The Issue The issue in this case is whether Petitioner's request for exemption for disqualification should be approved.
Findings Of Fact Upon completion of high school, J.D. was employed at Walt Disney World in the theme park. It was during her employment at Disney World that J.D. was arrested on April 13, 1990 and charged with possession of a baggie containing 1.5 grams of crack cocaine with intent to sell. J.D. pled nolo contendere to the charges and was placed on two-years probation during which she had to attend a drug treatment program. Having already completed high school, J.D. started going to school while on probation and while she was employed with Red Lobster as a cook and coordinator at night. J.D. held the job with Red Lobster from 1990 to 1993, when she relocated to Jacksonville, Florida. J.D. attended classes at the Orlando Vocational-Technical Center and was awarded a certificate for 56 hours of home health aide in March 1991 and an AIDS four-hour seminar. On March 13, 1992, J.D. was awarded a certificate for completion of care of the Alzheimers client; and on March 17, 1992, J.D. was awarded a certificate of completion of care for the stroke patient. J.D. also successfully completed the basic rescue course in CPR from the American Heart Association issued on March 21, 1992 and March 24, 1992; First Aid, Level 1 from the National Safety Council Orlando Vocational Tech on March 12, 1992; and satisfactorily completed on March 27, 1991 a 72-hour course for the home health aide with competency performance testing. By letter of February 1, 1992, J.D. was informed that she had successfully completed her substance abuse counseling with a discharge diagnosis of cocaine abuse in remission, prognosis fair, provided she follows recommendations; and the recommendations were (1) abstain from all mood-altering substances and (2) attend AA/NA meetings. On May 16, 1994, J.D. was arrested by the Orlando Police Department for possession of cannabis. On June 6, 1994, J.D. appeared before the court, waived her right to counsel, pled nolo contendere to the charge of possession, and was adjudged guilty. As stated above, J.D. relocated to Jacksonville, and a year later was hired on June 1, 1995, as a home health care aide by Living Centers Devcon Point West Cluster, a developmental services facility. J.D. worked with clients who were in need of assistance in their daily living activities, ranging in age from minors to adults. J.D.'s cared for eight clients who were physically disabled and unable to care for themselves. J.D. worked a shift from 2 p.m. to 10 p.m.; and her specific job duties included bathing, feeding, lifting clients from their beds and chairs, and assisting with toiletries, such as combing hair. J.D. received letters of support from her supervisors and co-workers. Mercedes Joyner, Program Supervisor, found J.D. to be a superb worker who demonstrated herself to be a loving, caring, sincere, and motivated individual, who has carried out all of her duties as a responsible person and conducted herself in a professional and respectful manner toward her co-workers and superiors. Sue Fleischmann, Facility Coordinator, found J.D. to be punctual, responsible, considerate and caring with the Developmentally Disabled Clients, and who worked well with her co-workers. Patricia Welch, a co-worker, found J.D. to be a reliable and compassionate person with whom it was outstanding to work. On October 17, 1995, the Petitioner completed a substance abuse course sponsored by Northeast Florida Safety Council, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Petitioner be granted the exemption. DONE and ENTERED this 29th day of February, 1996, in Tallahassee, Florida. STEPHEN F. DEAN, 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 29th day of February, 1996. COPIES FURNISHED: J.D. (address of record) Roger L. D. Williams, Esquire Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Sandy Coulter, Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At all times pertinent hereto, the Respondents were operating a shelter home in Opa Locka, Florida, pursuant to License 290-12-5 that had been issued by Petitioner. Respondent W.G. is the husband of Respondent G.G. On December 27, 1990, Petitioner received a report in its central abuse center in Tallahassee of alleged child abuse by Respondents at their shelter home in that Respondents were verbally abusing a 17-year-old female that had been placed in their shelter home. Protective services investigator David K. Welch immediately began an investigation of this alleged abuse. He visited the shelter home. Respondent G.G. was present in the shelter home when Mr. Welch made his visit to the home, but she was not in the same room with the children who had been temporarily placed in the custody of the Respondents. At the time of Mr. Welch's visit, Respondent G.G. was present in the home and was providing adequate supervision. Mr. Welch spoke with the Respondents about the allegations of verbal abuse and concluded that the allegations were "indicated". Mr. Welch found insufficient evidence upon which to base a conclusion that the allegation of verbal abuse should be closed as "confirmed". During the course of his investigation, Mr. Welch learned of reports from three other protective services investigators of allegations that Respondents often left the children who had been placed in their temporary custody without adequate supervision. The three reports, upon which Mr. Welch relied, were from Fidelis Ezewike pertaining to an incident on September 24, 1990, from Iris Silien pertaining to an incident on December 28, 1990, and from Michael Blum pertaining to an incident on an unspecified date in late 1990. At no time did Mr. Welch advise Respondents as to allegations of abuse in the form of inadequate supervision or ask them to explain the arrangements they make for the supervision of the children when they are both away from the foster home. The abuse report listed two victims of the alleged neglect, M.L., a female born in February 1974, and L.G., a female born in August 1975. Neither of these alleged victims testified at the formal hearing. Mr. Welch had no first had knowledge of the three incidents upon which he relied to close the report as a proposed confirmed report of child abuse based on neglect from inadequate supervision. Mr. Ezewike did testify as to the incident of September 24, 1990. Although he found children in the foster home temporarily without adult supervision when he arrived there, he later that day discussed the matter with the Respondents. Respondents explained their temporary absence from the foster home to Mr. Ezewike. Mr. Ezewike was satisfied with the explanation given by the Respondents and was of the opinion that the absence of the Respondents did not merit the filing of an abuse report based on the failure to provide adequate supervision.2/ Ms. Silien did not testify at the formal hearing. There was no competent, substantial evidence to establish that Respondents failed to provide adequate supervision to the identified victims on the date Ms. Silien visited the foster home. Mr. Blum did not testify at the formal hearing. There was no competent, substantial evidence to establish that Respondents failed to provide adequate supervision to the identified victims on the date Mr. Blum visited the foster home. Respondents' son-in-law testified that he was present at the foster home on the date of Mr. Blum's visit and that he explained to Mr. Blum that he was supervising the children temporarily at the request of Respondents. The uncontradicted testimony was that when Respondents have to be away from the foster home on a temporary basis, they entrust the supervision of the children in their custody to their daughter and her husband, who live in close proximity to Respondents and who had agreed to be responsible for supervising the children. Petitioner failed to establish that the temporary arrangements Respondents made for the supervision of the children in their absence from the foster home was inadequate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which amends FPSS Report No. 90- 1333485 to reflect the findings contained herein, which closes said report as unfounded, and which expunges the names of the Respondents as confirmed perpetrators from the central abuse registry. DONE AND ORDERED this 2 day of June, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2 day of June, 1992.
