The Issue The issue in the case is whether the Petitioner's application for renewal of a family day care home license should be granted.
Findings Of Fact At all times relevant to this case, the Petitioner owned and operated a licensed family day care home in Lakeland, Florida. On March 26, 2003, representatives of the Respondent arrived at the Petitioner's facility to assist in distributing materials that had been obtained by the facility. There were six children in the facility on March 26, 2003. The Petitioner was the only adult present and available to supervise the children. Upon arriving at the facility, one of the Respondent's representatives discovered an unsupervised "toddler" playing in the bathroom. The child's hands were in a toilet that was unclean and unflushed. One of the Respondent's representatives removed the child's hands from the toilet intending to wash the child's hands, but there was no soap or toweling available. It is unclear whether the Petitioner was aware that the child was in the bathroom, but in any event the child was unsupervised. Subsequently during the same visit, the Petitioner took the children outside into a play area and then returned inside to talk to the Respondent's representatives, leaving all of the children outside and unsupervised. The Respondent's representatives terminated their visit after advising the Petitioner to return outside and supervise the children. On March 27, 2003, a child protective investigator (CPI) employed by the Respondent arrived at the facility to investigate a report of inadequate supervision received on the previous day. Upon arriving, the CPI asked the Petitioner, who was the only adult present in the facility, as to the census and was advised that there were five children in the facility. The CPI observed the five children in a playroom. A few minutes later, the CPI responded to noise coming from the bathroom and discovered a sixth child, unsupervised and playing in the apparently-clean toilet water. The CPI removed the child's hands from the water. At one point, the Petitioner took another child into the bathroom and left him there. At another point, the Petitioner put infants into a room to nap, leaving the other children unsupervised while she did so, and then leaving the infants unsupervised while they napped. One child ran into an enclosed garage area without the Petitioner's knowledge. The Petitioner was unable to properly identify all of the children by name when requested to do so by the CPI. When asked to retrieve files on the children, the Petitioner left all the children unsupervised while she went to her automobile to get the files. The Petitioner asserted that the CPI had offered to watch the children while she went outside to get the files. The CPI denied having agreed to supervise the children. The greater weight of the evidence fails to support the Petitioner's assertion that the CPI offered to supervise the children during the visit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order denying the Petitioner's application for renewal of licensure as a family day care home. DONE AND ENTERED this 24th day of September, 2003, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 24th day of September, 2003. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Wanda Williams Williams Family Daycare Home 1630 Fruitwood Drive Lakeland, Florida 33805 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 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700
The Issue Whether Petitioner is entitled to an exemption from disqualification to work in a position of special trust.
Findings Of Fact On June 6, 1979, Petitioner went into a public restroom and attempted to use a urinal. To do so, he had to remove his sexual organ from his clothing. An adult male dressed in beach clothing called to him, "Come here," so Petitioner turned around and took half a step. The man asked, "What do you like?" Petitioner responded, "Women. Excuse me," and faced the urinal again. The other man, a plain-clothes law-enforcement officer, arrested Petitioner. Petitioner was charged with Section 800.03, Florida Statutes, "exposure of a sexual organ (by masturbation) -- misdemeanor." This was a misdemeanor charge at the time committed. Despite there having been no masturbation, in his opinion, Petitioner pled nolo contendere, and adjudication was withheld; he was assigned six months unsupervised probation and paid a fine. It is only on the basis of the foregoing 1979 plea that Petitioner has been disqualified from working in a position of special trust. He was notified by an April 18, 1996 letter that, pursuant to Sections 402.302(8) and 435.04(2), Florida Statutes [1995], he is disqualified as a household member in a family day care home. (Agency Exhibit 1) Petitioner also was arrested in 1982. The record is unclear as to what statute he was charged under at that time, but he did plead guilty and was fined. The circumstances surrounding the 1982 incident were established solely by Petitioner's testimony. He was in a department store restroom. There was a hole cut in the wall between two stalls "and apparently there was someone on the other side, the next stall that prompted me to put my sex organ through the hole in the wall." The person in the next stall was not a law enforcement officer. (TR 37-41, 43-45)1 Petitioner was arrested upon exiting the restroom. He has not been arrested since 1982. Petitioner has been happily married for 27 years. He and his wife have three children and five grandchildren. He and his wife are well-loved by their own children and grandchildren. They have a history of welcoming the troubled friends of their children into their home. The neighborhood children and Petitioner's grandchildren have always affectionately called Petitioner, "Grand-daddy" and have called Petitioner's wife, "Nanny." Their home is, and always has been, a gathering place for the neighborhood children. Petitioner's wife runs a licensed family day care home out of the family home from 6:00 a.m. to 6:00 p.m., Monday through Friday. Although she did not know about Petitioner's 1979 incident before it was disclosed through the agency screening process, she does not believe Petitioner presents a danger to children. She believes the 1979 incident constituted "entrapment". By a second letter dated April 18, 1996, Petitioner's wife was notified that, pursuant to Sections 402.302(8) and 435.04(2) Florida Statutes [1995] (Agency Exhibit 2), Petitioner was forbidden from having contact with any children in her family day care home and that if he is allowed to have contact with children in her care, she would be subject to an administrative fine and possible criminal penalties. The four children currently paying to attend Petitioner's wife's day care home are respectively aged one, two, three, and four years of age. For the last eight years, due to his trade as a self- employed leather worker, Petitioner has traveled a wide circuit from flea market to flea market throughout the week. He is only present in the family home from 10:30 p.m. Fridays to 3:00 a.m. Mondays. His wife's day care home does not operate during those periods that Petitioner is typically at home. Petitioner is a devout Seventh Day Adventist and an elder of his local church. He is the church's Sabbath School Superintendent. Petitioner's daughter and former daughter-in-law wrote letters entered in evidence and also testified that the family home is warm and loving and that Petitioner is a great "Grand- daddy." They rely on Petitioner and his wife for baby-sitting services. In their mutual opinion, Petitioner is not a danger to children, however some of their testimony minimized Petitioner's problems as only being "past mistakes." Neighbors' letters to the effect that Petitioner does not pose a threat to children, is active in his church, and travels except on weekends were admitted in evidence without objection, as was a statement by his pastor that Petitioner is a man of "impeccable character." However, none of these persons was available for cross-examination, and their letters do not clearly show that they had knowledge of Petitioner's past lewd acts or any reason or opportunity to know if he had committed any subsequent ones.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is , reluctantly, RECOMMENDED that the Department of Children and Families enter a Final Order removing Petitioner from the registry of disqualified persons.RECOMMENDED this 6th day of March, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1997.
