The Issue The issue in this case is whether Petitioner is entitled to issuance of a license to operate a family day care home, pursuant to chapter 402, Florida Statutes, and Florida Administrative Code Rule 65C-20.008.
Findings Of Fact The Parties Petitioner, Shaguandra Ruffin Bullock, is an applicant for a family day care home license for the Ruffin Bullock Family Day Care Home. Respondent is the state agency responsible for licensing family day care homes in Florida. § 402.312(1), Fla. Stat. Events Giving Rise to this Proceeding A "family day care home" is an occupied residence in which child care is regularly provided for children from at least two unrelated families and which receives a payment, fee, or grant for any of the children receiving care, whether or not operated for profit. § 402.302(8), Fla. Stat. On or about July 6, 2017, Petitioner filed an application to operate a family day care home. Respondent reviewed the application and determined that it was incomplete, pending completion of the background screening required by sections 402.313(3), 402.305, and 402.3055.2/ On or about December 8, 2017, Respondent sent Petitioner a Notice of Intent to Deny Family Day Care Home Licensure ("NOI"), informing her of Respondent's intent to deny her application for a family day care home. The NOI stated, in pertinent part: On October 10, 2017, the Department received background clearance letters from child care personnel at Respondent's Family Day Care Home. Pursuant to Section 402.313(3), Florida Stat., childcare personnel in family day care homes are subject to applicable screening provisions. Pursuant to Section 402.302(15), Florida Stat. and Section 39.201(6), Florida Stat., The Department assessed the background of child care personnel at Respondent's family day care home including, but not limited to information from the central abuse hotline. The Department's assessment revealed the Respondent did not meet minimum standards for child care personnel upon screening which requires personnel to have good moral character pursuant to Section 402.305(2)(a), Florida Stat. The foregoing violates Rule 65C- 22.008(3), Fla. Admin. Code,[3/] Section 402.305(2)(a), Fla. Stat. and Section 402.313(3), Florida Stat. Based on the foregoing, Ruffin Bullock Family Day Care Home's, [sic] pending licensure application will be denied. Evidence Adduced at the Hearing At the final hearing, Respondent acknowledged that the background screening for Petitioner and her husband, Marlon Bullock, did not reveal that either had ever engaged in any of the offenses identified in section 435.04, Florida Statutes, which establishes the level 2 screening standards applicable to determining good moral character in this proceeding, pursuant to section 402.305(2)(a).4/ Rather, Respondent proposes to deny Petitioner's license application solely based on two confidential investigative summaries ("CIS reports") addressing incidents—— one involving Petitioner that occurred over 11 years ago, and one ostensibly involving Marlon Bullock that allegedly occurred almost 11 years ago. The CIS report for Intake No. 2007-310775-01 addresses an incident that occurred on or about January 16, 2007. Petitioner acknowledges that the incident addressed in the CIS report for Intake No. 2007-310775-01 occurred. Petitioner testified, credibly and persuasively, that at the time of the incident, Petitioner and her then-husband, Bernard L. Johnson, were going through a very difficult, emotionally-charged divorce. Petitioner went to Johnson's home to retrieve their minor children. An argument between her and Johnson ensued, and she threw a car jack through the back window of Johnson's vehicle. As a result of this incident, Petitioner was arrested. However, she was not prosecuted, and the charges against her were dropped. Respondent's witnesses, Ann Gleeson and Suzette Frazier, both acknowledged that they did not have any independent personal knowledge regarding the occurrence, or any aspects, of the incident reported in the CIS report for Intake No. 2007-310775-01. The other CIS report, for Intake No. 2007-455485-01, addresses an incident that ostensibly took place on September 7, 2007, involving Marlon Bullock, who is now Petitioner's husband. Petitioner was not married to Bullock at the time of the incident reported in the CIS report for Intake No. 2007- 455485-01. She credibly testified that she was completely unaware of the incident, and had no knowledge of any aspect of it, until she saw the CIS report in connection with this proceeding. Gleeson and Frazier both acknowledged that they did not have any independent knowledge regarding the occurrence, or any aspects, of the incident addressed in the CIS report for Intake No. 2007-455485-01.5/ The CIS reports and their contents are hearsay that does not fall within any exception to the hearsay rule.6/ The CIS reports and the information contained therein consist of summaries of statements made by third parties to the investigators who prepared the reports. The investigators did not have any personal knowledge about the matters addressed in the reports. It is well-established that hearsay evidence, while admissible in administrative proceedings, cannot form the sole basis of a finding of fact in such proceedings. § 120.57(1)(c), Fla. Stat. Accordingly, the CIS reports do not constitute competent, substantial, or persuasive evidence in this proceeding regarding the matters addressed in those reports. Thus, Petitioner's testimony constitutes the only competent substantial evidence in the record regarding the matters addressed in the CIS report for Intake No. 2007-310775-01, and there is no competent substantial evidence in the record regarding the matters addressed in the CIS report for Intake No. 2007-455485-01. Respondent has not adopted a rule defining the term "good moral character." Therefore, it is required to determine an applicant's "good moral character" based on the definition of that term in statute. As noted above, section 402.305(2)(a) provides that "good moral character" is determined "using the level 2 standards for screening set forth in" chapter 435. Ann Gleeson reviewed Petitioner's application for a family day care home license. She testified that based on her review of the CIS reports for Intake No. 2007-310775-01 and Intake No. 2007-455485-01, she "didn't feel comfortable" recommending approval of Petitioner's application for a family day care home license, and she recommended that the license be denied. As noted above, Gleeson did not have any personal knowledge of any of the matters in the CIS reports. She relied on the reports and their contents in making her recommendation to deny Petitioner's application. Suzette Frazier, Gleeson's supervisor, made the ultimate decision to deny Petitioner's