The Issue Whether Petitioner is disqualified from employment in positions requiring him to work with children or the developmentally disabled and, if so, whether he is entitled to an exemption from such disqualification.
Findings Of Fact Petitioner's employer, Youthland Academy Child Care Facility, is a day care facility that works with children. The employer submitted Petitioner's name to Respondent for a background screening pursuant to Section 402.305(2)(a), Florida Statutes. The background screening reflected that Petitioner had an extensive arrest record between June 1983 and January 1999. The screening also reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on April 25, 1994. The underlying offense was an act of domestic violence against the person of April Cox (the mother of a child by Petitioner) on November 17, 1994. The screening further reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on November 6, 1997. The underlying offense was an act of domestic violence against the person of Tanya Anne Austin (also the mother of a child by Petitioner) on June 15, 1997. A charge of violating an injunction against domestic violence was nolle prossed as part of a plea agreement. On April 21, 2000, Respondent attempted to notify Petitioner in writing that he may be ineligible for continued employment in a position of special trust working with children or the developmentally disabled because of the acts of domestic violence on November 17, 1994, and June 15, 1997. That certified mailing was not picked up by Petitioner. Thereafter, on June 5, 2000, Respondent re-mailed the notification letter to Petitioner at his place of employment. The notification letter advised Petitioner of his rights to an exemption hearing, but required that he request such hearing within 30 days from his receipt of the letter. The notification letter also advised Petitioner that he could request a formal or informal hearing to challenge the accuracy of his criminal record. As of August 10, 2000, Petitioner had not responded to Respondent's letter of June 5, 2000. On that date, Ms. Barton advised the director of Youthland Academy that Petitioner had been disqualified from working with children or the developmentally disabled. On August 16, 2000, Petitioner responded to Ms. Barton's letter stating that he had misunderstood the notification letter, that he wanted to explain the circumstances of the two incidents of domestic violence, and that he wanted a hearing. Petitioner did not dispute the accuracy of his criminal record at the final hearing. Although Petitioner presented testimony as to the circumstances involved in each conviction at issue in this proceeding, that evidence merely confirmed that each incident constituted domestic violence. Petitioner failed to establish that he should not be disqualified from working with children or the developmentally disabled, that he has been rehabilitated since his last criminal conviction, and that he would not present a danger if continued employment is allowed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Petitioner is disqualified from working with children or the disabled. It is further RECOMMENDED that the final order find that Petitioner is not entitled to an exemption from that disqualification. DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of February, 2001. COPIES FURNISHED: Kalvin T. Davis 2100 Northeast Third Court Boynton Beach, Florida 33435 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Virgina 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 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent should continue to allow the Bambi Day Care I child care facility to remain open for business.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Bambi Day Care I (Facility) is a child care facility located in Miami-Dade County. At all times material to the instant case, Mercedes Arabi has been the director of the Facility. Ms. Arabi does not now have, nor has she ever possessed, a director credential issued by Respondent. Although she has attempted to obtain such a credential, she has not been able to meet the credentialing requirements. On or about August 13, 2003, Respondent sent to the Facility (by certified mail, return receipt requested) a form letter advising of the following: The deadline for the Director's Credential is January 1, 2004. This is mandated by Chapter 65C-22, Florida Administrative Code. Each child care facility must have a director that meets this requirement by January 1, 2004. Failure to comply will affect your licensure status seriously. If you have already completed the Director Credential requirement, please disregard this letter and mail or fax immediately a copy of your certificate for your licensing record. (Include the name of your facility.) The same letter was sent to all other licensed child care facilities having an uncredentialed director. The letter was delivered to the Facility on August 21, 2003. Not having received any indication that Ms. Arabi had obtained the required director credential, Respondent, on or about January 16, 2004, changed the Facility's licensure status by issuing a provisional license, effective from January 2, 2004, through July 2, 2004, authorizing the Facility's operation. As of July 2, 2004, Ms. Arabi still had not become credentialed. Accordingly, on that date, Respondent advised her that it "intended to revoke [her] license to operate [the Facility]." Ms. Arabi requested an administrative hearing on the matter. Notwithstanding that the expiration date on the Facility's provisional license was July 2, 2004, Respondent has affirmatively allowed the Facility to continue to operate pending the outcome of Ms. Arabi's challenge to the revocation action announced in Respondent's July 2, 2004, letter. In doing so, it has effectively extended the life of the Facility's provisional license (which, for all intents and purposes, remains in existence).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent issue a Final Order revoking its permission allowing the Facility to operate as a child care facility. DONE AND ENTERED this 27th day of December, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 2005.
