The Issue The issue is whether Petitioner proved by clear and convincing evidence allegations contained in its Proposed Revocation of Respondent's Family Day Care License No. 907 dated January 21, 2004.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, exhibits admitted into evidence, stipulations and arguments of the parties, evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003), and the entire record compiled herein, the following relevant and material facts are determined: The Parties Petitioner is the state agency responsible for licensing and regulating child care facilities, including family day care homes. Petitioner routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report, which is provided to the home’s operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on family day care homes that have a provisional license rather than a standard license. Petitioner also conducts inspections in response to complaints it receives, and it has the authority to inspect family day care homes at any time without notice. Respondent is the provider and licensed owner of a licensed family day care home located at 965 Waldon Avenue in Bartow, Florida (hereinafter “Respondent’s facility” or “the facility”). Respondent’s facility consists of a family residence with a connecting door to the converted garage. The number of children Respondent may have in “care” each day depends upon: (1) the ages of the children in care and (2) the number of qualified caregivers available to supervise the children in various age groups. This restrictive requirement, referred to as the “child care ratio,” is mandated by statute, the violation of which creates a dangerous situation and a dangerous condition for the safety and well-being of the children in care. The Inspection and violations On March 12, 2003, Respondent’s facility was inspected by Gloria Mathews (Ms. Mathews) and Tricia Step (Ms. Step), and several areas of non-compliance were identified during this inspection. The following non-compliant items were noted on Petitioner’s Family Child Care Home Inspection Checklist: unsafe storage of materials dangerous to children was observed in the bathroom drawers, litter was observed in areas where children play, equipment or plumbing not in working order (item was a baby crib and toilet with tissue the children had not flushed), no operable smoke detector or fire extinguisher, the surface of the diaper changing area was not impermeable, no record of fire drills for the past six months, and an up-to-date and age-appropriate immunization record was missing for one child. Two other non-compliant items, Ipecac not labeled with poison control phone number and seven pre-school age children ages 12 months and older were in the facility. Respondent may provide care to only six children in this age group. The extra child was taken home, and this item was corrected at the time of inspection. On December 18, 2003, Respondent’s facility was inspected by Ms. Mathews and Ms. Step, and the following non- compliant items were noted on the Family Child Care Home Complaint: Respondent had 18 children in the facility three of which were infants. Respondent was not present at the time of inspection, and the substitute caregiver was in charge. Petitioner could not determine whether screening of the substitute caregiver, Elizabeth Ricks, had been completed. Ms. Mathews and Ms. Step remained at Respondent’s facility until the parents picked up their children. James Hayes (Mr. Hayes), Respondent’s husband, took one child home. On January 21, 2004, Petitioner informed Respondent by certified mail of the proposed revocation of her family day care license initially issued in March 2002. Petitioner alleged that the decision to revoke Respondent’s license to operate a family child care facility was based on her failure to ensure that the children' substitute caregivers were adequately screened and because Respondent's home was over capacity and out of ratio. The notice stated: On December 18, 2003, there were eighteen (18) children in your day care home. Three (3) of the children were under the age of twelve (12) months. With 3 infants in your care, your license permits you to care for a maximum of six (6) children. The number of children in your home far exceeds the number of children allowed. During an inspection on March 12, 2003, seven (7) preschool age children ages 12 months and older were observed in your home. You are permitted six (6) children in this age group. This violates section 402.302(7), F.S. You also failed to insure [sic] that the substitute care persons in your home caring for children were properly screened in accordance with section 402.313, Florida Statutes. At the final hearing, Petitioner’s inspectors, Ms. Mathews and Ms. Step testified that when they arrived at Respondent’s facility on December 18, 2003, Mr. Hayes was in the facility. Based upon the testimony of the inspectors, Petitioner argued in its post-hearing submittal that Mr. Hayes had not been screened and that he had a criminal record. Petitioner presented no evidence to substantiate the claim that Mr. Hayes had a criminal record. The testimony and argument regarding this issue is hearsay without corroboration and disregarded. Respondent's Evidence Respondent testified that she was out of town on December 18, 2003, and that her substitute caregiver had begun training classes, but apparently had not completed the course and, therefore, had no background check performed. According to Respondent, non-compliant items identified by Petitioner’s inspectors were corrected as soon thereafter as possible. Respondent testified that she was confused regarding the infant and pre-school child-to-caregiver ratio because it was never explained to her in the manner testified to by both Ms. Mathews and Ms. Step. Continuing, Respondent testified that her substitute caregiver(s) had completed the required training and are now qualified to assist her. She contended that submission of the names and certification of training completion had been provided to Petitioner and that she was awaiting Petitioner's response. This testimony was not disputed by Petitioner. Respondent, to counter allegations that her facility and personnel presented a significant or potential risk of harm to the children, provided four testimonial letters from parents who were regular patrons of her facility. Each of the four parents expressed confidence in the assurance of safety and the ready necessity of Respondent’s child care services during the work week and often times during the weekend. Respondent presented photographs of her facility evidencing the facility’s configuration, carpeting, equipment, beds, and other furniture. Respondent testified that Mr. Hayes does not enter the facility during the time children are present. To ensure separation between the family’s living area and the attached rooms used for child care, Respondent installed a door between the room leading from the family’s living area to the anteroom and the garage. Respondent corrected every non-compliant item identified by Petitioner during their two inspections of her facility. Many, if not all, corrections were made when identified; i.e., the clogged toilet was flushed. The non- compliant items, individually or collectively, were minor and did not directly create an unsafe situation for the children in care. These efforts demonstrated a sincere intent and desire to comply with Petitioner's rules and regulations and to continue to provide a safe and necessary family day care home for working parents in her immediate neighborhood. Violations Proven by Petitioner Petitioner proved by clear and convincing evidence that on March 12, 2003, there were seven preschool children ages 12 months and older in the facility, Family Day Care License No. 907 permits a maximum of six children in care, an amount in violation of Subsection 402.302(7)(c), Florida Statutes (2003). Petitioner proved by clear and convincing evidence that on December 18, 2003, there were 18 children in Respondent's facility in violation of Subsection 402.302(7)(b), Florida Statutes (2003).
