The Issue The issue in this matter is whether the Department of Children and Families should impose an administrative fine on Respondent.
Findings Of Fact The Department is the state agency charged with regulating licensed or registered child care facilities in Florida. Respondent is licensed to operate a child care facility in Lakeland, Florida. The Department seeks to sanction Respondent based on an incident that occurred on November 2, 2015. The Department’s Administrative Complaint specifically alleges that: The facility driver, Antuan Bunkley was looking at his phone while transporting children in the facility’s vehicle. Two witnesses observed Antuan Bunkley texting and/or scrolling while driving. The witnesses observed a phone in Antuan’s hands and him looking down several times while driving with children in the van. Several children on the van told the Department that Antuan text [sic] while he drives, plays games on his phone, and receives calls while driving. The Department asserts that Mr. Bunkley must “be able to respond to the needs of the children” and “be alert and avoid any and all distractions in order to effectively respond to those needs.” The Department categorized Respondent’s (i.e., Mr. Bunkley’s) actions as a Class I violation of a child care licensing standard. The Department desires to fine Respondent in the amount of $250 because Mr. Bunkley’s “inadequate supervision posed an imminent threat to the child, or could or did result in death or serious harm to the health, safety or well-being of a child.” The Department issued the Administrative Complaint following a complaint received from Shana Nicholes, who had observed Mr. Bunkley driving Respondent’s van. At the final hearing, Ms. Nicholes testified that on November 2, 2015, at approximately 3:30 p.m., she was driving her sports utility vehicle on Highway 98 North in Lakeland. Her brother was riding with her in the passenger seat. As she drove, her brother called her attention to Respondent’s van which was driving in front of them. He commented that the van was full of children who were not wearing seat belts. As her vehicle drew closer to the van, Ms. Nicholes observed that not only were the children not wearing seat belts, but she believed that she saw the driver (Mr. Bunkley) looking down at his cell phone while driving. Ms. Nicholes explained that Highway 98 North has four lanes through Lakeland. Over a stretch of about three to four miles, Ms. Nicholes drove in the left side lane roughly parallel to Mr. Bunkley. Ms. Nicholes testified that during that drive, she saw Mr. Bunkley holding a phone. She further stated that he looked down at the phone in his lap several times as he drove. Ms. Nicholes guessed that Mr. Bunkley lowered his eyes for approximately 10 to 20 seconds each time he glanced down. She stressed that “he wasn’t paying attention to the road.” Ms. Nicholes expressed that the two vehicles drove as fast as 45 mph. Ms. Nicholes was quite alarmed by Mr. Bunkley’s actions. As she drove next to him, she took several photographs of him with her cell phone. Copies of Ms. Nicholes’ photographs were introduced at the final hearing. The photographs show Mr. Bunkley looking down as he is sitting in the driver’s seat. However, neither Mr. Bunkley’s right hand nor a cell phone are visible in the pictures. (Respondent disputes that the van was moving at the time Ms. Nicholes took the pictures.) Ms. Nicholes was shocked by the incident. She was worried for the safety of the children in the van. She commented that if her child were riding in the van, and the driver was distracted like Mr. Bunkley was, she would be furious. Later that day, Ms. Nicholes posted her photographs of Mr. Bunkley driving Respondent’s van on her Facebook page. She added the caption, “Well, this is safe, we’re doing about 45 down 98 and this guy is texting with a van full of children. Not cool, dude.” The next morning, Ms. Nicholes was still distressed by what she had witnessed. Therefore, she decided to visit Respondent’s place of business to discuss the incident. Ms. Nicholes had no knowledge of Respondent prior to November 2, 2015. She identified Respondent from the name on the side of the van. Ms. Nicholes maintained that her only interest in approaching Respondent was to alert Respondent of the risk to the children in the van because of a distracted driver. When Ms. Nicholes arrived at Respondent’s facility, she spoke to Elizabeth Jackson. Ms. Nicholes advised Ms. Jackson that she had observed her van driver using his cell phone while driving, and she showed Ms. Jackson her photographs. Ms. Jackson informed Ms. Nicholes that the driver was her son, Antuan Bunkley. Ms. Jackson told Ms. Nicholes that she would be taking him off driving until the matter was resolved. After her meeting with Ms. Jackson, Ms. Nicholes drove to Subway for lunch. While standing in line, she was approached by a woman who identified herself as an employee of Respondent. The employee asked Ms. Nicholes if she was the one who had posted the photos of the van driver on Facebook. At that point, Mr. Bunkley entered Subway. Ms. Nicholes took a picture of Mr. Bunkley while he was standing in line behind her. The next day, Ms. Nicholes reported the incident to the Department. Upon receiving Ms. Nicholes’ complaint, the Department initiated an investigation. The case was assigned to Brandy Queen, a Child Protective Investigator. Cheryl Dishong, a Child Care Regulations Counselor, assisted her. Ms. Queen testified that she started her investigation by visiting Respondent’s facility. She was accompanied by Ms. Dishong. There, she met Ms. Jackson. During their conversation, Ms. Jackson acknowledged