The Issue The issue is whether Petitioner is entitled to an exemption from disqualification from employment in a position of special trust or responsibility with Respondent.
Findings Of Fact Petitioner was born on March 1, 1976. She has earned her bachelor's degree in elementary education and will soon earn her master's degree in educational leadership. From 1999 through 2003, Petitioner worked as a substitute teacher for the Polk County School Board. During the 2004-05 school year, Petitioner is employed by the Polk County School Board as a fulltime classroom teacher; she is teaching a first-grade class. From May 2002 through March 2004, while employed as a substitute teacher, Petitioner also worked part-time as a program technician for Sunshine Youth Services. Sunshine Youth Services is a contract provider of Respondent and, as such, is bound by Chapter 435, Florida Statutes. In November 2003, Respondent learned that Petitioner had been convicted of simple battery on January 3, 1994, in Springfield, Georgia, when she was 17 years old. In March 2004, Sunshine Youth Services suspended Petitioner due to the 1994 incident, which Respondent determined was a disqualifying offense under Section 435.04, Florida Statutes. Petitioner subsequently initiated a proceeding to obtain an exemption from disqualification in employment. As a program technician for Sunshine Youth Services, Petitioner provided direct care to youth aged 13-18 years. She worked 32 hours weekly, counseling and caring for the youth assigned to her. The youth were disabled and often presented behavior problems, but Petitioner never had any problems caring for the children or maintaining order. The 1994 incident was an altercation between Petitioner and her female cousin, who was also 17 years old at the time, that took place during Christmas vacation while they were visiting at their grandmother's home. Neither girl was injured, but both were processed by the criminal justice system. The judge found each child guilty of simple battery and fined each of them $122. Petitioner has long been active in her church, the New Mt. Zion AME church. She is currently the youth director and is a steward of the church. She has lived in Dundee since 1983 and has not been in trouble besides the 1994 incident. Petitioner has long worked with children and the elderly and has never had any problems in providing care to these vulnerable groups. Although she did not reveal the Georgia conviction in an application for background screening, which she submitted to Respondent, Petitioner did not know, at the time, that she had been convicted of a crime in connection with her fight with her cousin when they were both 17 years old. Petitioner has proved by clear and convincing evidence that she has rehabilitated herself since the 1994 juvenile incident and that she poses no threat to children or disabled persons, if she is permitted to work in her previous job as a program technician with Sunshine Youth Services or in a similar position with another service provider.
Recommendation It is RECOMMENDED that the Department of Juvenile Justice enter a final order granting Petitioner an exemption from employment disqualification, pursuant to Section 435.07(3), Florida Statutes. DONE AND ENTERED this 23rd day of September, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2004. COPIES FURNISHED: Anthony Schembri, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Marecia Jefferson Post Office Box 102 Dundee, Florida 33838 M. Linville Atkins Assistant General Counsel Department of Juvenile Justice 2737 Centerview Drive, Suite 312 Tallahassee, Florida 32399-3100
Findings Of Fact In March of 1987, the Petitioner, Mitchell M. Green, was employed with the Department of Health and Rehabilitative Services as a child support enforcement investigator. He had been employed by the Department since 1982. On March 17, 18 and 19, 1987, the Petitioner did not report for work, and did not call in to any of the persons who supervised him to explain his absence. Previously, the Petitioner had not requested leave for March 17-19, and leave had not been authorized. On March 20, 1987, the Department notified the Petitioner that his failure to report for work on March 17, 18 and 19 when he was scheduled to work, without contacting his supervisor, and without authorized leave, constituted abandonment and resignation from the position under Rule 22A-7.010(2), Florida Administrative Code, and that his employment was terminated. The Petitioner was aware of the abandonment provision in the Department's rules. He had acknowledged receipt of a copy of the Department handbook containing these rules on July 8, 1986. The testimony of the Petitioner, his father, and his mother established that the Department had given the Petitioner an "Exceeds Performance Standards" rating on his last evaluation, that the Petitioner had been diagnosed as having cancer in February of 1985, that the Petitioner had requested leave in January, 1987, but was refused because he had no more leave, and that the Petitioner was upset about conditions at work. These factors are irrelevant, however, because they do not excuse or justify a failure to report to work without obtaining authorized leave or notification that assigned work will not be performed because of absence.