Recommendation Based upon the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of violating Subsection 402.302(7), Florida Statutes (2003), twice. Finding Petitioner not guilty of violating Section 402.313(3), Florida Statutes (2003). Setting aside the revocation of Respondent's family day care home license. Suspending Respondent's family day care home license until such time that the following conditions are met to the satisfaction of the Department: Respondent's substitute caregivers are identified, trained, qualified, and approved by Petitioner. Respondent demonstrates an understanding of the required child-to-child caregiver ratios. Respondent has trained each of her substitute caregivers on the child-to-child caregiver ratios and provides written instructions to be followed by her caregivers each day when the children in care in a specific age group are out of ratio to the number of caregivers present. That all conditions hereinabove are completed to the satisfaction of Petitioner as the condition for lifting the suspension. DONE AND ENTERED this 17th day of September 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 17th day of September, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Theresa Hayes Arielle's Angel Care 965 Waldon Avenue Bartow, Florida 33830 Paul F. 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 license to operate a family day care home should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Parties Respondent is the state agency responsible for licensing and regulating child care facilities, including family day care homes. Respondent routinely conducts inspections of licensed family day care homes to determine whether the homes are in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report, which is provided to the home's operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on family day care homes which have a provisional license rather than a standard license. Respondent also conducts inspections in response to complaints it receives, and it has the authority to inspect family day care homes at any time with or without notice. Petitioner is the owner and operator of a licensed family day care home located at 1502 North Kettles Avenue, Lakeland, Florida (hereinafter "Petitioner's facility" or "the facility"). Petitioner resides at that address as well. Petitioner has operated a day care home at the above address for approximately three years. Petitioner has taken all required training in order to be licensed. As a result, she is, or should be, familiar with the rules regulating family day care homes. Petitioner keeps children in her home, and children also play in Petitioner's backyard. This area is enclosed by a fence. Inspections and Resulting Actions by Respondent Petitioner's facility was inspected on February 4, 2003, by Respondent's inspector, Timothy Graddy, who found Petitioner caring for children. Several areas of noncompliance were identified during this inspection. Violations noted included unsafe and unsecured storage of materials dangerous to children, namely, bleach and other household cleaning chemicals were left out in the kitchen and a bathroom cleaning product was observed in the tub; paper and trash were littered around the home's back door which leads to the playground area; water that had collected in the sandbox, which presented a drowning hazard; no written evidence of a fire drill having been conducted on a monthly basis; and some of the children's immunization records were found to be out-of-date, which presented a health safety issue. A re-inspection was conducted on February 6, 2003, all violations had been corrected, and no fine or other penalty was imposed at that time. On August 26, 2004, Respondent's inspector, Tricia Step, went to Petitioner's family day care home to carry out a routine inspection, and she observed five children in the home at that time. Several areas of noncompliance were identified. The lock on a kitchen cabinet did not catch, allowing children access to household cleaning products stored there; the children's play area contained litter (empty chip bags and soda cans); an extension cord was lying on the ground in the playground area; the play areas in the home were not clean and stacked against a wall were toys and "stuff," which could fall on the children; at the time of the inspection, children were observed sleeping on blankets with no mats under them, which is in violation of the requirement that each child be provided with a mat, at least one inch thick, covered with an impermeable surface; Petitioner could not provide a record of fire drills being conducted within the previous six months; and an up-to- date and age-appropriate immunization record was missing for a child in her care. After Ms. Step completed her inspection, she discussed the results with Petitioner and provided Petitioner a copy of the inspection report. Petitioner made the corrections required prior to the due date listed on the report. Petitioner's premises were inspected for re-licensure by Mr. Graddy on January 15, 2004, and several areas of noncompliance were identified. Mr. Graddy observed a hammer, motor oil, and a plastic garbage bag on the front stoop area, which are hazardous and dangerous to children; litter, including aluminum cans and paper, was observed in areas where children play; a gap in the required 4-foot fence was observed, which would permit children in the outdoor play area access to a trafficked street; a written record of fire drills for the months of December 2003 and January 2004 were not provided; Petitioner was unable to produce a student health examination file on two children in her care; and the current enrollment information was incomplete on four children. The results of the inspection were discussed with Petitioner, and she was given a copy of the report. Graddy then went back to his office and discussed the results of the inspection with his supervisor, Patricia Hamilton. Based upon the results of the January 15, 2004, inspection and the prior incidents of noncompliance at Petitioner's facility, Ms. Hamilton determined that Petitioner's license should not be renewed. Although Petitioner attempted to do so, Respondent did not give Petitioner an opportunity to bring her home into compliance with the minimum standards in Respondent's licensing rules and standards before deciding to issue a letter of denial. Thereafter, on March 2, 2004, Mr. Graddy sent a letter to Petitioner informing her that her license was not being renewed and advising Petitioner of her right to "appeal" that decision through the administrative process. At the hearing, Ms. Hamilton testified that she was particularly concerned about Petitioner's repeat violations, namely Petitioner allowing the children access to toxic and other dangerous materials, repeated failure to conduct fire drills, and to keep health and enrollment records current. She characterized these as serious child safety violations. These were the primary reasons she recommended that Petitioner's child care license not be renewed. Petitioner, in her testimony, did not deny committing the violations noted in the inspections of February 4, 2003, August 26, 2003, and January 15, 2004. However, she did demonstrate that a re-inspection of her facility listed her to be in compliance with all violations listed in the report. Petitioner's testimony is credible, especially when bolstered by her friends, family, and client's testimonials, that she is a loving and caring person who goes out of her way to care for the children she keeps in her home. The evidence is clear and convincing that Petitioner violated several code provisions, including repeated violations of the rules regarding toxic and hazardous materials; trash and dangerous conditions in the children's play area; failure to conduct fire drills; and failure to have current health and enrollment records on file for each child. Respondent withdrew its allegation that Petitioner was not a person of good moral character. Petitioner has shown mitigating evidence that she is a concerned and loving caregiver and has demonstrated that her license for a family day care home should not be denied or revoked but that a lesser penalty should be imposed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of violating the provisions of Florida Administrative Code Rules 65C-20.010(1)(b) (three counts), 65C-20.010(1(e) (three counts), and 65C-20.010(3)(b)4. (three counts). Finding Petitioner not guilty of violating the provisions of Section 402.301, Florida Statutes. Issuing Petitioner a provisional license. DONE AND ENTERED this 30th day of July, 2004, 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 30th day of July, 2004.
