The Issue The issue is whether the provisional license issued to Kiddie Kampus Day Care (Respondent), should be renewed.
Findings Of Fact Reatha Simmons is the owner of the Respondent facility and is licensed by Petitioner to operate a Child Care Facility under License No. DC-1320-E. As a consequence of a pattern of problems and violations at the Kiddie Kampus Day Care, Respondent was placed on provisional license status from January 20, 2000 through April 1, 2000. An inspection of the Respondent facility on January 7, 2000, revealed that the facility was "out-of-ratio" with too many children and not enough supervising employees, as well as insufficient square footage. Additional citations were made for Respondent's employee screening violations and lack of tuberculosis (TB) testing of the employees. A supervisory conference was held with Reatha Simmons and Petitioner employees on January 13, 2000, to discuss the pattern of repeat violations and non-compliance by the Respondent facility. Consequently, the facility was placed on a three-month provisional license status and Reatha Simmons was warned that it was her last chance to correct repeated violations. Another inspection on February 16, 2000, by Petitioner's representative revealed continued personnel screening violations and various facility violations. Included within the violations were two children who did not have required physicals on January 27, 2000, and were still out of compliance. An attempted review of documents at the Respondent facility by Petitioner's representative on March 6, 2000, was not possible as the documents were locked in an office in the facility at that time. Problems occurred at the Respondent facility on March 4, 2000. An underage employee was alone for approximately nine hours with children at the facility. There was a ratio violation as to the number and ages of the children at the facility. A family member was called to come and pick up a child early and the facility closed earlier than its posted hours. These matters were reported to Petitioner's personnel on March 7, 2000. At an inspection by Petitioner personnel on March 9, 2000, Respondent acknowledged the veracity of the March 4, 2000 incident. On March 16, 2000, an inspection of the facility showed additional fill dirt or ground cover was needed under the monkey bars, a piece of recreational machinery. While employee fingerprint and background verification were eventually accomplished, along with required TB tests, these actions were tardy and not expediently accomplished. Likewise, physical examinations of two children were not timely accomplished.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be entered by Petitioner confirming the decision not to renew Respondent's license. DONE AND ENTERED this 19th day of December, 2000, in Tallahassee, Leon County, Florida. DON W. 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 19th day of December, 2000. COPIES FURNISHED: Reatha Simmons, Qualified Representative Kiddie Kampus Day Care 1216 Portland Street Pensacola, Florida 32534 Eric D. Schurger, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact On February 2, 1996, Respondent preliminarily established that Petitioner was disqualified to be a foster parent within the definition of "family foster home" contained in Section 409.175(2), Florida Statutes. The denial was based upon Petitioner's failure to meet minimum screening requirements for "good moral character" specified by Section 435.04(2), Florida Statutes. Petitioner's testimony at the final hearing establishes that an incident occurred in a public bathroom where, as a result of a verbal interchange between Petitioner and a policeman, Petitioner was arrested for the offense of "offering for lewdness" in violation of Section 796.07, Florida Statutes (1989). The offense occurred on August 24, 1990. Petitioner subsequently absenced himself from the State of Florida, obstensibly to be at the bedside of his ill father in North Carolina. Following his later return to Florida, Petitioner appeared in court on September 14, 1993, where he was placed on probation, paid a fine and obtained a medical test to determine whether he was infected with the HIV virus. Petitioner and his wife presently care for his godchild, a minor female of eight months of age, and wish to be licensed by Respondent as foster parents. The licensure process required that Petitioner undergo background screening.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner an exemption from disqualification to work with children in positions of special trust. DONE and ENTERED in Tallahassee, Florida, this 25th day of June, 1996. DON W. DAVIS, 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 25th day of June, 1996. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. No Proposed Findings Were Submitted. COPIES FURNISHED: Roger L.D. Williams, Esquire District 4 Legal Office Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Gerald Gregg 2527 Red Robin Drive East Jacksonville, Florida 32210 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 728 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues are whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense, and if so, whether Respondent's intended action to deny Petitioner's request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact Petitioner is a 52-year-old female who seeks to qualify for employment in a position of trust having direct contact with children or developmentally disabled persons served in programs regulated by the Agency. The Agency is the state agency responsible for regulating the employment of persons in positions of