application for the license. At the final hearing, Frazier testified that she determined that Petitioner's license should be denied based on the matters addressed in the CIS reports. Frazier testified that Petitioner's application raised particular concerns because of the two CIS reports, even though the CIS report for Marlon Bullock contained a "Findings – No Indicator" notation.7/ Frazier testified that it is Respondent's "policy" to deny an application for a family day care home license in every case in which the background screening for the applicant reveals an incident addressed in a CIS report. According to Frazier, this policy applies even if the background screening shows that the applicant does not have a history involving any of the offenses listed in section 435.04. Further to this point, when Petitioner asked Frazier at the final hearing what she (Petitioner) could do to demonstrate that she has good moral character for purposes of obtaining her license, Frazier told her that although she could reapply, she would never qualify to get the license because of the CIS reports. Frazier testified that, in her view, the CIS reports contain information indicating that both Petitioner and Marlon Bullock have a "propensity" toward violent behavior. Webster's Collegiate Dictionary, 11th edition,8/ defines "propensity" as "a natural inclination or tendency." A "tendency" is "an inclination, bent, or predisposition to something." Id. An "inclination" is a "tendency toward a certain condition." Id. A "predisposition" is a "tendency to a condition or quality." Id. Frazier's view that Petitioner and Marlon Bullock have a "propensity" toward violent behavior is not supported by the competent, substantial, or persuasive evidence in the record. To the extent Frazier relies on the information contained in the CIS reports to conclude that Petitioner and Marlon Bullock have a "propensity" toward violent behavior, neither of these reports constitutes competent substantial evidence regarding the matters addressed therein. Furthermore, to the extent Petitioner acknowledges that she engaged in the conduct addressed in CIS report Intake No. 2007-310775-01, the competent, substantial, and persuasive evidence shows that this incident——which was an isolated event that occurred in the context of an extremely emotional and difficult personal event in Petitioner's life——simply does not establish that she has a "tendency" or "inclination" or "predisposition" toward violent behavior. To the contrary, the competent, persuasive evidence shows that this was a one-time event that happened over 11 years ago, that Petitioner did not have any instances of violent behavior before then, and that she has not had any instances of violent behavior since then. Far from showing a "propensity" toward violent behavior, the competent, persuasive evidence shows that Petitioner has exhibited an otherwise completely non-violent course of conduct throughout her life. Additionally, as previously noted, the evidence shows that neither Petitioner nor Marlon Bullock have any history involving any of the offenses listed in section 435.04. There is no competent substantial evidence in the record showing that Petitioner has engaged, during the past 11-plus years, in any criminal or other conduct that would present a danger to children, and there is no competent substantial evidence in the record establishing that Marlon Bullock has ever engaged in any criminal or other conduct that would present a danger to children. To the contrary, the competent substantial evidence establishes that Petitioner and Marlon Bullock are law-abiding citizens. Petitioner is employed as the manager of a department for a Wal-Mart store. Marlon Bullock is, and has worked for 23 years as, a chef. Petitioner credibly and persuasively testified that she is a Christian who attends, and actively participates in, activities with her church. Petitioner also credibly and persuasively testified that she has raised her four sons from her previous marriage to be law-abiding, upstanding citizens. None of them has ever been arrested or involved in any criminal behavior, and her three adult children are all gainfully employed. Petitioner posits, persuasively, that her children are testaments to the stability of her character and her ability to provide a safe, nurturing environment for the care of children. Frazier testified that Respondent's review of Petitioner's application showed that apart from the good moral character requirement, Petitioner's application met all other requirements to qualify for a family day care home license.9/ Findings of Ultimate Fact Although Respondent has adopted a rule, detailed in its Handbook, which establishes the background screening process for purposes of determining good moral character, Respondent has not adopted a rule defining "good moral character" or establishing, apart from the standards set forth in section 402.305(2)(a), any other substantive standards for determining "good moral character." Accordingly, pursuant to the plain language of section 402.305(2)(a), the level 2 screening standards set forth in section 435.04 are the standards that pertain in this proceeding to determine good moral character. Pursuant to the foregoing findings of fact, and based on the competent, substantial, and persuasive evidence in the record, it is found, as a matter of ultimate fact, that Petitioner and Marlon Bullock are of good moral character. Conversely, the competent, substantial, and persuasive evidence in the record does not support a determination that Petitioner and Marlon Bullock do not have good moral character. As noted above, Respondent determined, in its review of Petitioner's application, that other than the good moral character requirement, Petitioner met all other statutory and rule requirements for a family day care home license. Because it is determined, in this de novo proceeding under section 120.57(1), that Petitioner and Marlon Bullock meet the good moral character requirement, Petitioner is entitled to issuance of a family day care home license pursuant to sections 402.305(2)(a), 402.312, and 402.313 and rule 65C-20.008. Finally, it is noted that Respondent has not adopted as a rule pursuant to section 120.54(1)(a), its "policy" of denying applications for family day care home licenses in every case in which the background screening for the applicant reveals an incident addressed in a CIS report. Accordingly, pursuant to section 120.57(1)(e)1., Respondent cannot rely on or apply this "policy" to deny Petitioner's application for a family day care home license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's license for a family day care home. DONE AND ENTERED this 12th day of April, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2018.
