The Issue Whether Petitioner has grounds to impose a fine for a violation of the rule that requires the family day care operator to allow access to the entire premises of the family day care home for inspection.
Findings Of Fact At all times relevant to the allegations of this case, Respondent, Mary Higdon, was licensed by Petitioner to operate a family day care in her home. Barbara Ivey, DCF, has been the day care licensing representative for Respondent since 1996. At Ivey's first inspection of the day care home, Higdon refused her access to the master bedroom. Ivey did not note the violation. However, Ivey advised Respondent that the rule required that the entire premises had to be inspected. In 1998, during a scheduled appointment, Respondent again refused access to the master bedroom on the grounds that her husband worked nights and was sleeping. Ivey insisted that she must inspect the master bedroom and she would be back. When Ivey returned, she was able to inspect the master bedroom. In 1999, during a scheduled appointment, Respondent again refused access to the master bedroom. Ivey reminded her that Respondent had agreed to the time of the appointment and that this refusal was not acceptable. Respondent then stated that someone could "peek" in to the room while her husband slept. A trainee, who was with Ivey, went with Respondent toward the bedroom; the door was opened slightly, and the trainee peeked into the room but was not able to see into the dark room. On August 24, 1999, Ivey made an unannounced visit to Respondent's home to inspect the entire premises and re-check an air-conditioner that was out of compliance. This re-check was necessary for re-licensing. Ivey arrived at the home on a weekday during regular operating hours. Stacy Rivera, Respondent's daughter, answered the door to Ivey. Ivey identified herself and asked to inspect the premises. She explained to Rivera that the inspection would only take a moment. Rivera acknowledged that she knew that Ivey was an inspector for DCF. Ivey also noted that there were six or seven children present at the home. Rivera indicated that all of them were her children. Rivera stated her mother was out of town and refused to permit Ivey entry. Ivey requested that Rivera contact her mother so she could complete the re-licensing. Ivey observed Rivera calling someone, but did not know who. Rivera returned to the door and reiterated that Ivey could not enter. Rivera has not been screened to care for children. Rivera testified that she was not an employee of the family day care. Respondent did not notify Petitioner that the day care would not be in operation during the week of the inspection.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent was found guilty of violating Rule 65C-20.012(3), Florida Administrative Code, and that an administrative fine of $100.00 be imposed. DONE AND ENTERED this 7th day of August, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2000. COPIES FURNISHED: Carmen M. Sierra, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1792 Mary Higdon 7141 Green Needle Drive Winter Park, Florida 32792 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in these cases are: whether the Davis Family Day Care Home violated provisions of chapter 402, Florida Statutes,1/ and Florida Administrative Code Chapter 65C-20,2/ and, if so, what penalty should be imposed; whether the Davis Family Day Care Home's renewal application for a license to operate a regular family day care center should be approved or denied; and whether the Davis Family Day Care Home's initial application for a license to operate as a large family child care home should be approved or denied.
