C- 22.003(2)(a) for a facility employee having not completed the 40-clock-hour Introductory Child Care Training. This violation calls for a fine of $75.00. One Class 3 violation of rule 65C- 22.006(2)(a) and (d) by failing to have on file student health examinations for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. One Class 3 violation of rule 65C- 22.006(2)(c) and (d) by failing to have on file immunization records for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. The Department's letter of September 16, 2016, proposes to impose an administrative fine in the amount of $1,565.00. See § 402.310(1)(a)1., Fla. Stat. Ms. Garcia did not challenge the amount or manner in which the fine was calculated. Rather, she contends the charges were not justified and therefore no fine should be imposed. However, by clear and convincing evidence, the Department has proven the allegations described in its letter. After each inspection, Roy Garcia explained the nature of each violation and how it must be corrected in order to comply with Department rules. Despite his efforts to help Ms. Garcia, repeat violations were observed. Unscreened individuals were supervising the children on two of the four days. Therefore, it was necessary for Roy Garcia to call the parents and ask that they come to the facility and pick up their children. After observing staff ratio violations on August 29, Roy Garcia returned the next day and observed the same violation. He also observed unsupervised volunteers alone with children three times (August 29, 30, and 31) during the same week.2/ When Roy Garcia asked Ms. Garcia why she was not following his instructions, she would argue with him, deny that any violation occurred, and contend he was out to shut her down and discriminate against her because she was an "entrepreneurial woman." While conceding that she made "mistakes," Ms. Garcia contended Roy Garcia was harassing her and simply trying to find violations when he inspected the facility. She also contends the violations were not serious, were technical in nature, and did not threaten the safety or welfare of the children. However, Class 1 violations were repeatedly observed. Ms. Garcia stressed the fact that her family is dependent on the income she derives from operating the facility, and she will not be able to support her family if the license is not renewed. She added that she is now in limbo on whether to prepay the rent on the building where her current facility is located. Had the facility been operated in compliance with Department rules, these concerns would not be present. Ms. Garcia also contended that Roy Garcia would not allow her husband, Elmer, to substitute for a missing teacher. However, Elmer works in the kitchen, drives a facility vehicle, and at that time did not have the minimum training necessary to qualify as a facility employee who supervises children. Ms. Garcia further contended she was never given appropriate training on how to determine if a prospective employee has current background screening, especially since she has very few computer skills. This assertion is contrary to the accepted evidence, as she could have simply called the Department's Orlando office to verify the eligibility of prospective employees or volunteers before they were hired. Notably, even after a series of administrative complaints were issued concerning unscreened employees/volunteers, as of January 5, 2017, four persons who had worked or volunteered at the facility still had no Level 2 background screening. Ms. Garcia presented the testimony of four mothers whose children used the facility when the license was active. All were pleased with the care of their children. They especially appreciate the fact that the facility is open until midnight, is located in an area convenient to where they live or work, and charges less than other child care facilities in the area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying the application to renew Respondent's license and imposing an administrative fine of $1,565.00. DONE AND ENTERED this 9th day of February, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2017.