that her facility owned the van and that the driver was Mr. Bunkley. Ms. Jackson told Ms. Queen that Mr. Bunkley had picked up six children on the afternoon of November 2, 2015. She provided the children’s names to Ms. Queen. Ms. Jackson also allowed Ms. Queen and Ms. Dishong to examine the van. Ms. Queen and Ms. Dishong spent some time climbing through the van. The van has two bucket seats in the front row and three rows of back seats. Ms. Queen and Ms. Dishong sat in different seats to determine the vantage point of the driver by the children riding in the van. They wanted to see if the children could have observed Mr. Bunkley texting while he drove. Ms. Dishong climbed into the back rear seat. Taking into account that she is taller than the children who rode in the van, Ms. Dishong slouched down to simulate a child passenger. Ms. Queen stated that Ms. Dishong believed that a child could adequately see the driver from the back, rear seat. However, Ms. Queen conceded that during their inspection of the van, no one was sitting between the rear back seat and the drivers’ seat. Neither did a driver sit in the front seat to determine whether Mr. Bunkley’s body would prevent a clear view of his hand while he was driving (particularly, a driver as large as Mr. Bunkley as discussed below). Next, Ms. Queen interviewed the six children who had been riding with Mr. Bunkley on the afternoon of November 2, 2015. At the final hearing, Ms. Queen explained that, before she asked the children about Mr. Bunkley’s driving, she presented several preliminary questions to ascertain whether the children understood the difference between telling the truth and telling a lie. Ms. Queen testified that she believed the children were telling her the truth during her interview. However, the children’s statements were not given under oath.3/ Ms. Queen stated that, based on the evidence she gathered, which included the children’s statements, Ms. Nicholes’ pictures,4/ and her own observations of the van, she “verified” that Mr. Bunkley’s conduct constituted inadequate supervision. Ms. Queen further stated that Mr. Bunkley’s driving while distracted caused concern since he ran “the risk of getting into a wreck.” She believed that he had placed himself and the children in his care “at risk of harm, of dying.” Of the six children, the Department presented A.O. at the final hearing to tell her story.5/ A.O. was seven years old at the time of the incident. (She was eight years old on the date of the final hearing.) A.O. testified that she had attended Respondent’s child care facility for about a year. A.O. was familiar with Mr. Bunkley and identified him in Ms. Nicholes’ photographs. A.O. relayed that three to four different people had driven her in Respondent’s van, including Mr. Bunkley. A.O. stated that on the afternoon in question, Mr. Bunkley picked her up after school in Respondent’s van. At the final hearing, A.O. demonstrated proficient knowledge of the functions of a cell phone. A.O. described various uses of a cell phone including talking, texting, playing games, and looking at Facebook. A.O. testified that Mr. Bunkley used his cell phone when he drove the van. A.O. stated that Mr. Bunkley texts while driving. By “texting,” A.O. recounted that she observed Mr. Bunkley moving his fingers on the phone at the same time he was driving. A.O. also described seeing Mr. Bunkley looking at Facebook on his cell phone while he was driving the van. A.O. added that sometimes when she was riding with Mr. Bunkley, he swerved off the road while he was using his phone. She also described how the van would sometimes get near other cars on the road. She commented that Mr. Bunkley occasionally drives the van with his knees. She imparted that the way he drove scared her sometimes. A.O. expressed that when she rode in the van, she sat in the very back seat on the right side. A.O. conveyed that, despite sitting in the very back row, she could still see Mr. Bunkley hold and use a cell phone. At the final hearing, Mr. Bunkley acknowledged that he was driving Respondent’s van on November 2, 2015, and was the individual seen in Ms. Nicholes’ photographs. Mr. Bunkley also confirmed that he was transporting children in the van at that time. Mr. Bunkley firmly denied that he was texting while driving Respondent’s van. He denied ever using his phone while driving the van. Mr. Bunkley admitted that he does carry his cell phone when he drives. However, he claimed that he routinely keeps his phone in his pocket. Mr. Bunkley asserted that he would only use his cell phone in the case of an emergency. Mr. Bunkley expressed that Ms. Nicholes must have seen him looking down at his transportation log when she observed him on November 2, 2015. Mr. Bunkley explained that his log sheet registers when and where he is to pick up and drop off children. Mr. Bunkley relayed that he periodically reviews the log sheet as he transports children. However, he only checks the transportation log when the van is stopped. He remarked that Ms. Nicholes must have taken her pictures of him on Highway 98 North when they were stopped at a stoplight. Mr. Bunkley stated that he is 5’11” tall and weighs 330 pounds. Because of his large size, he did not believe that it was possible for A.O. to see anything he held in his lap from her seat in the right rear of the van. Mr. Bunkley offered his cell phone records to support his assertion that he was not texting on the afternoon of November 2, 2015. However, the phone records do not confirm whether Mr. Bunkley was accessing or reading text messages as he was driving. Nor do they provide any information regarding his alleged “scrolling” or using Facebook. Respondent is owned and operated by Ms. Jackson. She is also Mr. Bunkley’s mother. Ms. Jackson did not believe that Mr. Bunkley was texting on his cell phone while he was driving the van. Instead, she posited that the van was stationary when Ms. Nicholes took her pictures, and that Mr. Bunkley was looking down at his transportation log. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record does not establish that Mr. Bunkley was scrolling and/or texting on his cell phone while driving Respondent’s van on November 2, 2015. Accordingly, the Department failed to meet its burden of proving that Respondent committed “inadequate supervision” which would support an administrative fine under section 402.310.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Administrative Complaint against Respondent, The Early Years Child Development Center. DONE AND ENTERED this 30th day of March, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 30th day of March, 2017.
The Issue The issue in this case is whether the Petitioner should be exempted from employment disqualification, thereby allowing her to work in a position of special trust at the Hobe Sound Child Care Facility or a like facility.
Findings Of Fact Sometime during 2001, the Petitioner applied for employment with the Hobe Sound Child Care Facility. The position she applied for would have brought the Petitioner into direct contact with children. The Petitioner's desire to work at the Hobe Sound Child Care Facility is in part because at least one of her own children attends that facility, and she would have an opportunity to interact with her own children while working with other children. By letter dated December 6, 2001, the Petitioner was advised of the results of the preliminary screening, and was also advised of the procedure for requesting an exemption from employment disqualification. The Petitioner thereafter filed a timely request for exemption. Following the Petitioner's request, a committee designated by the Department conducted an informal hearing. The Petitioner participated in the informal hearing. Following the informal hearing, the committee voted to deny the requested exemption. The committee's decision to deny was based primarily on the committee members' impression that the Petitioner failed to show rehabilitation by failing to accept responsibility for the crime for which she was convicted. The committee felt that the Petitioner's continuing insistence that she was innocent of the crime and had been wrongfully convicted of crimes committed by others constituted a failure to accept responsibility for what she had done. By letter dated January 23, 2002, the Petitioner was advised that her request for exemption from employment disqualification pursuant to Section 435.07, Florida Statutes, was denied. Thereafter, the Petitioner timely filed a request for a hearing to challenge the denial of her request for exemption. The disqualification of the Petitioner is based solely on her being found guilty of the crime of third degree grand theft. When the Petitioner was charged with third degree grand theft, she entered a plea of "not guilty" and went to trial on the criminal charges. At the conclusion of the criminal trial the jury found the Petitioner to be guilty as charged, and on July 18, 1994, the Circuit Court of Martin County entered an Order Withholding Adjudication of Guilt and Placing Defendant on Probation. The events which underlie the Petitioner's criminal trial took place at the Payless Shoes store in Stuart, Florida, during the several months immediately preceding December of 1993. During that time period, the Petitioner and several other people worked at the Payless Shoes store and had access to the merchandise and to the cash register. Some, but not all, of the employees were stealing cash and merchandise from the shoe store. An audit was conducted at the subject store, and on December 3, 1993, a Loss Prevention Investigator employed by Payless Shoes interviewed the Petitioner regarding her knowledge of thefts in the store where she worked. The Petitioner cooperated with the investigator and explained to him how the employees had been stealing cash and merchandise from the store. During the interview, the investigator prepared a written statement in his own handwriting. At the end of the interview the investigator told the Petitioner that he had prepared a written statement of everything she had told him and asked her to sign the statement. The Petitioner signed the statement without reading it. Later the same date the Petitioner was arrested. At the time of her arrest she told the arresting officer that she was innocent. During the arrest process the Petitioner became aware that the statement she had signed without reading implicated herself as one of the participants in the thefts she had described to the investigator. The Petitioner contended then, and continued to contend at the hearing in this case, that the investigator who took her statement either misunderstood what she said or incorrectly wrote what she said. The Petitioner admits that she had guilty knowledge of the fact that other employees where stealing merchandise and money from the store, and she now realizes that she should have told her employer about the thefts by others. However, the Petitioner has always contended that she never participated in any thefts from the store. Without at this late date trying to determine whether the jury's finding of guilty was correct, it is sufficient to note that, her assertions of innocence of the crime charged, notwithstanding, the Petitioner presently appears to be sincerely remorseful regarding her failure to timely report to here employer the