Findings Of Fact The Parties The Department is responsible for inspecting, licensing and monitoring child care facilities such as the one operated by the Davis Day Care. It is also 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 routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Following such inspections, a report is provided to the operator which provides a time frame to correct any outstanding deficiencies. The Department also conducts inspections or investigations of child care facilities in response to complaints it receives. LaShandra Davis (Ms. Davis) owns and operates the Davis Day Care, a family day care facility licensed by the Department. The Davis Day Care was initially licensed in April 2007 and was in continuous operation at all times material to these issues. No testimony was offered that the facility had prior disciplinary actions against it. Ms. Davis is a nurse, has an associate of science (A.S.) degree in nursing from Polk Community College, and is attending college to obtain an A.S. degree in early childhood education. Additionally, Ms. Davis has five sons and one daughter. Their names include (from youngest to oldest): Layla Davis, Steven Davis, Devondrae Davis, Deshawn Williams, Daniel Williams, and Rafael Davis. No testimony was received regarding Ms. Davis using any other name or names from August 3, 2010, through December 2, 2010.5/ On February 23, 2011, Ms. Davis submitted an application to obtain a license to operate a large family day care home at her current location. On March 15, 2011, Ms. Davis submitted her renewal application to retain her license to operate a family day care home at her current location. October 29, 2010, AC 1 (August 3, 2010, Inspection) On August 3, 2010, the Davis Day Care was subjected to an inspection based on a complaint that it was "over-ratio." This over-ratio issue involves the number of children in the care of a family day care operation to the number of adults providing that care. The Department received a complaint that the facility was seeking meal reimbursements for more children than were allowed for the type of child care license it held. Vicki Richmond (Ms. Richmond) testified that she conducted the inspection on August 3, 2010, and cited the facility for being over the licensed capacity ratio by more than two children. Because the facility was over ratio by more than two children, it was a Class I violation. At that August inspection, Ms. Davis explained to Ms. Richmond that she (Ms. Davis) had a license to provide child care for ten children, and she had ten children in her care. Ms. Richmond explained the ratio requirement to Ms. Davis. Based on the age of the children, Ms. Davis was authorized to have a maximum of ten children provided no more than five were preschool age, and, of those five, no more than two were under 12 months of age. At this August inspection, Ms. Davis was over-ratio by two children. Ms. Davis executed and received a copy of the complaint report prepared on August 3, 2010, that discussed the over-ratio limitations. Three other technical violations were brought to Ms. Davis's attention during that inspection, and two of those violations were corrected immediately. Ms. Davis was given a two-week extension to correct the third violation involving an expired fire extinguisher.6/ Additionally, Ms. Richmond testified that Ms. Davis's mother ("Ms. Jones")7/ was visiting the facility while Ms. Richmond was conducting this August inspection. According to Ms. Richmond, Ms. Jones had been previously screened, but did not meet the Department's standards to be in a child care facility. Ms. Jones should not have been present either for a visit or to be preparing lunches as the testimony revealed. Ms. Richmond recommended to Ms. Davis that it was important to check into getting an exemption for Ms. Jones to be at the facility. Ms. Davis later testified that Ms. Jones had cleared up the screening issue, and both had been told Ms. Jones was allowed to be present at the facility. At hearing, Ms. Davis admitted that she was over-ratio on August 3, 2010. Further, she stated that she "just flat out misunderstood" the adult-child ratio requirement issue until Ms. Richmond explained it to her in August 2010. Ms. Brooks and Mr. Giordano testified that they had each individually explained the ratio requirement to Ms. Davis during prior inspections or discussions at the facility. Although there is some discrepancy between Ms. Davis's recollection and the two witnesses on this point, Ms. Davis admitted this violation and was quite candid about her lack of knowledge with respect to it. Credible testimony from both Ms. Richmond and Shelia Nobles (Ms. Nobles) established that having two or more children over-ratio was a Class I violation, which would subject any child care facility to discipline by the Department. When Ms. Davis received the Department's three-page October 29, 2010, AC 1 advising her of the Class I violation (over-ratio by two or more children) and assessing a $500 fine, she was "shocked." Ms. Davis testified that, at the time of the inspection (August 3, 2010), Ms. Richmond had stated the fine might be $50 or maybe more, leading Ms. Davis to believe the fine would not be that high. AC 