trust for which Petitioner seeks to qualify. In a letter dated September 19, 2014, the Agency's Director, Barbara Palmer, notified Petitioner that her request for exemption from disqualification from employment in a position of special trust was denied. The letter advised Petitioner, without further explication, that this decision was based upon her failure to submit "clear and convincing evidence of your rehabilitation." Resp. Ex. C. Before Director Palmer made her decision, Petitioner's request for an exemption was reviewed by a Department of Children and Families (DCF) screener who compiled a 70-page report entitled "Exemption Review" dated June 17, 2014. See Resp. Ex. B. The DCF report did not make a recommendation one way or the other, but simply compiled all relevant information that would assist the Director in making her decision. The report was initially given to the Agency Regional Operations Manager in Orlando, who presumably then made a preliminary recommendation to the Director. The Agency decision was triggered after Petitioner applied for a position of special trust in 2013. To qualify for the position, Petitioner was required to undergo a level 2 background screening performed by the DCF. The screening revealed that following a jury trial on April 6, 1998, Petitioner, then 35 years of age, was convicted of (a) second degree assault - recklessly causing physical injury, and (b) endangering the welfare of a child. The first offense was a felony while the second was a misdemeanor in New York State. See Resp. Ex. B, p. 11. She was found not guilty on all other charges. The incident occurred on June 3, 1997, while Petitioner was caring for several foster children in her home in White Plains, New York. The felony and misdemeanor are the disqualifying offenses. The record shows that on June 30, 1998, Petitioner was sentenced to serve 90 days in jail for assault and 60 days in jail for endangering the welfare of a child. In addition, she paid a fine and court costs, she was placed on five years' probation, and her license to care for children was revoked. The Judge's Sentence and Commitment noted that Petitioner's "license to care for children is revoked and is not to be restored," and she was "prohibited from caring for any children, even if lic. not required." Id. It also noted that "per recommendation of Dr. Laurence Baker [a psychologist who evaluated Petitioner], Def't not to care for children of others, and shall not apply for a license to do so." Id. at p. 13. There is no evidence that the prohibition on caring for children has ever been lifted. Finally, she was required to receive approximately two years of psychological counseling. Except for these two convictions, there are no other disqualifying arrests or convictions since 1998. After being released from jail, in chronological order, Petitioner was employed in the State of New York by an insurance company, a residential treatment facility, a diagnostic center, a legal aid society, and a facility for substance and chemical abusers. See Resp. Ex. B, pp. 24-25. She has an exemplary record in terms of education, receiving an Associate Degree in 2009, a Bachelor of Science Degree in social work in 2011, and a Master's Degree in social work in 2012. Id. at 24. In 2013, she and her husband relocated to central Florida. Although the documentation and testimony which describe the disqualifying offenses vary in some respects, the incident can be generally summarized as follows. On the morning of June 3, 1997, while caring for foster children in her home, Petitioner placed a three-year-old child on the toilet for "potty" training, where he typically remained for up to 30 minutes.1/ Petitioner acknowledges that she left the child in the bathroom for at least 20 minutes but says she returned several times to check on the child. After another child reported to Petitioner that the child had a bowel movement, Petitioner returned and began to clean him. She noticed scratches on his leg and left to retrieve antibacterial soap. While the undersigned is uncertain who turned on the hot water faucet in the sink, the child climbed several steps and placed his hand under the scalding water. Notably, the grand jury, and later the District Attorney, charged Petitioner with intentionally injuring the child, implying that Petitioner turned on the faucet and placed the child's hand under the water. In any event, Petitioner left the room for a few moments. When she returned, she noticed the child still had his hand under the scalding water but says she did not realize it was burned. The child began whining and was told to lie on the bed and calm down. The child continued to cry and whine, and about ten minutes later, Petitioner returned to the bedroom and noticed bubbles on the skin of the child's hand and blood on his fingertips. She telephoned her husband and asked him to carry the child to the emergency room. The child suffered significant second and third degree burns on his hand/fingers, and he was required to have skin grafts to heal the wounds. Multiple charges were then filed by the local District Attorney, although convictions were obtained on only two charges. Petitioner testified that she has no other charges since 1997; the level 2 screening confirms this fact. She says that following the convictions she has changed her life and enjoys working with children and disabled adults. She has been offered a job conditioned upon the approval of the application. She also stated that she takes full responsibility for her offenses, she is remorseful, and she has learned from the experience. In explaining the rationale of the