The Issue The issue is whether Petitioner and her family are entitled to services on account of her developmental disability.
Findings Of Fact Petitioner was born on September 8, 1981. Seven years ago, she suffered a severe brain injury as a result of five hours of diabetes-induced seizures resulting from low blood sugar. The incident left Petitioner in an entirely dependent state. Presently, at 20 years old, Petitioner has the intellectual development of a two-year-old and requires constant care, seven days a week, 24 hours a day. Petitioner's present condition actually represents a marked improvement from her condition immediately after the seizures and brain injury. Declining to institutionalize Petitioner, her parents have provided the care that Petitioner has needed to regain her abilities to walk and talk (with considerable difficulty) and to use her arms and hands. Despite these dramatic developments, Petitioner still requires as much care as she required immediately after the injury; she cannot, for example, feed herself or maintain continence. Behaviorally, Petitioner presents a considerable challenge due to her nonexistent impulse control and tendency toward explosive outbursts. At 5 feet, seven inches tall and 200 pounds, Petitioner is strong, and she is capable of attacking with unmediated force. Petitioner's father, who is 48 years old, is six feet, one inch tall and weighs 350 pounds. Her mother, who is 42 years old, is at least the size of Petitioner. When infuriated, Petitioner can physically overpower her parents, as well as her 18-year-old and 22-year- old siblings--all of whom have suffered injuries from Petitioner's attacks. Petitioner's father has suffered cellulitis at the site of an injury that he sustained from one of his daughter's attacks. Petitioner has a very limited attention span and frustrates easily. She does not like being closed in, and, when upset, she strikes out. In addition to attacking her caregivers, Petitioner has damaged property in her outbursts. Her father estimates that Petitioner has broken seven motor vehicle windshields--sometimes while the vehicle was in operation. Several times a day Petitioner becomes agitated and engages in physical outbursts. Managing Petitioner's unpredictable and dangerous behavior has placed considerable demands on her parents. Petitioner's father is the senior pastor of North Palm Baptist Church in Miami. Petitioner's mother is an administrative assistant to the Director of Missions of the Miami Baptist Association. Each weekday during the school year, Petitioner leaves home at 6:00 a.m. to ride a bus to her special school, and she returns by bus at 3:30 p.m. Her father must cut short his workday to meet the school bus each afternoon. For respite care, Petitioner's parents seek the assistance of a person capable medically of supervising Petitioner's severe diabetes, such as administering her injections, and capable physically of handling Petitioner's disruptive behavior. Petitioner's father normally sleeps near Petitioner, who wakes up every time her covers come off, which may happen 75 times a night. The intensive, unending care that Petitioner's parents have had to provide their daughter has caused them great stress. For speech therapy, Petitioner's parents seek assistance to remediate Petitioner's extensive verbal deficits. For two years after the incident, Petitioner was nonverbal. Her ability to articulate has slowly improved, but she remains nonverbal at school. For personal services, Petitioner's parents seek the assistance of a person to meet Petitioner when she gets off the bus from school, give her a snack, bathe her, and attend her until her parents come home from work. This person must have the physical capability of ensuring that Petitioner does not injure herself or others during one of her frequent and unpredictable outbursts. Petitioner and her parents moved to Florida from South Carolina in July 2000. Within a month, Petitioner had applied for developmental disability services. However, Petitioner has not been able to obtain general revenue-funded services or Home and Community-Based Waiver services funded by Medicaid. In rejecting Petitioner's request for services, Respondent has relied on two documents: "Developmental Disabilities Home and Community Based Services Waiver Fiscal Year 2001-2002 Spending Plan Instructions" (Spending Plan) and "Developmental Disabilities Program Crisis Identification Tool-- revised 9/2001" (Crisis Identification Tool). Respondent also relies on testimony that Petitioner lacks the funds to provide developmental disability services to all applicants. Although Respondent does not dispute that Petitioner otherwise qualifies for the developmental disability services that she seeks--from both programs--Respondent contends that she does not qualify under the Spending Plan and related documents, which Respondent contends it must apply due to the lack of funds. The Spending Plan states in part: By June 30, 2001, [Respondent] expects to serve 25,002 persons through the Developmental Disabilities Home and Community Based Services Waiver (Waiver). . . . In order to be able to serve the greatest number of persons possible within the legislative appropriation for Waiver services, [Respondent] will implement a number of strategies to ensure that appropriate Waiver services are provided in the most cost-effective manner. . . . * * * Spending Plan priority for FY 01-02: Remaining persons from July 1, 1999 waiting list--350 persons who will be served during July and August 2001. Cramer v. Bush class members--estimated 20 persons who will be served upon request, throughout the fiscal year. Persons who are determined to be [in] crisis who were not on the original waiting list--estimated at 10 persons per month and to be served throughout the fiscal year. Persons discharged from the Mentally Retarded Defendant Program. Persons who have become clients since July 1, 1999, in date order (new waiting list)--projected to be approximately 6,284 persons remaining to be phased in between March 2002 and June 2002, subject to vacancies on the Waiver and available funding. The list of such individuals will be developed at the central office; persons will be served in date order, based on the date the individual became a client. In order to serve the estimated 6,774 individuals who are projected to want and need Waiver serves during FY 01-02, enrollment on the Waiver will be phased in as described above. Compliance with the Spending Plan Compliance with the approved Spending Plan for FY 2001-2002 is required of all Department employees. The Central Office will monitor all enrollment activity and notify districts when an individual has been enrolled on the Waiver, and to proceed with the provision of services. The Central Office of the Developmental Disabilities Program will review and process District requests for assignment of a Waiver slot, based on the District's "crisis" determination. Upon completion of the Central Office review, where the Central Office has confirmed a determination of "crisis", the District will be notified when the individual is enrolled on the Waiver, and to proceed with the provision of services. The use of non-Waiver funds (Individual and Family Supports (IFS) budget category) to fund services for additional persons who are awaiting enrollment on the Waiver is prohibited. Personal Care Assistance Services As required by Medicaid regulations, [Respondent] must require the use of regular Medicaid State Plan services when the individual is eligible to receive the services through the Medicaid State Plan. Provision of Waiver services must also comply with federally approved service definitions. Developmental Disabilities currently provides personal care assistance services to 1,232 children. Some of these children may be eligible under regular Medicaid EPSDT (Early, Periodic Screening, Diagnosis & Treatment) coverage. Medicaid state plan covers Personal Care Assistance for children who are eligible to receive nursing services. Children eligible for personal care assistance under Medicaid state plan must receive the service through this funding. [The ensuing five paragraphs continue to discuss children, the Medicaid state plan, and the Waiver.] New requests for personal care assistance will be assessed first to determine whether Medicaid state plan is appropriate. If this is not appropriate, the need for coverage under the Waiver will be made according to the federally approved service description. * * * Require Use of Waiver Funding, where available Because of limited funding and the need to maximize the use of General Revenue funds by obtaining federally matching funds wherever possible, Individual and Family Supports (IFS) funding is no longer available for persons who are eligible to receive Waiver- funded services, but who have refused services funded through the Waiver. Some people who are eligible have rejected services funded through the Waiver. [Respondent] will offer Waiver services to those individuals. For those who continue to refuse services funded through the Waiver, IFS expenditures will be discontinued due to lack of funding, with appropriate due process notice. Maximize Federal Funding Similarly, effective immediately, all covered Waiver services must be provided through Waiver funding. The purchase of Waiver billable services through the IFS budget category is no longer allowable, unless the Central Office has approved an exception. * * * The legislative proviso language supplied after the hearing by Respondent consists of selections of "Conference Report on SB 2000: General Appropriations for 2001-02--May 1, 2001." The relevant portion states: Funds in Specific Appropriations 374 and 377 are intended to provide Home and Community-Based Services Waiver Services in accordance with a spending plan developed by [Respondent] and submitted to the Executive Office of the Governor for approval by November 1, 2001. Such plan shall include a financially feasible timeframe for providing services to persons who are on waiting lists for fiscal years 1999-2000 and 2000-2001 and those eligible persons who apply for services during fiscal year 2001-2002. Such persons shall be enrolled in the waiver in accordance with [Respondent's] policy for serving persons on the waiting list. Two other, related documents are relevant. The Crisis Identification Tool identifies several categories of crisis. The first category is a criminal court order. The second category is a danger to self or others, which requires a current exhibition of "behaviors that": result in harm to the person or others that, in turn, creates a life-threatening situation for the person or others or will result in bodily harm to the person or others that will require emergency medical care from a physician if services are not provided immediately. The other categories are "confirmed abuse/neglect," "homeless[ness]," "caregiver unable to give care," and "health issues." Under the unable-caregiver category, the Crisis Identification Tool adds: The individual's current caregiver is expressing extreme duress, is no longer safely able to provide care for the individual due to advanced age, illness or injury and the individual is in immediate need of services in order to remain living with the caregiver or to locate an alternative living arrangement. . . . The remainder of the Crisis Identification Tool warns applicants that there is a waiting list for services in the Waiver program, even for those applicants classified as in crisis. Developmental Disabilities Program Policy Directive PD#01-07, issued September 25, 2001 (Policy Directive), confirms this warning when it warns: With 2001-02 appropriations and the Spending Plan, "[Respondent] will have funding to enroll up to a total of ten persons per month statewide on the Waiver, who are in crisis." Noting that the Crisis Identification Tool will remain in effect until June 30, 2002, the Policy Directive emphasizes that "[t]his policy will clarify the procedures used in determining the ten crisis cases per month statewide in accordance with the 2001-2002 Spending Plan." The Policy Directive describes the procedures for completing and examining a Crisis Identification Tool. The Policy Directive notes that, for applicants posing a danger to self or others, the District's behavioral analyst, local review committee chair, or other appropriate behavior analysis professional must review the Crisis Identification Tool and make a recommendation. After completing its tasks, the District committee sends the Crisis Identification Tool to the Developmental Disabilities central office in Tallahassee. The central office meets one week monthly, through June 2002, to "determine individuals in most critical need." The Policy Directive adds that the "[i]ndividuals who were not selected . . . will be carried forward and reconsidered each month until they are determined to be one of the ten crisis cases for a month or they are served in accordance with the spending plan." In the alternative, the central office may also find that the individual is "not . . . in need of immediate waiver services" and inform the individual of its finding. As noted in the Preliminary Statement, Petitioner seeks developmental disability services in DOAH Case No. 02-1238 and in DOAH Case No. 02-1241. The Developmental Disabilities Hearing Request described in the Preliminary Statement distinguishes between two programs based on funding sources: Medicaid waiver and general revenue. DOAH Case No. 02-1241 requests services under the Home and Community-Based Services Waiver program, in which the federal government has provided Florida with funds, under a waiver of institutionalization requirements, for certain developmental disability services to eligible persons. DOAH Case No. 02-1238 requests services under a state program in which Respondent uses largely, if not exclusively, general revenue funds to purchase certain developmental disability services for eligible persons. The focus of both these cases has not been on Petitioner's general eligibility, but on Respondent's limited funds and Petitioner's eligibility based on spending-prioritization policies that Respondent has adopted and the Legislature has approved. The Spending Plan, Crisis Identification Tool and legislative proviso language approving the Spending Plan all expressly pertain to the Waiver program. The Spending Plan addresses the relationship between the Waiver program with the general revenue-funded program, which is identified at least partly as Individual and Family Supports funding, by warning that persons who have refused Medicaid Waiver-funded services or who are even "awaiting enrollment" in the Waiver program may no longer obtain general revenue-funded services. Under the Spending Plan, Crisis Identification Tool and legislative proviso language, Petitioner is properly denied developmental disability services under the Medicaid Waiver-funded program. In addition to confirming the insufficiency of funds in the Waiver program, these documents demonstrate that Petitioner fails to satisfy a prioritization criterion that could gain her earlier funding. Arguably, Petitioner was entitled to classification as an individual in crisis, either due to her posing a danger to her self or others or due to the "extreme duress" suffered by her parents as caregivers. However, the record permits no basis to overturn the decision of Respondent's central office that, for each month, other crisis applications posed greater urgency. Although the central office should have maintained Petitioner's Crisis Identification Tool for reconsideration each month, the record permits no basis to revisit any of the central office's decisions during the ensuing months, and the term of the procedures governing the use of the Crisis Identification Tool expired at the end of last month. However, the Spending Plan, Crisis Identification Tool, and legislative proviso language do not address the general revenue-funded program. Petitioner is eligible for developmental disability services covered by this program. Respondent's proof of lack of funds in this program is itself insufficient, unsupported by the documentation that accompanies Respondent's same claim as to Medicaid Waiver-funded services.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for covered developmental disability services in DOAH Case No. 02-1238 and denying Petitioner's application for developmental disability services in DOAH Case No. 02-1241. DONE AND ENTERED this 10th day of July, 2002, in Tallahassee, Leon County, Florida. 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 10th day of July, 2002. COPIES FURNISHED: Paul F. Flounlacker, Jr., 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 Reverend Ronald Satterwhite Qualified Representative 8260 Northwest 172nd Street Hialeah, Florida 33015 Hilda Fluriach District 11 Legal Counsel Department of Children and Family Services 401 Northwest Second Avenue Suite N-1020 Miami, Florida 33128
The Issue Whether Respondent failed to meet the criteria for renewal of her license to operate her day care center.