The Issue The issue in this case is whether Petitioner, Sabra Portwood, is entitled to register her home as a family day care home under the provisions of Chapters 402 and 435, Florida Statutes.
Findings Of Fact On August 10, 2000, Petitioner was married to Randy Shoaff. She had two children, twins, by him and is currently pregnant with another of his children. Although estranged at present, they remain married. Petitioner is in the preliminary stages of dissolving the marriage and intends to complete the dissolution process. Petitioner and Mr. Shoaff have had a rocky relationship. On October 4, 2000, less than two months into their marriage, Mr. Shoaff struck Petitioner several times in the head from behind. She was pregnant at the time of the attack. The incident was reported to law enforcement. On March 12, 2001, Petitioner swore out a Petition for Injunction for Protection Against Domestic Violence, naming her husband as Respondent. The essential facts to which she swore and testified to at hearing were as follows: On February 23, 2001, at 705 W. Wilcox the Respondent Randolph Shoaff told me that the only reason I was still alive was because I was pregnant and that I have 3 other children. He said that he wanted to shoot me & then kill himself. Because of his actions before I have been afraid of him on 3 or 4 different occasions, and I would just be quiet & not say anything & wait for him to go to work. On Oct. 4th (there should be a police report) there was a dispute between us & he started hitting me in the head repeatedly when I was 3 months pregnant & had only been home for 3 hrs from the doctor because I was bleeding during pregnancy. I am afraid because I asked his coworker if his (Randy's) gun was under the counter & he said it wasn't there. As a direct result of Petitioner's request for a domestic violence injunction, the Third Circuit Court issued a Temporary Injunction. Subsequently, the injunction was conditionally dissolved. However, Mr. Shoaff was ordered to have no personal contact with Sabra Portwood at her home. A third Order was subsequently entered in order to facilitate visitation with his children, allowing non-hostile contact between the parties. Mr. Shoaff does not live with Petitioner. However, Petitioner and Mr. Shoaf are presently married. Therefore, Mr. Shoaf is currently a member of Petitioner's family and is required to undergo background screening for Petitioner's registration. Mr. Shoaff did not pass the background screening because of the injunction based on domestic violence entered against him. No exemption from disqualification was sought. Because of the failed background screening, Petitioner, who was the victim of domestic violence and took steps to protect herself from that violence, was denied registration based on the actions of her estranged husband.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services denying Petitioner's request to register her home as a family day care home. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 24th day of May, 2002. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Building A, Suite 104 Tallahassee, Florida 32399-2949 Sabra Portwood 140 Regina Road Perry, Florida 32348 John 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
The Issue Whether Petitioner's application for licensure as a family day care home should be granted.
Findings Of Fact Based on the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Linda Richmond, formerly Linda Cook, applied for a license to operate a family day care at her residence. In connection with Petitioner's licensure application, dated December 17, 2001, the Department conducted a background screening of Petitioner, which included a review of the following: local and state criminal records; Florida Department of Law Enforcement reports; FBI records; records of the Florida Hot Line Information System; employment history; and affidavits of good moral character. Based on information obtained from the Florida Hot Line Information System, the Department denied Petitioner's application to operate a family day care home. According to the Notice of Denial dated June 12, 2002: [Y]our registration to operate a Family Day Care Home is being denied at this time due to the following: (1) Background screening revealed a prior incident of neglect of your children and inadequate supervision. The facts underlying the report demonstrates [sic] an inability to ensure the safety of children in your care to the level necessary to be registered as a Family Day Care Home. The Notice of Denial does not specify which background screening records the Department relied on in reaching its decision to deny Petitioner's application. However, in light of the evidence presented by the Department, the denial was apparently based on information included in a 1990 Abuse Report and/or a 1995 Abuse Report. The 1990 Abuse Report noted that Petitioner admitted using crack cocaine and having people come to her home for the purpose of using crack, but denied that she used drugs in her children's presence. Also, the 1990 Abuse Report indicated that one of Petitioner's minor children had been fondled by a man who was at the home for several days and that Petitioner "reported being in the home at the time of the alleged incident." Furthermore, according to the 1990 Abuse Report, the house in which Petitioner, her then husband, and her children lived was not clean and did not have electricity. The 1990 Abuse Report concluded that Petitioner had neglected her children. Based on the investigation, on or about October 25, 1990, the report was closed as "confirmed for conditions hazardous to health and all other maltreatments are indicated." The 1990 Abuse Report noted that "due to the condition of the home and the crack usage in the home by the parents," the children were placed in the home of their maternal grandmother. Finally, as to the disposition of the case and the services to be provided, the report stated that the risk and severity of harm to the children was low "in the grandparental home," that protective service supervision was needed, and that the case was referred to protective services for ongoing supervision. Petitioner admits that at the time of the 1990 Abuse Report and investigation related thereto, she was addicted to crack cocaine. However, Petitioner's credible testimony was that she never used crack or any illegal drug in her children's presence. Moreover, at the time one of her minor children was fondled by a man temporarily staying at the house in which the children lived with their father, Petitioner was estranged from her then husband, was not staying with him and the children, and was not aware of that incident until some time after the incident occurred. Notwithstanding the findings and conclusions in the 1990 Abuse Report, there is no evidence that Petitioner neglected or failed to supervise her children, as alleged by the Department. In late 1995 or early 1996, a second abuse report, the 1995 Abuse Report, was generated following an investigation into allegations that the maternal grandfather of Petitioner's children was physically abusing them. As a result of an investigation, the 1995 Abuse Report found that the maternal grandfather, with whom the Petitioner's children were living, had used excessive corporal punishment on them. The report was closed with a finding of verified maltreatment of the children by their maternal grandfather. During the time period covered by the 1995 Abuse Report and the maltreatment of Petitioner's children by their maternal grandfather, the children were not living with Petitioner. They were living with and in the custody of their maternal grandparents, having been placed with them by the State as a result of the findings and conclusions in the 1990 Abuse Report. As accurately noted in the 1995 Abuse Report, Petitioner's role at the time covered by the report was that of "parent not in home." Nothing in the 