The Issue The issue for disposition in this proceeding is whether Petitioner is entitled to licensure as a family day care home.
Findings Of Fact Petitioner resides in Lakeland, Florida. In the fall of 2002, she applied for a license to operate a family day care home in her residence. In the course of discharging its statutory responsibility of investigating applicants seeking licensure for family day care homes, a representative of Respondent, Gloria Mathews, an experienced child care licensing inspector, visited Petitioner's residence and discovered numerous instances of non- compliance with requirements of Sections 402.301 through 402.319, Florida Statutes (2002), and Florida Administrative Code Chapter 65C-20. Ms. Mathews talked with Petitioner, pointed out the various instances of non-compliance, and made suggestions regarding correcting the various instances of non-compliance. Ms. Mathews anticipated that upon Petitioner’s correcting the areas of non-compliance, Petitioner would notify her and request a re-inspection. She was not contacted by Petitioner for several months. On May 20, 2003, Francis Williams, an employee of Youth and Family Alternatives, a private, not-for-profit agency that contracts with Respondent to provide assistance to individuals seeking family day care licensure, went to Petitioner's home to provide guidance and assistance to Petitioner in her effort to obtain licensure. Ms. Williams determined that several instances of non- compliance continued. In addition, Ms. Williams noted that Petitioner was caring for five non-related children without being licensed and later discovered that a sixth child had gone unsupervised for more that 15 minutes while Petitioner, Ms. Williams, and five children were in the yard noting various non-compliant conditions and discussing required improvements. On July 28, 2003, Ms. Williams again visited Petitioner's home, found discrepancies, noted that Petitioner was caring for non-related children, and, in Petitioner's absence, discovered a substitute caregiver who had not been screened. On August 27, 2003, Ms. Mathews revisited Petitioner's home and discovered that she was not in compliance; she did not have health examination forms for all of the children. Ms. Mathews and Ms. Williams, both having extensive experience in family day care facilities, testified that they did not believe that Petitioner should be licensed based on her continuing disregard for the rules provided for the safety and protection of children. Petitioner had little to offer regarding the failure of her home to qualify due to the various instances of non- compliance and her violation of the prohibition of caring for non-related children without being licensed.
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 denying Petitioner's application for a family day care home license. DONE AND ENTERED this 26th day of February, 2004, 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 26th day of February, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Cassandra Napier 1535 Peavy Court Lakeland, Florida 33801 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, properly denied Gaye Brina Vestal's license application to operate a commercial day care facility, pursuant to Section 402.3055, Florida Statutes.
Findings Of Fact Respondent's legal name is "Gaye Brina Vestal." Respondent is married to "Tony L. Vestal" a/k/a "Tony L. Mitchell." The name on Tony's birth certificate is "Tony Mitchell." When he was eight years old, his mother married a man named "Vestal." Thereafter, Tony went by the last name "Vestal." He attended school, obtained a driver's license and a Social Security account number, married, and had children under the name "Vestal." When he divorced, he began using the name "Mitchell" and obtained a different Social Security account number and driver's license under the name "Mitchell." At some point, Tony married Gaye Brina (Respondent) under the name "Vestal." They then remarried under the name "Mitchell." Respondent tried using the name, "Mitchell" with Tony, but due to hostility from Tony's mother, Respondent elected to return to using the name "Vestal." She was unable to persuade Tony to return to using the name "Vestal." 1/ By a September 16, 1997, application for registration of a family day care home in her home on Sisco Street in Pamona Park, Respondent and Tony listed "Tony Vestal" as Respondent's husband with his "Vestal" Social Security Number. "Shirley Vestal," is listed as a character witness for each of them. The forms clearly show "Shirley Vestal" as Tony's "ex-wife" and as Respondent's "friend." Among her own past employments, Respondent claimed to have been the manager of a pizza parlor; she listed her supervisor there as "Tony Mitchell." She also listed another previous employment as being the "owner" of a different pizza parlor which closed in 1996. Both pizza parlors were named "Tony-O's Pizza." The Sisco Street property was shown as belonging to "Tony Mitchell." Either at this point, or later, while Respondent was operating under provisional day care home licenses, Dede Sharples, a Department employee with responsibility to oversee home day care licensing, became concerned as to the true identity of Respondent's husband. She asked Respondent whether "Tony-O's Pizza" had been named for Respondent's supervisor or Respondent's husband. While there is considerable disagreement between the two witnesses as to exactly what was said, and while Ms. Sharples' questioning may have been tenuous and Respondent's response may have been intended to be humorous, Respondent still left the Department representative with the impression that there were two different "Tony's." On October 16, 1997, the Department did a home inspection. Respondent thereafter corrected the Sisco Street location for fire inspection purposes. By a December 18, 1997, application for a family day care home license at her Sisco Street home, Respondent listed "Tony Lee Vestal" as a household member and listed the owner of the property as "Tony Mitchell." In reviewing the December 18, 1997, application, Ms. Sharples told Respondent that Respondent would need to have Mr. Mitchell sign a letter saying that Respondent had his permission to run a day care facility on his property. 2/ Respondent told Ms. Sharples that "Tony Mitchell" was a good friend that had gone to Indiana and then elsewhere and that he did not want his address given out. She further stated that her home was in Mitchell's name because she had damaged credit and had an oral agreement with Mitchell to pay on the house until it was paid for and then Mitchell would sign the house over to Respondent and Respondent's husband. Ms. Sharples cautioned Respondent that this was a dangerous practice which could leave Respondent with no house and no recourse to her money expenditure for the house. Respondent was granted two six-month provisional family day care home licenses while awaiting Florida Department of Law Enforcement screening and abuse registry screening of herself and "Tony Vestal." On January 12, 1998, the Department received a clear background check/screening on Respondent but no information concerning "Tony Vestal." On February 12, 1998, Ms. Sharples inspected the home on Sisco Street for a compliance check. Respondent was notified of items to correct. On March 9, 1998, the Department sent a certified letter