The Issue The issue 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 The issue is whether Respondent's license to operate a family day care home should be revoked.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties The Department is the state agency responsible for licensing and regulating child care facilities, including family day care homes. The Department 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 inspection 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. The Department 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. Respondent is the owner and operator of a licensed family day care home located at 1218 Jordan Avenue in Orlando, Florida (hereafter "Respondent's facility" or "the facility"). Respondent and her husband reside at that address as well. Respondent has operated day care homes in Florida since 1992, and she has been involved in child care for approximately 21 years. As a result, she is or should be familiar with the rules regulating family day care homes. Respondent keeps children in the back portion of her home. The children also play in Respondent's backyard, which is enclosed by an approximately six-foot high wooden fence. A wooden gate in the fence connects Respondent's backyard to the backyard of the house immediately behind Respondent's home. That house has been rented by Annette Rodgers since November 2002. Respondent does not have a pool in her yard. Ms. Rodgers' yard does have a pool, which at the time of the Department's February 27, 2003 inspection (discussed below), was only partially filled with water. Ms. Rodgers' pool is not visible from Respondent's back yard because of the wooden fence and gate. The photographs and videotape received into evidence show that Ms. Rodgers' pool is now completely enclosed by a series of fences.4 The evidence does not clearly and convincingly establish that the fences were not in place on February 27, 2003. Indeed, the weeds and high grass which can be seen along the base of and around the posts of the chain-link fence and the discoloration on some of the fence posts indicate that at least that fence has been in place for quite some time.5 Previous Inspections of Respondent's Facility and Actions Taken by the Department Respondent's facility was inspected on May 28, June 14, and September 30, 2002. Several areas of noncompliance were identified during each of those inspections, including inadequate supervision of children, unsafe storage of chemicals, evidence of roaches in the home, and incomplete enrollment and health records for the children at the home. On each occasion, Respondent was given a period of time within which to correct the areas of noncompliance. The inadequate supervision for which Respondent was cited in June 14, 2002, involved several children playing unsupervised in Respondent's carport area, which has access to the street; several children playing in the backyard under the "supervision" of Respondent's mother, who was not an authorized caregiver; and several children playing unsupervised on the porch area in the vicinity of tools and small screws. The Department issued Respondent a provisional license on October 28, 2002, presumably as part of the license renewal process. The provisional license was based upon Respondent's history of noncompliance with the Department's minimum standards, and it was valid through April 2, 2003, unless Respondent applied for an received a change in license status (which she apparently did not) or "if the license is suspended or revoked by the Department." A provisional license is issued where the Department has continued concerns regarding the day care home's compliance with the applicable statutes and rules. A provisional license is issued in lieu of denying a license renewal or suspending or revoking the home's license. A provisional license gives the licensee an opportunity to correct the areas of noncompliance, and because such homes are inspected more frequently, the Department has an opportunity to monitor the licensee's progress. On October 29, 2002, Respondent was assessed an administrative fine of $100.00 based upon deficiencies identified during the May 28 and June 14, 2002, inspections. The fine was based primarily upon the incident described above involving inadequate supervision of the children at the home. Respondent apparently did not contest the administrative fine or the issuance of the provisional license rather than a standard license. Despite the provisional license and the administrative fine, the Department's inspections continued to identify areas of noncompliance at Respondent's facility. For example, the November 14, 2002, inspection identified "evidence of rodents/vermin in the home" as well as incomplete enrollment and immunization records for the children in the home. The December 18, 2002, inspection identified these same deficiencies, including "live roaches in the children's area and the kitchen," as well as the storage of plastic shopping bags and chemicals which can pose dangers to children in an unlocked cabinet accessible to the children. These violations were the same as or similar to those for which Respondent had been previously cited and which led to the imposition of the administrative fine and issuance of the provisional license. The Department did not take immediate action to suspend or revoke Respondent's license based upon the results of the November 14 and December 18, 2002, inspections. Instead, the Department continued to give Respondent an opportunity to bring her home into compliance with the minimum standards in the Department's licensing rules and statutes. Inspection of Respondent's Facility on February 27, 2003 The Department next inspected Respondent's facility on February 27, 2003. That inspection was conducted by Department employee Brandi Blanchard. Ms. Blanchard had been responsible for inspecting Respondent's facility since at least September 2002, so she was familiar with the layout of the facility and its history of noncompliance. Respondent testified that Ms. Blanchard, unlike the prior inspector, had been "very good to her." Ms. Blanchard arrived at Respondent's facility by car between 8:30 a.m. and 8:45 a.m. As she arrived, Respondent was pulling her car into the driveway/carport at the facility. Ms. Blanchard parked her car directly behind Respondent's car. Ms. Blanchard got out of her car as Respondent was getting out of hers, and she said, "Hello, Ms. Alli," to Respondent. Upon seeing Ms. Blanchard, Respondent quickly went into the house through the carport door. Ms. Blanchard followed Respondent into the facility. Ms. Blanchard lost sight of Respondent as she went down a hallway towards the back of the house where the children were located. The backdoor of the house was open, and by the time that Ms. Blanchard caught up with Respondent, Respondent was directing the children through the facility's backyard towards the back gate connecting Respondent's yard to Ms. Rodgers' yard. Several of the children, led by Ms. Rodgers' 14-year-old son carrying an infant in a car seat and Ms. Rodgers' 13-year-old son carrying a toddler had already reached Ms. Rodgers' yard. Ms. Blanchard told Respondent to stop and return to the facility with the children, which she did. Ms. Blanchard went through the open gate onto Ms. Rodgers' property and directed