criminal actions of other employees. Further, the Petitioner now appears to understand the importance of being honest in all matters concerning one's employment. In the many years that have passed since 1993, the Petitioner seems to have made sincere efforts towards rehabilitation. She is now active in her church and is involved in raising her own children, as well as trying to be of assistance to other children in her community. She is highly motivated to work in child care. To that end she has taken numerous courses to learn how to provide good child care. She enjoys working with children and can be expected to do a good job in such a position. Following her sentence on the criminal charge, the Petitioner made good faith efforts to timely comply with all conditions of her probation. She had occasional difficulties making the financial payments required by her sentence due to difficulties in obtaining steady employment. In sum, the Petitioner is a decent and honorable person who enjoys working with children, appears to be good at working with children, and should not be disqualified from employment positions working with children.
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 granting Petitioner's request for an exemption from disqualification in a position of special trust. DONE AND ENTERED this 19th day of July, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2002. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Alecia Fugate-Smith 914 East Eighth Street Stuart, Florida 34994 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Kathleen A. Kearney, Secretary Department of Children and Family Services 1317 Winewood Boulevard, Room 202 Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner, defined as “personnel” under Section 402.302, should be granted an exemption pursuant to Chapter 435, Florida Statutes.
Findings Of Fact Mr. Peacock was involved in a motorcycle accident in 1971. As a result of the accident, Mr. Peacock suffered severe trauma to his brain. Presently, Mr. Peacock is 46 years old. He appears to be mentally and physically disabled and requires constant physical care. Ms. Smith operates a licensed child care facility in Panama City, Bay County. The facility is located in her home. Ms. Smith acts as Mr. Peacock’s caregiver. She considers herself as his “guardian,” and he lives in her home. Ms. Smith is not related to Mr. Peacock, and she has not been appointed guardian by any court of law. Because Mr. Peacock lives in the same structure that houses Ms. Smith’s child care facility, he is subject to the screening laws applicable to employees. Immediately prior to and following his accident, Mr. Peacock was arrested and convicted of two separate criminal charges. In 1970, Mr. Peacock was convicted of petty theft. In 1981, Mr. Peacock was convicted of an eight-count charge including grand theft. Christiane LeClair is a background screening coordinator employed by the Department of Children and Families. As part of her duties, Ms. LeClair reviews applications to determine if applicants are worthy of positions of special trust. Ms. LeClair determined that Mr. Peacock was not qualified because of his past criminal convictions and because of his mental condition. Specifically, she expressed concern that his behavior was unpredictable and that he was not suitable for being in close contact with children. Mr. Martin Cox is the Deputy District Administrator for the Department of Children and Families, District 2, in Panama City, Florida. Similar to Ms. LeClair, Mr. Cox expressed concern over Mr. Peacock’s unpredictable behavior. He expressed sympathy for Mr. Peacock, but countered that the well-being of the children was the Department’s overriding concern. Dr. Edward Gibson is a licensed physician in the State of Florida, specializing in psychiatry. Dr. Gibson has been a psychiatrist for five years. Before entering the field of psychiatry, Dr. Gibson was a physician specializing in internal medicine. Dr. Gibson has treated Mr. Peacock for the past six months. During the six month period he has seen Mr. Peacock for three fifteen-minute sessions. Mr. Peacock has been diagnosed with a mental illness called organic brain disorder resulting from a physical trauma to his brain. The symptoms of organic brain disorder include rapid mood swings and impulsive behavior. Dr. Gibson treats Mr. Peacock’s condition with two drugs, Sinequan and Mellaril. In July 1996, Dr. Gibson adjusted Mr. Peacock’s medication because it had been reported that he displayed aggressive behavior. With proper medication, it appears that the symptoms associated with organic brain disorder are kept under control. Dr. Gibson testified that if Mr. Peacock failed to maintain his treatment of Sinequan or Mellarill, Mr. Peacock would undergo rapid mood swings, poor control, and impulsive behavior.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order and therein DENY Mr. Peacock’s request for an exemption.DONE and ORDERED this 12th day of March, 1997, at Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Ernest Peacock c/o Debbie Smith 434 Water Oak Street Panama City, FL 32401 John R. Perry, Esquire Department of Children and Families 2639 North Monroe Street Suite 252A Tallahassee, FL 32399-2949 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2 Room 204 1317 Winewood Boulevard Tallahassee, FL 32399-0700 Richard A. Doran, General Counsel Building 2 Room 204 1317 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether the Department of Children and Families (DCF or Petitioner) should impose sanctions against Respondent, Chutes N’ Ladders 2, LLC (Respondent), for alleged violations in the operation of a child care center.