1995 Abuse Report indicates that Petitioner neglected or failed to supervise her children. Rather, it was Petitioner who called the Abuse Hot Line on December 19, 1995, after she observed her father hit one of her children so hard that the child fell to the ground. This incident occurred December 19, 1995, while Petitioner was at her parents' house to visit her children and give them Christmas gifts. The reason Petitioner called the Abuse Hot Line to report the December 19, 1995, incident described in paragraph 12 was that she cared about her children and perceived her father's action to be physical abuse of one of her children. Although Petitioner reported the December 19, 1995, incident the day it occurred, no one came out to investigate the matter. The following day, Petitioner reported the incident to her counselor at the Center for Drug Free Living, who then telephoned the Abuse Hot Line. The Notice of Denial fails to state any facts from either the 1990 Abuse Report or the 1995 Abuse Report which establish that Petitioner neglected or failed to adequately supervise her children. Moreover, neither the 1990 Abuse Report nor the 1995 Abuse Report supports the Department's allegations that Petitioner neglected or failed to supervise her children. Finally, the Department presented no evidence to support its allegations or to demonstrate Petitioner's "inability to ensure the safety of children in [her] care to the level necessary to be registered as a Family Day Care Home." Petitioner successfully refuted the Department's allegations that she neglected and failed to adequately supervise her children, even though she admitted that in 1990, she was addicted to crack cocaine. However, this admission by Petitioner, standing alone, does not establish the Department's allegations. After the 1990 Abuse Report was issued and prior to issuance of the 1995 Abuse Report, Petitioner faced her addiction and took action to turn her life around so that she could regain custody of her children. As part of Petitioner's rehabilitative process, she successfully completed a drug treatment program as evidenced by the fact that she has been "drug free" since September 15, 1995, or for more than seven years. In addition to the drug treatment program, Petitioner also participated in and completed a parenting class. After completing the drug treatment program and the parenting class, Petitioner regained custody of and was reunited with her children. In March 1996, Petitioner was awarded "supervised" custody of her children. Six months later, Petitioner was awarded permanent custody of her children. There is no indication that Petitioner neglected, abused, mistreated, or failed to supervise her children either prior to or after March 1996, when she regained custody of the children. Since successfully completing the drug treatment program and parenting class and regaining custody of her children, Petitioner has had a stable work history, has remarried, and has become an active member of a church in her community. From 1996 through 1999, Petitioner was employed as a housekeeper by Disney World. After leaving Disney World, Petitioner was employed at Sophie's Kids Learning Center, as a child care provider or "teacher" of toddlers. Petitioner is currently employed at Sophie's Kids Learning Center and has been employed there since 1999, except for a six-month period when she took leave to care for her daughter and grandchild. In letters of support, Petitioner is described as a good employee, one of the center's best instructors who is doing "excellent work with children of all ages." Petitioner is an active member of Salem Gospel Baptist Church and has been for the past two years. Petitioner attends church services regularly, is a member of the church choir, and teaches a children's Sunday School Class. Letters of support from the pastor of the church and a church member indicate that Petitioner is a committed member of the church who works with the children in the church. These letters also state that Petitioner has gained and enjoys the respect of the parents in the church as well as those not in the church.
Recommendation Based on 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's application for licensure to operate a family day care home. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 13th day of December, 2002. COPIES FURNISHED: Richard B. Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Linda Richmond 25 West 14th Street Apopka, Florida 32703 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
The Issue Whether the Department of Children and Family Services (the "Department") had just cause to revoke the license of Petitioner to operate a family day care home.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: From April 15, 1987, through March 31, 2001, Marcia Edwards operated a registered family day care home at 15475 Chloe Circle, Fort Myers, Florida 33908. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed child care facility, a licensed family child care home, and a registered family child care home. Sections 402.305 and 402.313, Florida Statutes. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care home involves no Department inspections and only requires that the operator complete a training course and provide to the Department certain paperwork and that the operator and other household members undergo background screening. The operator of a registered family day care home must comply with the limits on the number of children under care, as set forth in Subsection 402.302(7), Florida Statutes. Ms. Edwards had been reminded of the requirement for background screening of household members at least once, via letter dated February 12, 1993. Nonetheless, the Department received two complaints in December 1994, regarding the presence of an unidentified person in the home. One complaint noted that an "unidentified male houseguest was eating and drinking the children's food." The second complaint noted that Ms. Edwards was out of town and left the children in the care of her mother and "a guy named Wayne." On January 4, 1995, the Department sent Ms. Edwards a letter informing her of the complaints and reminding her that she could not leave children with persons who had not undergone background screening. The letter noted that neither Ms. Edwards' mother nor "Wayne" had undergone background screening. The adult male referenced in the complaints was Wayne Brueckman, who was residing in the Edwards home. On February 6, 1995, in compliance with the Department's letter, Ms. Edwards submitted the necessary information to initiate background screening on Mr. Brueckman, listed as a "Household Member" and "Sitter/Relief." Mr. Brueckman's background screening revealed no disqualifying information. Ms. Edwards was reminded of the statutory capacity limitations in person and in writing at least 11 times between September 1987 and June 1999. On at least five occasions, Ms. Edwards responded that she understood the capacity limitations. Nonetheless, Department employees personally observed violations of the capacity limitations on at least five separate occasions. By letter dated July 7, 1999, the Department gave Ms. Edwards an administrative warning that she would be subject to imposition of a fine if she continued to operate in violation of the statutory capacity limitations. On August 13, 1996, an abuse report was received by the Department that Wayne Brueckman sexually abused D.S., a three- year-old boy, in the Edwards home. The child had told his mother that Mr. Brueckman kissed his penis, put a "white thing" in his anus, and spanked him when he defecated in his pants. However, the child would not repeat his allegations to protective investigator Mae Cook, and an examining physician could find no physical evidence of sexual abuse. Mr. Brueckman denied the allegations. Ms. Edwards was interviewed by Ms. Cook concerning the August 13, 1996, complaint. Ms. Edwards