to Respondent because it had not received any communication from her that the noncompliance items had been corrected in anticipation of a second compliance visit. On April 8, 1998, Ms. Sharples secured a copy of the deed to the Sisco Street address. It showed the property to be owned by "Tony Mitchell and Gaye Brina Mitchell, his wife." Respondent admitted to Ms. Sharples that Respondent once was married to "Tony Mitchell," but Respondent did not volunteer that "Tony Mitchell" and "Tony Vestal" were one and the same person. By a November 25, 1998, application for a commercial day care facility license on Grove Avenue in Crescent City, Respondent listed her name as "Gaye Brina Vestal," her address as a post office box, and the owners of the Grove Avenue real property as "Tony L. Mitchell" and herself as "Gaye Brina Mitchell." Respondent signed the application as "Gaye Brina Vestal." Also on November 25, 1998, Respondent submitted an application fee of $25.00 by a check drawn on the account of "L & M Falling Tree Service" signed by "Tony Mitchell." Ken Barnett processes commercial family day care facility license applications for the Department. He is Ms. Sharples' supervisor. On November 18, 1998, the Department sent Respondent a letter verifying that she had not renewed her family day care home license because she was applying for a commercial family day care facility license and informing her that her family day care home must close on December 31, 1998. Respondent asked Mr. Barnett when she would be licensed for a commercial family day care facility license. He replied that if the final inspection went all right, Respondent would be licensed within two weeks of December 31, 1998. As a result of her conversation with Mr. Barnett, Respondent did not timely renew her family day care home license. Her day care home license has since expired. 3/ At some point that is unclear from the record, the Department discovered that "Tony Vestal" and "Tony Mitchell" were one and the same person with two different driver's licenses and two different Social Security account numbers. As a result, on February 4, 1999, the Department denied Respondent's pending application for a commercial day care facility license. At some date that is unclear from the record, the Florida Department of Law Enforcement background screening and the abuse registry screening came back clear on Respondent, "Tony Vestal," and "Tony Mitchell," e.g. "Tony" under both Social Security numbers. Tony testified that he originally had used the name "Mitchell" to hide his children by his first wife so that his first wife would not take their children to Mexico. Tony testified that he never used his Social Security card for a job; he only used it "privately," to keep his ex-wife from finding him. As of the date of the disputed fact hearing, Tony had not notified the Federal Social Security Administration that he had two Social Security identities/accounts. Since the Department's denial, but prior to the disputed fact hearing, Tony's driver's license in the name "Vestal" had been turned-in to the Florida Department of Highway Safety and Motor Vehicles (DHSMV) and his driver's license in the name of "Mitchell" had been revoked by that agency. 4/ Respondent asserted that DHSMV compromised what could have been harsher civil and/or criminal penalties upon its determination that Tony had no intent to defraud. However, Respondent introduced no corroborative evidence of this assertion. At all times material, Respondent knew about Tony's two Social Security cards and two driver's licenses in different names. Respondent and Tony signed all the departmental forms referred-to above pursuant to the penalty of perjury for not telling the truth thereon. Incredibly, Respondent testified that it did not occur to her that the use of different names on the documentation supporting her several applications would create confusion within the Department. Equally incredibly, Respondent testified that she had assumed that the preliminary background screenings and fingerprint checks would disclose all identities so that full disclosure would be made and all discrepancies explained.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order denying Respondent's application for a commercial day care facility license. DONE AND ENTERED this 2nd day of November, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1999.
The Issue The issue in this case is whether the Respondent, the Department of Health and Rehabilitative Services (HRS), should grant the application of the Petitioners, Charles Wenz and Janet Gallagher, for a family foster home license. 1/
Findings Of Fact Through series of circumstances, the Petitioners in this case--Charles Wenz and Janet Gallagher, husband and wife--came to know the children of a woman named N. M. 4/ Their priest told them about Nancy and her predicament. A serious drug and alcohol addict, and already the single mother of two boys (J. D., born December 30, 1977, and B. F., born January 7, 1983), each of whom had a different biological father, she was about to have another child by yet another man. The Petitioners were asked to help the family, and they agreed. Shortly after the third child--a girl, N. F., born November 4, 1988-- was released from the hospital, the mother asked the Petitioners to let the family live with them temporarily. Not long afterward, the mother slipped back to her way of abusing drugs and alcohol and left, leaving the children with the Petitioners. For some time, the Petitioners cared for the children without being licensed as a family foster home and without any financial assistance from HRS. Later, in approximately March, 1991, they became licensed as a family foster home for the specific and limited purpose of caring for the children of M. 5/ When it came to the children in their care, the Petitioners generally were very attentive to their needs for food, clothing, shelter and medical care, and they provided very well for the children, following up on all doctor appointments and the like. They were very conscientious in this regard. Generally, they got along well with the children, and the children tended to view them as if they were their real parents. As a result of their involvement with the family, the Petitioners came to know the children's maternal grandparents. While initially the Petitioners got along fairly well with the maternal grandparents, they had the opportunity to form opinions of them based on personal experience and stories related by the children and, later, by the fathers of the two boys. Essentially, the Petitioners thought the maternal grandparents were good grandparents, and they encouraged and cooperated in the maintenance of a relationship between the children and the maternal grandparents. At the same time, they did not perceive the maternal grandparents as a good option for permanent placement of the children. Besides the maternal grandparents' age and limited physical and emotional capabilities, and their lack of interest in being permanently responsible for the children on a full-time basis, the Petitioners also had a concern about what they understood to be the maternal grandfather's drinking habits. Instead, since reunification with the mother did not seem feasible to either the Petitioners or to HRS, the Petitioners felt the best option, at least for the boys, would be to investigate