The Issue Whether Petitioner's application for licensure as a family day care home should be granted.
Findings Of Fact Based on the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Linda Richmond, formerly Linda Cook, applied for a license to operate a family day care at her residence. In connection with Petitioner's licensure application, dated December 17, 2001, the Department conducted a background screening of Petitioner, which included a review of the following: local and state criminal records; Florida Department of Law Enforcement reports; FBI records; records of the Florida Hot Line Information System; employment history; and affidavits of good moral character. Based on information obtained from the Florida Hot Line Information System, the Department denied Petitioner's application to operate a family day care home. According to the Notice of Denial dated June 12, 2002: [Y]our registration to operate a Family Day Care Home is being denied at this time due to the following: (1) Background screening revealed a prior incident of neglect of your children and inadequate supervision. The facts underlying the report demonstrates [sic] an inability to ensure the safety of children in your care to the level necessary to be registered as a Family Day Care Home. The Notice of Denial does not specify which background screening records the Department relied on in reaching its decision to deny Petitioner's application. However, in light of the evidence presented by the Department, the denial was apparently based on information included in a 1990 Abuse Report and/or a 1995 Abuse Report. The 1990 Abuse Report noted that Petitioner admitted using crack cocaine and having people come to her home for the purpose of using crack, but denied that she used drugs in her children's presence. Also, the 1990 Abuse Report indicated that one of Petitioner's minor children had been fondled by a man who was at the home for several days and that Petitioner "reported being in the home at the time of the alleged incident." Furthermore, according to the 1990 Abuse Report, the house in which Petitioner, her then husband, and her children lived was not clean and did not have electricity. The 1990 Abuse Report concluded that Petitioner had neglected her children. Based on the investigation, on or about October 25, 1990, the report was closed as "confirmed for conditions hazardous to health and all other maltreatments are indicated." The 1990 Abuse Report noted that "due to the condition of the home and the crack usage in the home by the parents," the children were placed in the home of their maternal grandmother. Finally, as to the disposition of the case and the services to be provided, the report stated that the risk and severity of harm to the children was low "in the grandparental home," that protective service supervision was needed, and that the case was referred to protective services for ongoing supervision. Petitioner admits that at the time of the 1990 Abuse Report and investigation related thereto, she was addicted to crack cocaine. However, Petitioner's credible testimony was that she never used crack or any illegal drug in her children's presence. Moreover, at the time one of her minor children was fondled by a man temporarily staying at the house in which the children lived with their father, Petitioner was estranged from her then husband, was not staying with him and the children, and was not aware of that incident until some time after the incident occurred. Notwithstanding the findings and conclusions in the 1990 Abuse Report, there is no evidence that Petitioner neglected or failed to supervise her children, as alleged by the Department. In late 1995 or early 1996, a second abuse report, the 1995 Abuse Report, was generated following an investigation into allegations that the maternal grandfather of Petitioner's children was physically abusing them. As a result of an investigation, the 1995 Abuse Report found that the maternal grandfather, with whom the Petitioner's children were living, had used excessive corporal punishment on them. The report was closed with a finding of verified maltreatment of the children by their maternal grandfather. During the time period covered by the 1995 Abuse Report and the maltreatment of Petitioner's children by their maternal grandfather, the children were not living with Petitioner. They were living with and in the custody of their maternal grandparents, having been placed with them by the State as a result of the findings and conclusions in the 1990 Abuse Report. As accurately noted in the 1995 Abuse Report, Petitioner's role at the time covered by the report was that of "parent not in home." Nothing in the 1995 Abuse Report indicates that Petitioner neglected or failed to supervise her children. Rather, it was Petitioner who called the Abuse Hot Line on December 19, 1995, after she observed her father hit one of her children so hard that the child fell to the ground. This incident occurred December 19, 1995, while Petitioner was at her parents' house to visit her children and give them Christmas gifts. The reason Petitioner called the Abuse Hot Line to report the December 19, 1995, incident described in paragraph 12 was that she cared about her children and perceived her father's action to be physical abuse of one of her children. Although Petitioner reported the December 19, 1995, incident the day it occurred, no one came out to investigate the matter. The following day, Petitioner reported the incident to her counselor at the Center for Drug Free Living, who then telephoned the Abuse Hot Line. The Notice of Denial fails to state any facts from either the 1990 Abuse Report or the 1995 Abuse Report which establish that Petitioner neglected or failed to adequately supervise her children. Moreover, neither the 1990 Abuse Report nor the 1995 Abuse Report supports the Department's allegations that Petitioner neglected or failed to supervise her children. Finally, the Department presented no evidence to support its allegations or to demonstrate Petitioner's "inability to ensure the safety of children in [her] care to the level necessary to be registered as a Family Day Care Home." Petitioner successfully refuted the Department's allegations that she neglected and failed to adequately supervise her children, even though she admitted that in 1990, she was addicted to crack cocaine. However, this admission by Petitioner, standing alone, does not establish the Department's allegations. After the 1990 Abuse Report was issued and prior to issuance of the 1995 Abuse Report, Petitioner faced her addiction and took action to turn her life around so that she could regain custody of her children. As part of Petitioner's rehabilitative process, she successfully completed a drug treatment program as evidenced by the fact that she has been "drug free" since September 15, 1995, or for more than seven years. In addition to the drug treatment program, Petitioner also participated in and completed a parenting class. After completing the drug treatment program and the parenting class, Petitioner regained custody of and was reunited with her children. In March 1996, Petitioner was awarded "supervised" custody of her children. Six months later, Petitioner was awarded permanent custody of her children. There is no indication that Petitioner neglected, abused, mistreated, or failed to supervise her children either prior to or after March 1996, when she regained custody of the children. Since successfully completing the drug treatment program and parenting class and regaining custody of her children, Petitioner has had a stable work history, has remarried, and has become an active member of a church in her community. From 1996 through 1999, Petitioner was employed as a housekeeper by Disney World. After leaving Disney World, Petitioner was employed at Sophie's Kids Learning Center, as a child care provider or "teacher" of toddlers. Petitioner is currently employed at Sophie's Kids Learning Center and has been employed there since 1999, except for a six-month period when she took leave to care for her daughter and grandchild. In letters of support, Petitioner is described as a good employee, one of the center's best instructors who is doing "excellent work with children of all ages." Petitioner is an active member of Salem Gospel Baptist Church and has been for the past two years. Petitioner attends church services regularly, is a member of the church choir, and teaches a children's Sunday School Class. Letters of support from the pastor of the church and a church member indicate that Petitioner is a committed member of the church who works with the children in the church. These letters also state that Petitioner has gained and enjoys the respect of the parents in the church as well as those not in the church.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for licensure to operate a family day care home. DONE AND ENTERED this 13th day of December, 2002, 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 13th day of December, 2002. COPIES FURNISHED: Richard B. Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Linda Richmond 25 West 14th Street Apopka, Florida 32703 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether the Respondents' foster care license should be revoked.