The Issue The issues in this case are whether Respondent violated the provisions of Florida Administrative Code Rule 65C-22.001(11) (2013),2/ as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for inspecting, licensing, and monitoring child care facilities such as the one operated by Respondent. It is the Department’s responsibility to ensure that all such facilities are safe and secure for the protection of the children utilizing those facilities. The Department inspects each licensed day care center several times a year. In the event of a complaint, additional inspections and/or investigations are conducted. Respondent is a licensed child care facility located in Manatee County, Florida. On October 12, 2017, Ms. Linzmayer received a complaint from an anonymous source who said she worked at the Academy. As a result of that complaint, Ms. Linzmayer was prompted to call the Department’s abuse hotline. Ms. Clark was working as an investigator for the Manatee County Sheriff’s Office, Child Protective Investigation Unit in October 2017. When notified of the potential abuse allegation, Ms. Clark conducted an investigation on October 12, 2017. The scope of Ms. Clark’s investigation centered on the allegations that a teacher had hit a child in the mouth. Ms. Clark spoke with employees at the Academy and then met with the alleged victim (A.O.) and the child’s family at a local law enforcement office. Ms. Clark’s investigation did not substantiate the case (of actual abuse) because she did not have proof that something did or did not happen. Ms. Clark notated that the Academy had not contacted the abuse hotline regarding the suspected child abuse and there was no incident report.4/ Ms. Barna-Roche conducts health, safety, routine and renewal inspections, as well as complaint inspections of child care facilities. After receiving the hotline abuse allegation, Ms. Barna-Roche inspected the Academy and spoke with several of its employees. As a result of her inspection, Ms. Barna-Roche found that the Academy failed to report the alleged child abuse. The only first-person account of the alleged classroom events of October 6, 2017, was provided by Ms. Gonzalez, a former teacher at the Academy. Ms. Gonzalez was in the two-year-old classroom, with another teacher, Ms. Tover. Ms. Gonzalez credibly testified that she did not “pop” a child in the mouth, and that she had never told Ms. Tover she had “popped” or used physical or inappropriate force relative to A.O. Ms. Gonzalez provided a brief history of her association with Ms. Tover, which was unflattering to both. For a time Ms. Gonzalez lived in the same house with Ms. Tover and members of Ms. Tover’s family. A disagreement arose regarding Ms. Gonzalez’s dog, and Ms. Gonzalez was asked to leave the house. In order to gather her belongings from the house, Ms. Gonzalez was forced to call law enforcement for assistance. This disagreement appears to have spilled over to the Academy, where both women worked. As part of her supervisory duties, Ms. Johnson (also known as Ms. Charlotte or Charlotte Hill) makes it a point to observe the children as they enter and leave the Academy. She conducts these observations in order to address any potential issues regarding a child’s well-being and to provide excellent service to the children and their parents in the care provided. Ms. Johnson was not in the two-year-old classroom on October 6, 2017, but observed the children entering and leaving the Academy that day. Ms. Johnson did not see the alleged abuse victim, A.O., with a fat or bloody lip as he left Respondent’s facility on October 6, 2017. Ms. Johnson was aware that Ms. Gonzalez had lived in the same house as Ms. Tover and her sister, and Ms. Johnson knew that Ms. Gonzalez moved out of the house prior to October 2017. Ms. Johnson was aware of some interpersonal issues between Ms. Tover and Ms. Gonzalez that were not associated with the Academy. Both Ms. Gonzalez and Ms. Johnson acknowledged being mandatory reporters, and clearly testified that had either seen or thought there was abuse, they would have reported it. As alleged in paragraph 4 of the AC above, in one instance Ms. Tover is alleged to have “witnessed another teacher ‘popping a child on the mouth’ and informed the child’s grandmother, who also works at the facility.” Yet, in paragraph 5 of the AC, Ms. Tover “confirmed her account of the alleged abuse. At the time of the incident, she turned around when she heard a child crying.” (emphasis added). Ms. Tover did not testify at hearing. There is no evidence that any abuse occurred. The testimony provided by Ms. Linzmayer, Ms. Clark, and Ms. Barna-Roche relies upon hearsay, and in some cases hearsay upon hearsay. Their testimony is found to be insufficient to meet the burden in this proceeding. The lack of direct evidence of the alleged abuse is troublesome. The indication that Ms. Tover “witnessed” the abuse or turned around after she heard a two-year-old child cry and was told something occurred is insufficient to overcome the direct testimony of the alleged perpetrator, who denied the accusation. It is true that additional training in spotting child abuse or suspected child abuse, and reporting such abuse or suspected child abuse is warranted at the Academy; however, the evidence is not clear and convincing that any abuse, real or suspect, occurred on October 6, 2017.