1 advised Ms. Davis that the over-ratio issue was a Class I violation of section 402.302(7). AC 1 provided one Department address for two reasons, to pay the $500 fine or to request an administrative hearing. There is no language within AC 1 that advised Ms. Davis of an optional payment plan. Ms. Davis testified she was unaware of a payment plan option, and her only option was to appeal the decision, which she did. Ms. Richmond confirmed that the Department would accept payments as long as the total fine amount was paid in full prior to the next renewal. However, that information was not shared with Ms. Davis until the hearing. Department's March 23, 2011, Proposed Denial Application to Operate a Family Day Care Home (AC 2) and Department's April 11, 2011, Proposed Denial Application to Operate a Large Family Day Care Home (AC 3). Both AC 2 and AC 3 set forth five allegations in support of the Department's denial of the renewal application and the large family child care home application. Two alleged abuse allegations from 2007 and 2008 were included in these administrative complaints; however, as previously stated, no testimony or evidence was offered, presented or substantiated at hearing. Thus, any attempt to reference either the 2007 or 2008 allegations as fact is disregarded as unfounded and not supported by credible testimony or evidence. AC 2 and AC 3 rest on three allegations: the alleged abuse of child E.B., the alleged lying during the investigation of the alleged child (E.B.) abuse, and the inspection conducted on August 3, 2010, regarding the facility being over ratio.8/ Natalie Barton (Ms. Barton), E.B.'s mother, testified that she saw marks on E.B.'s bottom at the end of November 2010 (November 30, 2010) that "could only have occurred at the day care." Ms. Barton testified she picked E.B. up from the facility prior to 5:30 p.m. and discovered the marks on E.B.'s bottom during bath time that evening. Both Ms. Barton and Ms. Davis testified that E.B.'s mother sent a picture of the injury to Ms. Davis via her cell phone the evening the injury was first seen. At that point, Ms. Davis told E.B.'s mother that she (Ms. Davis) didn't know what or how the injury occurred and recommended taking the child to E.B.'s doctor. Ms. Davis had no hesitation in making this recommendation to Ms. Barton. Ms. Barton took E.B. to her (E.B.'s) pediatrician the morning after she discovered the injury (December 1, 2010). However, E.B.'s physician indicated he wanted to see the child in two days, as he could not make a determination what, if anything, had caused the injury as there was no bruising. Ms. Barton also testified that she took E.B. back to the Davis Day Care after she was seen by her pediatrician so she could see how E.B. reacted. While at the facility, E.B. was "in her routine," that she (E.B.) walked in and sat on the couch like she did every day. Ms. Barton did not return E.B. to her own pediatrician for further evaluation. Ms. Barton testified E.B. was seen by the child protective team the day after she was seen by the pediatrician (December 2, 2010). On December 2, 2010, after receiving information about the possible physical abuse of a child (E.B.) (documented as being received at 11:08 p.m. on December 1, 2010), Deanna McCain (Investigator McCain) contacted Ms. Barton to obtain additional information. Investigator McCain also spoke with E.B., who said she had been hit by "Ms. Shawna." After observing E.B.'s injuries and obtaining a photograph of E.B.'s buttocks, an appointment was made for E.B. to be seen by a member of the child protection team, i.e., the nurse practitioner. During the afternoon of December 2, 2010, Nurse Practitioner Connie Fleming (Nurse Fleming) performed a medical evaluation of E.B., a then two-year, nine-month old child. During E.B.'s evaluation, Nurse Fleming noticed bruising on E.B.'s buttocks. When Nurse Fleming asked E.B. what happened, E.B. responded "Ms. Shawn spanked me." Nurse Fleming stated the bruising appeared to be consistent with an outline of a hand. Pictures taken during the medical evaluation reflect red areas on E.B.'s buttocks. Based on her nine-plus years of training and experience as a nurse practitioner, Nurse Fleming determined that E.B. had suffered physical abuse; however, she never stated who caused the injury. Nurse Fleming contended that the injuries were indicative of a rapid-force compression injury, typical of a slap with a hand. Later on December 2, 2010, Investigator McCain went to the facility to investigate the alleged abuse report. Upon her arrival at the location, Investigator McCain had to wait for a local law enforcement officer (LEO) before she could enter the facility. While Investigator McCain waited for the LEO to arrive (between 3:30 p.m. and 4:45 p.m.), she spoke with parents who were picking up their children from the facility. Each parent she spoke with had supportive comments about the facility ("great day care provider," their child had "no injuries," had never seen "inappropriate behavior," "no concerns"). Whether all these comments came from one parent or multiple parents is unclear. Investigator McCain did not observe any injuries to any of the children leaving the facility. Ms. Richmond also went