Findings Of Fact At all times material to this matter, the Respondents were licensed as a foster home. During the course of such licensure, a minor child, M.A.G., was placed within Respondents' home. It was Respondent, Bertha Sosa's intention to adopt M.A.G. and her minor brother who was also placed with Respondents. Respondents were approved for licensure as foster parents through a private company. Such company was a third party screening agent used by the Department to process foster home applicants. For reasons unknown, such company did not obtain Respondents' signature to or agreement for certain provisions which are required for licensure. For example, all foster home licensees are required to execute service agreements. No such agreement has been located for Respondents. Pertinent to the service agreements are requirements regarding discipline which may be utilized by foster care licensees. In this instance, the discipline policy agreement prohibits: hitting a child with any object; slapping, smacking, whipping, washing mouth out with soap, or any other form of physical discipline; and humiliating or degrading punishment. While the Respondents do not acknowledge that they executed such agreements, it is undisputed that the failure to do so would result in the denial of initial licensure. The only reason Respondents sought initial licensure was to be able to adopt children. They were not then, and were not at the time of the hearing, interested in foster care. The foster care program was the vehicle they chose to be able to adopt. M.A.G. has a history of physical and sexual abuse. It is not uncommon for children with such history to exhibit inappropriate behaviors. Such behavior may include, as described by Mrs. Sosa, "humping." Also, M.A.G. had difficulty with telling lies. Mrs. Sosa admitted that when M.A.G. exhibited inappropriate sexual behavior, she would force the child into a cold shower. Mrs. Sosa admitted that when M.A.G. lied, she would wash her mouth with soap. On or about March 11, 1996, an investigation of abuse allegations began regarding M.A.G. and the Respondent, Juan Sosa. M.A.G. alleged that while Mrs. Sosa was out of the home, Mr. Sosa hit her several times with a broomstick. According to M.A.G., such conduct was the result of M.A.G.'s disobedience and disruptive behavior which culminated in discipline. Bruises consistent with a blunt instrument were observed on M.A.G.'s legs and arm. M.A.G. bragged that she could withstand, or feel no, pain. The bruises were photographed within two days of the alleged incident. Mr. Sosa denied inflicting the injuries sustained by M.A.G.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Children and Families enter a final order affirming the revocation of Respondents' foster care license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of February, 1997. JOYOUS D. PARRISH 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 28th day of February, 1997. COPIES FURNISHED: Colleen Farnsworth Assistant District Legal Counsel Department of Children and Families 401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128 Lee Marks, Esquire 757 41st Street Miami Beach, Florida 33140 Gregory D. Venz Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Coran General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent violated Sections 400.022(1)(l), 400.022(1)(o), and 400.147(4) and (7), Florida Statutes, and Rules 59A-4.1288, 59A-4.106(2), and 59A-4.108(4), Florida Administrative Code, for which a fine is authorized under Sections 400.22(3), 400.102, 400.121, 400.19(3), and 400.23(8)(a), and if so, what penalties should be imposed. (DOAH Case No. 01-4129); Whether a moratorium on admissions was appropriately ordered by Petitioner against Respondent on August 10, 2001, (DOAH Case No. 01-4128).
Findings Of Fact AHCA is the state agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Respondent Oakview operates a licensed nursing home at 300 N.W. 1st Avenue, Williston, Florida. The standard form used by AHCA to document survey findings is known as a "2567" form, titled "Statement of Deficiencies and Plan of Correction." A nursing home facility deficiency is noted on the 2567 form and referred to as a "Tag." The survey of Respondent's facility on May 9, 2001, arose out of a complaint. Respondent Oakview was cited for Tags F224, F309, and F490. Each of these three Tags was classified as a Class III deficiency. No Class II or Class I deficiencies were charged. No fines were assessed by the Agency, and the facility did not dispute the allegations. Also, no facts related to the May 9, 2001, survey are alleged as the basis for the Administrative Complaint herein. The survey of June 15, 2001, also was initiated as a result of a complaint. Respondent was cited for four Tags: F223, F226, F279, and F324. Tags F223 and F226 were classified by the Agency as Class II violations. Tags F279 and F324, were classified as Class III violations. No fines were assessed by the Agency. The facility's Plan of Correction indicated that the deficiencies would be corrected by July 30, 2001. Oakview disputed the allegations contained in the June 15, 2001, survey report, through the Informal Dispute Resolution Process (IDR). The IDR is a federal dispute resolution process whereby a facility has an opportunity to present information informally which may cause the state agency to delete, sustain, or modify the deficiency cited in a survey. As a result of the IDR, Tag F223 was changed to F224. The IDR panel sustained the remainder of the Tags and the classification for each. On July 30-31, 2001, the Agency initiated a follow-up survey. This "re-visit" was to determine if deficiencies noted in the prior complaint surveys of May 9, 2001, and June 15, 2001, had been corrected. The surveyor reviewed quality indicators (statistics) and the two prior surveys in order to investigate whether Respondent Oakview had timely come into compliance with state and federal regulations. As a result, Respondent was cited on July 30-31, 2001, with five Tags: F223, F225, F251, F324, and F490. Tags F223, F324, and F490 were classified as Class I violations. Tags F224, and F251, were classified as Class III violations. Subsequently, by administrative action, the Agency changed Tag F223 to F224. The classification of the Tag remained as a Class I violation. Legislation effective May 15, 2001, defines Class I deficiencies/violations as situations in which immediate corrective action is necessary because they have caused, or are likely to cause, serious injury, harm, impairment, or death to a resident receiving care in that facility. Class II deficiencies compromise the resident's ability to maintain or reach his or her highest practicable physical, mental, or psychosocial well-being. Class III deficiencies are those deficiencies that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the resident's ability to maintain or reach his or her highest practical physical, mental, or psychosocial well- being. "Class" or "classification" relates to the nature of the deficiency. Also, effective May 15, 2001, each classification must also be designated, for purposes of assigning a fine, as having an "isolated," "patterned," or widespread" scope. "Scope" addresses the pervasiveness of the deficiency designated as Class I, II, or III. See Section 400.23(8), Florida Statutes. In this case, the parties do not so much