Recommendation Upon consideration of the evidence and testimony presented at the final hearing, and based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 25th day of April, 2018, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2018.
The Issue Does Petitioner, Manatee County School Board (Board), have just cause to terminate the employment of Respondent, Gregg Faller, based upon the conduct involving Mr. Faller's alleged failure to respond appropriately to information he had about the conduct of his subordinate, Rod Frazier, toward females, including students, as alleged in the Administrative Complaint dated October 14, 2013?
Findings Of Fact Stipulated Facts The Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Manatee County (District). § 1001.32, Fla. Stat (2013). The District has employed Mr. Faller since December 8, 2009. Mr. Faller was an administrative parent liaison at Lakewood Ranch High School from December 2009 to May 2009.2/ He served as assistant principal at Manatee High School from July 2010 through July 2013. Mr. Faller served temporarily as an assistant principal at Palmetto High School from July 2013 until he was placed on paid administrative leave on August 1, 2013. At all times, Mr. Faller was required to abide by all Florida Statutes that pertain to teachers and educators, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida (Code of Ethics), and the Policies and Procedures Manual of the Manatee County School District. On August 15, 2013, Respondent was charged with: (1) Failure to Report Child Abuse (sections 39.201(1) and 39.205(1), Florida Statutes (2011)(misdemeanor)); (2) Felony Failure to Report Child Abuse (section 39.201(1) and (2) and 39.205(1), Florida Statutes (2011)(third degree felony)); and (3) False Reports to Law Enforcement Authorities (section 837.05(1), Florida Statutes (2011)(misdemeanor)). The prosecutor dismissed the charge of providing false information to a law enforcement officer. On September 25, 2013, the superintendent notified Mr. Faller in writing of the District's intent to recommend his termination from employment. The superintendent issued an Administrative Complaint against Mr. Faller that same day. On October 14, 2013, during a Board meeting, Mr. Faller was suspended, without pay, pending the outcome of an administrative hearing that he requested. On October 24, 2013, Respondent served a Request for Administrative Hearing and Respondent/Employee's Answer to Administrative Complaint. Additional Facts Florida law imposes a duty to report upon any person who has reasonable cause to suspect child abuse by a person responsible for a child's welfare.3/ The Board emphasized the importance of this obligation in Board Policy 5.2 of the Policies and Procedures Manual of the School District of Manatee County. That policy provides in part: All school employees have a serious affirmative duty to report suspected child abuse and neglect and shall do so pursuant to the guidelines developed. * * * Mandatory Duty to Report Suspected Child Abuse All employees or agents of the district school board who have reasonable cause to suspect abuse have an affirmative duty to report it . . . . * * * Complaints of Child Abuse Reported to an Employee An employee receiving a complaint or report of child abuse shall inquire of the reporting party as to the details of his/her concern but shall not investigate further. If the employee has reasonable cause to suspect that child abuse has occurred based upon the description by the reporting party, the employee must report . . . [to the Florida Child Abuse Registry]. * * * Employee Responsible for Reporting It is the responsibility of the first employee who has "reasonable cause" to suspect abuse to report it to the hotline and to do so immediately. It is unacceptable and violation of the law to simply report suspicions to any other individual (including law enforcement or your supervisor) and ask or expect them to make the report to the hotline. After making a report, the school board employee must inform the principal, supervisor, or other building administrator. If the suspected abuser is a district employee, the supervisor of the reporter will notify his/her director who will notify the Office of Professional Standards. * * * (6) Penalties for Failure to Report Any employee who is required to report and fails to do so may be found guilty of a misdemeanor . . . . Failure to report child abuse as required will also subject the employee to disciplinary action. Mr. Rod Frazier, a subordinate of Mr. Faller, was a person responsible for the welfare of female student, D.K. Mr. Faller