to the facility at approximately the same time as Investigator McCain; however, Ms. Richmond could enter the home without a LEO, and she did so. Ms. Richmond made contact with Ms. Davis and explained there was a complaint. Ms. Richmond's task at the time was to obtain information about the number of children Ms. Davis had in the facility. According to the sign in sheet, there were seven children present, plus Ms. Davis's four-year-old son. Ms. Richmond testified that Ms. Davis initially stated there were four children present, but later a sleeping child was found in a crib, and her (then) four-year-old son ran through the home.9/ Although Ms. Richmond asked for the attendance sheets for the previous month (November 2010), Ms. Davis was only able to provide the attendance sheets for December 1 and 2, 2010.10/ According to Ms. Richmond, those two attendance sheets documented that Ms. Davis's facility was again over-ratio for those two days. When Investigator McCain entered the facility with the LEO, she explained the reason for her presence to Ms. Davis. Investigator McCain testified Ms. Davis was asked how many children were present and together they conducted a "walk- through" of the facility. Investigator McCain testified that, at the time of the walk-through, she was told there were four children present, three toddlers and a small child in Ms. Davis's arms. Investigator McCain also testified that, during the walk-through, they found an additional child sleeping in a crib. She further testified that, at some later point, another young child ran through the facility, and Ms. Davis identified him as her son. On December 2, 2010, Investigator McCain questioned Ms. Davis about the alleged physical abuse of E.B. During the investigation discussion, Ms. Davis reported to Investigator McCain that "she [Ms. Davis] had no idea how they [E.B.'s injuries] occurred." Ms. Davis further reported E.B. was "fully potty trained." Ms. Davis reported that the child had a toileting accident the day before and had cleaned herself. Still, later in the investigation discussion, Ms. Davis told Investigator McCain that she (Ms. Davis) had helped clean E.B. after the toileting accident, but only from the front, and she had not observed E.B.'s buttocks. Ms. Davis also shared with the investigator that when Ms. Davis questioned E.B. about the injury, E.B. said her mother (Ms. Barton) did it (the abuse). At hearing, Investigator McCain testified that Ms. Davis was "very far along in" a pregnancy and that Ms. Davis was upset, shocked, and surprised by the presence of the investigators. Investigator McCain also confirmed that DCF's presence tends to raise anxiety levels and that people feel like they are being attacked. Further, Ms. Davis confirmed that she was two weeks from her delivery due date when this investigation started. Thus, under the circumstances, forgetfulness may be perceived by some as lying, when in reality it is simply being overwhelmed by the situation. As part of the investigation, it was Investigator McCain's responsibility to also check for any hazards in the facility and to ensure adequate supervision of the children. Although Ms. Davis initially reported there were no other adults to supervise the children, she later reported that her mother, Ms. Jones, came each day around 10:15 a.m. to make lunch for the children. Ms. Barton confirmed that Ms. Jones was sometimes present in the mornings when Ms. Barton brought E.B. to the facility. Several technical violations were noted during the December 2010 investigation; however, they are not the subject of this hearing. Ms. Davis testified she did not spank E.B. Ms. Davis testified that she did not know how the injury occurred, and the child's hearsay statement that her mother had spanked her is not supported by other testimony. However, the time lapses between when the injury was alleged to have occurred (the "end of November," or November 30, 2010, according to the mother), when the injury was "discovered" (the night of November 30, 2010, according to the mother), when the alleged abuse was reported (December 1, 2010, at 11:08 p.m.), when the pediatrician's examination occurred on December 1, 2010, and when the child protective team became involved (December 2, 2010), create confusion and doubt as to when the injury actually occurred and by whom. Even taking the thought process to try to find that the events happened a day later does not relieve the doubt or confusion, nor is that supported by the Department's documentation. Investigator McCain testified that this investigation was closed with a verified finding of physical injury to E.B. However, simply finding a "verified finding of physical injury to E.B." does not establish who perpetrated that physical injury. No testimony was provided that any other possible explanation for the injury was explained. Further, other than indicating that E.B. had red marks on her bottom, no testimony was provided that indicated the degree of harm to the child. That being said, this not to say that logic has left the building with respect to some harm being caused to the child. There were marks on E.B.'s buttocks. Several current and former parents of children who attend or attended the Davis Day Care