dispute that deficiencies were found, but the controversy is as to the nature (class) and scope which should have been assigned. June 15, 2001 Survey: Generally The June 15, 2001 Survey is significant because the Tags cited therein give rise to AHCA's assertion that, pursuant to Section 400.023(8)(a), Florida Statutes, the Agency may double the fine assessed relevant to the July 30-31, 2001 Survey. Agency Surveyor Cheryl Williams was the sole surveyor on the June 9, 2001, survey. The survey document dated June 15, 2001, named Tags F224 (formerly F223), and F226, which were classified as Class II deficiencies. (See Findings of Fact 5-7). June 15, 2001 Survey: Tag F224 Based on interviews of staff, a review of resident clinical records, and the "unusual incidents" tracking system, the surveyor cited Tag F224, as a Class II deficiency, for failure to develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents and misappropriation of resident property, because the facility failed to protect each resident from physical and sexual abuse as required by law. The evidence is clear that written policies and procedures were in place at Oakview on June 15, 2001. However, two incidents must be examined to determine if the written policies and procedures were adequately implemented. On June 9, 2001, Resident 2 (a 72-year-old male diagnosed with dementia and cognitive and memory impairments) and Resident 1 (a 71-year-old female with a form of dementia and a history of socially inappropriate, i.e., sexually aggressive behaviors) were spotted by a Certified Nursing Assistant (CNA) in Resident 1's bed at approximately midnight, during regular rounds. The incident was written up in nurses' notes and tracked through the incident tracking system as "intercourse" and/or "sexual assault." It was reported by Oakview to the Abuse Hotline, as the facility is required to do, but with an eleven- hour delay. Oakview also reported the incident to the Sheriff's Department, which investigated and declined to prosecute. It became a "three-day wonder" in the local newspaper. The evidence concerning this incident does not support AHCA's allegation that the incident amounted to a "sexual assault," or even intercourse. When discovered, the couple were in Resident 1's bed. Resident 1 was not resisting the male resident physically or verbally. Resident 2's pants were down to his knees, and he was attempting to pull them up. Resident 1 was raising her clothing, exposing herself from the waist down. Resident 1's hips were elevated, with her feet and shoulders on the bed. The male resident, Resident 2, remarked, "I'm so sorry," as he exited the room. When Resident 2 was removed, Resident 1 described him as "such a nice man." A medical examination of the female resident the next day did not reveal any physical trauma associated with sexual assault, and a psychiatric examination two days later did not reveal any distress as a result of the incident. Immediately after the sexual incident, Respondent Oakview placed the male resident on a 15-minute cyclical observation schedule for several days during the investigation, and moved the residents to rooms more distant from each other. Originally, they had been across the hall from each other. There is no evidence of any additional contact between these residents, although both were ambulatory. Oakview also investigated the matter by interviewing staff and family members of the residents. Since her admission to the facility on May 15, 2001, there had been several times when Resident 1 had made sexual advances toward male residents. She was described as "hyper-sexual and disinhibited [sic]," frequently attempting to climb into bed with male residents, touching males inappropriately, and making sexually inappropriate remarks towards males. During the investigation, Resident 1's husband explained that she had been sexually active up until her admission, and he expressed regret if the June 9, 2001, incident were her fault. Resident 2, after admission to Oakview on May 23, 2001, had also acted "inappropriately" by masturbating in the presence of female CNAs who were giving him a shower. This conduct was recorded in facility records and occurred during the initial care planning period following his admission. As a result of this conduct, his care plan identified his "sexual [behavior] inappropriate towards staff" (emphasis supplied) and he was assigned two CNAs for bathing purposes. Social services progress notes dated June 10, 2001, revealed that Resident 2 had been sexually inappropriate to the nursing home staff at the dialysis center the day previous to the sexual incident with Resident 1, at midnight on June 9, 2001. Prior to the June 9, 2001, sexual incident with Resident 1, there were no indicators that Resident 2 had ever exhibited any sexually or socially inappropriate behavior toward other residents. In hindsight, it may have been unwise to place Resident 1 near any male patient's room, but the June 9, 2001, sexual involvement of these residents seems to have occurred very shortly after both arrived and when both were assumed to be asleep in separate rooms. It was not to be expected based on the facility's experience with them in the interim, and the entire episode seems to have been mutually consensual. Also, facility staff appropriately and effectively intervened as soon as anyone was aware of the June 9, 2001, sexual situation. When the surveyor recorded this event as a tag, she was not aware the male also suffered from dementia, as did the female, and that element weighed in her decision to cite the facility. The second incident cited by AHCA under Tag F224 in its June 15, 2001, survey document is a confrontation which had occurred between Resident 3 and Resident 4 on June 14, 2001. Resident 4 had been identified by Oakview as an aggressive and angry resident who had a tendency towards confrontation with all other residents. His aggressive characteristics had been care planned and interventions had been developed for his aggressive behavior. Staff were aware of the planned interventions and that his conduct would require constant intervention and redirection by staff. Accordingly, staff carefully monitored Resident 4's whereabouts and proximity to other residents. The confrontation on June 14, 2001, occurred when the wheelchairs of Residents 3 and 4, who lived on opposite wings of the facility, came in contact as they came around a hallway corner from different directions. Usually, staff could predict when Resident 4 would be returning from the dining room and station themselves to dissuade confrontations with people he met on the way. On this occasion, Nurse Sokevitz came around the corner just a few seconds late. Resident 4 had already struck- out at Resident 3, initiating a territorial dispute. Staff immediately intervened, and the residents were separated and taken to different areas of the facility. Neither resident suffered any serious injury. There were no other confrontations between these two residents. June 15, 2001 Survey: Tag F226 Tag F226, as a Class II deficiency, was assigned by the surveyor because the "intercourse" incident was not reported by Oakview to the Abuse Hotline for approximately 11 hours, whereas the facility's plans in place called for immediate reporting. The evidence suggests that the Abuse Hotline, as part of its protocol, refuses to accept a complaint by a third