their reunification with their fathers. Along with HRS, the Petitioners were instrumental in locating the fathers of the boys and reestablishing contacts between them and their sons. Along with HRS, they actively encouraged and fostered the strengthening of the relationship between the boys and their fathers and worked with HRS to bring the men into a position to begin to care for their sons permanently on a full-time basis. When the Petitioners became licensed as a child-specific family foster home in approximately March, 1991, they agreed to work within the policies and procedures established by the Department and to accept supervision by a foster care counselor. There was no evidence that they were not supportive of the efforts outlined in the foster care agreement or plan. 6/ But problems between the Petitioners and the maternal grandparents developed between the time of the Petitioners' licensure and September, 1991. The problems got so bad that the HRS counselor assigned to the case had to conduct visitation in his office to ascertain who was causing the problems and how to best resolve them. The problems culminated in the maternal grandparents' ultimatum that they no longer could work with the Petitioners as foster parents and that they wanted the children placed with them, the grandparents. The problems worsened as HRS began to investigate the possibility of placing the children with the grandparents. 7/ The Petitioners were against this and attempted to use their positions as foster parents to thwart HRS efforts in that direction. A senior HRS counselor replaced the initial counselor in an effort to shepherd the grandparent placement, with its attendant visitations. But, although regular visitations by the grandparents was prearranged during the fall of 1991, 8/ the Petitioners consistently raised various obstacles to the grandparent visitations, requiring multiple interventions by the HRS senior counselor and others at HRS. Three times, despite HRS interventions, visitation had to be cancelled. The Petitioners' case was taking such an inordinate amount of time that the HRS senior counselor went to his supervisor for relief. The grandparents felt the need to go to court to have the court establish visitation over the Christmas holidays. A hearing had to be held on or about December 10, 1991, and the court granted the grandparents overnight visitation from December 25 through 30, 1991. On inquiring of the children on their return, the Petitioners believed the grandparents did not properly administer prescribed medications for two of the children and accused the grandparents of child abuse. HRS investigated and found that the grandparents had been in direct telephone communication with two of the children's doctors to resolve a discrepancy between two of their medication prescriptions and had followed the telephone instructions of the doctor in charge of the prescription. In connection with the problems with the grandparents, the Petitioners exhibited a clear tendency to try to manipulate the foster care system to their advantage, even unintentionally to the detriment of the interests of the children, and sometimes, out of overzealousness, through use of untruths and half truths. On one occasion, in an attempt to persuade the first HRS counselor not to pursue placement of the children with the grandparents, they told the counselor that an HRS protective services worker had told them that the maternal grandfather had a drinking problem. In fact, it was the Petitioners who had alleged to the protective services worker that the maternal grandfather had a drinking problem. On another occasion, to avoid allowing the grandparents to pick up the children for visitation, the Petitioners cited a supposed statute or rule making it illegal for the grandparents to provide transportation for the children. 9/ Once the boy, B. F., lost a hospital pass for use to visit his grandparents because of problems raised by the Petitioners concerning the legality of the grandparents providing transportation for him. In addition to the problems with the maternal grandparents, the Petitioners exhibited a certain tendency to take things into their own hands when closer contact and consultation with HRS would have been advisable. Once they made arrangements for one of the boys to be admitted to a psychiatric hospital without consulting with HRS and did not advise the counselor until shortly before admission. To attempt to justify their actions to the HRS counselor, the Petitioner told the counselor that the boy's family therapist strongly favored hospitalization for psychiatric treatment. In fact, the counselor later found that the family therapist only had said that it might become necessary at some point to hospitalize the boy. Once the Petitioner, Charles Wenz, used corporal punishment on one of the boys although he knew it was against HRS policy for operators of a family foster home to use corporal punishment. He explained that, due to the history of the Petitioners' relationship with these children, the Petitioners felt more like parents than foster parents and that he did not think it was appropriate in their case for the usual prohibition against corporal punishment to apply to them. Later, Mr. Wenz had another occasion to use a form of corporal punishment on the other boy. 10/ In January, 1992, the Petitioners applied to renew their "child- specific" license as a family foster home. On or about February 1, 1992, the court placed the children with the maternal grandparents, and the Petitioners converted their application to one for general licensure as a family foster home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services (HRS), enter a final order granting the application of Charles Wenz and Janet Gallagher for general licensure as a family foster home. RECOMMENDED this 13th day of July, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 13th day of July, 1992.
The Issue The issue in the case is whether the registration of Thorpe Lindsay's family day care home should be revoked.
Findings Of Fact The Department is responsible for the registration and supervision of family day care homes, pursuant to Section 402.313, Florida Statutes (2007). Respondent, Thorpe Lindsey, has been registered to operate a family day care home at 2306 Savoy Drive, Orlando, Florida, since December 18, 2006. 