was trained in the duty to report child abuse. He has been present with people who have called to report child abuse. He understood that if he learned of something that causes concern from another employee, he may be responsible for reporting the concern to his principal. At Manatee High School, Mr. Faller served as assistant principal. His duties included supervising four parent liaisons: Mr. Gulash, Ms. Torres, Rod Frazier, and Randy Smith. Parent liaisons handle everyday suspensions and the discipline of students. They also handle communication between parents, staff, and students and assist in the classroom. Parent liaisons also mentor some students. Mr. Faller summarized the parent liaison duties as: Their main job is to deal with referrals written by staff members that had issues with student behavior, deal with parents, phone call parents and let them know what their child was doing, basically be a mentor to some of the students if they saw students were struggling and had a relationship with them and could make an impact and try and make them get back on the right track. (Tr., pp. 319-320). The parent liaison job description identifies responsibilities that include: handling routine discipline referrals; referring serious offenses to the assistant principal; supervising students, including bus duty, parking lot, and school events; meeting and dealing effectively with staff members, students, and parents; and modeling and maintaining high ethical standards. During the 2011-2012 school year, Mr. Faller received several reports describing inappropriate conduct and improper relations with female students by Mr. Frazier. He also received a report of sexual harassment of a female parent liaison. Harassment of Adinah Torres Adinah Torres worked at Manatee High School as a parent liaison from November 2010 to July 2012. Mr. Faller was Ms. Torres' sole supervisor during that period of time. During that period, Mr. Frazier trained Ms. Torres on how to enter referrals into the District's data system. During one training session, she sat at his desk using his computer. Mr. Frazier sat on the desk with his feet and crotch toward Ms. Torres. Mr. Frazier rubbed his foot up the side of Ms. Torres' leg during the training session. She pulled away and looked at him. Mr. Frazier smirked at Ms. Torres. She left the room. Mr. Frazier's acts were inappropriate, unwelcome, and unwarranted. They made Ms. Torres uncomfortable. The acts were harassment of Ms. Torres. The following day, Ms. Torres told Mr. Faller about the incident. Mr. Faller agreed that the described conduct was inappropriate. He told Ms. Torres that he could not have these sorts of problems in the office because she might one day need someone to help her with a student disciplinary issue. "You got this?" he asked. Ms. Torres interpreted Mr. Faller's statements to mean that she should deal with the problem.4/ Mr. Faller's version of their conversation is that he told Ms. Torres he would take action if she wished to file a written complaint. Nothing in the policies and procedures of the Board requires an employee to make a written complaint of harassment. In fact, Board Policy 2.19, which establishes procedures for complaints about discrimination and harassment, requires a diametrically opposite approach. Board Policy 2.19(4) sets out an investigation, review, reporting, and appeal process that begins with a written complaint. However, the policy begins with a clear statement that imposes a specific duty upon an administrator, such as Mr. Faller, who learns of an alleged incident of discrimination or harassment. The policy states: The following complaint/grievance procedures are established to receive complaints. However, when any administrator learns of an alleged incident of discrimination/harassment, they are required to report complaints immediately to the Equity Coordinator and will not conduct an investigation. Nothing required a written complaint like Mr. Faller required of Ms. Torres. An immediate report by him is what was required. Ms. Torres spoke to Mr. Frazier and told him the behavior was unacceptable. He denied that it occurred and stormed away from her. Mr. Faller did not note the complaint in Mr. Frazier's file. He did not speak to Mr. Frazier about it or take any disciplinary action. Mr. Faller also did not report the incident that Ms. Torres alleged to anyone, including the school's equity coordinator. Ms. Peebles' Reports of Conduct of Mr. Frazier With Female Students, A.P. and D.K. In the 2011-2012 school year, Manatee High School teacher, Jacqueline Peebles, developed concerns about Mr. Frazier's conduct with two female students. One was A.P., who told Ms. Peebles about