party (the facility) of alleged resident-on-resident abuse, and that everything that could be done to "protect" each resident was being done between discovery of the residents in bed together and successful reporting of the incident. June 15, 2001 Survey: Tag F324 This survey also charges Tag F324, as a Class III deficiency, because the facility allegedly did not ensure that each resident received adequate supervision and assistance devices to prevent accidents, and again is based on Resident 1 (female) having been "sexually assaulted" by Resident 2 (male) on June 9, 2001, and Resident 3 having been physically assaulted by Resident 4, on June 14, 2001, and also upon an allegation of insufficient staff. July 30-31, 2001 Survey: Generally Agency surveyor Jan Rebstock was the sole surveyor for the July 30-31, 2001 Survey. Ms. Rebstock's testimony focused on Tags F224 (formerly Tag 223), F324, and F490, which formed the respective bases of paragraph (3)(a), (b), and (c) of the Administrative Complaint. July 30-31, 2001 Survey: Tag F224 Based on resident interviews, clinical record review, resident observation, staff interviews, and review of the facility's "fall" tracking tool, AHCA alleged that Oakview did not take prompt and/or adequate measures to assure that residents were protected against verbal abuse in one case (Resident 8), resident-on-resident abuse in one case (Residents 1 and 2), and potential repeat physical (sexual) abuse in another case (Resident 6). In a resident interview during the July 30-31, 2001, survey, Resident 8 stated that "I have accidents" and that a nurse who worked on the weekends called her "pissy" and "stupid" and yelled at her when she was not in her room for medications. The resident also stated that such remarks hurt her feelings and that she had reported the occurrences to the Director of Social Services. The Director of Social Services told the surveyor that the resident had spoken to her on Tuesday, July 24, 2001, about verbal abuse on a different subject by the same weekend nurse. The allegation of verbal abuse had not been investigated as of Monday, July 30, 2001. The surveyor's concern was that the six-day delay in investigation created the potential for repeated verbal abuse. The delay from Tuesday to Monday is a considerable delay and had the effect of exposing Resident 8 and other residents to further abuse by the nurse on the intervening weekend. The facility's excuse for the delay was that its Director of Social Services had been out of the facility on sick leave for most of the intervening time. It is probable that it was necessary to interview the nurse before firing her, but the Director could have assigned the investigation to someone else before going home sick. The offending nurse was, in fact, fired August 1, 2001, after the survey pointed out the problem. The surveyor read the records as indicating that Resident 6 (apparently the sexually active female No. 1 of June 9, 2001), and not the male, had previously been moved to another part of the facility, as part of the corrective action plan in response to her alleged sexual abuse by male Resident 7 (the sexually active Resident No. 2 of June 9, 2001), and then the female was briefly removed to a hospital and returned to the Oakview facility. On July 30, 2001, during a tour of the facility, the surveyor observed Resident 6/1's room was only a few doors down from Resident 7/2's room. Resident 7/2 was now documented as having "sexually assaulted" the female on June 9, 2001. Although the undersigned accepts that, in fact, the facility considered the male the aggressor and moved him, there is confusion in the two surveys as to which gender allegedly sexually assaulted the other and which had to be removed to another bedroom. The testimony attempting to identify the room numbers of Residents 6/1 and 7/2, also is less than clear. However, a schematic of the facility does not reveal that these randy Septuagenarians were assigned to rooms near each other as of July 30-31, 2001. While they were assigned respectively to rooms 76 and 79 at the time of the original incident on June 9, 2001, the proximity of their rooms on July 30-31, 2001, does not appear to be a problem. By July 30-31, 2001, Ms. 6/1 was also medicated to reduce agitation. Based on clinical record review and facility fall tracking records, Petitioner AHCA also alleged under Tag F224, that Oakview did not provide adequate supervision and/or effective interventions to prevent injury from resident-on- resident physical abuse for Residents 1 and 2 on July 20, 2001, as more fully described below, under Tag F324. AHCA contends, under Tag F224, that the facility's failure to maintain interventions, such as keeping Residents 6/1 and 7/2 apart, created the potential for repeat physical and sexual abuse and that the failure of the facility to timely investigate both the allegations of verbal abuse and the incidents of physical and sexual abuse created a potential for repeat abuse and was a serious threat to the health and safety of the residents at the facility. July 30-31, 2001 Survey: Tag F324 Clinical records revealed that on July 17, 2001, Resident 2 and Resident 3 had been found by nurses to be fighting with each other in the secured unit. The care plan for Resident 2, dated May 30, 2001, documented a need to monitor Resident 2 for aggression against other residents and staff. Clinical records review of Resident 1 also revealed that on July 20, 2001, Resident 1 had two altercations, within approximately an hour of each other, with Resident 2 on the secured unit patio, and these altercations resulted in Resident 1's sustaining a laceration to the left side of his "skull" and bruising to the ribs, requiring his transfer to an emergency room. In the emergency room, he was evaluated and had sutures to his scalp, but he was not seriously enough injured to be admitted to the hospital. There is no evidence of other altercations between these two residents. Surveyors faulted staff for allowing Residents 1 and 2 to get back together within less than an hour. These two July 20, 2001, altercations also were part of the F224 Tag, above. Under Tag F324, Oakview is charged with failing to implement effective and timely intervention of Resident 2, known by the care plan and July 17, 2001 incident, for aggressive behavior, and failing to provide adequate supervision within the secured unit so as to prevent the subsequent altercations between Residents 1 and 2 on July 20, 2001, the second of which resulted in serious injury to Resident 1. Testimony of Ms. Sokevitz, L.P.N., who was on the scene of the July 17, 2001, altercation, shows that incident was no more than a confrontation with threats and fist-waving by Resident 2 at Resident 3, who also was easily aggravated. At that time, Resident 2 was removed to the patio and counseled. As an extra precaution, Resident 3 was moved out of the secured unit to another wing overnight. Resident 1 forgot what happened, and Resident 2 was able to feel less belligerent after counseling. She explained that monitoring, intervening, and redirecting Resident 2 was a constant effort for staff. Clinical record review also revealed that Resident 8 was at risk for falls. Care plan documents dated May 1, 2001, indicated that the resident should not be allowed outside alone and was to wear a "wander guard," an electronic device worn on the arm