testified on Ms. Davis's behalf. Each testified that they did not have any concerns with their child attending Ms. Davis's facility. On March 11, 2011, after receipt of the facility's application for the large family day care home license,11/ the Department conducted an inspection of the facility and found it to be in compliance with all the licensing standard requirements (including those previously cited during the December 2010 inspection that were corrected). Upon completion of its investigation, the Department determined to deny Ms. Davis's renewal application and to deny her application for a large family day care license, based on "numerous complaints to our office alleging physical abuse of children in your care and Class I violations of licensing standards." There was one verified complaint of abuse, not "numerous complaints" as alleged. There was a Class I violation regarding the over-ratio issue; however, that could have been resolved with better communication skills. The misrepresentation could have been avoided. Neither notification includes any indication that the March 11, 2011, inspection was taken into consideration prior to making the denial decision. The Department presented testimony indicating that there had been past complaints regarding Ms. Davis and/or the facility. However, no documented prior complaints or final orders were submitted with respect to any prior actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: With respect to the October 29, 2010, administrative complaint, that a final order be entered by the Department of Children and Families finding that the facility was over-ratio on August 3, 2010, and imposing an administrative fine of $500 with no less than ten months to pay the fine. It is further RECOMMENDED that Ms. Davis be ordered to attend remedial classes on the financial operations and management of a child care facility; With respect to the March 23, 2011, administrative complaint, that a final order be entered by the Department of Children and Families renewing the family day care home license on probation status for six months with periodic inspections to ensure the continued safe operation of the facility; and With respect to the April 11, 2011, administrative complaint, that a final order be entered by the Department of Children and Families finding that the large family child care home application be issued a provisional license for a minimum of six months with periodic inspections to ensure the continued safe operation of the facility, with the ability for an additional six-month provisional period. In the event the large family child care home provisional license is not activated within two months of the issuance of the final order in this matter, a new application shall be required, subject to all the applicable statutory requirements. DONE AND ENTERED this 25th day of October, 2011, 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 October, 2011.
The Issue Whether Petitioner is entitled to an exemption from disqualification to work in a position of special trust.
Findings Of Fact On June 6, 1979, Petitioner went into a public restroom and attempted to use a urinal. To do so, he had to remove his sexual organ from his clothing. An adult male dressed in beach clothing called to him, "Come here," so Petitioner turned around and took half a step. The man asked, "What do you like?" Petitioner responded, "Women. Excuse me," and faced the urinal again. The other man, a plain-clothes law-enforcement officer, arrested Petitioner. Petitioner was charged with Section 800.03, Florida Statutes, "exposure of a sexual organ (by masturbation) -- misdemeanor." This was a misdemeanor charge at the time committed. Despite there having been no masturbation, in his opinion, Petitioner pled nolo contendere, and adjudication was withheld; he was assigned six months unsupervised probation and paid a fine. It is only on the basis of the foregoing 1979 plea that Petitioner has been disqualified from working in a position of special trust. He was notified by an April 18, 1996 letter that, pursuant to Sections 402.302(8) and 435.04(2), Florida Statutes [1995], he is disqualified as a household member in a family day care home. (Agency Exhibit 1) Petitioner also was arrested in 1982. The record is unclear as to what statute he was charged under at that time, but he did plead guilty and was fined. The circumstances surrounding the 1982 incident were established solely by Petitioner's testimony. He was in a department store restroom. There was a hole cut in the wall between two stalls "and apparently there was someone on the other side, the next stall that prompted me to put my sex organ through the hole in the wall." The person in the next stall was not a law enforcement officer. (TR 37-41, 43-45)1 Petitioner was arrested upon exiting the restroom. He has not been arrested since 1982. Petitioner has been happily married for 27 years. He and his wife have three children and five grandchildren. He and his wife are well-loved by their own children and grandchildren. They have a history of welcoming the troubled friends of their children into their home. The neighborhood children and Petitioner's grandchildren have always affectionately called