Ms. Rodgers' sons to return to Respondent's facility with the children, which they did. While on Ms. Rodgers' property, Ms. Blanchard saw a partially-filled swimming pool and other ongoing construction. Ms. Blanchard did not notice any fencing around the pool and saw one of the children, which she estimated to be three or four years old, walking in the construction area close to the edge of the pool. After the children had been returned, Ms. Blanchard assessed the situation and commenced her inspection of the remainder of Respondent's facility. Ms. Blanchard found roach droppings in the bathtub and in other locations in the facility. Respondent acknowledged a roach problem, but claimed that she had an exterminator working on the problem and that he was due to come out and treat the facility. Respondent did not present any documentation to Ms. Blanchard to corroborate her claims regarding the exterminator, nor did she introduce such documentation at the hearing. Ms. Blanchard found plastic bags in an unlocked cabinet accessible to the children. Respondent acknowledged at the hearing that the bags were in the cabinet and further acknowledged the suffocation danger that they posed to young children. Ms. Blanchard's review of the facility's records identified missing enrollment and immunization records for the children in the home. However, Ms. Blanchard did not document the children whose records were missing and she did not determine whether, as Respondent claimed at the time and in her testimony at the hearing, any of the missing records were for students who had enrolled in Respondent's facility within the prior two weeks. Ms. Blanchard documented the results of her inspection, including the events surrounding the movement of the children to Ms. Rodgers' yard on her inspection report. The inspection report identified each of the violations that she observed, including inadequate supervision based upon Respondent's absence from the facility, unsafe storage of materials dangerous to children (i.e., plastic bags) in a location accessible to the children, evidence of roaches, incomplete enrollment and immunization records, and more than the allowed number of children in the home. Ms. Blanchard also cited Respondent's facility for the dangers posed by Ms. Rodgers' pool since the children were being taken onto Ms. Rodgers' property. With respect to the citation for having too many children, Ms. Blanchard's inspection report did not include any detailed information about the children such as their names (or initials), ages, or descriptions. The report simply stated that Ms. Blanchard counted seven children at the facility -- i.e., "3 infants, 3 preschool and 1 school age child." Ms. Blanchard's testimony at the hearing referred to only two infants, which was consistent with Respondent's testimony on that issue. As a result, the evidence is not clear and convincing that there were seven children in Respondent's care at the facility rather than the authorized six children. During the course of her inspection, Ms. Blanchard did not see any adults (other than Respondent, who arrived as Ms. Blanchard was arriving) at the facility. It is undisputed that Respondent's husband, who is the designated substitute caregiver, was not at the facility that morning. There is no credible evidence that Respondent's 22- year-old son, Abdel, was at the facility that morning. He did not testify at the hearing, and, if as Respondent claims, Abdel was at the facility that morning, Ms. Blanchard would have seen him at some point during the commotion surrounding Respondent's rushing the children out the back door or during her subsequent inspection of the facility. In any event, Abdel was not the substitute caregiver designated by Respondent. He was not even authorized to watch the children because, although he had been background screened by the Department, he had not taken the Department's mandatory child care training program and was not certified in cardiopulmonary resuscitation (CPR). It is more likely than not that Ms. Rodgers' teenage sons were actually left to supervise the children at Respondent's facility during the time that Respondent was gone on the morning of February 27, 2003. Indeed, that is the most likely explanation of their presence at the facility and their involvement in the movement of the children to Ms. Rodgers' yard. However, the evidence on this issue is not clear and convincing. Respondent's explanation of her actions on the morning of the inspection -- i.e., that she hurried into the house upon her arrival and directed all of the children to Ms. Rodgers' yard so she could convey an important message to Ms. Rodgers -- is not credible. Her explanation of the roach droppings that Ms. Blanchard found in the bathtub -- i.e., that it was actually dirt from washing one of the children's feet -- is also not credible. By contrast, Respondent's explanation of the incomplete records -- i.e., that the missing records were for those children who had enrolled in the facility within the prior two weeks -- is reasonable. Because Ms. Blanchard's inspection report did not identify the children whose records were missing and did not document the date of their enrollment, the evidence is insufficient to prove this violation. Respondent admitted at the hearing that she "was taking a chance" by leaving the children at the facility without her husband, the designated substitute caregiver, being present. Respondent testified that she was gone only 15 minutes to drop one of her children off at school, and that she follows that same routine every day although her husband is usually at the facility while she is gone. After Ms. Blanchard completed her inspection, she discussed the results with Respondent and provided Respondent a copy of the inspection report. Ms. Blanchard then went back to her office and discussed the results of the inspection with her supervisor, Patricia Richardson. Based upon the results of the February 27, 2003, inspection and the history of noncompliance at Respondent's facility (both before and after the provisional license), Ms. Richardson determined that Respondent's license should be revoked. Thereafter, on February 28, 2003, Ms. Richardson sent a letter to Respondent informing her that her license was being revoked and advising Respondent of her right to "appeal" that decision through the administrative process.
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 revoking Respondent's license to operate a family day care home. DONE AND ENTERED this 12th day of June, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 12th day of June, 2003.
The Issue Whether Petitioner, the holder of a family day care home registration, has violated Respondent's minimum standards for child care providers by failing to directly supervise an infant in her care on March 22, 2006, and whether her registration should be revoked, pursuant to Section 402.310(1), Florida Statutes.1
