The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's license to operate a family day care home should be denied based upon the reasons asserted in the denial letter.
Findings Of Fact The Petitioner, until denial of licensure, owned and operated a licensed day care facility, licensed under Chapter 402, Florida Statutes. The Respondent is an agency of the State of Florida charged, in pertinent part, with administering and regulating the statutory and regulatory provisions governing entry into and licensure of the business of operating day care facilities and with regulating the practice of day care facilities and operators such as the Petitioner. Witness Tamika McConner is the mother of a child who was placed by Ms. McConner in the Petitioner's day care facility under Petitioner's care at the time pertinent hereto. Ms. McConner maintains that the Petitioner struck her child with a sandal while they were in the Petitioner's car or van on one occasion and that the Petitioner did not see to it that the child ate properly or at the proper times while in her facility. The Petitioner denies these occurrences or indications of improper child care. The evidence show that there is a hostile relationship between Ms. McConner and the Petitioner, apparently stemming from a check written by Ms. McConner for services to the Petitioner which was returned for insufficient funds and concerning which they apparently had a dispute. Under these circumstances, it is not found that Ms. McConner's testimony is preponderant evidence to establish that the occurrences she related actually happened. Moreover, as near as can be gleaned from the paucity of concise pleadings of the agency's allegations, this incident or incidents was not the subject of the report which led to license denial. On or shortly before October 3, 1996, an abuse report was received by the above-named agency concerning a child T.S. T.S. was enrolled in the care of the Petitioner in her day care center. An incident occurred that day when the Petitioner was taking the children in her charge to the Regency Mall for shopping. While at the mall, when the Petitioner was in a store shopping with the children, the child T.S. got to close to her and almost knocked something over on a shelf in the store. The Petitioner maintained that the child was so close to her that she contacted him when she turned around and it caused her to lose her balance and start to fall with the result that she reached out, accidentally knocking the child to the floor. Instead, however, witness Quinones testified and at least one witness in the store verified to the Department's investigator (see Respondent's exhibit 5 in evidence and the testimony of Mr. Gore) that the Petitioner struck the child in anger and knocked him to the floor. Ms. Quinones testified that the child didn't cry but was visibly shaken and Ms. Quinones was concerned that the Petitioner appeared to lose control of her temper on that occasion. Witness David Gore of the Department of Children and Family Services is in the business of inspecting and licensing child care facilities and has owned and operated a child care facility himself. He inspected the Petitioner's facility and found deficiency problems involving immunization records, some sanitary conditions, inoperative smoke detectors and hazardous household products left in reach of children, an incomplete first aid kit and paint and lumber left in the play area. The paint and lumber was there temporarily for the purpose of building a swing set for the children. The deficiencies were promptly corrected by the Petitioner. These deficiencies, however, were not the basis for the notice of licensure denial to the Petitioner however. Witness Roxanne Jordan testified on behalf of the Petitioner. The Petitioner cares for her child or did before the licensure problem arose and said she never had a problem with the Petitioner's care for her child nor did she observe any deficiencies or improprieties in the care of other children she observed at the Petitioner's facility. Ms. Jordan's describes the Petitioner as an excellent caregiver for children. This testimony is corroborated by substantial number of "testimonial letters" from people who have experience with her child care activities, in evidence as "corroborative hearsay." These served to establish that indeed the Petitioner is a caring, compassionate keeper of children in the operation of her day care facility and in the course of her duties baby-sitting for friends' children before she was licensed as a day care facility operator. The Petitioner is in earnest about pursuing the profession of child care and becoming re-licensed to do that. The Petitioner has demonstrated a long-standing interest and aptitude for caring for children. Indeed, in the last two years, she has earned approximately 55 hours of educational training at Florida Community College in Jacksonville in courses generally applicable to the profession of child care. The direct, competent evidence of record and the corroborative hearsay evidence in the form of testimonial letters, from people who have experience with her child care skills and her personality, establish that she has been, in most ways, a competent child care facility operator and caregiver for children and has the capability of becoming more so. In order to justify her re- licensure, however, she must demonstrate a willingness to and a capability of controlling her anger and enhancing her positive child discipline skills.