Findings Of Fact At all times pertinent to this proceeding prior to February 11, 1998, Respondent, Eleanor Pennell, was duly licensed by Petitioner (or its predecessor agencies) and was the owner and operator of Miss Ellie's Child Care Center in Vero Beach, Florida. Respondent's license for the year 1996-97 was scheduled to expire November 10, 1997. Respondent applied to Petitioner for a renewal of her license. The effective date of the annual renewal, had it been granted, would have been November 11, 1997. Respondent timely applied for the renewal of her license. As part of the renewal process, the subject premises were inspected on October 29, 1997, by Sue Banek, a day care licensing counselor employed by Petitioner.1 Ms. Banek completed a form entitled "Child Care Facility Inspection Checklist" (Checklist) wherein she noted several deficiencies. Ms. Banek discussed those deficiencies with Ms. Pennell. Named as deficiencies were the following items: the children's applications were not properly filled out; the planned activities were not properly posted; the personnel applications were not complete; personnel had not been properly screened or trained; the yard needed to be cleaned; and locks needed to put on cabinets. Ms. Banek inspected the subject premises again on November 4, 1997, and completed another checklist. Again, Ms. Banek discussed her findings with Ms. Pennell. The deficiencies noted by Ms. Banek were the subject of a Corrective Action Plan attached to a letter to Ms. Pennell dated November 11, 1997. By this letter, Petitioner granted Respondent a provisional license for a period of two-months, but instructed her to correct the deficiencies during the two-month period as provided by the Corrective Action Plan. The provisional license was scheduled to expire January 11, 1998. The Corrective Action Plan for Respondent provided as follows: Corrective action to be completed no later than dates given for each item. Personnel files are to be set up reflecting staff physicians, including TB tests, copies of driver's licenses, application, reference checked, form 5131 (blue card) and training card for training completed (yellow card) by November 13, 1997. Standing water drained daily an horse [sic] shampoo bottles removed immediately. Crawl space securely covered by November 13, 1997. Broken or cracked toys removed from playground by November 13, 1997. Kitchen cabinets cleaned and secured by November 13, 1997. Staff will be enrolled in training by January 9, 1998. Affidavit of compliance available by November 13, 1997. Radon testing initiated or copy supplied to Licensing Counselor by November 13, 1997. Ms. Banek inspected the premises again on November 11, 1997, and December 12, 1997. On December 18, 1997, Petitioner wrote Ms. Pennell a follow-up letter, which discussed Ms. Banek's findings, in pertinent part, as follows: The recent issue [sic] of a PROVISIONAL license #091278 to provide day care services for children at Miss Ellie's Child Care Center is conditional on a number of very important concerns that have been addressed with you by the below named counselor (Ms. Banek) and in a Corrective Action Plan dated 11/7/97. In addition, a cover letter dated November 11, 1997, with the provisional license indicated the importance of getting these deficiencies corrected immediately. Our inspection status at this point has found little improvement in the conditions of your child care facility. Consequently, we are placed in a position of having to notify you that the closing of your facility is imminent unless you can satisfy all requirements within two weeks of the date of this letter. These requirements include: Posting this letter and the provisional license issued in a conspicuous place inside of and near the entrance to your facility where it is clearly visible to visitors. A complete cleaning and refurbishing of the furniture, equipment, playthings, and other equipment used or contacted by the children. Cabinets, kitchen, and food equipment need also to be cleaned thoroughly. All tools and implements and toxic and hazardous material must be secured in locked storage or placed in areas totally inaccessible by the children. Child-proof safety locks must be installed on all doors that children can reach that contain any substance or materials potentially harmful to them. All bottles, glass jars, opened food, and other containers must be stored completely away from child care areas or where children can access them. Preparation and completion of all child and staff files so that our counselor can satisfactorily review these files. Planned child care activities are required for all children over one year of age. The activity scheduled needs to be posted an followed by your staff. All items recorded on the Environmental Health form 12/16/97 must be satisfied and the follow-up inspection planned by that office on 12/30/97 must be satisfactory with a recommendation for licensing so stated.2 You have been found to be absent when children are in care at your facility. Our understanding is that this leaves no one responsible for children that is certified to administer first aid or CPR. A person trained in this [sic] must be on premises at all times the children are present. We understand that you are transporting children in your personal auto that may not be covered by proper insurance nor has it had the required annual inspection. Children must not continue to be transported in this manner. We understand you acknowledge you have not had the required TB test. This must be corrected. We are mandated to inform you that continued non-compliance will result in fines and/or suspension or revocation of your license. Within the next week we will contact you for information on actions you have taken to improve the conditions. We will review the provisional status of your license no later than January 5, 1998. We ask for you to see that all conditions needing correction are fully satisfied before that date. Ms. Banek inspected the facility again on January 5, 1998. Her inspection checklist noted several deficiencies that she discussed with Respondent. Those deficiencies were discussed in more detail in a letter dated January 9, 1998. By this letter, Petitioner issued a second provisional license to Respondent, which was valid until February 11, 1998. Attached to the letter of January 9, 1998, was a statement of the deficiencies that required correction. That statement provided, in pertinent part, as follows: Provisional status has resulted due to non- compliance of the requirements of sections 402.301-319, Florida Statutes, and 65C-22, Florida Administrative Code. Specific items needing attention and discussed with you during an inspection visit of January 6, 1998, include: Standards for supervision of children imposes staff/child rations per S. 402.305(4) and (5)(a) and (b), Florida Statutes. You have been found to be absent from the facility which violated the staff/child ratio requirements. You must provide information as to how you will correct this no later than January 12, 1998. * * * You must provide a written discipline policy for our inspection per S. 402.305(12), Florida Statutes, that is made available to parents and staff. Signed statements need to be available in staff and children's records indicating that the policy has been explained and understood. You have not completed this. A written discipline policy must be made available for inspection no later than January 12, 1998. The signed statement must be in all staff and children's records no later than January 16, 1998.3 * * * Kitchen cabinets are full of materials and items that are hazardous and/or threaten the health and safety of young children. This must be corrected satisfactorily by January 12, 1998, to meet the provisions of S. 402.305(5), Florida Statutes. * * * Monthly fire drills are required by S.402.305(5), Florida Statutes. A record of these must be kept and posted. You must indicate compliance with this by having a fire drill in our presence on January 12, 1997 [sic] and by maintaining these requirements.4 * * * Training standards are described in S.402.305(2)(b). Our inspection found no documentation of training for you for the preceding year and one half nor any evidence of payment for enrollment in training for Jessica Green within her first 90 days of employment. You need to provide written documentation of enrollment in training for both of you by January 16, 1998. * * * Emergency telephone numbers must be posted per S.402.305(2)(e). This must be completed satisfactorily by January 12 1998. * * * Personnel files must include specific documents defined by S.402.302(8), Florida Statutes. Inspection of these files shows no employment application for Jessica Green. This must be completed and provided for the file by January 12, 1998. * * * The documents required in children's files are defined in S.402.305(9). All missing or incomplete documents must be corrected and in respective files by January 16, 1998. No child may attend your facility without a complete enrollment application on file beginning January 12, 1998. * * * Deficiencies cited in the county environmental inspection have not been corrected. Those deficiencies are listed on the documentation dated 12/30/97 and must be found to be corrected by January 16, 1998. Ms. Banek inspected the facility on January 12 and on January 16, 1998. Petitioner prepared a letter dated February 5, 1998, that purported to revoke Respondent's day care license effective at the close of business on February 11, 1998. That letter provided, in pertinent part, as follows: This office informs you that your license #091278 to operate Miss Ellie's Child Care and Preschool Center is hereby REVOKED FOR UNCORRECTED VIOLATIONS found by the Department. You must not continue to provide day care for children unrelated to you or for a fee, and you must immediately surrender your certificate to this office. We must ask your cooperation so that further legal action does not become necessary. Our inspection activities find that the requests for corrective action plans provided to you with our letters of November 11 and December 18, 1997, and the list of specific compliance requirements per our letter of January 9, 1998, with the issue of a provisional license have not been satisfied. You have not made the required efforts to improve the conditions for the safe protection and care of children. Licensed day care facilities must fully meet the provisions of Chapter 402.301-319, Florida Statutes, and Rule 65C-22, Florida Administrative Code, copies of which have been provided. The facts known to this office include: On November 11, 1997, you were issued a provisional license valid for two-months to allow you time to satisfy a corrective action plan prepared with you. Numerous violations of licensing standards were listed in that plan that needed correction. Some of these standards have not yet been made. After inspection visits during the provisional license period, a letter dated December 17, 1997, was sent to you by certified mail specifying the particular items needing immediate correction for the lifting of the provisional license. You were informed by this letter that revocation of your license could ensue if standards were not met. A letter dated January 9, 1998, was sent to you with an up-dated [sic] corrective action plan enclosed that specified the compliance needed and a date by which to correct each deficiency noted. Your provisional license was extended for ONE month, until February 11, 1998, based on some progress that you had made on your corrective plan. Follow-up by our counselor on January 12 and 16, 1998, found only two of the eight5 deficiencies noted to be corrected with no progress on the remaining six. The corrective action plan developed with you has not produced changes that adequately provide for safe child day care in your facility. . . . On February 6, 1998, Petitioner filed an Administrative Complaint against Respondent that tracked the language of the revocation letter dated February 5, 1998. On February 11, 1998, Respondent closed her day care center. Respondent made substantial progress in correcting the various deficiencies cited by Ms. Banek up to February 11, 1998, but only two had been completely corrected. Of the remaining deficiencies, three stand out. Despite the fact that Ms. Banek worked with Respondent with the records that had to be kept, Respondent's files for the children and personnel were not complete and they were in disarray.6 Second, Respondent continued to store hazardous materials in an unsafe manner, despite having been repeatedly warned about the potential danger. Third, personnel was not appropriately trained7 and staffing ratios were not up to standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that denies Respondent's application for renewal of her day care license without prejudice to her right to apply for licensure in the future. DONE AND ENTERED this 2nd day of July, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1998
The Issue The issue is whether Petitioner, Basedeo Ramassar, is eligible for exemption from disqualification from working in a registered or licensed family day care center under Subsection 402.302(3), Florida Statutes.