The Issue Whether Petitioner, Palm Beach County School Board (Petitioner or School Board), has just cause to discipline the employment of Rebecca Sorensen (Respondent or Ms. Sorensen) based on the conduct alleged in the “Petition.” Also at issue is the appropriate penalty, if any.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Palm Beach County, Florida. Respondent has been an employee of the Petitioner since 1987. At all times relevant to this proceeding, Respondent was an assistant principal employed by Petitioner at Hagen Road, which is a public elementary school in Palm Beach County, Florida. Petitioner’s Policy No. 5.30 requires that, “(a) District employees who know or have reasonable cause to suspect, that a child is an abused, abandoned, or neglected child shall immediately report such knowledge or suspicion to the Department of Children and Families’ [sic] Florida Abuse Hotline (1-800- 96ABUSE, 24 hours a day)." Section 39.201(1)(a), Florida Statutes, provides, as follows: (1)(a) Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child's welfare,[1] as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2). (b) Reporters in the following occupation categories are required to provide their name to the hotline staff: * * * School teacher or other school official or personnel; Respondent’s position as an Assistant Principal at Hagen Road is included within the definitions of school personnel for purposes of Section 39.201(1)(a), Florida Statutes. The requirement to report suspected child abuse was reiterated in the Faculty Handbook for Hagen Road for the 2008- 09 school year. Cheri Rosen is the assistant director of Hagen Road’s after school care program. Ms. Rosen’s son and Student J. were in the fifth grade during the 2008-09 school year and have been friends since their first grade year. Labor Day fell on September 1 in 2008. On August 28, 2008, the Thursday prior to Labor Day, Student J. spent the night at Ms. Rosen’s house because his grandfather was hospitalized for medical tests. Student J. told Ms. Rosen’s daughter of an incident that occurred in December 2007, while Student J. was being baby-sat at his grandfather’s house, by the male counselor from the Hagen Road after school care program. Ms. Rosen’s daughter immediately told her father (Mr. Rosen) who instructed his daughter to tell her mother (Mrs. Rosen). Immediately after her daughter talked to her, Ms. Rosen asked that Student J. come tell her firsthand what had happened. Student J. told Ms. Rosen that while he was being baby- sat by the male counselor at his grandfather’s house in December 2007, just before winter break, the male counselor had taken a live snake and wrapped it around his (the male counselor’s) penis and told Student J. to look. Student J. told Ms. Rosen that he looked and then looked away. Student J. related that the male counselor told Student J. “now its your turn.” Student J. told Ms. Rosen that he said no and walked out of the room. Ms. Rosen told Student J. that she was going to have to tell his grandfather about the incident, and that she was also going to report this to Ms. Lamb, who was Ms. Rosen’s supervisor at the after school care program. Ms. Rosen spoke to Ms. Lamb shortly after her conversation with Student J. Ms. Lamb advised Ms. Rosen that she should tell the Student J.’s grandfather that he should contact the police. She further told Ms. Rosen, incorrectly, that she did not have to go through the school because the alleged incident occurred at the residence of Student J.’s grandfather, and because Student J. reported the incident at her home. Two days after Ms. Rosen’s conversation with Student J., his grandfather returned home from the hospital. Ms. Rosen and her husband visited with the grandfather and related to him the incident as Student J. had related it to them. The grandfather, who tried to remain calm because he has a heart condition, asked what he should do next. Ms. Rosen told him he had to go to the police. When Ms. Lamb returned to school on September 2, 2008, she had a voice mail from Student J.’s grandfather. She tried to return the call, but she could not reach him. On Thursday, September 4, 2008, Respondent was paged by a Ms. Ciavolino, the school treasurer and bookkeeper. Ms. Ciavolino related that Student J.’s grandfather had just called, told her about the incident, and said that he wanted advice from Respondent. Shortly thereafter on September 4, 2008, Student J.’s grandfather called Respondent to talk with her about the incident. The grandfather was hesitant, so Respondent told him