Director in denying the application, an Agency representative testified that Petitioner has not fully accepted responsibility for her disqualifying offenses. For example, he pointed out that in her Exemption Questionnaire prepared in February 2014, she criticized the presiding judge at her trial for "getting upset when [she] was acquitted of the higher charge." See Resp. Ex. A, p. 4. Petitioner further stated that the judge believed she was guilty of all charges, and while he could have given her probation, he purposely gave her a longer sentence in jail than she deserved. Id. She also criticized the local media covering the incident for taking "a left turn" on the case, which contributed to her conviction. The Agency witness gave considerable weight to the concerns of the Court and psychologist who evaluated Petitioner, who concluded that her child care license should be revoked, she should not care for other children, and she should not re-apply for a child care license in New York. Presumably, these restrictions are still in place. The Agency representative pointed out that if her application is approved, Petitioner would be free to work not just with developmentally-disabled adults, but also with vulnerable children. There is no such thing as a restricted exemption. Given the fact that the disqualifying offenses involved an injury to a child, the Agency concluded, in its discretion, that Petitioner may present a danger to vulnerable children if the application is approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner's application for an exemption from disqualification. DONE AND ENTERED this 20th day of May, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 20th day of May, 2015.
The Issue The issue is whether Respondent should be assessed a $150.00 civil penalty for violating Rule 65C-22.001, Florida Administrative Code, in three respects.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this case, Petitioner, Department of Children and Family Services (DCFS), has filed an Administrative Complaint against Respondent, Cool School, Inc., a licensed child care facility, seeking to impose a $150.00 civil penalty on Respondent for allegedly violating an agency rule in three respects. Respondent, which operates a facility at 57 College Drive, Orange Park, Florida, disputes the allegations and contends that the charges are either not true, or there are extenuating circumstances present which require dismissal of the charges or a reduction in the penalty. Rule 65C-22.001(5)(a), Florida Administrative Code, underpins this action and requires in relevant part that "[c]hild care personnel at the facility must be assigned to provide direct supervision to a specific group of children and be present with that group of children at all times." The Administrative Complaint alleges that in September 2000 Respondent violated this rule by (a) allowing a two-year-old child to exit the facility to the playground, without supervision, clad only in a shirt and shoes; (b) allowing two children under the age of thirteen to change the diaper of a seven-month-old infant in the bathroom, without supervision by the staff; and (c) allowing at least five school-aged children to leave the premises and get items from their book bags on the front porch, without supervision. The DCFS proposes to impose a $50.00 civil penalty for each violation, or a total of $150.00. DCFS has the responsibility of periodically inspecting licensed child care facilities to ensure that they are complying with agency rules and state law. To carry out this duty, DCFS typically assigns its licensing counselors a number of facilities to monitor. In this case, Susan Kipen, a licensing counselor stationed in Jacksonville, was assigned the task of monitoring more than 90 such facilities in the Jacksonville area, including Respondent. In response to a complaint filed by an unnamed parent on September 18, 2000, Kipen inspected Respondent's facility on the afternoon of September 20, 2000. The parent had reported that her two-year old child had wandered into the playground area without supervision, and that the diapers on her seven-month-old child had been changed by two school age children without appropriate supervision. During her visit, Kipen prepared a document entitled Complaint Investigation in which she recited the alleged violations for which Respondent was being charged. They included, among other things, the two complaints previously lodged by the parent, namely, that a "two year old did get outside by himself, he only had shirt and shoes," and that a "7 month [old] was changed by two schoolers." Although the licensing counselor did not actually observe the two incidents reported by the parent, she included them in her report because she says Respondent's owner, Antoinette Garrity, "confirmed" that they were true by reading and signing the report. However, Garrity understood that her signature merely confirmed that she had read the reported charges, not that she agreed with them. The only first-hand evidence on these two charges was that presented by Respondent. The complaining parent did not testify. In addition to the above two charges, the counselor also charged Respondent with allowing "at least five (5) school-aged children, one at a time, and unsupervised, [to leave] the center by the front door to get items from their book bags located on the front porch." This charge was based on a personal observation by the licensing counselor during her inspection. The first violation concerns a charge that a two- year-old left the facility unattended and was "discovered a few minutes later on the playground by the