3. On June 27, 2007; July 13, 2007; and July 26, 2007, Respondent allowed an unscreened and unapproved substitute, Sheneka Henderson, to be alone with and supervise children in the family day care home. Respondent was not present in the home on at least two of these occasions. On all three occasions, Respondent appeared after the Department's protective investigator or child care licensing supervisor noted his absence and the presence of Ms. Henderson as the caregiver.2 On July 13, 2007, Respondent was cautioned in person about the repercussions of allowing unscreened personnel to supervise children. On September 14, 2007, the Department issued an Administrative Complaint against Respondent, seeking to impose a civil penalty in the amount of $500.00 for the three instances of using an unscreened and unapproved substitute caregiver. Respondent refused to accept service of the Department's certified letter. The copy of the Administrative Complaint sent by regular U.S. Mail was not returned to the Department, and Respondent never sought a hearing or otherwise contested the allegations of the Administrative Complaint. Aside from the problem of unscreened personnel, Respondent also had a recurring problem of caring for a number of children greatly in excess of the ratios allowed by statute in his family day care home. Under any circumstances, a family day care home may provide care for no more than ten children. See § 402.302(7), Florida Statutes (2007). On June 27, 2007, the Department sent a certified letter to Respondent noting that on the previous day, the Department had received a report that Respondent was caring for between 30 and 40 children. The letter cautioned Respondent that he must immediately reduce enrollment and submit a written plan to the Department by July 10, 2007, identifying the names and birth dates of the children for whom Respondent would continue to provide care, as well as the names and birth dates of the children whom Respondent eliminated from his roster. Respondent never provided the required documentation to the Department. The Early Learning Coalition of Orange County is a public/private partnership established to ensure that children enter school ready to learn. In coordination with the Department, the Early Learning Coalition provides health and safety inspections for anyone receiving school readiness funding. Because Respondent received such funding, Eric Allen, an inspector for the Early Learning Coalition, made regular visits to the family day care home. On July 6, 2007, Mr. Allen made a routine visit to Respondent's home and found several violations, including a ratio violation, the presence of unscreened volunteers caring for children, chemicals under kitchen and bathroom sinks without door locks on the cabinets, and uncapped electrical outlets. On July 9, 2007, the Early Learning Coalition sent a letter to Respondent outlining the violations and requiring their correction pending a re-inspection of the family day care home. On July 20, 2007, Mr. Allen conducted a routine visit to Respondent's home and again found the home to be out of ratio. On July 26, 2007, the Early Learning Coalition sent a letter, signed by Donna J. Williams, director of quality services, to Respondent that stated the following, in relevant part: This letter will clear up any confusion as to the number of children you are legally allowed to care for. As a family home provider, six (6) is the maximum number of children under the age of five you are allowed to have in care at one time. If an infant is present, the maximum number of children allowable at one time is five (5). I am enclosing the state ratio chart so you may be clear on the number and age of children you are legally allowed to have in your care at one time. Since this falls under our Non-compliance Policy, you are hereby on notice that if there is any other incident where you are found in non-compliance with any Level I violation, the parents of school readiness funded children will be contacted and given the opportunity to transfer as you will be ineligible to receive school readiness funds for a period of one year. On September 7, 2007, at approximately 3:45 p.m., Mr. Allen again visited Respondent's registered family day care home. Mr. Allen found a note on the front door stating, "We are on a field trip," with contact information for parents at the bottom. Mr. Allen noted that the contact numbers on the note did not match the contact information on file at the Early Learning Coalition. He also noted that all of the windows of the house were covered with blinds or cardboard. Mr. Allen testified that he had made several prior attempts to visit the home in recent days, but that on each occasion was met with a note claiming the children were out on a "field trip." He was about to walk away from the house when he heard a baby crying inside. He rang the doorbell and knocked on the door but received no response. He called out to whomever was inside the house, "This is Eric from the Early Learning Coalition. I can hear a baby crying. You need to open the door or you are violating your provider agreement and you are in danger of being de-funded." There was still no response from inside the house. Mr. Allen walked around to the back door. He knocked on the window of the rear childcare area and repeated his warning. After several minutes, a car pulled up to the home. A woman got out of the car and approached the front door. Mr. Allen asked if she was there to pick up a child, and she answered affirmatively. She rang the doorbell but no one answered. Mr. Allen offered to call the contact number, but the woman just turned and drove away. Mr. Allen called the Early Learning Coalition's office and asked the administrative assistant to verify and call the contact number for Respondent's home. When the assistant called the number, a woman who identified herself as Respondent's sister answered and stated that the children were out on a field trip. Mr. Allen then called the contact number and asked Respondent's sister where the children were. She stated they were on a field trip to Pizza Hut. Mr. Allen told her he could hear a baby crying inside and that if the door was not opened he would call the police. Respondent's sister hung up the phone. Just as Mr. Allen's phone conversation concluded, approximately 25 minutes after he first arrived at the house, the woman in the car returned. As the woman walked up to the front door, the door was opened by Toshiba Lindsey, another of Respondent's sisters, who was holding a baby she said was her son. Mr. Allen showed Ms. Lindsey his identification and asked her why he had been left outside trying to get someone to open the door for nearly a half hour. Ms. Lindsey claimed to have been sleeping and not to have heard the knocking. Mr. Allen entered the home and started down the hallway, but Ms. Lindsey forbade him from entering one of the rooms. Mr. Allen could hear a child crying inside the room. He demanded to know whose child was behind the door. Ms. Lindsey denied there was anyone in the room. For several minutes, Mr. Allen attempted to convince Ms. Lindsey to open the door, but she continued to say that she could not open it. Mr. Allen told her to call Respondent, who was not in the house. Mr. Allen spoke to Respondent and told him that he would call the police if Ms. Lindsey did not open the door. Respondent hung up on him. Mr. Allen called 911 and requested an officer to come to the house and open the door. A moment later, the door to the room opened and another woman, Sheneka Henderson, emerged with 13 children. Neither Ms. Lindsey nor Ms. Henderson had been background screened or trained to act as caregivers. Mr. Allen recorded the names and ages of the children, then left the home. Respondent never showed up at the house while Mr. Allen was there. On September 10, 2007, the Early Learning Coalition sent Respondent a letter notifying him that he would be ineligible to receive school readiness funds for a period of one year, based on Respondent's repeated violations of mandatory state ratio requirements.
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 revoking the registration of Thorpe Lindsey to operate a family day care home. DONE AND ENTERED this 10th day of April, 2008, in Tallahassee, Leon County, Florida. S 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 10th day of April, 2008.