Findings Of Fact Under Sections 402.301-319, Florida Statutes, the Department of Children and Family Services is the agency responsible for establishing licensing standards for child care facilities and child care personnel. Petitioner, Basedeo Ramassar, is married to Cathy Ramassar; they both reside at 2707 West Airport Boulevard, Sanford, Florida. Cathy Ramassar applied to Respondent to renew her license as a family day care facility at her home at 2707 West Airport Boulevard, Sanford, Florida. As a result of her application, Respondent conducted a Level 2 background screening. As a result of the screening, it was determined that, on March 20, 2000, Basedeo Ramassar had pled nolo contendere to the charge of assignation to commit prostitution, a violation of Section 796.07, Florida Statutes. When Cathy Ramassar was advised that her license would not be renewed because of her husband's violation of Section 796.07, Florida Statutes, she requested an administrative hearing and, shortly thereafter, Mr. Ramassar requested an exemption pursuant to Section 435.07, Florida Statutes. Michael Ingram, District 7 Screening Coordinator, convened a three-person Exemption Review Committee which considered the circumstances surrounding the disqualifying criminal incident, nature of harm to victim, amount of time since the last criminal incident, and the applicant's general history. The Exemption Review Committee relies on the applicant to provide information on rehabilitation. The Exemption Review Committee denied Mr. Ramassar's exemption request based, in part, on the fact that not enough time had elapsed since the 1999 offense and the March 20, 2000, nolo contendere plea and a 1990 domestic battery arrest which occurred prior to his current marriage. This denial was a proper exercise of the authority vested in the Exemption Review Committee. Mr. Ramassar testified that during the afternoon hours of November 26, 1999, he approached an undercover female police officer and "offered her $20 for straight sex." This resulted in his arrest and ultimately, his nolo contendere plea to assignation to commit prostitution. With the help of a supportive wife and members of their church, which he regularly attends, Mr. Ramassar has made a good start on a rehabilitation program. Apparently, he has a good marriage which has withstood the humiliation of public knowledge of his infidelity and criminal involvement; each witness testified to awareness of his criminal involvement. As a part of the exemption process, Subsection 435.07(3), Florida Statutes, requires an assessment of "the nature of the harm caused to the victim"; the only "victim" in this case is Mr. Ramassar's wife, who has not only suffered the public humiliation of her husband's infidelity, but has been denied a license renewal for her day care facility. Mr. Ramassar is regularly employed as a mason and, as a result, except on rare occasions, is away from the day care facility during its normal working hours. Witnesses who had children enrolled in Mr. Ramassar's wife's day care facility expressed little concern with the knowledge that Mr. Ramassar had pled nolo contendere to assignation to commit prostitution.
Recommendation Based upon 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, Basedeo Ramassar, an exemption from disqualification from employment as a caretaker for children and granting Cathy Ramassar a renewal of her license. DONE AND ENTERED this 12th day of September, 2001, 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 12th day of September, 2001. COPIES FURNISHED: Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 George B. Wallace, Esquire George B. Wallace, Esq., PA 700 West First Street Sanford, Florida 32771 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 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's application to adopt L. H. should be granted.
Findings Of Fact Petitioner, Debby Sclafani (Sclafani), is a former foster parent for Respondent, Department of Children and Family Services (Department). On March 4, 1998, L. H., a foster child born on December 18, 1993, was placed in Sclafani's home. L. H. had been sexually abused when she lived with her biological mother. When she came to live with Sclafani, L. H. acted out sexually, including masturbating. L. H. also engaged in self-mutilating behavior and had nightmares. L. H. was being seen by Marion Koch, a therapist at the Center for Children in Crisis. In midsummer of 1998, Sclafani also began seeing a therapist, Gloria Watt, at the Center for Children in Crisis. During the therapy sessions with Sclafani, Ms. Watt became concerned with Sclafani's preoccupation with L. H.'s sexual behavior. Ms. Watt told the therapist that she had asked L. H. which finger she used when masturbating and to demonstrate what she did. The child complied with Sclafani's request. If Sclafani caught L. H. masturbating, she would take the child's stuffed toys away as punishment. Ms. Koch and Ms. Watt attempted to educate Sclafani about parenting and child development, including ways to redirect L. H.'s sexual behavior. The therapists told Sclafani to stop focusing on L. H.'s masturbation, but Sclafani was unable to deal with the child's sexual behavior and could not follow the suggestions of the therapists. In September 1998, the Center for Children in Crisis shut down, and the therapy sessions with L. H. and Sclafani stopped. Sometime during the fall of 1998, the parental rights of L. H.'s mother were terminated. It was the Department's policy that once a parent's rights are terminated, the foster parent should not talk to the child again about the parent. However, after L. H.'s mother's rights were terminated, Sclafani continued to pray with L. H. for L. H.'s mother's sins. Sometime after L. H.'s mother's parental rights were terminated, L. H.'s father's parental rights were also terminated. L. H. became a candidate for adoption, and her case was transferred to the adoption section of the Department. Sclafani applied to the Department to adopt L. H. L. H. was given a pre-adoptive psychological evaluation by Dr. Shelia King. L. H. told Dr. King that Sclafani spanked her and slapped her face. L. H. had been told by Sclafani not to tell the doctor that she had been spanked. When L. H. was returned home after the evaluation with Dr. King, L. H. told Sclafani, "The doctor knows that you whoop me." When Sclafani became L. H.'s foster parent, she signed an "Agreement to Provide Substitute Care for Dependent Children" and agreed to abide by the following provisions of the agreement: This child is placed in our home on a temporary basis and is at all times under the supervision of the Department. We are fully and directly responsible to the Department for the care of the child. We will take no action to acquire legal custody or guardianship of the child. We will hold confidential all information about the child and his family and will discuss such information only with a representative of the Department or with appropriate specialists at the request of the Department. * * * 8. We will participate with the Department in planning for the child, which may include adoption placement, transfer to another foster home, or return to parent(s) or relative(s). * * * We will comply will all requirements for a licensed substitute care home as prescribed by the Department. We will immediately report any injuries or illnesses of a child in our care to the Department. * * * 19. We will abide by the Department's discipline policy which we received during MAPP training. Sclafani agreed to and executed the Department's discipline policy which states, "The substitute care parents must not use corporal punishment of any kind." Sclafani admitted to spanking L. H. on several occasions. The Department referred Sclafani to Dr. Shelia King for a psychological evaluation on January 5, 1999. In her evaluation report, Dr. King stated: . . . [Sclafani] would come to expect a child to fill her needs as opposed to her filling the child's. Should a conflict arise, Ms. Sclafani would put her own needs first. As an aside, she would not accept or believe this was occurring. Due to her inability to take care of herself emotionally, she will become depressed and withdrawn from time to time. * * * It must be noted that no small measure of concern results from the fact that Ms. Sclafani attempted to prep this child prior to her (the child's) evaluation by admonishing her not to advise this psychologist of the fact that Ms. Sclafani spanks her upon occasion. This indicates that while aware that this is not a behavior which would be acceptable to the Department of Children and Families, she nevertheless will engage in it as a method of discipline. More distressing is that she then not only will lie about it herself but also encourage the child to do something which is clearly wrong and tell a lie by omission in order to protect herself. A more appropriate response would be to merely admit that she believes spanking is an appropriate form of punishment and seek advice on how to handle misbehavior in a more acceptable fashion. * * * The area of concern most prominent in this evaluation is Ms. Sclafani's relationships. Testing indicates someone who is narcissistic and dependent upon others, including her child, for validation and self-esteem. Her history suggests a lack of boundaries between her own parent and herself. Some of Ms. Sclafani's comments suggest this same lack of awareness and boundaries with her foster child. While she does seem open to listening to interpretations and looking at her own behavior, testing also indicates that while she may appear to do so, anger and resentment build, eventually causing her to deny any problems or to reach out for help, and inhibit what appears to be genuine insight. Dr. King recommended that the adoption proceedings be delayed and that Sclafani enter individual psychotherapy. Sclafani had begun working at a child care center, and her medical benefits did not begin until April 1999. Due to the lack of insurance, Sclafani postponed seeing a therapist until April. She attended therapy sessions two times. In May 1999, Sclafani engaged in a verbal altercation with her supervisor at the day care center where she worked. She told her supervisor that she was giving her thirty-day notice and quitting her job. The supervisor informed her that was not necessary because she was fired. The bottom line was that Sclafani was without a job and medical benefits. She had inherited some money from her father's estate and decided to take a vacation. When the Department learned that Sclafani was without a job, a decision was made to remove L. H. from Sclafani's foster home. On May 21, 1999, L. H. was removed from her day care center and placed in another foster home with a couple who have applied to adopt her. Sclafani was asked to pack a suitcase for L. H. with her clothes and other belongings. Sclafani did pack the suitcase, but she also hid notes to the child among the clothes in the suitcase. A few days after L. H. was removed from Sclafani's care, Sclafani met with L. H., her guardian ad litem, and representatives from the Department to bring closure to the placement. Sclafani became very emotional during the meeting, which upset the child. On July 1, 1999, Sclafani went to the day care center where L. H. had been placed by her new foster