to alert staff to the whereabouts of a resident and to prevent that resident from leaving the facility unattended. However, a wander guard is not fail-safe. It is possible for some persistent residents to disable the wander guard system by removing the arm band. Nurses' notes on May 4, 2001, documented that Resident 8 was found lying outside on the facility's west wing patio, apparently having slid from a chair. Notes dated May 24, 2001, document that Resident 8 was found on her back on the west wing patio, and was then transported to a local hospital for evaluation. Another fall on the patio was documented as her being found there on July 10, 2001. Notes on July 11, 2001, document that the resident lost balance and fell outside on the patio while trying to open the door. On July 12, 2001, the resident complained of severe pain when moving her shoulder. Subsequent x-rays revealed that she had a broken arm. There is no evidence besides the connotation of the words in the notes of "found" and "apparently" to support a belief that Resident 8 was alone on the patio when she fell on May 4, May 24, and July 10, but that is sufficient. The same notes also suggest Resident 8 was not alone on July 11, 2001, when she fell while opening the door. On July 31, 2001, the surveyor observed Resident 8 not wearing a wander guard as called for in her care plan. A review of the clinical records not available to the surveyor revealed that the wander guard had been discontinued by doctor's order on July 25, 2001, on the 11:00 p.m. to 7:00 a.m., shift. Oakview is charged with failing to implement Resident 8's care plan by providing adequate staff supervision of her while she was on the patio during the 3:00 p.m. to 11:00 p.m. shift, which resulted in repeated falls and subsequent injury. The concern that the surveyor expressed was that use of the wander guard and closer supervision by a one-on-one methodology when Resident 8 went to the patio "may have prevented" her falls and injuries. Resident 8 was an alert and oriented 40 years' old independent woman, with no significant cognitive impairments, who was identified by the facility as being at risk for falls. The facility planned various interventions for Resident 8, including one that she should "never go outside alone and alert nurse when going outside to smoke." She was also to use a wander guard system to alert staff when she was leaving the building, but the wander guard was later discontinued, because she was not an elopement risk and was entitled to come and go from the facility at liberty. In fact, Resident 8 regularly left the facility, signing herself out as "responsible person." The care plan was that Resident 8 should "never go outside alone." Testimony indicated that Resident 8 was supposed to notify staff when she was going outside. Apparently, she was unreliable in this regard. The facility submits that it could not force Resident 8 to notify staff or prevent her from coming and going as she pleased to the patio. Since four falls occurred while Resident 8 was ostensibly wearing a wander guard, one has to guess if the wander guard was not working or if staff were alerted by the wander guard and did not move fast enough to the patio to prevent these falls on May 4, May 24, July 10, and July 11, 2001. If staff were present on July 11, 2001, that still had not prevented the fall while opening the door. Since the wander guard seems to have had no effect on preventing the four falls, its discontinuance on July 25, 2001 was not unreasonable, for the reasons stated in Findings of Fact 45-46. The surveyor did not suggest that the facility was required to be an absolute insurer that Resident 8 not fall, but felt that someone being with her or the wander guard in place "might have" prevented the falls. Since all Resident 8's falls occurred on the patio, and she did not alert staff when she was going out there, the facility's remaining options come down to either a wander guard, which had proven ineffectual; constant one-on-one monitoring of Resident 8's location by a staff member; or stationing a staff member on the patio at all times. Due to the personnel and cost-efficiency problems inherent in 24-hour per day, one-on-one monitoring of residents, the Agency seems over-critical of the treatment of Resident 8 within Tag F324. Also cited under Tag F324 is the loss and recovery of certain patients. Clinical record review by the surveyor of cognitively impaired residents' records revealed that Residents 10, 11, and 12 left the facility during the 3:00 p.m. to 11:00 p.m. shift, without staff being aware that they were absent from the facility. Nurses' notes for Resident 12 document that the resident had attempted to leave the facility on May 8, 2001. The need for a wander guard because of the elopement risk was noted. The wander guard was in place on May 28, 2001, and on June 11, 2001, but on June 13, 2001, Resident 12 walked out the front door of the facility after supper, sometime around 5:45 p.m. The Williston police were notified. Resident 12 was found by the police a few blocks away from the facility and returned. Apparently, the resident was not wearing a wander guard when found. Resident 10 (female) is severely cognitively impaired. Her care plan indicated that she needed a wander guard to alert staff of any attempt at elopement. Her care plan also provided that facility staff were to assist her with ambulation and transfers (getting in and out of chairs, etc.), and to monitor her whereabouts frequently. On June 16, 2001, nurses' notes document that Resident 10 apparently went out the door by the dining room, which is near the front entrance, and was later located in a neighbor's yard. Her wander guard was noted to be missing. She was also missing from the facility's East Unit, according to nurses' notes, on July 23, 2001. She was eventually located in a male resident's bathroom, asleep on the toilet, apparently unharmed. Resident 11 is severely cognitively impaired. The care plan indicates that he needed to be monitored every shift, daily. Nurses' notes on June 18, 2001, document that Resident 11 eloped from the facility while wearing a wander guard. He was found by the Williston Police Department and returned to the facility unharmed. The resident's wander guard simply did not go off. There was no indication as to how long the resident was missing because the last nursing note was made at 2:30 a.m., on June 18, 2001. On July 25, 2001, nurses' notes documented that Resident 11 was twice found wandering outside the facility and that staff attempts to redirect his behavior were unsuccessful. The Respondent is charged with failing to provide adequate supervision to prevent cognitively impaired residents from leaving the facility unattended and unnoticed. This was perceived as a serious threat to the health and safety of the residents at the facility. Consistent monitoring of residents is the standard for preventing elopements. Wander guards are an adjunct to that monitoring. This facility also uses television cameras at every door to prevent elopements. While wander guards and television cameras are not infallible, the number of elopements reported here is excessive, based on the sample number of files reviewed. Either the facility is not maintaining the effectiveness of its wander guards, or it is not monitoring residents sufficiently to keep wander guards on them. The