Findings Of Fact Petitioner, Jacqueline Bizzell, has been operating a child care facility in her home, at the same location, since 1992. She has been a registered family day care home with Respondent since January 30, 2001. As a part of her application to be a registered family day care home provider, Petitioner sent Respondent verification that she completed the required training for child care providers, which includes knowledge of Respondent's rules and regulations in the area governing child care. On January 26, 2006, Petitioner was informed that her family day care home was again registered for one year, effective January 30, 2006. In the letter, Petitioner was informed that she must maintain her registration in accordance with Section 402.313, Florida Statutes (2005). On March 24, 2006, Respondent received an allegation of neglect or abuse that took place at Petitioner's family day care home on March 22, 2006. Rivers Lewis (Lewis) was a child protective investigator for Respondent on the date of the allegation. He conducted an investigation of the allegation and completed a report. As a part of the investigation, Lewis spoke directly with Petitioner who stated that on March 22, 2006, the child was the only child in her care the day of the incident, and that she left him sleeping on her bed and went into the hallway in front of another room to do laundry or to do something else. Petitioner told Lewis that as soon as she heard the child cry, she stepped back into the room to find that he had fallen from the bed. Petitioner said, first, that the child had fallen off the bed, but later stated that the child had been on the side of the bed and was hanging onto the covers. Lewis submitted his investigative report on April 27, 2006, concluding that the case could be closed with verified indicators of "inadequate supervision" by Petitioner. Shortly after Lewis submitted his report, Ivette Garcia, Child Care Licensing Administrator, received a copy and reviewed it with another worker. She sent Petitioner a letter, dated May 10, 2006, stating that: "The purpose of this letter is to advise you that effective immediately, your family day care home is closed and that your registration is no longer valid." The closure was based upon the incident that occurred on March 22, 2006, wherein the investigative report, submitted by Lewis, confirmed indicators of inadequate supervision. No further investigation or other action was conducted by the child care licensing section in DCF's District 7 before the letter was sent. Although Garcia testified at the hearing that inadequate supervision of a child is a Class I violation, the highest violation, Petitioner was not specifically advised of such classification in the May 10, 2006, letter, nor was a finding made of an immediate serious danger to the health, safety, or welfare of the children who are enrolled in Petitioner's home. Respondent's District 7 Child Care Licensing office did not go to Petitioner's home to inspect or verify the report. It had no further communication with Petitioner after said date. Petitioner was not charged with causing injury to a child under her supervision. Garcia testified that due to the limitations of the registration statute (§ 402.313, Fla. Stat.), Respondent had only one option to deal with a Class I violation: immediately close the home and invalidate the registration. Petitioner's family day care home operated under the name: Hi Granny Day Care. She had only one child in her home on March 22, 2006, the eight-month-old boy, Markel. The child had been fussy and throwing up all day. At about 4:00 p.m., she put the child in the middle of her bed when he finally went to sleep. The bed was by the door. She stepped across the hall to do some chores and while standing at the door, in front of the playroom for about 14 or 15 minutes. When she heard a noise, she immediately stepped back into the room. She admits that she said to the investigator that he fell out of the bed, but that he really did not fall to the floor, but slid off of the bed and was dangling from the bed when she came back into the room; and a blanket broke his fall. She provided a handwritten diagram of her home as it appeared on the date of the incident. Petitioner had been taking care of Sherina Clemons' eight-month-old son, Markel, for over two months when the incident occurred. On March 22, 2006, Petitioner called her between 4:45 p.m. and 5:00 p.m. asking Clemons to not be mad at her. Petitioner told her that the child had been asleep when she placed him on her bed, but that when she walked out of the room, he must have awakened and fallen off of the bed landing on a pallet of covers. According to Latoya Marion, Children's Home Society, the Petitioner's reputation in the community was very good as a child care provider. Latisha Rashawn Bell has known Petitioner for about three years and Petitioner cared for her daughter in 2006. She came to Petitioner's home on March 22, 2006, later in the evening, and knocked on the door. Petitioner came to the door, holding the child, who was whining or crying. Petitioner told her that the child had fallen out of the bed, but had not landed on the floor. Chakera Angelette Faniel is a child care provider, who is not employed by Petitioner. Petitioner cared for Ms. Faniel's daughter for the first three years of her daughter's life, but no longer does. She has known Petitioner for about five years and knows her to be a caring and loving person. Petitioner has a very good reputation in the community as a child care provider. The clear and convincing evidence demonstrates that late in the afternoon of March 22, 2006, Petitioner placed a sleeping eight-month-old boy in the middle of her king-size bed, which was located in her bedroom near the door. Petitioner stepped across the hall and did some chores, while standing in front of the playroom for about 14 or 15 minutes. Although she was only three or four feet from the child, Petitioner could not see the child from where she was standing. When she heard the child cry, she immediately stepped back into the room and found the child lying on some covers on the floor. She picked the child up, who did not appear to be injured. Shortly thereafter, Petitioner contacted the child's parents and reported the incident to them. The child's mother arrived later and took the child home. The evidence is clear and convincing that Petitioner failed to provide direct supervision of the child while he was napping, in the late afternoon, on March 22, 2006. The evidence is clear and convincing that Petitioner is a long-term child care provider, who obviously gives compassionate care to the children in her care. There have been no prior reported incidents of neglect or abuse filed against Petitioner, nor were prior deficiencies listed. Petitioner enjoys a good reputation as a child care provider in her community. Except for the incident on March 22, 2006, no evidence was presented that Petitioner presented an immediate serious danger to the public health, safety, or welfare to the children who are enrolled in her family day care home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Secretary of the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of a single violation of the provisions of Florida Administration Code Rule 65C-22.001(5)(a) and (b) on March 22, 2006; Imposing an administrative fine of $100; and Immediately reinstating Petitioner's family day care home registration for a period of 264 days and permitting Petitioner the opportunity to submit an application for renewal of her family day care home registration at the appropriate time. DONE AND ENTERED this 13th day of April, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2007.