denied any inappropriate activity and vouched for Mr. Brueckman as her friend of 20 years. Though she closed the file because she did not have sufficient evidence to confirm the allegations, Ms. Cook strongly suggested that children staying overnight not be allowed to sleep in Mr. Brueckman's room and that he not be left alone at any time with children, to avoid any repetition of such allegations. A repeated citation in the violation notices from this point forward was that Ms. Edwards would leave Mr. Brueckman alone with the children in her care for extended periods of time. Concerns regarding Mr. Brueckman were also raised during an investigation of another sexual abuse report received by the Department on November 18, 1996. This complaint involved Z.A., a three-year-old boy in care at the family day care home. The child told a story of some adult in the Edwards home rubbing his genitals, but his limited verbal skills made it unclear whether a man or woman did the touching. Wayne Brueckman and Marcia Edwards were both interviewed by the protective investigator and both denied any inappropriate activity. Again, there was no physical evidence to confirm the allegations. On February 5, 2001, the Department received an abuse report that W.W., a 19-month-old boy in care at the Edwards home, had bruises along his spine and arms, two large bumps on his head, and a patch of hair loss on the top of his head. Medical examinations by the Child Protection Team and the child's pediatrician determined the injuries were significant, inflicted and the result of physical abuse. The abuse report was called in by J.W., the divorced father of the child. W.W. lived with his father and his older sister in the home of J.W.'s mother. J.W.'s teenaged nephew also lived in the house. W.W. did not see his biological mother. J.W. worked as a chef, and left W.W. and his older sister at the Edwards home on evenings that he worked. The medical determination of the approximate time of injury indicated the injuries occurred either at the child's residence or the Edwards family day care home. When at his residence, W.W. was in his father's care. J.W. denied inflicting the injuries on his son, and discounted the possibility that anyone else living in his household might have done so. J.W. was certain that his son's injuries were inflicted at the Edwards home. W.W.'s older sister told investigators that "bad boys" at the Edwards home had inflicted the injuries on the boy. J.W. readily consented to the CAT Scan, eye examination, and clotting factor test recommended by the pediatrician. The father expressed concern about the supervision provided by the family day care home. He recalled several times in the past that when he came to pick up his children at night, he could look in the window of the Edwards home and see Mr. Brueckman sleeping. It required lengthy knocking and ringing of the doorbell to finally rouse Mr. Brueckman or anyone else in the home. Wayne Brueckman and Marcia Edwards were interviewed by the Protective Investigator. Both denied any inappropriate activity or failure to supervise. However, based upon the medical evidence, and multiple interviews including questioning of the children in attendance at the family day care home, the report was closed as verified. The Protective Investigator concluded that the child was injured by other children at the family day care home. The case determination found that Marcia Edwards and Wayne Brueckman inadequately supervised and neglected W.W. On February 22, 2001, while the W.W. case was being investigated, Ms. Edwards applied to renew her family day care home registration. Based upon the W.W. investigation, the Department issued a denial of registration on May 29, 2002. Ms. Edwards requested a formal administrative hearing to contest the denial of registration. The Department forwarded the matter to the Division of Administrative Hearings, where it was assigned DOAH Case No. 01-2840. A hearing was scheduled for September 19, 2001, in Fort Myers, Florida, before Judge Daniel S. Manry. Counsel for Ms. Edwards requested a continuance due to a scheduling conflict. Judge Manry granted the continuance and rescheduled the hearing for October 19, 2001. On October 12, 2001, the Department filed a motion to relinquish jurisdiction, accompanied by a settlement agreement between the parties. On October 15, 2001, Judge Manry entered an order closing the file in DOAH Case No. 01-2840. The settlement agreement required licensure of the family day care home, which would obligate the family day care home to comply with increased regulatory standards. One such standard prohibits the owner from working out of the home during the hours the family day care is operating. Rule 65C- 20.009(1)(a), Florida Administrative Code. In the settlement agreement, Ms. Edwards affirmatively recognized her on-going obligation to comply with all requirements of the Florida Statutes and Administrative Code applicable to family day care homes. The settlement agreement also provided that the Edwards home would receive a consultation by Child Care of Southwest Florida ("CCSWF"), a private, non-profit regional organization that, among many other services, provides training and technical assistance to home-based child care providers. This consultation would be at the Department's expense. CCSWF's consultant would assess the home's compliance with licensing standards and make suggestions as to implementation of best practices. The Department's experience has been that CCSWF's consultation, technical assistance, and training have proven successful in improving marginal child care providers. On December 17, 2001, Lisa Bledsoe, the infant/toddler coordinator for CCSWF, visited the Edwards home for the required consultation. Ms. Bledsoe rated the home based on the Family Day Care Rating Scale ("FDCRS"), an objective tool developed by the National Network for Child Care for the assessment of infant/toddler group care. The FDCRS consists of 32 items which assess the quality of center-based child care for children up to 30 months of age. This 32-item scale covers six categories: Space and Furnishings for Care and Learning, Basic Care, Language and Reasoning, Learning Activities, Social Development, and Adult Needs. Each item can be ranked from 1 to 7. A ranking of 1 describes care that does not even meet custodial care needs while a ranking of 7 describes excellent, high- quality personalized care. The Edwards family day care home received a cumulative score of 2.375 on the FDCRS. Deficits included a sterile and child-unfriendly interior, lack of interesting and colorful pictures and no pictures at child's eye level, insufficient opportunity for outdoor play, minimum hand washing requirements not met, diapers not checked regularly, failure to conduct regular fire drills, dim lighting, and insufficient activities to encourage language development. Ms. Bledsoe contacted Ms. Edwards to notify her the completed rating would be mailed to her. Ms. Bledsoe offered follow-up visits, technical assistance, and training classes for caregivers. Ms. Edwards rejected the offer of further assistance. While acknowledging that her recommendations were not mandatory, Ms. Bledsoe could recall no other day care provider rejecting additional help from CCSWF, which is provided free of charge. The need for Ms. Edwards to provide supervision at the family day care home and to be present was an important issue in the settlement of DOAH Case No. 01-2840. On October 10, 2001, prior to the signing of the settlement agreement, Ellen Blake, a licensing counselor for the Department, conducted a pre- licensing orientation and review at the Edwards home. Ms. Blake and Ms. Edwards had a lengthy discussion about supervision requirements. Ms. Edwards told Ms. Blake that she would be absent only when taking and picking her children up from school. She and Mr. Brueckman were sharing the care of the children. After