July 30-31 Survey: Tag F490 AHCA alleged that, based on clinical record review, staff interview, review of the facility abuse policies and procedures, and review of the fall tracking tool, the facility's administration was not ensuring, that incidences of alleged and actual abuse are thoroughly investigated and documented in accordance with facility policy; that staff immediately report alleged incidences of abuse in accordance with facility policy to enable prompt investigation and abuse prevention; that corrective action/interventions are taken and maintained to prevent further resident abuse; and that there is adequate staff supervision to keep residents safe from harm. Facility policy is that all suspected verbal and physical abuse are to be investigated immediately, including assessing the resident, interviewing staff and witnesses, and notifying resident families and regulatory agencies as appropriate. Additionally, all employees are to be trained in identifying, assessing and reporting potential victims of alleged or suspected abuse at the time of hire, and annually thereafter. On July 30, 2001, the facility's Staff Development Coordinator stated to the surveyor that the last annual abuse training had been given on June 15, 2000. However, in testimony, the surveyor admitted that she had also learned, during the survey, that on July 27, 2001, staff received in-service instruction on dealing with "disruptive behavior." Interviews of facility management at the July 30-31, 2001, Survey revealed that there was no available duty description for the Director of Social Services position. The Administrator thought the Director of Social Services was responsible for "abuse coordination," and the Director of Social Services thought the Director of Nursing was responsible. The facility policy document states "the Abuse Coordinator for this facility is the Director of Social Services, Director of Nursing, or Designee." The Administrative Complaint alleges that the F490 Tag on July 30-31, 2001, is a violation of 42 CFR Section 483.75, adopted by reference in Rule 59A-4.1288, Florida Administrative Code, which requires a nursing home to be "administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident." That allegation is based entirely upon the foregoing deficiencies identified elsewhere in the survey relating to investigation and reporting of alleged abuse (F225), corrective action to prevent further abuse (F224), and adequate staff supervision to protect residents (F324). The first three examples of alleged deficiency F409 recited in the survey document rely upon Tag F225, which is classified as a Class III deficiency. The fourth example for this alleged deficiency is recited in the survey document at Tag F224, and forms the basis for paragraph (3)(a) of the Administrative Complaint. The fifth example for this alleged deficiency is recited in the survey document at F324 and forms the basis for paragraph (3)(b) of the Administrative Complaint. Tag F225 was cited in this survey as a Class III deficiency upon the same findings recited in F224 and Findings of Fact 31-36, and cites the falls, the verbal abuse, and the resident-on-resident physical abuses noted supra. plus an additional "physical abuse" by one other resident who allegedly deliberately ran over another resident's toes with his wheelchair. Also of concern under Tag F225 was the absence of a fulltime qualified social worker required for a facility of more than 120 beds. Oakview was licensed for 180 beds. The population of Oakview on July 30-31, 2001, was only 127. Tag F490 was assigned because the surveyor felt all other tags cumulatively related to a failure of administration, generally. There is no credible, weighty, and significant evidence directly related to the "toes" incident, another resident allegedly verbally abused by the weekend nurse, insufficient staff, or the Section 400.147(4) and (7), Florida Statutes, charges related to internal risk management, incident reports, and the need to make notifications and investigations based on required incident reports of abuse, neglect, or harm, within one business day, except for the June 9, 2001, sexual incident, which was reported to law enforcement. It is noted that, with the exception of the verbal abuse reported July 30, 2001, by Resident 8, directly to the surveyor, all knowledge the surveyors gathered was from records of the facility, so internal reports were being made in one form or another. How the Fines Were Calculated Tag F224, incorporates 42 CFR Section 483.13(c)(1)(i); Rule 59A-4.1288, Florida Administrative Code; and paragraph (3)(a) of the Administrative Complaint, regarding "staff treatment of residents" and states: The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. Tag F324 incorporates 42 CFR Section 483.25(b)(2); and Rule 59A-4.1288, Florida Administrative Code; and paragraph (3)(c) of the Administrative Complaint, regarding "quality of care" and states: Each resident must receive, and the facility must provide, the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well being, in accordance with the comprehensive assessment and plan of care. Tag F490 incorporates 43 CFR Section 483.75; Rule 59A-4.1288, Florida Administrative Code; and paragraph (3)(c) of the Administrative Complaint, regarding "administration," and states: A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. The fine assessed for July 30-31, 2001, Tags F224, F324, and F490, was $15,000.00, apiece, on the theory these were "widespread" Class I deficiencies. The assessed fines were doubled by the Agency because the facility had been previously cited for two Class II deficiencies (Tag F224 and Tag F226), during the June 15, 2001, survey investigation. Also, due to the facility having been cited for three Class I deficiencies during the July 30-31, 2001, survey and two or more Class II deficiencies in the June 15, 2001 Survey, AHCA subjected the facility to a six-month survey cycle and assessed an additional fine of $6,000.00, totaling all fines out at $96,000.00. The Moratorium The Agency imposed an Order of Moratorium on Admissions (Order) on Respondent facility as of August 10, 2001, pursuant to Section 400.121(5)(a), Florida Statutes. This Order meant that the facility could admit no new residents while it was in effect. The Order was imposed due to the conditions in the facility found in the July 30-31, 2001, survey. It was felt these deficiencies posed a threat to the health, safety, or welfare of the residents. The moratorium was lifted on August 22, 2001, when a re-survey showed that, within 22 days, all deficiencies had been corrected.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED the Agency for Heath Care Administration enter a single final order which: Upholds the moratorium and six-month survey cycle in DOAH Case No. 01-4128; and Imposes the foregoing fines totaling $26,000 in DOAH Case No. 01-4129. DONE AND ENTERED this 5th day of June, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2002.
The Issue The issues in this case are: whether the Griffin Family Day Care Home violated provisions of chapter 402, Florida Statutes (2012),1/ and Florida Administrative Code Chapter 65C-20,2/ and, if so, what penalty should be imposed; and whether the Griffin Family Day Care Home's renewal application for a license to operate a regular family day care center should be approved or denied.