The Issue Whether Petitioner's license to operate a family day care home should be disciplined, and, if so, what penalty should be imposed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: 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 which 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 with or without notice. Respondent is the owner and operator of a licensed family day care home located at 2406 Winter Ridge Drive, Auburndale, Florida (hereinafter "Respondent's facility" or "the facility"). Respondent resides at that address as well. Respondent has operated a day care home at the above address for approximately five years, and she has been involved in child care for approximately ten years. Respondent 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. Respondent keeps children in her home, and children also play in Respondent's backyard. This area is enclosed by an approximately three and a half foot high chain-link fence. Respondent also owns a one-acre parcel behind her house and yard, which is apparently not fenced. Inspections and Resulting Actions by Petitioner Respondent's facility was inspected on April 16, 2003, and several areas of non-compliance were identified during this inspection. Noted as violations included Petitioner's son and husband who were in the home without a completed background screening on each of them; a fence surrounding the property had protruding chicken wire and was less than four feet in height; children's floor mats were torn and not properly covered; a bathroom sink was missing and needed replacement; no paper towels were in the bathroom for the children; one child's immunization records had expired and one child's required physical examination was out of date; and there were eight preschool children over the age of one year old in the home, where the maximum allowed was six. A re-inspection was conducted on April 23, 2003. On January 22, 2004, Petitioner's inspector Mr. Pickett went to Respondent's family day care home to carry out a routine inspection. Several areas of non-compliance were identified. Ms. Gainey's husband, Jerry Gainey, was staying in the home, but he had no letter on file showing he had been properly screened; there were too many children in the home (three children under 12 months old) when the maximum allowable is two; there were seven preschool children in the home when the maximum allowable is three; hazardous containers, a gas can and a paint can, had been left near the front door easily accessible to small children; a glass sliding door had a metal obstacle that could cause children to trip and fall; and three of the children in the home had no enrollment information on file--even their names and parents' names could not be found or names of anyone to call in case of an emergency. After Pickett completed his inspection, he discussed the results with Respondent and provided Respondent a copy of the inspection report. Pickett then went back to his office and discussed the results of the inspection with his supervisor, Ms. Hamilton. Based upon the results of the January 22, 2004, inspection and the prior incidence of non-compliance at Respondent's facility, Ms. Hamilton determined that Respondent's license should be revoked. Petitioner did not give Respondent an opportunity to bring her home into compliance with the minimum standards in Petitioner's licensing rules and standards. Thereafter, on January 26, 2004, Pickett sent a letter to Respondent informing her that her license was being revoked and advising Respondent of her right to "appeal" that decision through the administrative process. At the hearing, Ms. Hamilton testified that she was particularly concerned about Respondent's repeat violations, namely Respondent's husband not being screened for nearly nine months and the repeated ratio violations, that is, too many children in the home. She characterized these as serious child safety violations. These were the primary reasons she recommended that Respondent's child care license be revoked. Respondent, in her testimony, did not deny committing the violations noted in the inspections of April 16, 2003, and January 22, 2004. However, she did demonstrate that a re-inspection of her facility on April 23, 2003, listed her to be in compliance with all violations listed in the April 16, 2003, report, except for the background screening requirement for her husband. Respondent insisted that her son, Jerry L. Gainey, who is 28 years old, lives down the street from her and does not regularly watch the children in her home. Due to an emergency situation, she was required to leave her home in order to pick up some children from school, and she called upon her son to watch the children until her return. Respondent asserts that her son has not watched the children since that date. Respondent also asserts that her husband, who has had a stroke and is cognitively impaired and walks with the aide of a cane or scooter, does not reside with her full-time but, in fact, lives with his sister in Arkansas. The testimony in regard to her husband's permanent place of resident is not credible, since he was in the home on at least two occasions--April 16, 2003, and January 22, 2004--when it was inspected. It is undisputed that Respondent was not at the facility when Mr. McClary arrived in the early afternoon of April 16, 2003. Her husband and son were watching the children. Respondent's testimony indicated that her husband was physically impaired and not capable of supervising the children. Therefore, only her son was left in charge of the facility and the children that afternoon, and her son was not authorized to supervise the children. As a result, the children were effectively left unsupervised when Respondent left the facility that afternoon. Respondent's testimony is credible, especially when bolstered by her client's testimony, that she is a loving and caring person who goes out of her way to care for the children she keeps in her home. Respondent explained that at the time of the April 16, 2003, inspection, the sink was missing because the entire bathroom was being renovated, and the renovation has been complete for some time. Respondent also stated that she did not understand the need for Petitioner's insistence on strict compliance with the four-foot height requirement for the chain- link fence, especially since she owns the one-acre parcel in the back of her yard. Respondent also explained that the reason she had exceeded the maximum allowable number of children in her home on two occasions was concern for the custodial parents' inability to find suitable child care when they worked odd hours or the swing shift and that she was willing to inconvenience herself in order to provide this service. This testimony was corroborated by several parents and grandparents who testified in Petitioner's behalf. The evidence is clear and convincing that Respondent violated several code provisions, including failure to properly screen her husband, having too many children in the home, and failure to have current enrollment on file for each child. The evidence is not clear and convincing that Respondent violated the code provisions relating to minimum fence height requirements; improper floor mats; failure to have a functioning sink in the children's bathroom; no paper towels in the bathroom for the children; expiration of a child's shot records or that a child's physical examination was outdated. Respondent has shown mitigating evidence that she is a concerned and loving caregiver which demonstrates that her license as a family day care home license should not be revoked.
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-20.009(3)(a) (one count), 65C-20.010(1)(b) (one count), and 65C-20.011(4); and Subsection 402.032(7), Florida Statutes (two counts). Finding Petitioner not guilty of violating the provisions of Florida Administrative Code Rules 65C-20.010(1)(o), 65C-20.010(1)(f), and 65C-20.011(1) and (2)(a). Issuing Respondent a provisional license and imposing an administrative fine of $250.00. DONE AND ENTERED this 8th day of June, 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 8th day of June, 2004.
The Issue Whether Respondent, Mildred Jones, doing business as Jones Family Day Care (Jones or Respondent), committed the violations alleged in the Administrative Complaint dated May 29, 2012, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent operated a licensed day care facility located in Orange County, Florida. On the date of the attempted inspection in this case, Respondent had six children enrolled in her day care program. Petitioner is the state agency charged with the responsibility of licensing and inspecting day care facilities throughout the State of Florida. As part of that responsibility, Petitioner routinely inspects day care facilities to assure compliance with rules and regulations that govern day care programs. On May 4, 2012, Petitioner’s agent, Luz Torres, inspected Respondent’s home. This was not Ms. Torres’ first visit to the home and, like all other visits, she approached the front door during regular business hours and knocked. Upon knocking, Ms. Torres was greeted by a female voice behind the door who advised that she could not let Ms. Torres into the home. The female, later identified as Christine Randall, refused Ms. Torres admission even after the inspector advised that it was required by law. Despite her efforts to enter the home, Ms. Torres was denied access. Ms. Torres could hear the sounds of children within the home but could not from outside the front door determine the identity or number of the voices. Ms. Randall did not advise Ms. Torres that Ms. Jones was in the rear of the property. Ms. Randall did not direct Ms. Torres to go to the rear of the property. Ms. Torres could not view the rear of the property from the front entrance. Ms. Torres’ efforts to reach Ms. Jones by telephone proved fruitless. Ms. Randall has not been screened or had a background check in years. Ms. Randall was not listed as a substitute caregiver for Respondent’s facility. Ms. Jones’ claim that only Ms. Randall’s two children were present on the date Ms. Torres attempted entrance has not been deemed credible. Ms. Jones also claimed Ms. Randall was present helping her prepare for her inspection. Had only two children been present, Ms. Randall could have easily admitted Ms. Torres, had her observe that the home was being prepared for inspection without other children present, and addressed her role as helper to Ms. Jones with only her own children present in the home. Instead, Ms. Randall denied access to the home and failed to direct Ms. Torres to the rear of the property (presuming Ms. Jones was, in fact, there). Ms. Wright’s suggestion that only Ms. Randall’s children were present on the date in question has not been deemed persuasive as Ms. Wright did not enter the home on that date, did not view the home for the entire time, and does not routinely know who is or is not in the home from her vantage as Respondent’s neighbor and friend.