obtaining licensure, Ms. Edwards appeared to be providing closer supervision of Mr. Brueckman. Ms. Edwards was present for six of the seven licensing inspections the Department performed between October 10, 2001, through June 18, 2002. However, testimony from Ms. Edwards' own witnesses established Ms. Edwards was readily available in the evenings to do extensive hours of volunteer work. Additionally, she transported her own minor children to after-school and weekend activities and was always available to transport other people's children to and from school and outside activities. Further, Ms. Edwards operated a photography business that often involved out-of-home shoots, including a large annual undertaking at St. Xavier School. Mr. Brueckman was left alone with children when Ms. Edwards was out of the home. Ms. Edwards' witnesses also established that she provides child care 24 hours a day, 7 days per week, which is a service not readily available in the community. The home is consistently well utilized, especially during the expanded hours. Mr. Brueckman was providing evening and night supervision, and slept in the same room as the children under his care. The Edwards have three minor children who often have multiple friends spend the night for sleep-overs. Neither the Edwards children nor their friends were restricted from access to the designated child care room. On June 13, 2002, the Department received an abuse report stating that Wayne Brueckman sexually abused D.S., a two- and a half-year-old boy in care at the Edwards family day care home. On June 20, 2002, during an interview with the Lee County Sheriff's Office, Mr. Brueckman admitted to inappropriately touching the child's penis and having the child touch his penis during diaper changes. Mr. Brueckman has been charged with two counts of felony lewd and lascivious molestation and is awaiting trial. Commission of sexual battery on a two-and-a-half-year- old child is a serious violation of the obligation of a child care provider to supervise a child entrusted to their care and for which they are receiving payment. Molestation of a child creates a great likelihood of actual or potential harm. Mr. Brueckman lived at the Edwards home and received only room and board for the continuous care he provided for the children of paying clients, as well as Ms. Edwards' three minor children and their numerous friends. Mr. Brueckman admitted to having had no dating or sexual relationships with an adult for over ten years. He had no private time and felt overwhelmed by his work situation. On June 20, 2002, the Department cited Ms. Edwards for a deficiency in supervision as she failed to meet the needs of children in her care due to Wayne Brueckman's molestation of D.S. The operator of a family day care home is ultimately responsible for the supervision of the children in care. Rule 65C-20.009(3)(a), Florida Administrative Code. Upon learning of Mr. Brueckman's actions, Ms. Edwards immediately evicted him from her house. To meet the requirement that she have a trained substitute caregiver in the home, Ms. Edwards designated her husband as her substitute in July 2002. As of the date of hearing, Mr. Edwards had not completed the required training. During the nine licensing inspections the Department performed between October 10, 2001 through July 1, 2002, various violations of minimum licensing standards were found, including: inadequate lighting in the playroom; failure to keep up-to-date immunization records; failure to keep on file the required enrollment information; ants on the kitchen table; home, furnishings, toys and equipment not kept clean and in good repair; incomplete first aid supplies; and hazardous materials (alcoholic beverages and protein shake mix) within a child's reach. Ms. Edwards corrected all these violations. The Department never sought to fine Ms. Edwards for any of the cited violations. By notice, dated August 14, 2002, the Department revoked Ms. Edwards' license based on the reasons delineated in the letter including past history, licensing inspections, the arrest of Mr. Brueckman for lewd and lascivious molestation of a child at the family day care home, and the ongoing failure to have a qualified substitute.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking the license of Marcia Edwards to operate a family day care home. DONE AND ENTERED this 5th day of February, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 5th day of February, 2003.
The Issue Whether Petitioner has grounds to impose a fine for a violation of the rule that requires the family day care operator to allow access to the entire premises of the family day care home for inspection.
Findings Of Fact At all times relevant to the allegations of this case, Respondent, Mary Higdon, was licensed by Petitioner to operate a family day care in her home. Barbara Ivey, DCF, has been the day care licensing representative for Respondent since 1996. At Ivey's first inspection of the day care home, Higdon refused her access to the master bedroom. Ivey did not note the violation. However, Ivey advised Respondent that the rule required that the entire premises had to be inspected. In 1998, during a scheduled appointment, Respondent again refused access to the master bedroom on the grounds that her husband worked nights and was sleeping. Ivey insisted that she must inspect the master bedroom and she would be back. When Ivey returned, she was able to inspect the master bedroom. In 1999, during a scheduled appointment, Respondent again refused access to the master bedroom. Ivey reminded her that Respondent had agreed to the time of the appointment and that this refusal was not acceptable. Respondent then stated that someone could "peek" in to the room while her husband slept. A trainee, who was with Ivey, went with Respondent toward the bedroom; the door was opened slightly, and the trainee peeked into the room but was not able to see into the dark room. On August 24, 1999, Ivey made an unannounced visit to Respondent's home to inspect the entire premises and re-check an air-conditioner that was out of compliance. This re-check was necessary for re-licensing. Ivey arrived at the home on a weekday during regular operating hours. Stacy Rivera, Respondent's daughter, answered the door to Ivey. Ivey identified herself and asked to inspect the premises. She explained to Rivera that the inspection would only take a moment. Rivera acknowledged that she knew that Ivey was an inspector for DCF. Ivey also noted that there were six or seven children present at the home. Rivera indicated that all of them were her children. Rivera stated her mother was out of town and refused to permit Ivey entry. Ivey requested that Rivera contact her mother so she could complete the re-licensing. Ivey observed Rivera calling someone, but did not know who. Rivera returned to the door and reiterated that Ivey could not enter. Rivera has not been screened to care for children. Rivera testified that she was not an employee of the family day care. Respondent did not notify Petitioner that the day care would not be in operation during the week of the inspection.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent was found guilty of violating Rule 65C-20.012(3), Florida Administrative Code, and that an administrative fine of $100.00 be imposed. DONE AND ENTERED this 7th day of August, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2000. COPIES FURNISHED: Carmen M. Sierra, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1792 Mary Higdon 7141 Green Needle Drive Winter Park, Florida 32792 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner, the holder of a family day care home registration, has violated Respondent's minimum standards for child care providers by failing to directly supervise an infant in her care on March 22, 2006, and whether her registration should be revoked, pursuant to Section 402.310(1), Florida Statutes.1