assistant director." On this issue, the evidence shows that the child was using the potty in the presence of a facility worker, Sharon Dunn, who was also changing a baby's diapers at the same time. The two-year-old suddenly jumped off the potty (without his pants), ran to the door, opened it, and went outside on the porch. Dunn, who had the child in her view at all times from the bathroom window, asked the facility's assistant director, Regina Harewood, who was nearby, "Can you get him?" Harewood acknowledged that she could and proceeded to grab the child and bring him back into into the classroom. The child was never in any danger since he was being observed at all times and was retrieved a few moments after he ran out the door. In addition, Harewood was close enough to be capable of responding to an emergency at all times. Under these circumstances, it is found that no violation of the rule occurred. The second charge concerns an allegation that "two (2) children under the age of 13 years changed the diaper of a 7-month-old infant in the bathroom and no staff was present to supervise [them]." The evidence shows that a new worker had a baby in the bathroom for the purpose of changing his diapers. Garrity acknowledged that when the worker left the room to go outside for a moment, the worker improperly allowed two schoolers who were in the same room to change the diapers. While the diapers were being changed, the baby's mother came into the room. She then complained to staff personnel and later filed a complaint with DCFS. Garrity admonished both the worker and children that this situation should never occur again. Although there was no evidence on how this set of events actually or potentially jeopardized the baby's safety or well-being, a technical violation of the rule has been established since there were no supervisory personnel in the bathroom for a few moments. Finally, during her inspection, the counselor observed at least five children, one at a time, walk outside the front door to retrieve items from their book bags, which were lying on the front porch of the facility, and then return inside. At that time, it was the practice of the children to leave their book bags on the front porch when they arrived at the facility each day. This evidence was not contradicted. Because the front porch was no more than 25 or 30 feet from the sidewalk, which was used by the general public, and there was an apartment complex nearby, the children had the opportunity to gain access to areas frequented by the public. This is true even though the assistant director says that while she was on duty, she was by the front door "the majority of the time." Therefore, the children were potentially at risk when they briefly left the premises to retrieve items from their book bags. Respondent's owner admitted that she "hadn't thought of this situation," and after the incident occurred, she instructed the children that all book bags must be brought into the dayroom. Notwithstanding this corrective action, a violation of the rule has been established. In mitigation, Respondent's owner suggested that the entire matter was caused by a vindictive parent who owed her facility money and filed the charges after a heated confrontation. She also worries that each time the facility receives a civil penalty, it "kills" her business. Finally, she described her facility as a "pretty good" day care facility, and insisted that she puts safety first for the children. Respondent has been the subject of one other disciplinary action in which she was found guilty of failing to submit background screening documents within ten days of employment of seven staff members. In that matter, which was concluded after the Administrative Complaint in this case was issued, she was given a $350.00 civil penalty. See Cool School, Inc. v. Dep't of Children and Family Services, DOAH Case No. 00-1421 (Final Order, Feb. 28, 2001).
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 Respondent violated Rule 65C-22.001(5)(a), Florida Administrative Code, in two respects, and that it have a $100.00 civil penalty imposed. The remaining charge should be dismissed. DONE AND ENTERED this 23rd day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2001. COPIES FURNISHED: 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 Antoinette Garrity Cool School, Inc. 57 College Drive Orange Park, Florida 32065 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083
Findings Of Fact On November 13, 1995, Respondent preliminarily established that Petitioner was disqualified to hold a caretaker position providing care or training to children or developmentally disabled individuals. The denial was based upon Petitioner's failure to meet minimum screening requirements specified by Section 435.04(2)(b), Florida Statutes, which seeks to prevent the employment in positions of trust and responsibility of those individuals found guilty of violation of Section 782.04, Florida Statutes, relating to murder. By indictment on March 29, 1973, Petitioner was charged with second degree murder in the Supreme Court, Bronx County, New York. Petitioner subsequently pled guilty to the offense of manslaughter, and, on October 26, 1973, she was sentenced to an indeterminate sentence not to exceed four years. A model prisoner, Petitioner served 14 months of her sentence and was paroled. She reported regularly thereafter to her parole officer until the conclusion of her four year sentence. Facts of the incident leading to the charge against Petitioner and her subsequent sentence were established at the final hearing by the candid and direct testimony of Petitioner. A