Petitioner, "Grand-daddy" and have called Petitioner's wife, "Nanny." Their home is, and always has been, a gathering place for the neighborhood children. Petitioner's wife runs a licensed family day care home out of the family home from 6:00 a.m. to 6:00 p.m., Monday through Friday. Although she did not know about Petitioner's 1979 incident before it was disclosed through the agency screening process, she does not believe Petitioner presents a danger to children. She believes the 1979 incident constituted "entrapment". By a second letter dated April 18, 1996, Petitioner's wife was notified that, pursuant to Sections 402.302(8) and 435.04(2) Florida Statutes [1995] (Agency Exhibit 2), Petitioner was forbidden from having contact with any children in her family day care home and that if he is allowed to have contact with children in her care, she would be subject to an administrative fine and possible criminal penalties. The four children currently paying to attend Petitioner's wife's day care home are respectively aged one, two, three, and four years of age. For the last eight years, due to his trade as a self- employed leather worker, Petitioner has traveled a wide circuit from flea market to flea market throughout the week. He is only present in the family home from 10:30 p.m. Fridays to 3:00 a.m. Mondays. His wife's day care home does not operate during those periods that Petitioner is typically at home. Petitioner is a devout Seventh Day Adventist and an elder of his local church. He is the church's Sabbath School Superintendent. Petitioner's daughter and former daughter-in-law wrote letters entered in evidence and also testified that the family home is warm and loving and that Petitioner is a great "Grand- daddy." They rely on Petitioner and his wife for baby-sitting services. In their mutual opinion, Petitioner is not a danger to children, however some of their testimony minimized Petitioner's problems as only being "past mistakes." Neighbors' letters to the effect that Petitioner does not pose a threat to children, is active in his church, and travels except on weekends were admitted in evidence without objection, as was a statement by his pastor that Petitioner is a man of "impeccable character." However, none of these persons was available for cross-examination, and their letters do not clearly show that they had knowledge of Petitioner's past lewd acts or any reason or opportunity to know if he had committed any subsequent ones.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is , reluctantly, RECOMMENDED that the Department of Children and Families enter a Final Order removing Petitioner from the registry of disqualified persons.RECOMMENDED this 6th day of March, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1997.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's license to operate a family daycare home should be suspended based upon the Petitioner's husband's plea of nolo contendere to a disqualifying second degree felony.
Findings Of Fact The Petitioner, Sislyn Gonsalves, has operated a family daycare home at times pertinent hereto, including in 2005 up through the time of the hearing, pursuant to license number F12V00010. The family daycare home is located at 2820 Lake Helen Osteen Road, Deltona, Volusia County, Florida. The Petitioner and her husband Clayton A. Gonsalves have had repeated disciplinary problems with their 13 year old son, K. G. K. G. had been repeatedly in trouble at school and may have been involved in an incident involving a theft, of which his parents became aware. On or about April 16, 2005, an incident occurred in the Petitioner's home. The Petitioner's husband Clayton Gonsalves and the Petitioner were trying to leave for church that morning and to persuade their son K. G. to attend church with them. An argument between the son and Mr. Gonsalves ensued. During the incident Mr. Gonsalves picked- up a short piece of light weight PVC pipe, approximately three feet by three quarter's of an inch, and struck his son several times on the left shoulder and the right hand. The persuasive evidence in this case is that the blows with the light weight PVC pipe did not leave marks. The son, K. G., being angry and upset at the time, abruptly left the family premises. The Petitioner and her husband and other child thereupon preceded to attend church. Later that day, after the incident had apparently been reported to the police, the police arrested Mr. Gonsalves and charged him as having committed child abuse. On or about May 11, 2005, Mr. Gonsalves entered a plea of nolo contendere on a charge of aggravated child abuse, which is a second degree felony. This resulted from the incident described above. As a result of that plea Mr. Gonsalves was sentenced to a term of three years of probation, and adjucation was withheld. As a condition of his probation he was ordered to have "no violent contact" with the victim, K. G., and to "comply with the Department of Children and Family's conditions and case plans." Mr. Gonsalves works in the State of New York as a plumber. He returns to his family residence, to be with his family, whenever possible, between jobs. He resides there with the Petitioner and their children at such times. He is often present in