The Issue At issue in this case is whether Petitioner's application to register as a family day care home should be granted.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: This case involves Petitioner's application to operate a registered family child care home. Petitioner had been registered as a family child care home from April 1989 to June 1992 and again from February 1995 to August 1998. The Department received Petitioner's most recent application on September 6, 2000. 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 center 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 may care for no more than five preschool children from more than one unrelated family. Subsection 402.302(7), Florida Statutes. The application requires disclosure of "other family/household members." Petitioner's application identified David Barcelona as a household member and stated that his family relationship was "friend (roommate)." During her previous periods of registration, Petitioner had been the subject of numerous complaints to the Department. In May 1989, the Department notified Petitioner that she had been found to be caring for more than five preschool children. Petitioner acknowledged that she was operating above capacity, but assured the Department that the situation would be rectified by June 1, 1989. Nonetheless, complaints regarding the number of children at Petitioner's home persisted through at least June 1991. The Department also received several complaints concerning drug use in Petitioner's home. In September 1995, a complaint alleged that Petitioner and several other adults were seen smoking marijuana in the home. A complaint filed by a parent in February 1996 stated that the parent could smell marijuana on his children when he picked them up from Petitioner's home. A complaint from November 1996 stated that Petitioner was seen smoking marijuana in the presence of the children in her care. In each instance, the Department wrote a letter to Petitioner. The Department's letter of February 26, 1996, is representative and is quoted in relevant part: As a registered family day care home, you are not statutorily required to meet all the child care standards established in [then] Rule 10M-12 or 10M-10 of the Florida Administrative Code. In addition, Chapter 402.302-313 of the Florida Statutes does not provide the department with any statutory authority to regulate complaints of this nature within registered family day care homes. However, in the interest of safety and proper child care, we wanted to bring the complaint to your attention so that you might correct the issues as appropriate. Providing care for any child is very important. It is our hope that you are not engaging in any illegal or inappropriate activities which [sic] operating your child care business. During the Department's investigations of these complaints, Petitioner consistently denied that she used any illegal drugs. On August 10, 1998, the Department received a complaint that an unsupervised child was seen outside in the rain at Petitioner's house. On the same date, the Department received another complaint regarding Petitioner's live-in boyfriend, David Barcellona, and whether his presence rendered her home an unsafe environment for children. The complaint stated that Mr. Barcellona had not undergone background screening and had admitted to hitting one of Petitioner's own children. The complaint also stated that children reported witnessing Petitioner's use of marijuana and crack cocaine in the home. These complaints were resolved when Petitioner ceased providing child care. She sold her house and voluntarily relinquished her registration. A child protective services investigation was also commenced on August 10, 1998, by investigator Daniel McLean. His investigation confirmed that Mr. Barcellona had hit Petitioner's ten-year-old son "upside the head with an open hand" because the boy had called him a "faggot." Petitioner had given Mr. Barcellona permission to physically discipline her children. The children expressed a fear of living in the home with Mr. Barcellona. No observable injuries were found on either Petitioner's son or her eight-year-old daughter. Mr. McLean testified that Petitioner told him at least twice that she had smoked marijuana for 15 years. Mr. McLean attempted several times to obtain a drug screen from Petitioner without success. At length, Mr. McLean informed Petitioner that the Department would begin legal proceedings if Petitioner did not voluntarily surrender custody of her children to their natural father. On August 13, 1998, Petitioner signed the papers giving custody of the children to their natural father. She testified that "I picked the drugs over my children at that time." The evidence admitted at hearing established that, despite her denials, Petitioner had been a long-time user of marijuana. By her own admission, Petitioner was addicted to crack cocaine for a period of at least three months in 1998. Petitioner's sister, Lisa Lucius, estimated Petitioner's crack usage lasted for six months. Mr. McLean testified that Petitioner told him she had been using crack for seven months. At some point in 1999, Petitioner shoplifted a pair of tennis shoes, was arrested, and placed on one year's probation for petit theft. Her probation was conditioned upon her entering a 28-day live-in drug rehabilitation and counseling program at the Ruth Cooper Center in Fort Myers. Petitioner successfully completed this program. Another condition of her probation was her attendance twice weekly at Alcoholics Anonymous meetings. She complied with this condition. Finally, Petitioner's probation was conditioned upon providing random urinalysis drug tests. She complied with this condition, and her tests were all drug free. Petitioner testified that she has been drug free since completing the program at the Ruth Cooper Center. Since the conclusion of her probation in 2000, she has discontinued attendance at Alcoholics Anonymous or Narcotics Anonymous meetings. She testified that she no longer has a drug problem. In the registration application at issue in this proceeding, Petitioner listed David Barcellona as a family/household member. Both Petitioner and Mr. Barcellona were required to undergo Level 2 background screening as set forth in Subsection 435.04(1), Florida Statutes. Petitioner successfully passed the background screening and was so notified by a letter from the Department dated October 24, 2000. The letter informed Petitioner that she had passed the screening, but expressly cautioned: "Receipt of this letter does not automatically qualify you for the employment, specific position or license you may be seeking. That determination will be made [by] either an employer or licensing department." The background screening disclosed potentially disqualifying offenses for David Barcellona. As of November 6, 2000, the Department had sent Mr. Barcellona a letter offering him the opportunity to provide documentation as to the disposition of those offenses, but Mr. Barcellona had not responded. On October 31, 2000, Petitioner phoned Sarah Jarabek of the Department to inquire as to the status of her application. Ms. Jarabek told Petitioner that the Department had concerns about her history of substance abuse and about the presence of Mr. Barcellona in the home. They made an appointment to meet in Ms. Jarabek's office on November 6, 2000. On November 6, 2000, Petitioner and Ms. Lucius met with Ms. Jarabek, Nancy Starr, and Patricia Richardson of the Department. Petitioner provided evidence of the drug abuse treatment she had received while on probation. She also produced documentation that she had completed the required 30- hour Family Child Care Training Course, documentation of her church attendance and completion of a single parenting program at her church, and documentation that she had taken a technical training course for legal secretaries. Ms. Jarabek testified that she accepted all of Petitioner's representations at the meeting regarding her treatment and other matters, but that concerns remained because of Petitioner's history of denying her drug use and because the lonely, pressure-filled business of family day care might prove a poor rehabilitative environment. Ms. Starr testified that she believed more time should pass for Petitioner to demonstrate that she was not subject to a relapse. Petitioner had only been off probation since March 2000, and had yet to demonstrate her stability when her activities were not being constantly monitored. Ms. Starr was also concerned because Petitioner was not currently involved in any organized program to maintain her recovery and because Petitioner had denied using drugs when the complaints were filed in 1996 through 1998. At the November 6 meeting, the Department's representatives also raised the question of Mr. Barcellona's continued presence in the house. Petitioner told them that she had broken up with Mr. Barcellona and ejected him from her house, because she thought he was smoking crack cocaine. She told them that Mr. Barcellona had continued to harass her. He would bang on her door late at night, screaming, "I love you." He would spray his cologne outside her house, to "leave his scent." Petitioner and her children were "terrified" of him, and Petitioner was in the process of obtaining a restraining order against him. Ms. Jarabek believed Petitioner's statement that Mr. Barcellona was no longer living in the house, but remained