parents to see L. H. Sclafani told the assistant director of the day care center that she was inquiring about the pre-kindergarten class for a neighbor's child. The assistant director took her to the classroom where L. H. was in class. Sclafani immediately walked over to L. H. and asked her if she were happy. Sclafani told L. H. that if L. H. was not happy that she would fight for her. L. H. began to cry hysterically. The assistant director realized who Sclafani was and asked her to leave the building. On the same day as the day care incident, L. H. and her foster father were eating ice cream outside an ice cream shop located in a shopping plaza. L. H. told her foster father that she saw Sclafani, who was in her car turning up a lane in the parking lot. A few minutes later, Sclafani drove by again in the opposite direction, waved at L. H., and left the shopping plaza. Prior to the incidents at the day care center and the shopping plaza, L. H. had been transitioning to her new home very well. Following the incident at the day care center, L. H.'s play in therapy became aggressive, and L. H. told her therapist that she was afraid Sclafani would take her and expressed anxiety about the likelihood of this happening. Because of Sclafani's actions, the Department sought a restraining order against Sclafani. On July 29, 1999, Judge Ronald V. Alvarez entered an Order Granting Emergency Petition for Injunction, ordering that Sclafani refrain from contacting L. H. wherever the child may be found while the court had jurisdiction over the child. In the order, the court stated: . . . Contact with Ms. Sclafani will hinder the child's future attachment with another family and create more, further damaging confusion in the child's life. The child's permanency is undermined by Ms. Sclafani's contact or attempted contact with her. The granting of a protective order is necessary to prevent such acts from happening. Permanency with her new family cannot be attained until [L. H.] is free to live without the fear of interruption by Ms. Sclafani. This order is necessary to protect the child's emotional and mental health from being at risk of grave and lasting harm and to support her permanency. Since L. H. has been removed from Sclafani's home, she has ceased masturbating and no longer self-mutilates. She is happy and well adjusted in her new home. According to her guardian ad litem, L. H. has blossomed and is now being a child in contrast to her actions when she was with Sclafani, where L. H. appeared to be "cowed" by Sclafani. L. H. has always wanted a daddy, and now she has a foster father in her new home. Sclafani had chosen a friend to be L. H.'s father figure. Unfortunately, her choice had an active, non-expiring domestic violence restraining order against him. L. H. loves her new foster parents and wants to be adopted by them. The new foster parents love L. H. and want to adopt her. Since L. H. has been with her new foster parents, she has not asked to see Sclafani. Sclafani had listed her pastor and his wife as a reference on her application for adoption. The pastor and his wife indicated on the reference that they did not know Sclafani well enough to make a recommendation that she was qualified to adopt a child. In order to process the adoption application, the Department looks at the applicant's medical history. Sclafani's medical records reflect a high frequency of doctor visits and current, on-going prescriptions for anti-anxiety medications. The evidence was unclear if Sclafani had found gainful employment since the termination of her employment in May 1999. The evidence did show that while she was a foster parent for L. H. that she worked for three different employers and was unemployed when L. H. was removed from her care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Debby Sclafani's application to adopt. DONE AND ENTERED this 9th day of November, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 9th day of November, 1999. COPIES FURNISHED: Mary Jane Fitzgerald, Esquire Harvey Building, Suite 1300 224 Datura Street West Palm Beach, Florida 33401 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401 Debby Sclafani 7581 West Lantana Road Lake Worth, Florida 33467 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Respondent has sufficient general revenue funds to provide the Petitioner with services under the Respondent's Developmental Disabilities Program.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. Section 393.065, Florida Statutes. The program developed by the Department is known as the Developmental Disabilities Program. Jake is a resident of Miami, Florida, and is four and one-half years of age, having been born October 6, 1997. On October 24, 2000, Jake's parents submitted on his behalf an application requesting that the Department enroll him in its Developmental Disabilities Program and provide him with physical, occupational, and speech therapy services as a developmentally disabled individual.2 The parties stipulated to the following facts: Jake has a rare genetic disorder called "Williams Syndrome," which causes significant developmental delays. Jake also has a significant hearing impairment, which exasperates his developmental delays. Among other developmental delays, Jake cannot walk on his own, is unable to talk, and is unable to respond to verbal requests. Jake requires regular and frequent physical, occupational, and speech therapies, and Jake is eligible to receive these services under the Department's Developmental Disabilities Program. A social worker employed by the Department advised Jake's mother on October 25, 2000, that Jake was eligible for the requested services. The social worker developed a family support plan, which Jake's mother signed on January 12, 2001. Pursuant to the Department's policies, the Department considered Jake a "client" of the Department and eligible for services on the date the family support plan was signed. According to the Department's witness, the funding category at issue in this case is state general revenue funds appropriated by the Florida Legislature and not federal funds. Upon receiving Jake's application for services under the Department's Developmental Disabilities Program, the Department reviewed the request and implemented a prioritization schedule set forth in a Department memorandum dated June 1, 2001. The subject matter of the memorandum is identified as "State Fiscal Year 2001-2002 Spending Plan Implementation Instructions ("Spending Plan")."3 The Spending Plan was developed in accordance with the following directive of the Legislature, which is found in the Conference Report on SB 2000: General Appropriations for 2001-02, May 1, 2001 ("Conference Report"): Funds in Specific Appropriations 374 and 377 are intended to provide Home and Community- Based Services Waiver Services in accordance with a spending plan developed by the Department of Children and Family Services and submitted to the Executive Office of the Governor for approval by November 1, 2001. Such plan shall include a financially feasible timeframe for providing services to persons who are on waiting lists for fiscal years 1999-2000 and 2000-2001 and those eligible persons who apply for services during fiscal year 2001-2002. Such persons shall be enrolled in the waiver in accordance with the department's policy for serving persons on the waiting list. The Spending Plan relates to the distribution of funds to persons served through the Home and Community-Based Waiver Services program ("Waiver Program"), which is co-funded by the federal government as part of the Medicaid program.4 The Spending Plan establishes five "priority" categories for providing services through the Waiver Program: Persons who were clients as of July 1, 1999; members of the class in the case of Cramer v. Bush; persons not on the original waiting list who are in crisis (an estimated ten new clients monthly, statewide); persons discharged from the Mentally Retarded Defendant Program; and "[p]ersons who have become clients since July 1, 1999, in date order (new waiting list) -- projected to be approximately 6,284 persons remaining to be phased in between March 2002 and June 2002, subject to vacancies on the Waiver and available funding." The Spending Plan further provides that "[i]n order to serve the estimated additional 6,774 individuals who are projected to want and need Waiver services during FY 01-02, enrollment on the Waiver will be phased in as described above." According to the procedure specified in the Spending Plan, a waiting list for Waiver Program services is maintained by the Department's Central Office of the Developmental Disabilities Program, and that office advises the various districts when they may begin providing services to a person on the list. According to the Spending Plan, services are to be provided to individuals on the waiting list "subject to vacancies on the Waiver and available funding." Upon review of his application for services, the Department classified Jake in the fifth category of the Spending Plan as a person who become a client after July 1, 1999, and his name was placed on the waiting list to receive services provided through Waiver Program funding. Although no evidence was presented on this point, it is apparent from the text of the Spending Plan that, in addition to the Waiver Program funding for services to the developmentally disabled, there is a second source of funding for services to these individuals, Individual and Family Supports ("IFS") funding.5 The Department did not provide any indication in its denial letter and it did not present any evidence at the final hearing to establish that the "general revenue funds" at issue were IFS funds. It has been necessary to infer from the record that such is the case.6 Although the Department presented no evidence with respect to Jake's eligibility for services from IFS funds or with respect to the availability of IFS funds to provide Jake with the services for which he is eligible, the Spending Plan provides: "The use of non-Waiver funds (Individual and Family Supports (IFS) budget category) to fund services for additional persons who are awaiting enrollment on the Waiver is prohibited." The only possible inference from the evidence presented by the Department and from the record as a whole is that, notwithstanding the reasons stated in the Department's denial letter in this case, Jake was denied services from IFS funds because he was placed on the Medicaid Waiver Program waiting list.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order finding that Jake Cheskin shall remain on the waiting list for Home and Community-Based Waiver Services under the Developmental Disabilities Program and ordering that Jake Cheskin shall be provided with the physical, occupational, and speech therapy services for which he is eligible as soon as a vacancy occurs or additional funding is available under the Department's Developmental Disabilities Program.8 DONE AND ENTERED this 31st day of July, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2002.
The Issue The issue presented is whether the Department acted fraudulently, arbitrarily, illegally, or dishonestly in determining that the Intervenor, rather than Petitioner, should be awarded the contract for child support enforcement legal services for Martin and Okeechobee Counties.