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 finding Respondent committed a Class I violation and imposing an administrative fine in the amount of $250.00. DONE AND ENTERED this 1st day of October, 2012, 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 1st day of October, 2012. COPIES FURNISHED: Stefanie C. Beach, Esquire Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801-1782 Mildred Jones Jones Family Day Care Home 5027 Caserta Street Orlando, Florida 32819 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should approve Petitioner's family day care license application.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made pursuant to Chapter 120.57, Florida Statutes, and the entire record compiled herein, the following relevant and material facts are found: Before December 15, 2000, Petitioner, Freddie Mae Law (Ms. Law) submitted an application for a family foster care license to Respondent, the Department of Children and Family Services (Department). Gloria Mathews (Ms. Mathews), who was at that time assigned to the Department's family foster care license unit, conducted the requisite pre-license investigation and found that Ms. Law met the mandatory requirements and that Ms. Law was qualified for a family foster care license. Based solely upon the results of Ms. Mathews' investigation of Ms. Law's background and qualifications, the Department issued Ms. Law a family foster care license on December 15, 2000. Thereafter, Ms. Law provided family foster childcare service out of her home in Mulberry, Florida. At some undetermined time after December 15, 2000, Ms. Mathews transferred from the Department's family foster care license unit to the Department's family day care license unit where she is currently working. Ms. Law's family foster care license was valid from December 15, 2000 to December 15, 2001, and was renewable on or before its anniversary date. On December 15, 2001, the Department took no action regarding the renewal of Ms. Law's foster home license. With the Department's consent and approval, Ms. Law operated her family foster care out of her home until February 21, 2002, at which time she voluntarily surrendered her foster care license to the Department. For more than eight years before she acquired her "foster care license" Ms. Law worked at the Cornerstone Youth Shelter. This residential shelter home, through contract with the Department, and the Department of Juvenile Justice, accepted referrals of children in need of housing and foster care services. On September 11, 2001, four months before the expiration date of Ms. Law's family foster care license on December 15, 2001, the required renewal investigation was conducted by Cheryl Dishong (Ms. Dishong), who was then a foster care license unit caseworker. Prior to the initial renewal visit by a foster care license unit caseworker, the Department requires the assigned caseworker to secure a copy of a foster care visit report form that contains the names and ages of the foster children in the foster home to be visited by the caseworker. Additionally, caseworkers are required to record the results of their foster care home visit on the foster care visit report form. Uncertain of the time of her prearranged visit with Ms. Law and of her arrival time at Ms. Law's residence, Ms. Dishong recalled arriving at the Law's residence at approximately 3:00 p.m. or 3:30 p.m. in the afternoon. According to Ms. Dishong, Ms. Law was not home upon her arrival, but arrived within five to ten minutes thereafter. During the short five to ten-minute interval before Ms. Law arrived, Ms. Dishong saw several teenaged children walking home from school. Ms. Dishong observed the two teenaged children approach Ms. Law's home, and she spoke with them outside Ms. Law's home. Neither Ms. Dishong nor the children entered Ms. Law's home at that time. Upon Ms. Law's arrival, she and Ms. Dishong entered the home while the two teenaged children stayed outside on the porch. During this visit, Ms. Dishong discussed with Ms. Law her one concern; the five-minute interval between the arrival of the two teenagers home and Ms. Law's arrival home. Ms. Law explained to Ms. Dishong that the one teenage foster child along with her biological daughter attended school within walking distance from their home. The normal family school day routine was for the teenagers to walk to and from school each day. The entire family would leave home together in the mornings and would normally arrive home in the evenings at about the same time Ms. Law arrived home from work. Ms. Law further explained to Ms. Dishong that her family's school day routine consisted of her transporting the younger foster children to school each morning on her way to work and picking them up from school on her way home each afternoon. This routine of a mother transporting young children to and from school each day is a routine of many mothers with young school children. The routine of teenaged children walking home from school and arriving a reasonably short time before their parents arrive home from work is also that of normal families. The Department proffered no rule or known and accepted standard that was violated by the hereinabove Law foster family school day routine. Ms. Law's determination of personally transporting the younger foster children to and from school and her determination that the teenaged foster child and her biological child should walk to and from school do not reflect a lack of supervision nor do they demonstrate faulty decision- making. Ms. Dishong, the Department's chief witness and a foster care license unit relicensure caseworker for three and one-half years, testified exclusively from memory. Her testimony, with exception of her face-to-face conversations with Ms. Law and her several telephone conversations with Ms. Law, consisted primarily of conclusions and generalizations. Ms. Dishong was unable to accurately recall names of specific foster children with whom she allegedly had conversations, and she could not recall specific dates, times, or places. Her recollection of statements allegedly made to her by foster children and other children lacks support and, therefore, lacks credibility. Ms. Dishong's recollection and testimony of statements allegedly made by the several children, foster, biological and others, is unobjected to as hearsay not supported by any other evidence of record and, in itself, cannot support a finding of fact.1 Accordingly, that testimony is disregarded in the preparation of this Recommended Order. On September 21, 2001, Nacara Daniels (Ms. Daniels), the Department's investigator of abuse report 2001-051113, visited Ms. Law's foster care home for an investigation of allegations contained in abuse report 2001-051113. Before her visit to Ms. Law's home, Ms. Dishong told Ms. Daniels of allegations of a lack of supervision and faulty decision-making purportedly contained in three other unidentified abuse reports. On