Findings Of Fact The Department is the state agency responsible for inspecting, licensing, and monitoring child care facilities such as the one operated by the Griffin Day Care. 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 three times a year: two unannounced routine inspections (to ensure compliance with the applicable laws and rules) and one renewal application inspection. In the event of a complaint, additional inspections or investigations are conducted. Wanda Griffin owns and operates the Griffin Day Care, a family day care facility licensed by the Department. The facility is located at 1408 Unitah Avenue, Lakeland, Florida, and was in continuous operation at all times material to the issues herein. The facility has not been the subject of any prior disciplinary actions. Lydia Murphy is a child care licensing specialist for the Department. Ms. Murphy is trained to inspect family day care centers for initial applications, renewal applications, and routine inspections. Ms. Murphy is familiar with the facility, having inspected it between 15 to 18 times over the past five to six years. As a result of a complaint being made, DCF conducted an investigation of the facility. On Friday morning, March 23, 2012, a four-year-old child, S.B., was brought to the facility. Following some outside play time, S.B. and the other children came into the facility and were seated at a table for lunch. While Ms. Griffin was retrieving the pizza from the garage, S.B. got up from the table and left the facility via the front door. Ms. Griffin's granddaughter4/ told Ms. Griffin that S.B. was gone. Ms. Griffin immediately began a search for the child. Ms. Griffin contacted 911 and the child's mother. S.B. was located approximately one-half mile from the facility and was returned. There was no testimony about whether or not S.B. was ever in jeopardy while she was unsupervised. Although S.B.'s mother later told Ms. Griffin that S.B. was known to wander off, Ms. Griffin advised S.B.'s mother that she (Ms. Griffin) would no longer take care of S.B. Ms. Griffin admitted this incident occurred. On Tuesday, March 27, 2012, Ms. Murphy (and another DCF employee) interviewed Ms. Griffin about the Friday incident. During that interview, Ms. Griffin told Ms. Murphy that the lock on the front door was not engaged, as she (Ms. Griffin) had disengaged it to allow her daughter to enter the facility following medical treatment. At hearing, Ms. Griffin testified that the front door lock had been engaged when S.B. left the facility. When confronted that the incident occurred on a Friday and that she had told Ms. Murphy just four days after the incident (on Tuesday) that the door lock was disengaged for her daughter, Ms. Griffin claimed that her daughter did not go for the medical treatment on that Friday. Ms. Griffin's testimony is not credible. Leviticus Griffin is Ms. Griffin's husband. They lived together in Plant City for a time and, in 2001, moved to Lakeland. Ms. Griffin testified that, when she applied for (the child care) licensure, they were not living together, as she was living "on housing," and Mr. Griffin was living elsewhere. On four or five inspection visits when Ms. Murphy saw a white truck in the drive-way, there was a man present on the facility property. Ms. Murphy did not see him inside the facility. Ms. Murphy was told he was the yardman. Ms. Griffin maintained that Mr. Griffin was not the yardman. Ms. Griffin testified that the yardman was "one of my grandbaby's uncles" and that she had forgotten his name. Ms. Griffin maintained that this yardman had been her yardman "since she had moved in." Ms. Griffin's testimony is not credible. At the hearing, Ms. Griffin claimed that, when Ms. Murphy saw Mr. Griffin at the facility, he was there to talk about health issues. On the 2012 renewal application, submitted on May 8, Ms. Griffin did not report that Mr. Griffin was residing in the facility. As she was reviewing the 2012 renewal application, Ms. Murphy saw a copy of Mr. Griffin's driver's license and identified him as the yardman she had seen at the facility. In performing the required renewal application investigation in May 2012, Ms. Murphy "put two and two together" and decided that Mr. Griffin was living in the facility. Ms. Murphy investigated Mr. Griffin. Ms. Murphy determined Mr. Griffin had two disqualifying offenses that would preclude his living at the facility unless or until he received an exemption from those disqualifying offenses. Ms. Murphy called and told Ms. Griffin that she was adding Mr. Griffin's name to the 2012 renewal application as a person living in the facility. Ms. Griffin did not object to Mr. Griffin's name being added to this application and indicated she "was going to add him to the license." Although Ms. Murphy testified she spoke with the landlord, Fred Leslie, about who was living in the facility, that testimony is hearsay and was uncorroborated through other competent evidence or testimony. At some undetermined time, a copy of Ms. Griffin's 2008 rental application5/ (Exhibit 2) was provided to DCF. That rental application, which Ms. Griffin executed on June 2, 2008, does not contain an address on the "Rental Property Address" line, nor is it a rental agreement. The name, "Leviticus Griffin," is on the rental application as an additional occupant of the property; however, there is no evidence that this application was for the facility property. Ms. Griffin maintained that Mr. Griffin was not living at the facility at that time, but that he lived elsewhere. DCF presented a certified copy (Exhibit 5) of the Florida Department of Highway Safety and Motor Vehicles, Intranet Records Information System (IRIS). IRIS documented multiple vehicle transactions and driver license transactions involving Mr. Griffin. IRIS reflects that Mr. Griffin's address, as of the "Issue Date" for this record, March 4, 2008, was that of the facility. Mr. Griffin did not testify in this proceeding. Five of the six DCF applications or renewal applications (Exhibit 3)6/ for licensure submitted by the facility identify no one other than Ms. Griffin as living in the facility. The sixth application, the 2012 renewal application form, reflects Ms. Griffin's name on one line and Mr. Griffin's name on the second line where Ms. Murphy inserted and dated the addition. It is noted that the 2007 DCF "renewal" application is for an address different than the address at issue. Beatriz Blanco is a DCF exemption screening specialist with over six years of experience. Mr. Griffin first came to Ms. Blanco's attention in May 2012. Mr. Griffin submitted a request for an exemption. Ms. Blanco wrote Mr. Griffin asking him to provide information about two disqualifying offenses. In July 2012, Ms. Blanco received a partially-completed application from Mr. Griffin. In late July 2012, a letter seeking additional information was sent to Mr. Griffin at his address of record, 1408 Unitah Avenue, the same as the facility. As of February 6, 2013, Mr. Griffin had not submitted any additional information for further consideration of his exemption request.
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 finding the Griffin Family Day Care Home committed the Class I violations, imposing an administrative fine of $1,000.00, and denying its renewal application. DONE AND ENTERED this 28th day of February, 2013, 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 28th day of February, 2013.