female in a relationship with Petitioner's brother attacked the Petitioner who resorted to use of a handgun, killing her attacker. Petitioner had earlier sought and received a restraining order against the individual which "worked for a year" before the individual sought again to confront Petitioner. Petitioner, now a grandmother, testified tearfully to her errant behavior at the age of 21, over 24 years ago in New York. Petitioner has never been charged with any legal violation since that time, with the exception of traffic tickets. Petitioner, a high school graduate, was also schooled and certified as a nurse technician in New York in 1980. She moved to Florida in the late 1980's and was certified in Florida in 1989 as a nursing assistant. She was certified as a home health aide in 1990 in the State of Florida. Petitioner is a devout member of her church, attending services several times each week. Her adult children regularly employ her services to care for their children. She has six grandchildren, as well as an eight year old of her own. She also cares for two retired individuals. Prior to Respondent's determination of her disqualification, Petitioner provided child care services out of her home. Arlene Marcellus is the mother of one of those children. Marcellus testified at the final hearing that she has known the Petitioner for more than a year. Petitioner provided care for Marcellus' three year old daughter on a regular basis, eight hours per day, for approximately three months prior to Respondent's determination. Marcellus was well pleased with Petitioner's services and had planned that Petitioner would care for Marcellus' unborn twins. Unfortunately the twins were stillborn. Petitioner desires to continue her work in the area of child care. Since the licensure process required that Petitioner undergo background screening, Respondent made its initial determination to deny exemption. Respondent's representative at the final hearing in this cause testified that facts concerning Petitioner, as presented at this hearing, could have resulted in a different initial determination by Respondent if presented to Respondent prior to that determination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered granting Petitioner an exemption from disqualification. DONE and ENTERED this 10th day of September, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS, 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 10th day of September, 1996. COPIES FURNISHED: Marc Taps, Esquire Legal Services of North Florida 2119 Delta Boulevard Tallahassee, Florida 32303 John Perry, Esquire District 2 Legal Office Department of Health and Rehabilitative Services 2639 North Monroe Street Tallahassee, Florida 32399-2949 Veronica Lee Harris 1229 Elberta Drive Tallahassee, Florida 32304 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 204-X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services Building 7, Suite 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by petitioner, Willie Frank Carodine, Jr., for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner would be entitled to work with children. Respondent, Department of Health and Rehabilitative Services (HRS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on September 3, 1996, an HRS committee denied the request. Petitioner is now barred from doing such work because of disqualifying offenses which occurred on January 16 and March 6, 1992, March 8 and November 3, 1993, and June 20, 1994. On each of those occasions, petitioner pled nolo contendere to the offense of battery, a misdemeanor under Section 784.03(1)(a), Florida Statutes. Since the victim in each case was a person with whom petitioner was then residing, the offenses constituted domestic violence as defined by Section 741.28, Florida Statutes. At hearing, petitioner candidly acknowledged each of the foregoing arrests. All incidents involved the same female, a person whom petitioner described as being jealous, unstable and heavily involved with drugs and alcohol. Petitioner also abused alcohol during that period of his life. Although petitioner says the charges were generally untrue or even fabricated by his girlfriend, and there were witnesses present at each incident who could confirm his version of events, on the advice of his public defender, he pled nolo contendere in each case. Petitioner is engaged to be married in March 1997 to a foster parent who lives with four foster children and her own natural child. Because of his disqualifying offenses, petitioner's fiancee cannot remain a foster parent if she marries him and they share the same household. For this reason, petitioner seeks an exemption. Petitioner no longer uses alcohol and has terminated the tempestuous relationship with his former girlfriend. Indeed, there are no blemishes on his record since the last incident in June 1994, or almost thirty months ago. Since that time, he has been active in his church and steadily employed. Most recently, he has worked as a plasterer with a Jacksonville construction firm. It is fair to infer from the evidence that petitioner has been rehabilitated since the incidents and his life is now stablilized. Petitioner's testimony and supporting evidence is deemed to be credible. Accordingly, it is found that petitioner has proven he is "of good character," he has presented sufficient evidence of "rehabilitation" since the disqualifying incidents, and he will pose no threat to the safety or well-being of children. This being so, the exemption should be granted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 18th day of November, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675, SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1996. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 2, Room 204X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard E. Doran, Esquire Department of Health and Rehabilitative Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Willie Frank Carodine, Jr. 3168 Altamont Avenue Jacksonville, Florida 32208 Roger L. D. Williams, Esquire Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue The issue is whether to deny Respondent's application to renew its child care facility license and impose an administrative fine for the reasons stated in the Department's letter dated September 16, 2016.