what Ms. Ciavolino had told him, and Respondent also told him that she knew he wanted advice. After the grandfather confirmed what Ms. Ciavolino had related to her, Respondent advised the grandfather that the incident needed to be reported right away. She asked the grandfather where he lived in an attempt to determine whether the Delray Beach Police Department (DBPD) or the Palm Beach County Sheriff’s Office would have jurisdiction. She also told him that it would need to be reported to the Department of Children and Family Services (DCFS). Although he remained hesitant, the grandfather told Respondent that he would report the incident. On September 4, 2008, Respondent instructed Ms. Lamb to keep the male counselor away from Student J. and all other students. At that time, the male counselor was preparing to leave in a week or two to join the military. In the interim, he had been assigned to train new counselors, which did not require that he have direct contact with children. The male counselor remained on Hagen Road campus until he was removed as a result of the police investigation that ensued. Other than her instructions to Ms. Lamb, Respondent took no further action to ensure that the male counselor would have no contact with children. Respondent did not report the allegation of abuse to her principal (Mr. Hughes), to any law enforcement agency, or to the DCFS. Further, she did not instruct Ms. Rosen, Ms. Lamb, or Ms. Ciavolino to file any type of written report.2 Respondent testified that she did not feel she had to file a report because Student J.’s grandfather agreed to file a report. Respondent further testified that she did not feel she had to file a report because she heard of the allegations from the grandfather and not the student. On September 9, 2008, Student J.’s grandfather reported the incident to the DBPD which immediately began an investigation in conjunction with a DCFS investigator. As a result of the DBPD/DCFS investigation, Mr. Hughes learned of the allegations and immediately barred the male counselor from the school campus. Thereafter, Petitioner’s Police Department began its own investigation of Respondent based on her conduct and failure to act as described in this Recommended Order. All relevant procedural steps were taken by Petitioner in bringing these charges against Respondent. Part of the procedure requires a pre-disciplinary meeting at which the subject of an investigation is given the opportunity to give his or her version of the events. Respondent declined to attend the pre-disciplinary meeting on advice of counsel because at the time of the meeting a criminal investigation was being conducted.3 After the pre-disciplinary meeting, the matter was referred to Petitioner’s Employee Investigatory Committee (EIC),4 who recommended that the subject charges be brought against Respondent with the recommended disposition of a ten-day suspension of employment without pay. That recommendation was forwarded to Dr. Johnson in his capacity of Superintendent of Schools, who agreed with the recommendations of the EIC and submitted the recommendation to the School Board. On April 8, 2009, the School Board voted to accept the recommendation, subject to Respondent’s rights pursuant to the provisions of Chapter 120, Florida Statutes. The greater weight of the credible evidence established that Respondent had a reasonable basis to believe that Student J. had been subjected to sexual abuse and that she did not report that abuse to her principal, the FDCS hotline, or law enforcement. The greater weight of the credible evidence also established that Respondent took insufficient steps to protect Student J. from the male counselor after she learned of the allegations of abuse. In reaching this finding, the undersigned has considered that Principal Hughes barred the male counselor from school premises as soon as he learned of the allegations. Respondent did not bar the male counselor from the school premises, but merely instructed Ms. Lamb to make sure that the male counselor “. . . would not be with children until this was resolved.”5 Respondent’s employment has not previously been disciplined. Other than the facts set forth above, Respondent has been, in the words of Principal Hughes, a fantastic assistant principal who has performed above expectations.6
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order suspends Respondent’s employment without pay for a period of ten days. DONE AND ENTERED this 18th day of November, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 18th day of November, 2009.