Recommendation Accordingly, in consideration of the greater weight of the evidence, supportive of the above findings of fact and these conclusions of law, it is
The Issue The issues in this case are: (1) whether Respondent misrepresented or fraudulently provided information to Petitioner regarding compliance of its child care facility with the annual physical examination and annual vehicle inspection requirements in Florida Administrative Code Rule 65C- 22.001(6)(a) and (c), in violation of section 402.319(1)(a), Florida Statutes, and Child Care Facility Standard No. 63, incorporated by reference into rule 65C-22.010(1)(d)1.; and (2) if Respondent committed the alleged violations, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency responsible for licensing, inspecting, and monitoring child care facilities pursuant to chapter 402, Florida Statutes. Respondent is a child care facility licensed by Petitioner, operating under License No. C11MD1476. Respondent's facility is located at 968 Southwest 82nd Avenue, Miami, Florida. Soraya Sanabria and Lyan Barrus are the Respondent's owners, and Sanabria is its Director. At the time of the alleged conduct giving rise to this proceeding, Respondent was designated a Gold Seal Quality Care provider pursuant to section 402.281(1)(b) and was participating in the Gold Seal Quality Care program. Events Giving Rise to this Proceeding License Renewal Process Pursuant to section 402.308(1), Respondent applied for the annual renewal of its child care facility license in mid- to late 2013. On November 20, 2013, Pauline Kinsey, Family Service Counselor, conducted a license renewal inspection of Respondent's facility. During the inspection, Kinsey identified a few minor noncompliance issues, which Respondent expeditiously addressed and are not at issue in this proceeding. As part of the annual license renewal application review process, Petitioner's auditors carefully review each application to ensure compliance with the statutes and rules governing child care facility licensure. Gloria Johnson, an auditor with Petitioner's child care facility regulation program, reviewed Respondent's 2013 license renewal application.5/ The Vehicle Inspection and Health Examination Forms In the course of her review of Respondent's 2013 application, Johnson discovered that Respondent had submitted a vehicle inspection form for its facility's child transportation vehicle dated June 14, 2011, that previously had been submitted as part of Respondent's 2011 license renewal application. Johnson notified Kinsey, who contacted Sanabria on December 17, 2013. Kinsey requested that Respondent submit a current vehicle inspection form for inclusion in its 2013 license renewal application. That same day, Sanabria faxed a vehicle inspection form, dated June 14, 2013, to Petitioner. Johnson reviewed this vehicle inspection form and determined that it was a copy of the June 14, 2011, form that had been altered. Specifically, the date in the top left space on the form had been altered by writing a "3" over the last "1" in "2011." In every other respect——including handwriting, vehicle mileage, name of inspector and business (Goodyear),6/ and date of inspection written in the lower right-hand corner——the two forms were identical. This spurred Johnson to take a closer look at Respondent's facility licensing files. In doing so, she discovered that the June 14, 2011, vehicle inspection form also had been submitted to Petitioner as part of Respondent's 2012 license renewal application.7/ Johnson notified Kinsey that the vehicle inspection form Respondent submitted on December 17, 2013, was an altered version of the form dated June 14, 2011. Kinsey immediately contacted Respondent regarding the altered form. On December 18, 2013, Respondent submitted a vehicle inspection form indicating that the vehicle had been inspected at Tires Plus that same day. Petitioner refused to accept the December 18, 2013, form. Kinsey informed Respondent that Petitioner had determined that the vehicle inspection form Respondent had submitted on December 17, 2013, was altered, so the matter was being referred to Petitioner's legal department to determine appropriate action. In the course of reviewing Respondent's license renewal application files, Johnson also discovered that a "Health Examination" form that Respondent had submitted in its 2012 license renewal application8/ also was altered. Respondent submitted a copy of the Health Examination form dated "6/10/2011" as part of its 2011 application, and then again submitted the same form in its 2012 application; however, the date on the form submitted in the 2012 application had been changed from "6/10/2011" to "6/10/2012" by whiting out the last "1" in "2011" and replacing it with a "2." In every other respect, including handwriting and other marks, the forms were identical.9/ Complaint Inspection and Administrative Complaints As a result of Johnson's discovery of the altered vehicle inspection and health examination forms in Respondent's application files, Kinsey conducted a complaint inspection of Respondent's facility on December 20, 2013. At that time, Petitioner issued an Administrative Complaint citing Respondent for violating section 402.319(1)(a), rules 65C-22.001(11) and 65C-22.001(6)(c), and Petitioner's Child Care Facility Standard No. 63, by having misrepresented information and fraudulently provided information to Petitioner related to Respondent's child care