Findings Of Fact Respondent is licensed by DCF to operate a child care facility at 1961 Royalview Drive, Port Charlotte, Florida. Respondent’s license certificate is C20CH0032. The facility’s current license is effective through July 31, 2015. Petitioner is charged by law to regulate and inspect all child care facilities in the state of Florida to assure compliance with all licensing standards. Licensing standards are defined by statute and rule, and are denoted on the “Inspection Checklist” used by DCF. Prior to November 13, 2013, Jeanette Witmer, a DCF licensing counselor, was assigned to inspect child care facilities licensed in Port Charlotte, Florida. Among those facilities was Respondent’s Chutes N’ Ladders 2, LLC. On November 13, 2013, Ms. Witmer went to Chutes N’ Ladders 2, LLC, to perform a routine inspection. Using the Inspection Checklist, Ms. Witmer went through the facility noting pertinent facts. Ms. Witmer considered the rooms designated as “infant rooms” to be two separate rooms. The capacity for each separate room was clearly and accurately posted. The combined total occupancy for the two rooms was not exceeded. The issue was not the square footage of the rooms or the layout of the rooms. An issue arose because, based upon the documentation then in use, the space was designated as two rooms. As such, each room required the appropriate staffing and supervision for the space. As a practical consideration, Respondent did not treat the space as two rooms. Instead, Respondent considered a fixed table permanently built into a low wall as insufficient to constitute a divider between the two spaces. Respondent, therefore, treated the space as one room. Ms. Witmer noted that supervision could not be provided to all areas of the space by persons standing in one area of the rooms. In fact, such observation formed the basis for a warning given to Respondent on that date. Since there were four children on one side of the space (room 1) and four children on the other side of the space (room 2), Ms. Witmer concluded the caregivers should have been separated, one to each side. Instead, two caregivers were located on one side of the space and could not observe the activity of an infant on the floor in the adjacent room. As a result, Respondent issued a warning for a standards violation: not having staff appropriately stationed to meet the ratio requirement (1:4). Additionally, when the staff member supervising the two- to three-year-old group could not verbally confirm how many children were under her supervision, another warning was issued. Part of the supervision standard requires staff to be cognizant of the children in their care. After the routine inspection was completed, a copy of the Inspection Checklist documenting the issues noted above was provided to Respondent’s facility director. In follow-up to the inspection, Michael and Phyllis Larkin met with Ms. Witmer and Sherrie Quevedo, the DCF licensing supervisor, in December 2013. Among the concerns was the designation of the two rooms as two rooms instead of one large space, and the claim that supervision was an issue. In reality, the facility had the appropriate number of staff to supervise the children in the two rooms. The issue presented when one of the staff went to the separate side of the space and left the children on the other side of the “desk” unattended. This warning could have just as easily been about failure to supervise the children as the ratio standard cited. Once brought to the facility’s attention, the problem could have been easily resolved. Similarly, the second warning was minor in that the facility would be able to instruct staff to be aware of their charges at all times. Neither of these issues should have been insurmountable for Respondent. The weight of the credible evidence supports Petitioner’s assertion that the December 2013 meeting among the parties was ended on an amicable note with all in agreement. Ms. Witmer next inspected Respondent’s facility in connection with a complaint filed. Although eventually determined to be unsubstantiated, Ms. Witmer was required by law to review activities at the facility that allegedly occurred on April 11, 2014. To that end, Ms. Witmer went to Respondent on April 16, 2014, to specifically consider licensing standards related to ratio and supervision: the two standards essential to support child safety. The allegation claimed a child had been bruised under his chin by some means. Ms. Witmer and the facility director, Angela Straub, viewed the video tape kept at Respondent’s center for the date in question (April 11, 2014). After reviewing the tape, Ms. Witmer determined that the child who was claimed to have been bruised was not injured. Nevertheless, in reviewing Respondent’s video, Ms. Witmer observed other issues. More specifically, Ms. Witmer was able to determine that B.J. (a staff person employed at the