Findings Of Fact On July 1, 1994, the Department of Revenue (hereinafter "Department") assumed responsibility for the State of Florida's Child Support Enforcement (hereinafter "CSE") Program, taking over those responsibilities from the Department of Health and Rehabilitative Services (hereinafter "HRS"). As part of that program, HRS had in place for most counties in Florida contracts with private attorneys to establish and/or enforce child support obligations. Petitioner Douglas Reymore was, by contract, the legal services provider for Martin, Okeechobee, Indian River, and St. Lucie Counties. The Department renewed that contract for an additional year. The Department determined to rebid the legal service provider contracts for some of the counties in Florida for the 1995-1996 fiscal year. The contract for Martin and Okeechobee Counties was one of those contracts. The Department prepared a Solicitation Package and distributed it to the Department's regional offices. The Department also distributed to its regional offices a document entitled Instructions to CSE Regions for Handling the Solicitation for Legal Services Providers (hereinafter "Instructions") to govern the solicitation, evaluation, and award of the CSE contracts. The stated purpose of the Solicitation Package was to "obtain the highest possible level of legal representation at the lowest possible cost while ensuring free and open competition among prospective proposers." The solicitation was advertised in Martin and Okeechobee Counties in a timely manner from April 1 through April 5, 1995, as required in the Instructions. Upon their requests, copies of the Solicitation Package were sent by the Department to both Petitioner Douglas Reymore and to Intervenor Thomas & Associates. The Department did not provide a copy of the Instructions to any proposers prior to the opening of the proposals. Proposals were required to be received by the Department by 3:00 p.m. on Friday, May 12, 1995. Both Reymore and Thomas & Associates timely submitted proposals. The proposals were opened in the Program Administrator's Office in West Palm Beach at 4:00 p.m. that same day. The proposals timely submitted were forwarded, after opening, to the Evaluation Committee established by the Department. The Evaluation Committee was required to conduct its review and evaluation consistent with the Evaluation Committee procedures set forth in the Instructions, including attachments. Members of the Evaluation Committee for the Martin/Okeechobee Counties contract were Elaine Rosnow (Chair), Terrie Almond, Janice Blount, Donna Hilley, and Henry Smith. The names of the members of the Evaluation Committee were not disclosed to proposers prior to the opening of the timely submitted proposals. None of the members of the Evaluation Committee is an attorney, and none is considered an expert in computer technology. The Child Support Enforcement Solicitation of Proposals Evaluation Sheet, included with the Instructions, identified nine Mandatory Requirements. Those same Mandatory Requirements were also identified in the Solicitation Package sent to Reymore and to Thomas & Associates. If any of the Mandatory Requirements identified in the Evaluation Sheet and the Solicitation Package were not met by a proposal, the proposal was not to be considered further by the Evaluation Committee. The Evaluation Committee reviewed and evaluated the proposals. The proposal of Thomas & Associates was rated highest, and the Reymore proposal was rated second highest. The Evaluation Committee forwarded its scores on the proposals to the Program Administrator, who was required to award the contract to the highest ranking proposer. The Department issued its notice of award for the CSE contract for Martin and Okeechobee Counties to Thomas & Associates on May 22, 1995. The term of the contract was to be for an annual period to begin on July 1, 1995, and end on June 30, 1996. Thomas & Associates was also named as the Department's intended recipient for two other CSE contracts, those for Palm Beach County (intrastate) and Palm Beach County (interstate). A CSE legal practice under state contract, such as that for which proposals were solicited in the instant case, is high volume in nature. Currently, approximately 200 cases in Martin County and approximately 65-70 cases in Okeechobee County go to court each month. These court cases are handled by using three docket days in Martin County and one docket day in Okeechobee County each month. The Solicitation Package for the Martin/Okeechobee Counties contract projected 156 referrals to the legal services provider each month. Upon the receipt of a referral from the Department's Child Support Office, the legal services provider under contract with the Department must take the appropriate legal action to collect child support from the non-custodial parent. These legal actions include establishing paternity, obtaining support orders, and enforcing support orders. The greatest, and a substantial, difference between a private family law practice and a CSE legal practice under state contract is the caseload. Another difference is the limited funds available for expenses, such as for taking depositions and for service of process. There are also legal issues, concepts, and terms encountered in a CSE practice which are not encountered in a private family law practice. Petitioner Reymore has practiced CSE law under a state contract for three years in Martin, Okeechobee, St. Lucie, and Indian River Counties. No attorney employed by Thomas & Associates has ever practiced CSE law under a state contract. The Solicitation Package, on page four, provided as follows: Each proposal will be reviewed for responsiveness to the mandatory requirements set forth in Attachment V. Proposals that fail to satisfy all of the mandatory requirements will not be considered further. No points will be awarded for the mandatory requirements. Above the listing of Mandatory Requirements on Attachment V, similar language appears, specifically: "If any of these requirements are not met, your proposal will not be considered further." The Mandatory Requirements set forth in Attachment V include the following: The attorney/attorneys assigned to per- form contract services shall be members of The Florida Bar. A certificate of good standing from The Florida Bar shall be attached for each designated attorney. A resume for each attorney designated to do child support work shall be included with proposal. Page one of the Solicitation Package also recites that any proposal submitted must include: 1) Resumes on all attorneys who will be assigned to this contract. 4) Certificates of good standing from The Florida Bar on all attorneys who will be assigned to this contract. The Thomas & Associates proposal included resumes and certificates of good standing from The Florida Bar for the following attorneys: Jeffrey F. Thomas, Mary Bobko Thomas, L. Denise Coffman, and Charles Willoughby. In the section of its proposal entitled Time and Personnel, Thomas & Associates specifically represented that two lawyers would be assigned to the contract: Charles Willoughby and Denise Coffman. It further represented that Jeffrey Thomas would directly supervise the lawyers and that he would also personally attend all hearings where the other party was represented by counsel. The proposal then represented that Thomas & Associates was also bidding on the Palm Beach interstate contract and the Palm Beach intrastate contract. As to the Palm Beach interstate contract, the proposal represented that Jeffrey Thomas would directly supervise the lawyers and would also personally attend all hearings where the other party is represented by counsel. The proposal then represented that the following attorneys would be assigned to Jeffrey Thomas to work on the Palm Beach interstate contract: Charles Willoughby and Denise Coffman; John C. Thomas and Kim Nutter would serve as "back ups." As to the Palm Beach intrastate contract, the Thomas & Associates proposal represented that four attorneys would staff that contract full time, and Jeffrey Thomas would directly supervise all attorneys and personally appear at all hearings where the other party is represented by an attorney. The proposal then stated that the following attorneys would be assigned to Jeffrey Thomas for that contract: Charles Willoughby, Denise Coffman, John C. Thomas, and Kim Nutter. The Thomas & Associates proposal then represented that if Thomas & Associates were awarded more than one contract, two additional lawyers would be hired. The proposal failed to identify or include any information about the two additional attorneys Thomas & Associates would hire in the event it was awarded more than one contract. The Department awarded all three contracts to Thomas & Associates. The date of the award of the other contracts is not part of the record in this cause. However, since Charles Willoughby and Denise Coffman are to be assigned full time to the Palm Beach intrastate contract and are also to be assigned to the Palm Beach interstate contract, and since Thomas & Associates represented to the Department that it would hire more lawyers if awarded more than one contract, Charles Willoughby and Denise Coffman are either not available to be assigned to the Martin/Okeechobee Counties contract, or are not the only attorneys who will perform contract services. The Solicitation Package precludes a proposer from assigning attorneys to perform services under the contract without identifying those attorneys in the proposal and submitting their resumes and certificates of good standing as part of the proposal made to the Department. The representations of Thomas & Associates committing to hire additional attorneys if it received more than one contract, as well as Thomas & Associates' commitment to assign attorneys to work on the contracts as represented in the Thomas & Associates proposal, would become conditions of any contract entered into with the Department as would all other representations in the proposal. The Thomas & Associates proposal failed to meet all of the mandatory requirements set forth in the Solicitation Package due both to the failure of Thomas & Associates to identify all attorneys to be assigned to work on the contract and Thomas & Associates' failure to include resumes and certificates of good standing for those attorneys as part of its proposal. Accordingly, the Evaluation Committee should have rejected any further consideration of the proposal submitted by Thomas & Associates and should not have gone forward with scoring the proposal submitted. The Evaluation Committee members were aware that Thomas & Associates had submitted proposals for all three contracts, that the proposal pledged the same attorneys to work on one contract full time while pledging them to work on two additional contracts, and that the proposal represented that additional lawyers would be hired if Thomas & Associates received more than one contract. Yet, the Evaluation Committee members did not consider the multiple mutually- exclusive assignments of the same attorneys in the Thomas & Associates proposal and did not consider the representation that additional unidentified attorneys would be hired. The Evaluation Committee members specifically marked their Evaluation Sheets to reflect that Thomas & Associates had met all mandatory requirements for having its proposal evaluated and scored when Thomas & Associates had not done so. Page seven of the Solicitation Package provides as follows: The proposer must provide three references for whom the proposer has rendered services similar to those being proposed. Proposals must include the name, address, telephone number, and the Name and Title of the primary and alternate contacts for each reference. The Thomas & Associates proposal failed to comply with this requirement. No references were provided in the proposal for the firm of Thomas & Associates, the proposed legal services provider. The only references provided were for Jeffrey Thomas, one of three identified attorneys designated by the Thomas & Associates proposal to perform work under the contract. No references were provided for Willoughby and Coffman, the other two attorneys identified to be assigned to the contract, and no references were provided for the two unidentified attorneys to be assigned to the contract should Thomas & Associates receive more than one contract. The Thomas & Associates proposal contained four references for Jeffrey Thomas. However, only two of those references were clients. No references were provided in the Thomas & Associates proposal from clients for whom high-volume child support or family law legal services had been provided. Accordingly, the Thomas & Associates proposal failed to include three references for whom the proposer has rendered services similar to those being proposed, as required by the Solicitation Package. The Thomas & Associates proposal also failed to include alternate contacts for each reference, as required by the Solicitation Package. Alternate contacts should have been provided for individual references in case the Evaluation Committee was unable to make contact. For Jeffrey Thomas' individual references, only office telephone numbers were provided. Alternate contacts for Jeffrey Thomas' individual references could have been provided in the form of home telephone numbers. For Jeffrey Thomas' individual references, alternate references could