Mr. Frazier approaching her at a tiki bar one night and later texting her about the encounter. Another was D.K. and Mr. Frazier's frequent calls to the classroom asking Ms. Peebles to have D.K. report to his office. Ms. Peebles was also concerned about a text message to D.K. that appeared to be from Mr. Frazier telling D.K. to come to his office, that he had heard she was wearing short-shorts. Ms. Peebles told Mr. Faller about all these incidents in one conversation after A.P. told her about the tiki bar encounter. Ms. Peebles told Mr. Faller that she knew A.P. was a troubled student with some discipline issues, but she felt A.P. was being truthful. Ms. Peebles provided the following information to Mr. Faller. She told him that A.P. had reported that Mr. Frazier approached her at night at a tiki bar, where she was drinking illegally. Ms. Peebles told Mr. Faller that A.P. told her that a man approached her from behind and rubbed his erection against her buttocks. A.P. said she turned and saw that it was Mr. Frazier. A.P. questioned him and told him he knew she was a student. Mr. Frazier replied, according to A.P., that she had a "nice ass" and was fair game because she was in the bar and must, therefore, be legal. The record establishes that A.P. was a student. It does not, however, establish her age. No party has asserted she was 18 or older. It is reasonable to infer from A.P.'s student status, the fact that she returned to school the following year, and the absence of dispute that she was under 18. Ms. Peebles said that she told A.P. "that sounds odd." A.P. insisted it was true. Ms. Peebles also told Mr. Faller that A.P. said that she was leaving regular school for an alternative program because Mr. Frazier would not leave her alone. A.P.'s comments and her change of schools indicate that Mr. Frazier's conduct was harmful to A.P.'s mental and emotional health. Ms. Peebles went on to tell Mr. Faller that A.P. then showed Ms. Peebles text messages on her telephone that were marked as coming from Mr. Frazier. The messages referred to the bar encounter saying, "'Oh, you have a hot ass, I really wanted you.'" After reporting the above information to Mr. Faller, Ms. Peebles told him that she believed A.P. In order to help Mr. Faller understand why she thought A.P.'s reports were credible and significant, Ms. Peebles then told Mr. Faller about an incident with Mr. Frazier that occurred before Mr. Faller assumed the position supervising Mr. Frazier. Ms. Peebles had walked into Mr. Frazier's office looking for him. She found Mr. Frazier sitting at his desk with a female student, D.K., sitting in his lap feeding him cake. She told Mr. Faller that she had reported the incident to the acting principal, Mr. Kane, and thought it had been dealt with. Finally, Ms. Peebles told Mr. Faller about her experiences with Mr. Frazier frequently calling the same female student, D.K., from class. The frequency became so great that it was disruptive to D.K.'s education. Ms. Peebles began not answering the telephone or refusing to send D.K. to Mr. Frazier's office. Later, Ms. Peebles saw D.K. texting and took D.K.'s telephone from her and placed it on her desk. D.K.'s phone buzzed with an incoming text message. Ms. Peebles told Mr. Faller that the message said something "along the lines of 'come up to my office. I hear you're wearing short-shorts again.'" D.K. was wearing short-shorts. Ms. Peebles told Mr. Faller that the telephone indicated that the message was from Rod Frazier. This event preceded the conversation with A.P. that Ms. Peebles reported to Mr. Faller. Ms. Peebles told Mr. Faller that Mr. Frazier's texting students frequently was a problem. With D.K., it was especially troublesome because she was missing so much class time. Mr. Faller acknowledges texting is not the proper way for the parent liaisons to contact students during school hours. Mr. Faller said he would talk to Mr. Frazier about the texting. Mr. Faller denies that Ms. Peebles told him about the tiki bar incident. The undersigned finds the testimony of Ms. Peebles credible and persuasive on this issue. A day, or a day and a half, later, Mr. Faller passed Ms. Peebles in the hall. He said, "Hey, I took care of that." After that, Mr. Frazier was unfriendly to Ms. Peebles and rarely spoke to her or handled her referrals. But Mr. Frazier's personnel records contain no indications that Mr. Faller spoke to Mr. Frazier about these incidents or took any action. The credible persuasive evidence proves that Mr. Faller did not report these assertions to the child abuse registry to the administrators or law enforcement, investigate them, or act upon them. Ms. O'Dell's Reports of Mr. Frazier's Conduct With Female