facility) committed ratio and supervision violations on April 11, 2014. When confronted by Ms. Witmer and the video depicting the issues noted, B.J. admitted the ratio and supervision violations. Subsequently, Respondent terminated B.J.’s employment with the facility. Additionally, Respondent removed the “table” separating the two rooms and designated the one space for occupancy and staffing. On April 16, 2014, Ms. Witmer advised Ms. Straub and Mrs. Larkin that based upon the video review of the date of the alleged incident, the two standards violations would be imposed against the facility. The video tape for the April 11, 2014, activities at Respondent’s facility remained in Respondent’s possession. At all times material to the allegations of this case, Respondent exercised exclusive control over the video. Respondent did not maintain a copy of the video of the facility for April 11, 2014. At hearing, Respondent disputed the accuracy of Ms. Witmer’s account of the citations for ratio and supervision for April 11, 2014. The persuasive weight of the credible evidence supports Ms. Witmer’s account, the Inspection Checklist she maintained contemporaneously with the events, and her conclusions regarding the deficiencies noted. Subsequent to the child abuse investigation being closed, and in accordance with DCF policy, the Complaint Inspection Checklist, Supplemental Inspection Sheet Complaint Form, and Notice of Administrative Action were sent to the facility. Respondent timely filed a request for an administrative hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent violated the ratio and supervision standards as alleged, and imposing an administrative fine in the amount of $100.00. DONE AND ENTERED this 24th day of February, 2015, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 24th day of February, 2015. COPIES FURNISHED: Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Phyllis Larkin Chutes N' Ladders 2, LLC 1961 Royalview Drive Port Charlotte, Florida 33948 Eugenie G. Rehak, Esquire Department of Children and Families Post Office Box 60085 Fort Myers, Florida 33906 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Rebecca Kapusta, Interim General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Is Petitioner entitled to be exempt from disqualification to work in a position of trust or responsibility, having been declared ineligible to work in that position by virtue of offenses involving child abuse and contributing to the dependency of a minor?
Findings Of Fact Petitioner has two children, M.B. and D.P. On February 11, 1993, those children were two years old and eight months old, respectively. Both children were residing with Petitioner. At that time Petitioner and the children lived in Gulf County, Florida. Around 8:00 p.m. to 9:00 p.m. on February 11, 1993, Petitioner decided to leave her apartment and go to a nearby store. At that time she left D.P. in the care of Sabina Daniels, Petitioner's step-sister, who was thirteen years old on that date. The Petitioner took M.B. to her neighbor's apartment and left that child with Dianna Harrison, an adult. However, the Gulf County Sheriff's office received a call around 10:30 p.m. on February 11, 1993, indicating that a child had been left unattended at the Pine Ridge Apartments where Petitioner resided. Officer Stacy Strickland, now a Sergeant, went to Petitioner's apartment around 10:34 p.m. and tried to get someone to answer the door to the apartment. No one answered. Consequently, Officer Strickland contacted the apartment manager who opened the door. Officer Strickland discovered D.P. standing in a baby bed. No other person was in the apartment at that time. Officer Strickland sought the assistance of other persons to help provide emergency care to the child. While waiting for that assistance, Officer Strickland remained in the apartment for fifteen to twenty minutes. When Officer Strickland and other officials departed Petitioner's apartment, they left a note for the Petitioner to call the Gulf County Sheriff's office concerning her child D.P. Petitioner called the Gulf County Sheriff's office at around 12:00 a.m., February 12, 1993. Petitioner came to the Gulf County Sheriff's office around 12:20 a.m., on February 12, 1993. At that time, Petitioner was placed under arrest for aggravated child abuse for having left D.P. unattended. Following her arrest, Officer Strickland read the Petitioner her rights under the Miranda decision, to include the right to seek counsel to aid her in confronting the charge. Although Petitioner was less than forthcoming during the hearing, concerning the disposition of the charges that arose from the incident in which D.P. had been left unattended, it is clear that Petitioner voluntarily entered a plea of guilty to child abuse and contributing to the dependency of a minor in the case of State of Florida v. Denine Pittman, in the County Court, in and