the family residence while the Petitioner is providing daycare for other children and often assists her in providing care for the children. The unrefuted, persuasive evidence adduced by the Petitioner through her testimony and that of her witnesses establishes that she and her husband are loving parents who do not maintain an abusive home. They treat their own children and the children they provide daycare for, as clients, in a loving, responsible and positive way. The Petitioner is in the process of earning her college degree in Early Childhood Education and desires to continue in the business of providing daycare. The lack of an abusive climate in the home is borne out by the fact that the Petitioner's and Mr. Gonsalves's children are in the gifted program in school, and by the fact that K. G.'s grades and scholastic standing at school have marketedly improved since the incident in question. The Petitioner's witnesses, particularly her mother, described Mr. Gonsalves as a loving husband and father who does not commit abuse, who does not drink, smoke or abuse his wife or children. Witness Ayallo, the agency's Licensing Inspector, established that the Petitioner's family daycare home is always in compliance with relevant regulatory rules and statutes, and he corroborated the Petitioner's testimony concerning the history of disciplinary problems caused by her son. Witness Surgine, the Agency's Licensing Specialist established that the Agency only wanted to suspend the licensure because of the fact that the husband, Mr. Gonsalves, would, on occasion, be present in the home when child clients are present. The Agency did not feel that the incident justified a revocation of license. This is an unfortunate, isolated incident. The persuasive evidence of record shows that Mr. Gonsalves is not an abuser of his children, the children of others or his wife, the Petitioner. The Petitioner is operating her facility as an exemplary family daycare home and desires to continue to do so. Even though she and her family are enduring rather straitened financial circumstances, she is successfully pursuing a college degree in Early Childhood Education. The testimony of Ms. Corchado, whose son has been cared for by the Petitioner in excess of three and one-half years, corroborates the exemplary record and caring atmosphere maintained by the Petitioner in operation of her family daycare home. Ms. Corchado has tried many daycare facilities and believes that the Petitioner's is the best one she found in terms of providing a loving, positive, environment for her son. Her son "adores the Petitioner and her family" and has become very close to them, even attending church with them on occasion. The Petitioner helps her son with his school work and Ms. Corchado has never observed or learned of any abuse occurring in the home. The incident which occurred with Mr. Gonsalves and his son is clearly an isolated unfortunate occurrence. It was deeply regretted by all concerned even before the Agency Respondent became aware of it. It is ironic that the Petitioner, who has conducted an exemplary child care facility operation, has been placed at risk for losing her licensure status while other child care facilities licensed by the Respondent with more violations of record which can impinge on the adequate care of children can remain licensed under corrective plans and procedures. The Agency, commendably, has recognized the unjust, automatic operation of the statute at issue herein, in terms of the Petitioner's particular circumstances and incident, by declining to seek revocation of licensure but merely suspension until the issue of Mr. Gonsalves's residence in the daycare facility is resolved. In any event, this was unfortunate effort at child discipline which became a little too heated and went awry. As the Petitioner pithily and eloquently put it, "If you don't discipline your children, they will grow up and the police will do it for you."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services suspending the license of the Petitioner for the above found and concluded reasons but that the suspension be stayed while, under appropriate Department supervision, the Petitioner and Mr. Gonsalves resolve the issue of his residence within the family daycare home location possibility of the licensed daycare home being re-located to another premises or while Mr. Gonsalves acts to secure an exemption (if successful) from the above-referenced disqualifying offense. DONE AND ENTERED this 4th day of January, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 4th day of January, 2006. COPIES FURNISHED: Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Sislyn Gonsalves 2820 Lake Helen Osteen Road Deltona, Florida 32738 George P. Beckwith, Jr., Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 440 Daytona Beach, Florida 32114-3269
The Issue The issues in this case are: (a) Whether Petitioner's license as a family day care home should be renewed; (b) Whether Petitioner was required to list her son, Stephen Randall, as a household member on her annual registration application for a family day care home for 2000 and 2001; and (c) Whether Stephen Randall was a member of Petitioner's household at any time in 2000 and 2001.