concerned for the safety of children who would be staying at Petitioner's home, given Mr. Barcellona's erratic behavior. By letter dated November 14, 2000, David Barcellona was notified that he was ineligible for a position subject to background screening. Mr. Barcellona had not responded to the prior agency letter offering him the opportunity to provide documentation regarding the disposition of the disqualifying offenses. As the applicant for registration, Petitioner received a copy of the letter to Mr. Barcellona. By letter dated December 1, 2000, the Department notified Petitioner that her application to operate a registered family child care home had been denied. The letter cited the following as grounds for the denial: the history of at least 13 complaints regarding the operation of the home during Petitioner's previous registration periods, including six complaints related to Petitioner's use of marijuana and/or cocaine in the presence of her own or other people's children; the unreported presence of Mr. Barcellona in the home during Petitioner's previous registration periods; and the lack of sufficient time and evidence to demonstrate that Petitioner was capable of providing a safe and healthy environment for children in her care. Petitioner contended that the Department waived its ability to hold her prior complaints against her now because it repeatedly allowed her to re-register during the relevant years despite those complaints. Ms. Jarabek testified that this apparent anomaly was due to a change in Department policy since Petitioner was last registered. The Department previously took the position that it was required to ignore drug usage in a registered family day care home, because Section 402.313, Florida Statutes, did not expressly provide authority to deny or revoke a registration on that ground. Ms. Jarabek testified that the Department's current interpretation of its statutory authority to supervise the provision of child care permits it to consider drug usage in the home. The December 1 letter took note of the "positive changes" in Petitioner's life, but also noted that these changes were too recent to overcome the concerns about Petitioner's past behavior and future stability.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for registration of her family day care home. DONE AND ENTERED this 18th day of May, 2001, 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 18th day of May, 2001. COPIES FURNISHED: Richard D. Lakeman, Esquire Law Office of Richard D. Lakeman, P.A. Post Office Box 101580 Cape Coral, Florida 33910 Eugenie G. Rehak, Esquire Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's license to operate a day care center should be suspended or revoked. Whether Petitioner's license to operate a day care center should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Parties Respondent is the state agency responsible for licensing and regulating child care facilities. Respondent routinely conducts inspections of licensed child care facilities to determine whether facilities are in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report, which is provided to the facility's operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on child care facilities which have a provisional license rather than a standard license. Respondent also conducts inspections in response to complaints it receives, and it has the authority to inspect child care facilities at any time with or without notice. Petitioner is the owner and operator of a licensed child care facility located at 2625 North Hiawasee Road, Orlando, Florida, which is operated under the business name: Today's Kids Daycare Center (hereinafter "Petitioner's facility" or "the facility"). Petitioner has operated the child care facility at the above address for approximately five years and previously worked as director of another child care facility for five years. Petitioner has taken all required training in order to be licensed. As a result, she is, or should be, familiar with the rules regulating child care facilities. The Incident Following a complaint, Susan Wujastyk, former child protective investigator for Respondent, interviewed the mother of the child, W.P., at the child's school on March 5, 2004, in relation to an alleged incident which occurred at Petitioner's facility on March 3, 2004. She then prepared a preliminary report and went to Petitioner's facility to investigate further. Respondent's child care licensing division was also notified and an inspector came to the facility, as well. On or about March 3, 2004, the child, W.P., a pre- kindergarten student at Petitioner's facility, swallowed an unknown solid substance while in Tangela Muskin's classroom. Muskin believed the substance to be rat pellets and lead W.P. to Petitioner, who was in another room, and told her of her suspicions. Petitioner, who had taken some nursing courses at the local community college, put on a rubber glove and swabbed the child's mouth to dislodge any other substances that might still be in the child's mouth. She also gave him some milk, with the intent to make him throw up. Petitioner then inspected the vomit but found no foreign substances in it. Petitioner did not call "9-1-1" for emergency assistance, nor did she call the poison control center. Instead, she observed W.P. for a period of time and sent him back to his classroom. Muskin also testified that she found the child, W.P., with a bag labeled rat pellets and claimed that Petitioner, in the presence of another employee at the facility, threw the rat pellets in the trash and told Muskin and the other employee not to report this to anyone. This statement is not credible. Petitioner testified that she attempted to call the child's mother, but could not reach her by telephone. Thereafter, she waited for the child's father to come and pick him up and she told him that W.P. had swallowed something but that Petitioner believed that she got all of the material out of his mouth. She advised him to take the child to the emergency room, but the father declined to do so. This statement appears to be credible. Susan Wujastyk inspected the facility on March 5, 2004, as part of her investigation of this matter and found two pellets under a toy chest in Muskin's classroom. Wujastyk thought they were rat pellets; however, that fact was never verified. An examination of the child, W.P., on March 5, 2004, found no evidence of ingestion of a toxic substance, and his condition was found to be stable. Petitioner retains a pest control company that performs regular services at the facility, but does not use rat pellets or any form of rodent control devices. Three of Petitioner's employees testified that they perform regular inspections of the facility and none of them ever found rat pellets or other toxic substances on the premises. Following the joint investigation, a joint report was prepared and approved by Respondent's staff, and it was recommended that Petitioner's license be revoked. Thereafter, on March 23, 2004, the acting district director sent a letter to Petitioner informing her that her license was being revoked and advised Petitioner of her right to "appeal" that decision through the administrative process. Subsequently, on June 10, 2004, Petitioner was sent a letter informing her that her license would not be renewed. The basis for the denial was the same as the revocation letter. At the hearing, Patricia Richard testified that she was particularly concerned that Petitioner was aware the W.P. may have swallowed a toxic and other dangerous substance and did not take immediate action to report it to "9-1-1" or the poison control center; and did not take it upon herself to take the child to a health care professional for examination but waited for the parents to arrive to inform them of the incident. Richard also testified that it was improper for Petitioner to put her fingers down the child's throat in order to induce vomiting. She characterized these as serious child safety violations and failure to follow proper emergency procedures. These were the primary reasons she recommended that Petitioner's child care license be revoked and not renewed. Petitioner, in her testimony, did not deny giving the child milk and swabbing his mouth with her finger, but did deny that she stuck her fingers in his mouth in order to induce vomiting. The evidence is not clear and convincing that the child, W.P., swallowed a toxic or hazardous material; and it is not at all clear from the evidence what it was that the child swallowed. However, it is clear that the child swallowed something that was suspected to be toxic; and when this fact was reported to Petitioner, she did not follow proper emergency procedures and did not properly notify the child's parents promptly. Petitioner has demonstrated that her license for a child care facility should not be denied or revoked but that a lesser penalty should be imposed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of violating the provisions of Florida Administrative Code Rule 65C-22.004(2)(d)1. and 2. (one count each). Finding Petitioner not guilty of violating the provisions of Florida Administrative Code Rule 65C-20.010(1)(b) or similar provisions. Imposing a fine of $200, and a one-month suspension of Petitioner's license, followed by the issuance of a provisional license. DONE AND ENTERED this 5th day of October, 2004, 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 5th day of October, 2004.