for Gulf County, Florida, Number 93-133M. A judgment and sentence in that case was entered on March 3, 1993, requiring the Petitioner to serve three months' probation in which she would pay $30 per month for supervisory fees and was required to make monthly contacts with a probation officer. In addition, Petitioner was required to pay a fine in the amount of $214. It can be properly inferred that Petitioner complied with requirements in the judgment and sentence. Petitioner's assertions at hearing that she only left D.P. on the night in question for 30 minutes, that she had never been advised of her Miranda rights by Officer Strickland on February 12, 1993, and that she did not realize that she could have contested the charges through a trial are rejected. In 1995, Petitioner moved from Gulf County to Panama City, Florida. In August 1996, Petitioner was working in a child care facility in Panama City known as Phoenix Preschool. In her position she was providing direct care to children and was subjected to background screening in accordance with Chapter 435, Florida Statutes. Through the screening process Respondent discovered the disposition in Case No. 93-133M, leading to Petitioner's disqualification to work in a position of special trust with children and the contest of that determination through Petitioner's request for an exemption from that disqualification. In her testimony at hearing Petitioner expressed her desire to continue to work with children as an employee in a child care facility. The record does not reveal that Petitioner has had other circumstances involving inappropriate behavior involving her own children or claims of inappropriate behavior or treatment of other children for whom she has rendered care. On November 11, 1988, Petitioner was provided a certificate indicating the successful completion of twenty hours of child care training offered by the Department of Health and Rehabilitative Services and the Department of Education. On September 28, 1996, Petitioner received a certificate of completion of Dr. Jean Feldman's Classroom Management Workshop. The course lasted six hours. By the nature of the appearance of the certificate it is found to relate to training to assist in caring for children. On September 30, 1996, Petitioner received a certificate from the Department of Health and Rehabilitative Services and the Department of Education for completing a ten- hour course for developmentally appropriate practices for young children. On November 30, 1996, Petitioner received a certificate of completion of "Mr. Al's" course on "Music, Movement and More." This course lasted six hours. By the nature of the appearance of the certificate it is found to relate to children's issues. In 1996, in relation to her position of teacher-aide for the Phoenix Preschool, Petitioner received training from the Department of Health and Rehabilitative Services related to child care in-service. Ms. Gloria Lawrence testified at the hearing. She worked with Petitioner at the Phoenix Preschool, and found that Petitioner did a good job with children, in that Petitioner got along with children at the Preschool. Ms. Lawrence observed that Petitioner was trustworthy and responsible with those children. Ms. Lawrence's testimony is credited. Ms. Frances Frazier testified at the hearing. Ms. Frazier is a close friend of Petitioner and has known Petitioner during the course of Petitioner's life. Ms. Frazier finds the Petitioner to be reliable and responsible and to be good with children and believes that Petitioner has learned from the mistake that Petitioner made which formed the basis for Petitioner's disqualification to work in a position of special trust. Ms. Frazier has known Petitioner to baby-sit for Ms. Frazier's grandchildren. Ms. Frazier has not found the Petitioner to abuse children. The only incident that Ms. Frazier is aware of concerning the Petitioner leaving children unattended was the occasion under discussion here. Ms. Frazier's testimony is credited. In addition, Petitioner presented letters from Ms. Vanessa Fennell, Ms. Annie S. Fields, Ms. Dianna Harrison, Ms. Beverly Daniels, Ms. Charlotte L. Medley, Ms. Candy Robinson, and Pastor Shirley Jenkins concerning Petitioner's basic personality as a concerned person for children and the elderly.
Recommendation Upon consideration of the fact finding and conclusions of law reached, it is RECOMMENDED that a final order be entered which grants Petitioner an exemption from disqualification to be employed in a position of special trust to work with children. DONE AND ENTERED this 13th day of November, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1997. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Suite 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Denine Pittman Apartment D43 801 West 13th Street Panama City, Florida 32401 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