Findings Of Fact Petitioner, Jacqueline Bizzell, has been operating a child care facility in her home, at the same location, since 1992. She has been a registered family day care home with Respondent since January 30, 2001. As a part of her application to be a registered family day care home provider, Petitioner sent Respondent verification that she completed the required training for child care providers, which includes knowledge of Respondent's rules and regulations in the area governing child care. On January 26, 2006, Petitioner was informed that her family day care home was again registered for one year, effective January 30, 2006. In the letter, Petitioner was informed that she must maintain her registration in accordance with Section 402.313, Florida Statutes (2005). On March 24, 2006, Respondent received an allegation of neglect or abuse that took place at Petitioner's family day care home on March 22, 2006. Rivers Lewis (Lewis) was a child protective investigator for Respondent on the date of the allegation. He conducted an investigation of the allegation and completed a report. As a part of the investigation, Lewis spoke directly with Petitioner who stated that on March 22, 2006, the child was the only child in her care the day of the incident, and that she left him sleeping on her bed and went into the hallway in front of another room to do laundry or to do something else. Petitioner told Lewis that as soon as she heard the child cry, she stepped back into the room to find that he had fallen from the bed. Petitioner said, first, that the child had fallen off the bed, but later stated that the child had been on the side of the bed and was hanging onto the covers. Lewis submitted his investigative report on April 27, 2006, concluding that the case could be closed with verified indicators of "inadequate supervision" by Petitioner. Shortly after Lewis submitted his report, Ivette Garcia, Child Care Licensing Administrator, received a copy and reviewed it with another worker. She sent Petitioner a letter, dated May 10, 2006, stating that: "The purpose of this letter is to advise you that effective immediately, your family day care home is closed and that your registration is no longer valid." The closure was based upon the incident that occurred on March 22, 2006, wherein the investigative report, submitted by Lewis, confirmed indicators of inadequate supervision. No further investigation or other action was conducted by the child care licensing section in DCF's District 7 before the letter was sent. Although Garcia testified at the hearing that inadequate supervision of a child is a Class I violation, the highest violation, Petitioner was not specifically advised of such classification in the May 10, 2006, letter, nor was a finding made of an immediate serious danger to the health, safety, or welfare of the children who are enrolled in Petitioner's home. Respondent's District 7 Child Care Licensing office did not go to Petitioner's home to inspect or verify the report. It had no further communication with Petitioner after said date. Petitioner was not charged with causing injury to a child under her supervision. Garcia testified that due to the limitations of the registration statute (§ 402.313, Fla. Stat.), Respondent had only one option to deal with a Class I violation: immediately close the home and invalidate the registration. Petitioner's family day care home operated under the name: Hi Granny Day Care. She had only one child in her home on March 22, 2006, the eight-month-old boy, Markel. The child had been fussy and throwing up all day. At about 4:00 p.m., she put the child in the middle of her bed when he finally went to sleep. The bed was by the door. She stepped across the hall to do some chores and while standing at the door, in front of the playroom for about 14 or 15 minutes. When she heard a noise, she immediately stepped back into the room. She admits that she said to the investigator that he fell out of the bed, but that he really did not fall to the floor, but slid off of the bed and was dangling from the bed when she came back into the room; and a blanket broke his fall. She provided a handwritten diagram of her home as it appeared on the date of the incident. Petitioner had been taking care of Sherina Clemons' eight-month-old son, Markel, for over two months when the incident occurred. On March 22, 2006, Petitioner called her between 4:45 p.m. and 5:00 p.m. asking Clemons to not be mad at her. Petitioner told her that the child had been asleep when she placed him on her bed, but that when she walked out of the room, he must have awakened and fallen off of the bed landing on a pallet of covers. According to Latoya Marion, Children's Home Society, the Petitioner's reputation in the community was very good as a child care provider. Latisha Rashawn Bell has known Petitioner for about three years and Petitioner cared for her daughter in 2006. She came to Petitioner's home on March 22, 2006, later in the evening, and knocked on the door. Petitioner came to the door, holding the child, who was whining or crying. Petitioner told her that the child had fallen out of the bed, but had not landed on the floor. Chakera Angelette Faniel is a child care provider, who is not employed by Petitioner. Petitioner cared for Ms. Faniel's daughter for the first three years of her daughter's life, but no longer does. She has known Petitioner for about five years and knows her to be a caring and loving person. Petitioner has a very good reputation in the community as a child care provider. The clear and convincing evidence demonstrates that late in the afternoon of March 22, 2006, Petitioner placed a sleeping eight-month-old boy in the middle of her king-size bed, which was located in her bedroom near the door. Petitioner stepped across the hall and did some chores, while standing in front of the playroom for about 14 or 15 minutes. Although she was only three or four feet from the child, Petitioner could not see the child from where she was standing. When she heard the child cry, she immediately stepped back into the room and found the child lying on some covers on the floor. She picked the child up, who did not appear to be injured. Shortly thereafter, Petitioner contacted the child's parents and reported the incident to them. The child's mother arrived later and took the child home. The evidence is clear and convincing that Petitioner failed to provide direct supervision of the child while he was napping, in the late afternoon, on March 22, 2006. The evidence is clear and convincing that Petitioner is a long-term child care provider, who obviously gives compassionate care to the children in her care. There have been no prior reported incidents of neglect or abuse filed against Petitioner, nor were prior deficiencies listed. Petitioner enjoys a good reputation as a child care provider in her community. Except for the incident on March 22, 2006, no evidence was presented that Petitioner presented an immediate serious danger to the public health, safety, or welfare to the children who are enrolled in her family day care home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Secretary of the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of a single violation of the provisions of Florida Administration Code Rule 65C-22.001(5)(a) and (b) on March 22, 2006; Imposing an administrative fine of $100; and Immediately reinstating Petitioner's family day care home registration for a period of 264 days and permitting Petitioner the opportunity to submit an application for renewal of her family day care home registration at the appropriate time. DONE AND ENTERED this 13th day of April, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2007.
The Issue The issue in this case is whether Petitioner is entitled to issuance of a license to operate a family day care home, pursuant to chapter 402, Florida Statutes, and Florida Administrative Code Rule 65C-20.008.