Findings Of Fact Ms. Garcia operated a child care facility at 5600 Old Cheney Highway, Orlando, for almost two years. A probationary license expired on September 21, 2016. This proceeding concerns Ms. Garcia's application for renewal of her license. The Department has regulatory authority over the licensing of child care facilities. To ensure compliance with regulations, the Department conducts periodic inspections of licensed facilities. Unless violations are observed during an inspection, the Department's Orlando office annually conducts two routine and one license renewal inspection of each of the 395 licensed facilities in Orange and Seminole Counties. If a license is placed on probation because of violations, inspections are made at least once a month during the probationary period to ensure the deficiencies are corrected. Violations by a licensee of Department rules or a statute are treated as Class 1, 2, or 3 violations. A Class 1 violation is the most serious, as it "pose[s] an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child." Fla. Admin. Code R. 65C-22.010(1)(d). For example, it is a Class 1 violation for a facility operator to allow unsupervised individuals who have no current background screening to be with children. This is because all child care personnel must have a current Level 2 background screening performed before they begin work in the facility. See Fla. Admin. Code R. 65C-22.006(4)(d)1. In 2015, Respondent's facility was inspected on at least four occasions: January 13, March 20, May 18, and August 11. On each occasion, violations of Department rules and relevant statutes were observed. Because the first three inspections were performed by a non-Spanish speaking counselor, Ms. Garcia requested that her facility be inspected by a counselor who spoke Spanish. In June 2015, the Department assigned Roy Garcia (no relation to Ms. Garcia) to perform future inspections, as he is bi-lingual. Later, Ms. Garcia expressed her dissatisfaction with Roy Garcia as well. On January 15, 2016, Roy Garcia conducted an inspection of Respondent's facility. Based on violations observed during the inspection, on February 19, 2016, the Department issued an Administrative Complaint seeking to impose a $270.00 fine. See Dep't Ex. 2. The Administrative Complaint cited the following violations observed during the inspection: Two violations of sections 402.302(3) and (15) and 402.305(2) and Florida Administrative Code Rule 62C-22.006(4)(d) by failing to perform required background screening for two employees. Two violations of rule 65C-22.006(d) and (e) by failing to have background screening documents in the staff files. Three violations of the staff/ratio rule, as required by section 402.305(3) and (4) and rule 65C-22.001(4). Two violations of section 402.302(3) and rule 65C-22.001(5) by allowing a volunteer to supervise children without a qualified employee being present. Four violations of rule 65C-22.006(2) by failing to have student health examinations on file. Four violations of rule 65C-22.006(2) by failing to have required student immunization records on file. At hearing, Ms. Garcia took the position that the charges were not warranted. However, in April 2016, she paid the $270.00 fine. Even though the Department informed her that she could request a hearing, a request was not filed. Therefore, the agency action became final. On April 29, 2016, Roy Garcia conducted another inspection of the facility. Based on violations observed during the inspection, on June 30, 2016, the Department issued an Administrative Complaint seeking to impose a $125.00 fine and to convert her annual license to probationary status, given the number of recurring violations during the preceding year. See Dep't Ex. 3. The Administrative Complaint cited the following violations observed during the inspection: Three violations of section 402.305(3) and (4) and rule 65C-22.001(4) by failing to maintain a ratio of two staff personnel for each five infants under one year of age. One violation of rules 65C-22.006 and 65C-22.010 for failing to have background screening documents and employment history checks in the facility files. At hearing, Ms. Garcia disagreed with the merits of these charges. However, in August 2016, she paid a $125.00 fine. Even though the Department informed her she could request a hearing to contest the charges, a request was not filed. Therefore, the agency action became final. A probation-status license was issued on July 31, 2016, with an expiration date of September 21, 2016, which coincided with the date on which her original annual license expired. See Dep't Ex. 4. A probation-status license is issued for a short period of time during which the licensee must come back into compliance. See § 402.310(1)(a)2., Fla. Stat. On August 4, 2016, Ms. Garcia filed an application for renewal of her license. Because the license was on probation, follow-up inspections of the facility were conducted by Roy