Findings Of Fact Based on the testimony and demeanor of the witnesses and the documentary evidence presented, the following findings of fact are made: Petitioner's application for license for a family day care home dated October 20, 1997, was received by Respondent on November 20, 1997. Listed among the "household members" on the application was Petitioner's son, Stephen H. Randall, whose date of birth is March 28, 1981. On January 10, 1998, Petitioner submitted her application for registration for a family day care home; the application was received by Respondent on January 14, 1998. Stephen Randall is also listed as a household member on this application. On January 15, 1998, Respondent wrote a letter to Petitioner acknowledging her desire to withdraw her application for license as a family day care home. On February 18, 1998, Petitioner was registered as a family day care home for one year effective February 28, 1998. The letter advised: To maintain your registration in accordance with Section 402.313, Florida Statutes, you must do the following: * * * (3) Send in background screening forms including fingerprints for household members who become 18 years of age, or for adults who move into your home, or when your substitute changes and has not been screened. On October 26, 1998, Petitioner forwarded a renewal application for registration as a family day care home which listed Stephen Randall as a "household member." As a result of a December 9, 1998, inspection by Respondent, it was determined that an adult who had not been screened was living in the registered day care home and, therefore, Petitioner was notified that screening was to be accomplished "ASAP." On January 12, 1999, Respondent sent Petitioner a Certified Letter reminding her that "Adult members residing in the family day care home must go through a background screening process in accordance with Florida Statutes, " On January 28, 1999, Petitioner telephoned Respondent indicating that she "changed her mind about daycare." This telephone call was followed by a letter from Respondent to Petitioner dated January 29, 1999, indicating, "Per your request January 28, 1999, we have withdrawn your Family Day Care license application and closed your registration effective this date." On April 9, 1999, Petitioner submitted an original registration application which listed her 18-year-old son, Stephen Randall, as living in the home which was to become the registered family day care home. On July 6, 1999, Petitioner, by letter, advised Respondent that "My son Stephen H. Randall is no longer living with me (Maxine Torres)." On July 20, 1999, Respondent mailed Petitioner a letter advising that "The Department of Children & Family Services has registered your Family Day Care Home for one year effective July 30, 1999." The letter also advised Petitioner of the necessity of advising Respondent when unscreened adults move into the home in the same language as contained in paragraph 4, supra. On September 23, 1999, Respondent sent Petitioner a Certified Letter which stated: We have received your letter dated July 7, 1999 in reference to your son, Stephen Randale [sic], moving out of your home. Should he return, he must be background screened within ten (10) days. Please remember that all household members must be screened in accordance with F.S. Section 202.303 and 402.305. Failure to do so in a timely manner may result in administrative action, which could result in a fine, suspension, or revocation. On October 31, 2000, the Circuit Court in and for Orange County, Florida, in Case Number CR-O-00-4737/A adjudicated Stephen Henry Randall, Petitioner's son, guilty of violating the following criminal statutes: Subsections 806.13(1)(b)1, 810.02(3), and 812.014(2)(c)5, Florida Statutes, two of which offenses are felonies, and sentenced him to one day in jail and three years' probation. Stephen Randall had been arrested in April 2000 for the criminal offenses he committed. The offenses occurred at a residence two residences away from Petitioner's home, the registered family day care home. Petitioner submitted an application for re-licensure dated May 14, 2000, in which she was required to disclose the name of "everyone who lives in your home." By signing the application, Petitioner attested that the information on the application was "truthful, correct, and complete." Stephen Randall was not listed as living or residing at Petitioner's home. Respondent's investigators and independent witnesses presented credible testimony indicating that Stephen Randall was residing in Petitioner's residence (the registered day care home) during the calendar year 2000. In particular, an abuse report of an incident in January 2000, indicates that Petitioner reported that she "left her teenage son in the home" purportedly to supervise the children left in Petitioner's care; in June 2000, Petitioner again told an investigator, that if she wasn't there her son, Stephen Randall, her daughter or husband watch the children. In addition, independent witnesses, whose children were at the day care home, reported repeatedly seeing Stephen Randall there. Stephen Randall was living in the residence of Petitioner, which was a registered day care home, during the calendar year 2000 and had not been screened as required by Florida Statutes because Petitioner did not advise Respondent that he had returned and was residing in the home. Respondent investigated two Florida Protective Services abuse hotline complaints against Petitioner and determined the complaints to be well-founded. In both instances, Petitioner failed to properly supervise children left in her care and, as a result, failed to ensure the safety of the children. Independent witnesses confirmed the abuse hotline complaints and presented other complaints, all confirming that Petitioner failed to properly supervise children left in her care and failed to ensure their safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for re-licensure of her family day care home. DONE AND ENTERED this 16th day of May, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2002. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 James Sweeting, III, Esquire 506 West Washington Street Orlando, Florida 32801 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