Students, D.K. and D.W. Another teacher, Keltie O'Dell, told Mr. Faller of similar problems with Mr. Frazier texting two female students, D.K. and D.W., asking them to leave her classroom. When she would not release them, he called to have the students sent to his office. Ms. O'Dell told Mr. Faller that D.K. and D.W. confirmed to her that they had texted Mr. Frazier asking him to get them out of class. Ms. O'Dell told Mr. Faller of a time when Mr. Frazier brought lunch to D.K. in her classroom so that Mr. Faller would not see her out of compliance with the dress code in the cafeteria. The conduct of Mr. Frazier that Ms. O'Dell reported to Mr. Faller was unprofessional, inappropriate, and improper. Mr. Faller did not report these concerns to any other administrators or to law enforcement authorities. He also did not speak directly to Mr. Frazier about the issues. Mr. Faller only spoke to all of the parent liaisons as a group, generally, about the inappropriateness of texting students to come from class. The file contains no information or notes indicating that Mr. Faller spoke to Mr. Frazier about the incidents, disciplined, or counseled Mr. Frazier. Concerns Reported by Steve Gulash Steve Gulash, an administrative parent liaison in Manatee High School's discipline office, brought similar, but much more general concerns about Mr. Frazier to Mr. Faller. He once told Mr. Faller that he should take note of the fact that Mr. Frazier only signed up as an administrator on duty for female games. He also told Mr. Faller that "this damn guy's probably done some stuff that could put him in jail." Mr. Gulash did not identify specific incidents. Mr. Faller did nothing to inquire into Mr. Gulash's concerns. Mr. Faller's Approach to the Multiple Reports of Mr. Frazier's Improper Behavior The following excerpt, with emphasis added, from the transcript of Detective Marines' interview of Mr. Faller, articulates Mr. Faller's view of responsibility and his method for avoiding responsibility for the supervision of Mr. Frazier and caring for the female students of Manatee High School. Q: Okay. Now is it, is it, uh, you said you were over discipline. A: Uh hum. Q: Is it common for the parent liaison's to text students to get them out of class when they have an issue, they, they A: Is it common? Q: Yeah. A: No. Q: No? A: No. Q: Okay. So what, what is the common uh, like if, if Mr. Frazier wants to see you soon, and talk to him about a referral, I'm assuming that's what you guys do, right? A: We call the classroom. Q: Call the classroom? A: Yeah. Q: Talk to the teacher? A: That would be the norm. Um, Q: How long would he have been? A: You know? Q: How long had he been doing that for? Like texting students out of class? A: I don't know. Q: You don't know? Okay. Uh, did you ever talk to him about it? A: Didn't know about it, except for through a teacher. Q: Through Ms. O'Dell? A: Never witnessed it myself, never had a kid come to me. Yeah, other than that one incident, um, that supposedly took place in her class, you know, she saw the kid using the phone, and then all of the sudden, you get up and say I have to go to Frazier. So she's putting two and two together, so I can't, I mean I can't say, you know, that it definitely happened. Q: Uh hum. A: Um, that's a, that's a teacher, um, believing that it may have occurred. Um, and I'm not in the business of, of, figuring those things out. You know? Q: No, I A: I mean the bottom line is Q: know. I completely. [sic] A: Um, Q: Did you ever talk to him about it or no? He just didn't bother. A: There's nothing to address. If I don't know for sure that he's doing it, then I'm not gonna address it. I mean, uh, Q: Okay. A: You know? But, I mean if it was happening, um, I had no direct knowledge. Nobody's ever told me directly that they know for a fact that this is going on. (emphasis added). (P. Ex. 18, 2/11/13, pp. 7 & 8). Mr. Faller chose to ignore the information. Eventually, through the efforts of people other than Mr. Faller, the reports of Mr. Frazier's activities with female students reached responsible authorities triggering an administrative and criminal investigation of Mr. Frazier. Those investigations subsequently expanded to examine the actions and inactions of Mr. Faller, Principal Gagnon, former Assistant Principal Matt Kane, and assistant superintendent for District Support, Scott Martin, when they received complaints about Mr. Frazier. Ultimately, Mr. Frazier resigned from Manatee High School.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order terminating the employment of Respondent, Gregg Faller. DONE AND ENTERED this 29th day of August, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 29th day of August, 2014.