have been provided in lieu of alternate contacts, but were not. Due to Thomas & Associates' failure to provide alternate contacts for Jeffrey Thomas' references, or even the required number of references, the Evaluation Committee was able to reach only one of Jeffrey Thomas' references for the purpose of conducting an interview. The requirement of three references for whom the proposer has rendered services similar to those being proposed is a material requirement for the personal services contract under consideration in this cause. Thomas & Associates' failure to meet this requirement also made its proposal non- responsive to the Department's solicitation. Rather than declaring the proposal non-responsive, the Evaluation Committee members awarded points to the Thomas & Associates proposal for providing sufficient and appropriate references. No points should have been awarded to Thomas & Associates for its references. Page four of the Solicitation Package advises that any proposal must contain a detailed written Plan clearly demonstrating the proposer's ability to process referrals or case establishment activities, and identifying existing resources and proposed resources. Pages 17-20 set forth the criteria for the provision of legal services. The Plan contained in the Thomas & Associates proposal is, for the most part, simply a verbatim recitation of the language on those pages of the Solicitation Package. The few portions of the Thomas & Associates Plan which were not copied verbatim from the Solicitation Package cannot be implemented or, if implemented, would delay the processing of the Department's high-volume caseload. The Thomas & Associates Plan commits to obtaining a court date for all enforcement hearings which is no later than 45 days after receipt of a referral. The Plan further commits to using interrogatories and requests to produce in each enforcement case. Due to the time necessary for the sheriff to serve pleadings on a CSE respondent and the applicable discovery response times, it is not possible to utilize interrogatories and requests to produce in each enforcement action within the time frames asserted by Thomas & Associates in its Plan. Further, interrogatories are not necessary in many cases, and the information that can be obtained through them can also be obtained from the non- custodial parent at the final hearing. Thomas & Associates' Plan also commits to scheduling a support hearing within 45 days of receipt of a case referral from the Department when paternity is in dispute and a Human Leukocyte Antigen Test or other DNA test is requested. This schedule cannot be achieved since DNA test results are not received until four to eight months after the court orders such a test to be performed. The Thomas & Associates Plan also commits to ensuring that the judge signs appropriate income deduction orders at the time of hearing. This is not possible in Martin and Okeechobee Counties because hearings are conducted by hearing officers who then submit their written recommendations to the judge before the judge will enter an income deduction order. It is usually not possible to have a hearing, get the hearing officer's written recommendation, and have the judge review that recommendation and issue an income deduction order all in a single day. The Thomas & Associates proposal asserts that Jeffrey Thomas would appear at all hearings where the non-custodial parent is represented by an attorney under the Palm Beach County intrastate contract, the Palm Beach County interstate contract, and the Martin/Okeechobee contract. That commitment would be a special condition of any contract between the Department and Thomas & Associates, as would all provisions of the Thomas & Associates proposal. Charles Willoughby graduated from law school in 1994 and became licensed to practice in the State of Florida some time thereafter. His resume reflects no experience in any facets of marital and family law. The Thomas & Associates proposal commits that Jeffrey Thomas will "personally train" and "supervise" Willoughby in the performance of his duties. The Thomas & Associates proposal also represents that Jeffrey Thomas will personally attend all meetings with Department child support staff. It is common for the non-custodial parent to come to a hearing in a CSE case represented by an attorney without that attorney having made a prior appearance in the case or having notified anyone that the attorney will be making an appearance in the case. In Martin and Okeechobee Counties, when the non-custodial parent is represented by an attorney, the attorney first appears on the day the hearing is set in approximately 40 percent of the cases. It is impossible for a single attorney to attend every hearing under the Martin/Okeechobee Counties, Palm Beach County intrastate, and Palm Beach County interstate CSE contracts where the opposition is represented by counsel because often hearings occur simultaneously before multiple domestic relations commissioners, hearing officers, and judges at multiple courthouses. It would be inappropriate for a CSE attorney under state contract to request a continuance of a hearing to allow a more experienced attorney to appear on behalf of the Department. Further, there is no basis for believing that such a motion would be granted. Accordingly, given the Thomas & Associates commitment that Jeffrey Thomas will personally train and supervise attorney Willoughby and personally attend all meetings with Department staff, and given the numerous courthouse locations where hearings will be conducted under the three contracts awarded Thomas & Associates, it would not be physically possible for Jeffrey Thomas to personally attend all hearings where the opponent is represented by counsel. Consequently, it is not possible for Thomas & Associates to perform under the CSE contracts awarded to it in accordance with the representations made in the proposal. Members of the Evaluation Committee knew that Jeffrey Thomas could not attend all hearings where the other parties are represented by counsel at the time they were scoring the Thomas & Associates proposal. Yet, they believed that the Instructions given to them for scoring proposals did not permit them to consider the impossibility of performance. Points were awarded to the Thomas & Associates proposal for the staffing ratio of attorneys and paraprofessionals proposed. The proposal represented that each attorney will have one paralegal and one legal secretary assigned to work on the contract. The proposal, like the letterhead used by Thomas & Associates for the purpose of submitting proposals to the Department, represented that Jacquelynne O. Benefield, a certified legal assistant, would supervise the paralegal department. Her resume was also included in the proposal. Benefield is not a certified legal assistant. The Thomas & Associates' misrepresentation regarding her credentials was not known to the Evaluation Committee members when they scored the proposal. The Department's evaluation mechanism provided for extra points for minority ownership of a proposer. Page one of the Solicitation Package specified that a copy of the certificate of minority business enterprise, if applicable, must be included with the proposal. However, page six provided different information by specifying that a copy of the certification must be attached to the proposal if a business has been certified as a minority business enterprise. However, if the business has not been certified, but has at least 51 percent minority ownership, such minority ownership must be documented. The Thomas & Associates proposal asserted that Mary Thomas, Jeffrey Thomas' wife, is an American woman and owns 60 percent of Thomas & Associates. The proposal asserted that Thomas & Associates is not certified as a minority business enterprise and had only applied for such certification. The Solicitation Package, therefore, required that Thomas & Associates document Mary's minority ownership. The only documentation submitted was a copy of an application for certification without any proof that the application had even been filed. The application was dated May 4, 1995, and represented that Mary Thomas had acquired her 60 percent ownership in Thomas & Associates, a business which earned $220,000 in 1994, on April 30, 1995. The application also reflected that Jeffrey Thomas, the 40 percent owner of the firm, is the president of Thomas & Associates, while Mary Thomas, the 60 percent owner of the firm, is only the vice president. Thomas & Associates submitted no documentation of Mary Thomas' minority ownership. Had Thomas & Associates submitted even the documents required to be submitted as part of the application for certification as a minority business, the Evaluation Committee would have seen that Mary Thomas bought her 15 shares of stock by writing a check in the amount of $15 from the joint checking account of her and her husband Jeffrey. The stock certificate issued to her was dated May 30, 1995, subsequent to the Department awarding to Thomas & Associates the contract which is the subject of this proceeding. The stock certificate issued to Mary bears certificate number 1 while the stock certificate for ten shares issued to Jeffrey on September 21, 1989, bears certificate number 2. The stock transfer ledger also reflects that Mary was issued stock certificate number 1 and Jeffrey was issued stock certificate number 2 five and a half years earlier. The Thomas & Associates proposal did not document the alleged minority ownership, and Thomas & Associates was entitled to receive no points for that category. The Evaluation Committee was concerned about the alleged minority ownership being documented only by an application dated one week before the deadline for submitting proposals to the Department. The Committee contacted the Department's Tallahassee office for guidance as to how to score the alleged minority ownership. The Evaluation Committee was advised to score that category in any manner the individual members saw fit. No guidance was given to the Evaluation Committee members and no criteria were suggested for grading that category which allowed a range of points from zero to five. The scores given by the Evaluation Committee to the Thomas & Associates proposal for minority ownership covered the range from zero to five. It is illogical to give partial credit for a category such as minority ownership. Thomas & Associates either is a minority business, thereby being entitled to full credit, or it is not, thereby being entitled to no credit. Since Thomas & Associates failed to comply with the Solicitation Package requirements by documenting the alleged minority ownership, it was entitled to no points in that category. The Solicitation Package advised prospective proposers that the "evaluation of all proposals will be made by an Evaluation Committee of qualified persons who are familiar with child support services". In making the representation that the membership of the Evaluation Committee would consist of "qualified" persons, the Department intended those persons to be familiar with the requirements to carry out the terms of the CSE legal services contract, including the various means for doing that work. The Department made no effort to insure that members of the Evaluation Committee were familiar with the necessities of a high-volume CSE law practice, that members were familiar with the operations of law firms necessary to carry out that kind of practice, or that members understood the experience and needs in their region. The members of the Department's CSE staff on the Evaluation Committee do not have knowledge of how to operate a CSE law office under state contract. In the past, when proposals for CSE legal services have been solicited, attorneys have been included on the evaluation committees. The Department gave no guidance to the Evaluation Committee on how to evaluate the proposals for "attorney experience" or for their "Plan." The Evaluation Committee members gave Thomas & Associates high scores for its Plan even though some of the representations in it are not feasible in a high-volume CSE practice of law. The lack of guidance resulted in the Evaluation Committee giving high scores for Thomas & Associates' Plan, notwithstanding Thomas & Associates' obvious lack of understanding of CSE legal practice under state contract. For example, Thomas & Associates' Plan indicated that depositions would be taken in every paternity and support action. Because a very limited amount of money is available under the contract for expenses, it would not be possible to take depositions in all of those cases. Thomas & Associates' Plan also inaccurately describes the use of temporary relief hearings when no such hearings are utilized by the judicial hearing officers in Martin and Okeechobee Counties. That Plan also inaccurately suggested that a temporary relief hearing would be used when a respondent acknowledges paternity, since no temporary relief hearing is necessary in such a circumstance. Instead, the case would be scheduled on the next available docket for final hearing. The Plan also inaccurately indicates there is a need for a temporary relief hearing when the issue of support has already been resolved through a stipulation for support. Thomas & Associates' Plan also inaccurately suggests all support cases can be brought to hearing within 45 days of referral from the Department. Given the time