Garcia on August 26, 29, 30, and 31, 2016. Multiple inspections were conducted because he believed the safety of the children was at risk. Although Ms. Garcia contends these inspections constituted an "abuse of authority," the Department routinely performs follow-up inspections if a facility's license is on probation. Multiple violations were observed during these inspections. See Dep't Ex. 1. They included the following: Four Class I violations of section 402.305(2)(a) by allowing unscreened individuals to be left alone to supervise children in the facility's care. These violations call for a fine of $400.00, or $100.00 per violation. Three Class 2 violations of rule 65C- 22.002(3)(a) by failing to maintain 20 or 35 square feet per child in areas occupied by children. These violations call for a fine of $180.00, or $60.00 per violation. Three Class 2 violations of section 402.305(4) and rule 65C-22.001(4)(a) and (b) by failing to maintain a sufficient staff to children ratio. These violations call for a fine of $300.00, or $100.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)1. by failing to have Level 2 background screening documentation on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d) by failing to have employee CF- FSP Form 5131 on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)2. by failing to have employment history checks on file. These violations call for a fine of $150.00, or $75.00 per violation. One Class 2 violation of rule 65C- 22.003(2)(a) for a facility employee having not completed the 40-clock-hour Introductory Child Care Training. This violation calls for a fine of $75.00. One Class 3 violation of rule 65C- 22.006(2)(a) and (d) by failing to have on file student health examinations for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. One Class 3 violation of rule 65C- 22.006(2)(c) and (d) by failing to have on file immunization records for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. The Department's letter of September 16, 2016, proposes to impose an administrative fine in the amount of $1,565.00. See § 402.310(1)(a)1., Fla. Stat. Ms. Garcia did not challenge the amount or manner in which the fine was calculated. Rather, she contends the charges were not justified and therefore no fine should be imposed. However, by clear and convincing evidence, the Department has proven the allegations described in its letter. After each inspection, Roy Garcia explained the nature of each violation and how it must be corrected in order to comply with Department rules. Despite his efforts to help Ms. Garcia, repeat violations were observed. Unscreened individuals were supervising the children on two of the four days. Therefore, it was necessary for Roy Garcia to call the parents and ask that they come to the facility and pick up their children. After observing staff ratio violations on August 29, Roy Garcia returned the next day and observed the same violation. He also observed unsupervised volunteers alone with children three times (August 29, 30, and 31) during the same week.2/ When Roy Garcia asked Ms. Garcia why she was not following his instructions, she would argue with him, deny that any violation occurred, and contend he was out to shut her down and discriminate against her because she was an "entrepreneurial woman." While conceding that she made "mistakes," Ms. Garcia contended Roy Garcia was harassing her and simply trying to find violations when he inspected the facility. She also contends the violations were not serious, were technical in nature, and did not threaten the safety or welfare of the children. However, Class 1 violations were repeatedly observed. Ms. Garcia stressed the fact that her family is dependent on the income she derives from operating the facility, and she will not be able to support her family if the license is not renewed. She added that she is now in limbo on whether to prepay the rent on the building where her current facility is located. Had the facility been operated in compliance with Department rules, these concerns would not be present. Ms. Garcia also contended that Roy Garcia would not allow her husband, Elmer, to substitute for a missing teacher. However, Elmer works in the kitchen, drives a facility vehicle, and at that time did not have the minimum training necessary to qualify as a facility employee who supervises children. Ms. Garcia further contended she was never given appropriate training on how to determine if a prospective employee has current background screening, especially since she has very few computer skills. This assertion is contrary to the accepted evidence, as she could have simply called the Department's Orlando office to verify the eligibility of prospective employees or volunteers before they were hired. Notably, even after a series of administrative complaints were issued concerning unscreened employees/volunteers, as of January 5, 2017, four persons who had worked or volunteered at the facility still had no Level 2 background screening. Ms. Garcia presented the testimony of four mothers whose children used the facility when the license was active. All were pleased with the care of their children. They especially appreciate the fact that the facility is open until midnight, is located in an area convenient to where they live or work, and charges less than other child care facilities in the area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying the application to renew Respondent's license and imposing an administrative fine of $1,565.00. DONE AND ENTERED this 9th day of February, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 9th day of February, 2017.