Findings Of Fact The Parties Petitioner, Shaguandra Ruffin Bullock, is an applicant for a family day care home license for the Ruffin Bullock Family Day Care Home. Respondent is the state agency responsible for licensing family day care homes in Florida. § 402.312(1), Fla. Stat. Events Giving Rise to this Proceeding A "family day care home" is an occupied residence in which child care is regularly provided for children from at least two unrelated families and which receives a payment, fee, or grant for any of the children receiving care, whether or not operated for profit. § 402.302(8), Fla. Stat. On or about July 6, 2017, Petitioner filed an application to operate a family day care home. Respondent reviewed the application and determined that it was incomplete, pending completion of the background screening required by sections 402.313(3), 402.305, and 402.3055.2/ On or about December 8, 2017, Respondent sent Petitioner a Notice of Intent to Deny Family Day Care Home Licensure ("NOI"), informing her of Respondent's intent to deny her application for a family day care home. The NOI stated, in pertinent part: On October 10, 2017, the Department received background clearance letters from child care personnel at Respondent's Family Day Care Home. Pursuant to Section 402.313(3), Florida Stat., childcare personnel in family day care homes are subject to applicable screening provisions. Pursuant to Section 402.302(15), Florida Stat. and Section 39.201(6), Florida Stat., The Department assessed the background of child care personnel at Respondent's family day care home including, but not limited to information from the central abuse hotline. The Department's assessment revealed the Respondent did not meet minimum standards for child care personnel upon screening which requires personnel to have good moral character pursuant to Section 402.305(2)(a), Florida Stat. The foregoing violates Rule 65C- 22.008(3), Fla. Admin. Code,[3/] Section 402.305(2)(a), Fla. Stat. and Section 402.313(3), Florida Stat. Based on the foregoing, Ruffin Bullock Family Day Care Home's, [sic] pending licensure application will be denied. Evidence Adduced at the Hearing At the final hearing, Respondent acknowledged that the background screening for Petitioner and her husband, Marlon Bullock, did not reveal that either had ever engaged in any of the offenses identified in section 435.04, Florida Statutes, which establishes the level 2 screening standards applicable to determining good moral character in this proceeding, pursuant to section 402.305(2)(a).4/ Rather, Respondent proposes to deny Petitioner's license application solely based on two confidential investigative summaries ("CIS reports") addressing incidents—— one involving Petitioner that occurred over 11 years ago, and one ostensibly involving Marlon Bullock that allegedly occurred almost 11 years ago. The CIS report for Intake No. 2007-310775-01 addresses an incident that occurred on or about January 16, 2007. Petitioner acknowledges that the incident addressed in the CIS report for Intake No. 2007-310775-01 occurred. Petitioner testified, credibly and persuasively, that at the time of the incident, Petitioner and her then-husband, Bernard L. Johnson, were going through a very difficult, emotionally-charged divorce. Petitioner went to Johnson's home to retrieve their minor children. An argument between her and Johnson ensued, and she threw a car jack through the back window of Johnson's vehicle. As a result of this incident, Petitioner was arrested. However, she was not prosecuted, and the charges against her were dropped. Respondent's witnesses, Ann Gleeson and Suzette Frazier, both acknowledged that they did not have any independent personal knowledge regarding the occurrence, or any aspects, of the incident reported in the CIS report for Intake No. 2007-310775-01. The other CIS report, for Intake No. 2007-455485-01, addresses an incident that ostensibly took place on September 7, 2007, involving Marlon Bullock, who is now Petitioner's husband. Petitioner was not married to Bullock at the time of the incident reported in the CIS report for Intake No. 2007- 455485-01. She credibly testified that she was completely unaware of the incident, and had no knowledge of any aspect of it, until she saw the CIS report in connection with this proceeding. Gleeson and Frazier both acknowledged that they did not have any independent knowledge regarding the occurrence, or any aspects, of the incident addressed in the CIS report for Intake No. 2007-455485-01.5/ The CIS reports and their contents are hearsay that does not fall within any exception to the hearsay rule.6/ The CIS reports and the information contained therein consist of summaries of statements made by third parties to the investigators who prepared the reports. The investigators did not have any personal knowledge about the matters addressed in the reports. It is well-established that hearsay evidence, while admissible in administrative proceedings, cannot form the sole basis of a finding of fact in such proceedings. § 120.57(1)(c), Fla. Stat. Accordingly, the CIS reports do not constitute competent, substantial, or persuasive evidence in this proceeding regarding the matters addressed in those reports. Thus, Petitioner's testimony constitutes the only competent substantial evidence in the record regarding the matters addressed in the CIS report for Intake No. 2007-310775-01, and there is no competent substantial evidence in the record regarding the matters addressed in the CIS report for Intake No. 2007-455485-01. Respondent has not adopted a rule defining the term "good moral character." Therefore, it is required to determine an applicant's "good moral character" based on the definition of that term in statute. As noted above, section 402.305(2)(a) provides that "good moral character" is determined "using the level 2 standards for screening set forth in" chapter 435. Ann Gleeson reviewed Petitioner's application for a family day care home license. She testified that based on her review of the CIS reports for Intake No. 2007-310775-01 and Intake No. 2007-455485-01, she "didn't feel comfortable" recommending approval of Petitioner's application for a family day care home license, and she recommended that the license be denied. As noted above, Gleeson did not have any personal knowledge of any of the matters in the CIS reports. She relied on the reports and their contents in making her recommendation to deny Petitioner's application. Suzette Frazier, Gleeson's supervisor, made the ultimate decision to deny Petitioner's application for the license. At the final hearing, Frazier testified that she determined that Petitioner's license should be denied based on the matters addressed in the CIS reports. Frazier testified that Petitioner's application raised particular concerns because of the two CIS reports, even though the CIS report for Marlon Bullock contained a "Findings – No Indicator" notation.7/ Frazier testified that it is Respondent's "policy" to deny an application for a family day care home license in every case in which the background screening for the applicant reveals an incident addressed in a CIS report. According to Frazier, this policy applies even if the background screening shows that the applicant does not have a history involving any of the offenses listed in section 435.04. Further to this point, when Petitioner asked Frazier at the final hearing what she (Petitioner) could do to demonstrate that she has good moral character for purposes of obtaining her license, Frazier told her that although she could reapply, she would never qualify to get the license because of the CIS reports. Frazier testified that, in her view, the CIS reports contain information indicating that both Petitioner and Marlon Bullock have a "propensity" toward violent behavior. Webster's Collegiate Dictionary, 11th edition,8/ defines "propensity" as "a natural inclination or tendency." A "tendency" is "an inclination, bent, or predisposition