necessary for a case to be processed by the court clerk's office and for the sheriff to serve the summons, together with the 20 days the respondent is given to respond after service, it would not be possible to meet this schedule in every case. Moreover, the sheriff is unable to obtain service on the non-custodial parent in approximately 35 percent of support cases. Such cases are not set for hearing because the court has no jurisdiction over the non-custodial parent. Instead, these cases are sent back to the Department so a correct address for the non-custodial parent can be found, if possible. Anyone familiar with a high-volume CSE practice of law under state contract would know that the above-described components of Thomas & Associates' Plan are impossible, impractical, or simply make no sense. Similarly, an experienced attorney would know that the time frames suggested for service of process and obtaining discovery were unrealistic and that it is inappropriate to seek a temporary relief hearing when a case is ready to be set for final hearing. All family law does not constitute child support enforcement law. The Evaluation Committee members' lack of qualifications is evidenced by their inability to distinguish among family law, child support, enforcement and collection, and trial and appellate areas of practice even though the Evaluation Sheet required a separate score for each of these practice areas for evaluating attorney experience. The Evaluation Committee members did not have specialized computer knowledge. Their lack of experience in computers is evidenced by the high scores awarded the Thomas & Associates proposal based on the computerized handling of the contract, notwithstanding the proposal's failure to mention any hard drive, failure to describe the random access memory (RAM) its computers contain, and failure to indicate whether its software can handle the number of files necessary to perform under the Department's contract. Without knowing the computers' hard drive capacity and the RAM of the computer, the Evaluation Committee could not judge the capability of the computers to handle the volume of files under the contract. The Evaluation Sheet utilized by the Evaluation Committee is not the same as the Evaluation Sheet which was included in the Solicitation Package. In the evaluation scheme specified in the Solicitation Package, the area that provided the largest single award of points was "attorney experience." In this area, the Solicitation Package indicated that points would be awarded for attorney experience on a "per attorney" basis. The Solicitation Package does not contain any indication that for multi-attorney firms the attorneys' years of experience will be totalled and then averaged before points are assigned. Unlike the Solicitation Package which was provided to potential proposers, the Instructions given the Evaluation Committee contained contradictory provisions, some providing for attorney experience points to be awarded on a per attorney basis and others providing for points to be awarded based on the average years of experience of all attorneys designated to work on the contract. For multiple-practitioner law firms such as Thomas & Associates, the attorney experience points differ significantly if they are computed on a "per attorney" basis and then averaged, rather than on the basis of "average years" of experience of all attorneys designated to work on the contract. When attorney experience scores are calculated on a per attorney basis, each attorney assigned to the contract must have a minimum of five years experience in an area of law for the firm to receive the maximum points for that area. When attorney experience scores are calculated on the basis of "average years" of experience of all attorneys designated to work on the contract, a multiple-practitioner firm such as Thomas & Associates can receive the maximum number of points even if some of the attorneys have no experience. Thomas & Associates received the maximum number of attorney experience points even though one of the attorneys assigned to work on the contract, Charles Willoughby, graduated from law school in 1994 and became licensed to practice law some time thereafter. The proposal admits that Willoughby has "little experience in family law matters." Conversely, the proposal does not assert that he has any experience in family law matters, any experience in child support, any experience in enforcement and collections, or any experience in trial and/or appellate work. Further, his resume does not indicate that he has any experience in the practice of law. Interestingly, not all members of the Evaluation Committee evaluated the same attorneys when computing the points to be awarded to Thomas & Associates for attorney experience. One Evaluation Committee member's Evaluation Sheet reflects that Mary Thomas was evaluated along with Jeffrey Thomas and Charles Willoughby in some areas of practice but that Mary Thomas along with Jeffrey Thomas and Denise Coffman were evaluated as to other areas of practice. In calculating Thomas & Associates' attorney experience score, the Evaluation Committee members did not consider the two additional attorneys who are unidentified but would be hired if Thomas & Associates receives more than one contract. The only way to take into account those additional attorneys would be to award each of them zero points for experience. Basing attorney experience points on the "average years" of experience of all attorneys designated to work on the contract, or on the years of experience of a single attorney in a multiple-practitioner firm, as was done by some members of the Evaluation Committee, is inconsistent with the Department's stated goal of obtaining the highest possible level of legal representation through this solicitation process. Similarly, utilizing a formula which gives the same credit for experience to an attorney practicing in the general area of family law as to an attorney practicing high-volume CSE legal services, a concept the Evaluation Committee members found to be unfair, is also inconsistent with the Department's stated goal of obtaining the highest possible level of legal representation. The maximum score Thomas & Associates could have received for attorney experience based on the per attorney scoring procedure specified in the Solicitation Package is substantially less than the number of points awarded by the Evaluation Committee. Further, if the Evaluation Committee had properly scored Thomas & Associates' attorney experience, that proposal would have received an overall average score lower than the Reymore proposal received. The Evaluation Committee awarded an average of 4.9 of the available 5 points for references to Thomas & Associates based solely on the one reference for Jeffrey Thomas it was able to contact. However, the Evaluation Committee interviewed two of the Reymore references. The Department's Tallahassee office specifically instructed the Evaluation Committee not to interview the third person listed in the Reymore proposal as a reference since she was also a member of the Evaluation Committee, something Reymore could not have known when he prepared his proposal since the names of the persons on the Evaluation Committee were not disclosed in the Department's Solicitation Package. To insure that the evaluation of the proposals was fair and equal, the Evaluation Committee had been instructed to interview an equal number of references for each proposer. By basing Thomas & Associates' score on a single interview, the Evaluation Committee members did not follow the appropriate procedure in awarding points for references. One member of the Evaluation Committee did not participate in the interviews of references. Instead, that member used another member's notes from the references' interviews to award points for references. By awarding points for references based solely on the notes of another Evaluation Committee member, that Committee member did not follow the appropriate procedure in awarding points. Despite the absence of any effort by the Department to assure that its members were qualified to evaluate a high-volume CSE practice, the Evaluation Committee was given wide discretion to evaluate the proposals using whatever criteria its individual members chose. The evaluation scheme developed for this solicitation differed from those used previously in order to give the Department's regions more flexibility. The only substantive instructions given the members of the Evaluation Committee on how to evaluate the proposals for CSE legal services were those in the Solicitation Package and the Instructions. Members of the Evaluation Committee found the Instructions inadequate, and the ranges of points with no criteria confusing. In prior solicitations for CSE legal services, evaluation committees were given a scoring matrix which set guidelines on how to score each section of a proposal. The Department's departure from the past practice of providing a scoring matrix to assist the evaluation committee in evaluating the proposals in order to give the regions more flexibility is illogical since there is no basis for the premise that the practice of law varies from region to region in the state or that different regions require different legal services. The difference in the average scores given Thomas & Associates' proposal over the Reymore proposal was 11.8 points. Had the Thomas & Associates' proposal been properly scored, the Reymore proposal would have been the highest-scoring proposal. Moreover, Reymore would have submitted the highest-scoring responsive proposal if the Thomas & Associates' proposal had been disqualified due to the failure of Thomas & Associates to include all of the Mandatory Requirements in its proposal. Thomas & Associates has not challenged the responsiveness of Reymore's proposal or the accuracy of the Evaluation Committee's scoring of the Reymore proposal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered determining the Thomas & Associates proposal to be nonresponsive and awarding to Petitioner Reymore the contract to provide child support enforcement legal services for Martin and Okeechobee Counties. DONE and ENTERED this 11th day of September, 1995, at Tallahassee, Florida. LINDA M. RIGOT, 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 11th day of September, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-20, 22-45, 48-82, 85- 95, 99-101, 106, 107, 114, 116-147, 149, 150, and 152-173 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 21 has been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner's proposed findings of fact numbered 46, 47, and 96 have been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed findings of fact numbered 98, 102-105, 108-113, and 115 have been rejected as being unnecessary to the issues involved herein. Petitioner's proposed findings of fact numbered 83, 84, 148 and 151 have been rejected as being subordinate to the issues herein. Intervenor's proposed findings of fact numbered 1-12, 15, 16, 18, 37, 76, 77, 83, 84, 87, 101, 109-111, 115, 118, 120, 123, 165, and 178 have been adopted either verbatim or in substance in this Recommended Order. Intervenor's proposed findings of fact numbered 13, 14, 21-23, 25, 26, 31-34, 38, 40, 46, 57, 61-65, 71, 90, 91, 96, 99, 117, 130-132, 158, 160, 162, 163, and 168-173 have been rejected as being irrelevant to the issues under consideration in this cause. Intervenor's proposed findings of fact numbered 17, 19, 20, 24, 42, 45, 48, 51, 58-60, 66, 72-75, 79, 85, 86, 88, 89, 92, 97, 98, 112, 113, 116, 121, 127, 133, 166, 167, 176, 177, 179, 181, and 182 have rejected as not being supported by the weight of the credible evidence in this cause. Intervenor's proposed findings of fact numbered 27, 30, 35, 39, 41, 43, 44, 47, 50, 52-56, 67-70, 80-82, 100, 102-107, 114, 124-126, 128, 129, 137, 142- 146, 148-153, 174, and 180 have rejected as being subordinate to the issues herein. Intervenor's proposed findings of fact numbered 28, 29, 36, 49, 78, 108, 119, 122, 138-141, 147, 154, 155, 157, 159, 161, 164, 175, and 183 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Intervenor's proposed findings of fact numbered 93-95, 134-136, and 156 have been rejected as being unintelligible. Respondent's proposed findings of fact numbered 1-3, 5, and 11 have adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4, 7, 10, and 20 have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's proposed findings of fact numbered 6, 8, 9, 14, 16, and 18 have been rejected as being subordinate to the issues herein. Respondent's proposed finding of fact numbered 13 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 15, 17, 19, and 21 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Douglas Reymore, Esquire Suite 420 10 Central Parkway Stuart, Florida 34994 Gary P. Sams, Esquire Carolyn S. Raepple, Esquire Hopping Green Sams & Smith P.A. 123 South Calhoun Street Tallahassee, Florida 32314 Thomas Barnhart, Esquire Patrick Loebig, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Jeffrey F. Thomas, Esquire Thomas & Associates Treasure Coast Bank Building Suite 209 789 South Federal Highway Stuart, Florida 34991 Noel A. Bobko, Esquire McCarthy, Summers, Bobko, et al. Suite 2-A 2081 East Ocean Boulevard Stuart, Florida 34996 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether Petitioner may be granted a family day care home registration/license.