facility. On January 13, 2014, Respondent filed a request for administrative hearing challenging the Administrative Complaint. Attached to the request for hearing was a vehicle inspection form dated June 14, 2013. The information on the form stated that the vehicle had been inspected on that date by Francisco Perez, a mechanic employed at Albert of Miami. This document had not previously been submitted to Petitioner and was not part of Respondent's 2013 license renewal application. On February 18, 2014, Petitioner issued an Amended Administrative Complaint, alleging in greater detail the facts giving rise to its charges that Respondent misrepresented information and fraudulently provided information to Petitioner related to the child care facility. The Amended Administrative Complaint charged Respondent with the same statutory and rule violations as had been charged in the Administrative Complaint, and imposed the same penalties. Respondent's Defenses At the final hearing, Barrus and Sanabria testified that Respondent inadvertently had submitted a copy of the June 14, 2011, vehicle inspection form in its 2013 license renewal application. When contacted by Kinsey, Sanabria had accidentally faxed a draft copy of the vehicle inspection form with the date changed to June 14, 2013. Barrus and Sanabria testified that this draft had been prepared for the purpose of demonstrating to the mechanic how to complete the form. They claimed that Perez did, in fact, inspect the vehicle on June 14, 2013, as evidenced by the vehicle inspection form showing his name that was submitted as an exhibit to the request for administrative hearing filed on January 13, 2014.10/ They claimed that the vehicle actually had been inspected twice in 2013, so that Respondent was in compliance with the rule requirement regarding annual vehicle inspection.11/ Barrus testified that the June 14, 2011, vehicle inspection form mistakenly had been included in the 2012 license renewal application. Barrus and Sanabria both testified that Respondent did not transport children in its facility vehicle in 2012, so that in any event, Respondent was not required to submit a vehicle inspection form showing current inspection status for that year. Neither Barrus nor Sanabria disputed that the Health Examination form discovered in its 2012 license renewal application file had been altered by the date having been changed from "6/10/2011" to "6/10/2012." Barrus testified that she did not know how the altered form came to be part of Respondent's 2012 license renewal application. She reiterated that Respondent did not transport children in its facility vehicle in 2012, so that under any circumstances, Sanabria was not required to have a physical examination that year.12/ Findings of Ultimate Fact The undersigned finds the testimony of Barrus and Sanabria regarding the vehicle inspection form issue incredible and unpersuasive. The evidence establishes that Respondent submitted the June 14, 2011, inspection form as part of its 2013 license renewal application. The credible, persuasive evidence in the record gives rise to the inference that when Petitioner discovered the outdated form and contacted Respondent, on December 17, 2013, Respondent intentionally submitted the altered inspection form with the date changed from June 14, 2011, to June 14, 2013. Petitioner discovered this alteration and contacted Respondent. Thereafter, in an attempt to comply with the annual inspection requirement, Respondent had the vehicle inspected by Tires Plus on December 18, 2013, and submitted the vehicle inspection form to Petitioner that day. The credible, persuasive evidence further gives rise to the inference that when Petitioner refused to accept the December 18, 2013, form, Respondent created another vehicle inspection form that it dated June 14, 2013, obtained Perez' handwritten name on the form, and submitted the form to Petitioner as an exhibit to the request for hearing that it filed on January 13, 2014.13/ In committing this conduct, Respondent misrepresented information and fraudulently provided information to Petitioner related to the child care facility, in violation of section 402.319(1)(a) and Standard 63 of Petitioner's Child Care Facility Standards. The undersigned also finds the testimony of Barrus and Sanabria regarding the "Health Examination" form in the 2012 application incredible and unpersuasive.14/ The credible, persuasive evidence gives rise to the inference that Respondent altered the Health Examination form by changing the date from "6/10/2011" to "6/10/2012" and intentionally submitted the altered form to Petitioner as part of its 2012 renewal application. In committing this conduct, Respondent misrepresented information and fraudulently provided information to Petitioner related to the child care facility, in violation of section 402.319(1)(a) and Standard 63 of Petitioner's Child Care Facility Standards. In sum, Petitioner has proved, by clear and convincing evidence, that Respondent committed the violations alleged in the Amended Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order imposing a $200.00 administrative fine on Respondent, My First School, Inc.; converting Respondent's child care facility license, License No. C11MD1476, to probation-status for a six-month period; and terminating Respondent's Gold Seal Quality Care designation. DONE AND ENTERED this 6th day of August, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 2014.