to something." Id. An "inclination" is a "tendency toward a certain condition." Id. A "predisposition" is a "tendency to a condition or quality." Id. Frazier's view that Petitioner and Marlon Bullock have a "propensity" toward violent behavior is not supported by the competent, substantial, or persuasive evidence in the record. To the extent Frazier relies on the information contained in the CIS reports to conclude that Petitioner and Marlon Bullock have a "propensity" toward violent behavior, neither of these reports constitutes competent substantial evidence regarding the matters addressed therein. Furthermore, to the extent Petitioner acknowledges that she engaged in the conduct addressed in CIS report Intake No. 2007-310775-01, the competent, substantial, and persuasive evidence shows that this incident——which was an isolated event that occurred in the context of an extremely emotional and difficult personal event in Petitioner's life——simply does not establish that she has a "tendency" or "inclination" or "predisposition" toward violent behavior. To the contrary, the competent, persuasive evidence shows that this was a one-time event that happened over 11 years ago, that Petitioner did not have any instances of violent behavior before then, and that she has not had any instances of violent behavior since then. Far from showing a "propensity" toward violent behavior, the competent, persuasive evidence shows that Petitioner has exhibited an otherwise completely non-violent course of conduct throughout her life. Additionally, as previously noted, the evidence shows that neither Petitioner nor Marlon Bullock have any history involving any of the offenses listed in section 435.04. There is no competent substantial evidence in the record showing that Petitioner has engaged, during the past 11-plus years, in any criminal or other conduct that would present a danger to children, and there is no competent substantial evidence in the record establishing that Marlon Bullock has ever engaged in any criminal or other conduct that would present a danger to children. To the contrary, the competent substantial evidence establishes that Petitioner and Marlon Bullock are law-abiding citizens. Petitioner is employed as the manager of a department for a Wal-Mart store. Marlon Bullock is, and has worked for 23 years as, a chef. Petitioner credibly and persuasively testified that she is a Christian who attends, and actively participates in, activities with her church. Petitioner also credibly and persuasively testified that she has raised her four sons from her previous marriage to be law-abiding, upstanding citizens. None of them has ever been arrested or involved in any criminal behavior, and her three adult children are all gainfully employed. Petitioner posits, persuasively, that her children are testaments to the stability of her character and her ability to provide a safe, nurturing environment for the care of children. Frazier testified that Respondent's review of Petitioner's application showed that apart from the good moral character requirement, Petitioner's application met all other requirements to qualify for a family day care home license.9/ Findings of Ultimate Fact Although Respondent has adopted a rule, detailed in its Handbook, which establishes the background screening process for purposes of determining good moral character, Respondent has not adopted a rule defining "good moral character" or establishing, apart from the standards set forth in section 402.305(2)(a), any other substantive standards for determining "good moral character." Accordingly, pursuant to the plain language of section 402.305(2)(a), the level 2 screening standards set forth in section 435.04 are the standards that pertain in this proceeding to determine good moral character. Pursuant to the foregoing findings of fact, and based on the competent, substantial, and persuasive evidence in the record, it is found, as a matter of ultimate fact, that Petitioner and Marlon Bullock are of good moral character. Conversely, the competent, substantial, and persuasive evidence in the record does not support a determination that Petitioner and Marlon Bullock do not have good moral character. As noted above, Respondent determined, in its review of Petitioner's application, that other than the good moral character requirement, Petitioner met all other statutory and rule requirements for a family day care home license. Because it is determined, in this de novo proceeding under section 120.57(1), that Petitioner and Marlon Bullock meet the good moral character requirement, Petitioner is entitled to issuance of a family day care home license pursuant to sections 402.305(2)(a), 402.312, and 402.313 and rule 65C-20.008. Finally, it is noted that Respondent has not adopted as a rule pursuant to section 120.54(1)(a), its "policy" of denying applications for family day care home licenses in every case in which the background screening for the applicant reveals an incident addressed in a CIS report. Accordingly, pursuant to section 120.57(1)(e)1., Respondent cannot rely on or apply this "policy" to deny Petitioner's application for a family day care home license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's license for a family day care home. DONE AND ENTERED this 12th day of April, 2018, 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 12th day of April, 2018.
The Issue The issue in this proceeding is whether Respondent properly revoked Petitioner's license to operate a family day care home.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the owner and operator of a family day care home and, until the revocation which is the subject of this action, held license number 07C696L. In response to a parent's complaint that she had arrived at the family day care home to find her child crying in a room in which an unidentified man was sleeping, the Department's investigator, Brandi Blanchard, made an unscheduled visit to Petitioner's family day care home immediately following receipt of the complaint. The only evidence that this event occurred as portrayed by the complaining parent is contained in the Department reports and testimony by Department employees who were not present when the event occurred. When questioned regarding the parent's complaint, Petitioner advised that she had left the children for about 15 to 20 minutes in the care of Sibyl Dexter, an authorized substitute caregiver. In addition, there was some discussion about the identity of an adult male sleeping in the family day care home who had been reported by the complaining parent. Other than the hearsay report of the complaining parent, no corroborative evidence was received regarding the identify of this adult male, nor did any witness testify as to having seen this adult male. It was suggested that the "adult male" was Petitioner's husband; this was denied by Petitioner. In her investigative report, Ms. Blanchard indicates that the substitute caregiver stated that she had not been at the family day care home on the particular day in question; however, Mrs. Dexter, the substitute caregiver, did not testify, and, therefore, this hearsay statement by Ms. Blanchard is not being considered. In her testimony, as in her letter contesting the license revocation and requesting this hearing, Petitioner maintained that the substitute caregiver, Mrs. Dexter, was present. In the absence of testimony by the complaining parent or the substitute caregiver, Petitioner's testimony is credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered reinstating Petitioner's license to operate a family day care home. DONE AND ENTERED this 1st day of April, 2005, in Tallahassee, Leon County, Florida. S 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 1st day of April, 2005. COPIES FURNISHED: Kozette King 3914 Travati Street Orlando, Florida 32839 Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, S-1106 Orlando, Florida 32801 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