Findings Of Fact Petitioner operated a licensed family day care home from 1992 until June 2002, when she ceased to operate a home. In late 2002 or early 2003, Petitioner applied to DCF for a new license. Petitioner's new application was denied solely because of information found during the background screening, including information from her prior licensure file. Glenda McDonald was Petitioner's day care supervisor during Petitioner's prior licensure. In that capacity, Ms. McDonald conducted regular inspections of Petitioner's day care home. On August 25, 1992, Ms. McDonald's superior sent Petitioner a letter stating that Petitioner was operating a day care facility in excess of its licensed capacity and requiring Petitioner to come into compliance by August 28, 1992. Petitioner credibly denied that she received this letter. The letter was not sent to Petitioner's address of record and no proof of the allegations in the letter were presented. During Petitioner's prior licensure, DCF generated four abuse/neglect reports related to Petitioner's day care home. None of these reports were written by Ms. McDonald, who was never a child protection investigator (CPI). Copies of these reports were included in Petitioner's old licensure file.1/ Abuse/neglect Report 1998-050246 relates to a child who wandered away from Petitioner's day care home on May 1, 1998. The report was verified for "inadequate supervision: neglect" against Petitioner. As a result of the events giving rise to the May 1, 1998 abuse/neglect report, Ms. McDonald cited Petitioner's day care home on June 4, 1998, with one count of "Class II non- compliance: lack of direct supervision," pursuant to Florida Administrative Code Rules 10M-12.020(5)(a) and 65C-22.001(5)(a). Since this exhibit was a carbon copy in Ms. McDonald's possession, it is inferred that Petitioner actually received a copy of this informal citation. Ms. McDonald also issued a warning letter to Petitioner on June 4, 1998, citing only Rule 10M-12.0202(5)(a), and saying that Petitioner could appeal after she received a subsequent fine letter for either $50.00 or $100.00. In connection with the May 1, 1998 incident, Ms. McDonald had interviewed Petitioner, who had made various admissions. After her investigation, Ms. McDonald was satisfied that a child entrusted to Petitioner's care had walked out of Petitioner's enclosed yard and further had walked beside a busy road, without Petitioner's knowledge, and that the child had been picked up by the police after nearly two hours' absence, near a busy intersection. In the course of Ms. McDonald's investigation, Petitioner had admitted her caretaker responsibility for the child but had denied that he was a paying day care client. At the hearing in the instant case, Petitioner maintained essentially the same position. Abuse/neglect Report 1999-105502 relates to allegations, arising on August 19, 1999, that Petitioner had locked day care children in a time-out room or "cubby" and that day care children had been beaten. No indicators were found by the CPI against Petitioner for corporal punishment. The report was eventually closed with "some indicators" against Petitioner as the caretaker responsible for confinement and bizarre punishment, constituting neglect. However, DCF did not classify or close this report at all until January 25, 2002. As a result, the report refers to "prior reports," but lists reports for both previous and subsequent years: 98-505246, 99-105502, 99-118736, 00-128236, and 02-006119. Because the classification of abuse/neglect report 99-105502 depended upon reports after its date of commencement, some of which cannot be assessed as to status,2/ and because no competent, credible evidence concerning the underlying August 19, 1999, event alleged in the report was presented in the instant hearing, report 1999-105502 is discounted in its entirety as evidence of any wrong-doing, abuse, or neglect by Petitioner.3/ Abuse/neglect Report 1999-118736 relates to allegations of bite marks found on a nine-month-old child in Petitioner's day care home on September 17, 1999. Petitioner was listed therein as a "significant other." The report was "closed with no on-going care needed." Abuse/neglect report 2000-128236 relates to bite marks found on one two-year-old child inflicted by another two-year old child, both of whom were in Petitioner's day care home on August 16, 2000. This report was classified only as "investigation complete," and further stated that Petitioner was the caretaker responsible. The report further noted that the CPI wanted DCF to consider "removing" Petitioner's license due to the number of abuse/neglect reports with "verified" allegations and some indicators. Yet as of the closure of this report, there appears to have been only the 1998 verified report. (See Findings of Fact 7 and 8). Due to all of the inconsistencies within the 1999 and 2000 reports, due to there being only one report (No. 98-050246) ever actually classified as "verified," and due to the legally indefinite nature of the classifications assigned by CPIs in 1999 and 2000, it is apparent that the CPIs who completed the 1999 and 2000 abuse/neglect reports had no clear understanding of the terms required by law for classifying them. Because of the vague classifications assigned to the 1999 and 2000 reports, it may be inferred that Petitioner was never provided a timely opportunity to contest them. (See also Finding of Fact 17.) Therefore, these reports cannot be called either "verified," "confirmed," "upheld," or "uncontested." (See Conclusion of Law 27). On November 24, 1999, Ms. McDonald wrote Petitioner to express DCF's concern, pursuant to Florida Administrative Code Rule 65C-22.001(5)(a), after the CPI's investigation and her own independent inspection arising from "the repeated abuse reports". Ms. McDonald's use of the plural for "abuse reports" is noted. However, her letter stated no "concern" other than the incident of September 17, 1999, on which investigation had been closed, naming Petitioner only as a "significant other." The letter was sent certified mail to inform Petitioner that the violation was being classified as a Class II violation with a $25.00 fine for each day of violation and she could appeal when she got a subsequent fine letter. No return of certified mail receipt was offered in evidence. Ms. McDonald testified in the instant case that she was contemporaneously aware of the bites on the nine-month-old who was in Petitioner's day care on September 17, 1999, and that she also was contemporaneously aware of another child who had been bitten while in Petitioner's day care. It is inferred from her testimony that Ms. McDonald was familiar, from her regular inspections, with the events surrounding the August 16, 2000, abuse/neglect report of a two-year-old child suffering bite marks from another two-year-old child, because Ms. McDonald further testified that it was upon the second biting incident that DCF began to seriously consider revoking Petitioner's first license. (See Findings of Fact 10-11). On or about December 11, 2000, a DCF attorney drafted an administrative complaint against Petitioner. The administrative complaint sought only to impose administrative fines for violations as follows: one 65C-20.009(3)(a) violation, Class I, inadequate supervision, with a fine of $100.00; one 65C-20.009(3)(a), Class II violation, inadequate supervision, with a fine of $50.00; and one 65C-20.009(3)(a) violation, Class II, inadequate supervision, with a fine of $50.00. The administrative complaint contained no prayer to revoke Petitioner's license. The charges contained therein apparently were solely the result of the abuse/neglect reports arising from incidents on May 1, 1998 (the wandering child incident); September 17, 1999, (the bites on the nine-month-old child); and August 16, 2000, (the bites on the two-year-old child). An administrative complaint is merely an allegation. Of itself, it proves none of the charges contained therein. Moreover, there is no clear evidence that Petitioner ever received the foregoing administrative complaint so as to have an opportunity to contest the charges. However, the administrative complaint suggests, contrary to some testimony, that Petitioner had not previously been fined for these dates. It also clearly demonstrates that, as of December 11, 2000, DCF did not view the wandering child or the two incidents of biting children biting each other as Code violations worthy of revoking Petitioner's license. Ms. McDonald testified that in 2002, as a result of the foregoing administrative complaint, she told Petitioner that DCF would not renew Petitioner's license when it came up for renewal, and that consequently, Petitioner agreed to retire and never reapply for a day care license, rather than suffer administrative prosecution. Petitioner credibly denied that such a scenario had ever occurred. Petitioner testified that she had never signed anything, did not know there were charges pending against her, and only "retired" in 2002 because she had been hospitalized and unable to work for a period of time. Her husband credibly corroborated her desire to retire after hospitalization. Because the 2000 administrative complaint was apparently never served on Petitioner; because of the greater weight of Petitioner's and her husband's combined testimony; because DCF seems to have repeatedly intended to assess different degrees of noncompliance and different amounts of fines for the same alleged events; because DCF introduced warnings and citations but no fine letters containing the opportunity to appeal/contest; and because it is not credible that someone licensed for 10 years would retire and guarantee never to reapply, only to avoid what, at worst, would be a $200 fine, Petitioner and her husband are found to be the more credible witnesses on why Petitioner surrendered her first license, and it is accordingly found that Petitioner surrendered her first license without coercion by DCF and without giving DCF any promise not to reapply. Petitioner is also found credible that she did not know there were any continuing problems as a result of any of the oral or written warnings she had received. Her testimony in this respect is understood to mean that she never received a notice permitting her to contest any of the four abuse/neglect reports discussed, supra., or any formal notices to pay fines.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order granting Petitioner registration for licensing as a day care home, subject to her fulfilling all the other requirements for a new license applicant. DONE AND ENTERED this 7th day of June, 2004, in Tallahassee, Leon County, Florida. S 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 7th day of June, 2004.
The Issue Whether the Department of Children and Family Services ("Department") properly revoked the Petitioner's, Elena Highland's, family child care home registration because her husband, a member of the household, has a verified abuse of report of sexual abuse of a child.
Findings Of Fact The Petitioner, Elena Highland, is registered to operate a family day care home, located at her home. She has been so registered since March 1, 2002. W.H., the husband of Mrs. Highland, lives with her in their home where she operates the family day care home. W.H. also works outside the home. W.H. is the designated substitute for the family day care home. In March 1992, the Union County Sheriff's Department investigated the circumstances of an attempted suicide and sexual battery of a 15-year-old female victim in Case No. 92-46- CFA. During the investigation W.H. admitted to John Dempsey that he had sexual relations with the girl on one occasion, but it was consensual. W.H. was 21 years old at the time. W.H. was later arrested. The Department also investigated the case and verified Abuse Report No. 92-035063, against W.H. for the March 1992, sexual molestation of the 15 year-old victim for the following reasons: W.H. admitted to Deputy Dempsey that he had consensual sexual relations with the girl on one occasion. The victim was not dating W.H., was not "sweet" on him, and he was dating her aunt. The victim denied that the sex was consensual. The victim's suicide note and subsequent statements indicated that her suicide attempt was because W.H. had been forcing her to have sex over a three-year period. The victim's statements were consistent throughout the investigation, and she was severely depressed because of the abuse. The victim remained hospitalized for two months. The victim's mother had found her daughter's dresser blocking the door on one occasion, which was consistent with the girl's statement. The victim told her mother her brothers were bothering her. Another household member had seen W.H. supposedly ironing in the dark at the home on one occasion. W.H. stayed at the victim's home and at her grandmother's home on occasion. His family lived in the same projects complex as the victim's family. The prosecution of W.H. was dropped because the victim was to fragile and did not want to testify. Sandy Looney, day care licensing supervisor, testified that the Department's policy is never to register or license and/or revoke the registration or license of family day care homes with a household member who has a verified abuse report for sexual abuse in order to protect the children. Ms. Looney stated that Mrs. Highland's receipt of a family day care registration in March 2002 was a Department error. W.H. denied at hearing that he ever had sex with the victim and that he ever stated to Deputy Dempsey that he had consensual sex with the girl.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint be dismissed. DONE AND ENTERED this 21st day of April, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 21st day of April, 2003. COPIES FURNISHED: Elena Highland 1823 Southwest Judy Lane Lake City, Florida 32025 Lucy Goddard-Teel, Esquire Department of Children and Family Services Post Office Box 390, Mail Sort 3 Gainesville, Florida 32602-0390 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