October 9, 2001, and as the direct result of Ms. Daniels' investigation, interview, and discussion with Ms. Law regarding her foster care supervision, the Department entered into a Partnership Development Plan (PDP) agreement with Ms. Law. This partnership agreement and its cooperative working relationship between Ms. Law and the Department's caseworkers are designed to provide foster care that is in the best interest of the foster children. The PDP agreement reduced to writing the Department's agreed acceptance to continue its foster care partnership with Ms. Law and Ms. Law's agreed acceptance to continue working with the Department. Ms. Law complied with the terms and conditions contained in the PDP agreement from the date she signed the agreement on October 9, 2001, to the date Ms. Law voluntarily surrendered her foster care license to the Department on February 21, 2002. On or after October 9, 2001, and after completing her investigation and discussions with Ms. Law, Ms. Daniels closed abuse report 2001-051113 with a finding that allegations contained in abuse report 2001-051113 were uncorroborated. Ms. Daniels recalled, at some unspecified time subsequent to October 9, 2001, sharing her abuse report findings of uncorroborated allegations, the conditions and terms of the PDP, and her abuse report closure status with Ms. Dishong. Before the two-week Christmas break of December 2001, Ms. Law telephoned the Department and spoke to each foster child's caseworker. By mutual agreement between Ms. Law and each caseworker with whom she spoke, a Christmas vacation plan was developed for sharing the daily care and responsibilities for Ms. Law's foster children over the two-week Christmas holiday period. It was agreed that during the two-week 2001 Christmas break, Ms. Law would leave her foster children at the Department's office each morning on her way to work, and she would pick them up from the Department's office each evening on her way home after she finished work. During this two-week Christmas holiday period, Ms. Law continued to provide the foster children breakfast before leaving home each morning, and the Department's caseworkers provided each child with their midday lunch meals. On January 4, 2002, Jayme Sprouse (Ms. Sprouse), a Department investigator, received abuse report 2002-001260. Before her initial visit to the Law family foster care home, Ms. Sprouse reviewed all the information contained in the Department's foster care unit licensing renewal case file. On February 4, 2002, one month after receiving abuse report 2002-001260, Ms. Sprouse spoke with Ms. Law concerning the general allegations to have occurred during an unspecified time span before December 2001 regarding her use of unscreened foster care sitters. This inexplicable month delay is significant in that it evidences the fact that allegations contained in abuse report 2002-001260 did not constitute an immediate danger to the health, safety, and welfare of the foster children in Ms. Law's foster care home. Had abuse report 2002-001260's allegations been sufficient to create an immediate danger or threat to the safety and well-being of the foster children, Ms. Sprouse was required to conduct an investigation on January 5, 2002, within 24 hours after receiving the abuse report on January 4, 2002. Ms. Sprouse inquired of Ms. Law's use of an unapproved foster child sitter. Ms. Law explained to Ms. Sprouse that she had a Department-approved foster child sitter, Chastity Griffin, who sat her foster children and who transported both biological and foster children to outings and entertainment activities. During this period, Ms. Law had also submitted an application to the Department for another approved sitter named Jocelyn (whose last name was not provided in the record) for approval. Not knowing that approval by the Department was required before a sitter could be used to sit foster children, Ms. Law permitted Jocelyn to sit with the foster children during the pendency approval of her foster care sitter application. After February 4, 2002, Ms. Sprouse advised Ms. Law that that the Department had denied Jocelyn's pending sitter screening application. Responding to this information, Ms. Law immediately discontinued the use of Jocelyn as a foster care sitter, evidencing her willing readiness to comply with the Department's requirements once they were made known to her by the Department's staff. After Ms. Law satisfied Ms. Sprouse's concern regarding the use of an unapproved sitter, Ms. Sprouse closed her investigation of abuse report 2002-001260 with a finding of no indicators of inadequate supervision based on the Florida Statute definition of inadequate supervision for abuse purposes. Ms. Sprouse voiced no other concerns regarding Ms. Law's foster care supervision to Ms. Law. After the February 4, 2002, meeting with Ms. Sprouse, the record contains no credible evidence that Ms. Law continued to use unscreened sitters at the foster home or used unscreened persons for any other purposes. Ms. Sprouse shared her abuse report findings of fact and her closure of the abuse report with Ms. Dishong, the case worker assigned the task of the renewal investigation of Ms. Law's foster care licensure process. At no time during the period of September 11, 2001, throughout January 28, 2003, did Ms. Dishong inform Ms. Law that the Department's foster relicensing unit had received, in addition to abuse report 2001-051113 and abuse report 2002- 001260, three additional abuse reports alleging that she inadequately supervised the foster children in her home. Petitioner's Family Day Care Application On or about November 6, 2002, Ms. Law made application to the Department for a family day care license. The November 6, 2002, application is the subject of this de novo proceeding. In December 2000, Ms. Mathews was assigned to the Department's foster care license unit. While there, it was she who approved Ms. Law's foster care license application. In November of 2002, Ms. Mathews was assigned to the Department's family day care license unit. Ms. Mathews again conducted the requisite pre-licensure investigation of Ms. Law's minimum qualifications and criminal background check. For the second time within less than two years, Ms. Mathews again found Ms. Law to have met all statutory requirements and was, therefore, qualified to have a family day care license issued to her. Specifically, Ms. Mathews confirmed that Ms. Law met mandatory minimum standards as required by statute. She visited and otherwise assured herself that Ms. Law's home met minimum standards. She ascertained that Ms. Law had completed 30 hours of childcare training at Polk Community College upon receiving Ms. Law's certificate of completion from Polk Community College. Ms. Mathews was satisfied the Ms. Law's criminal background check found Ms. Law free from any criminal convictions. Ms. Mathews satisfied herself the Ms. Law's substitute family day person was qualified and had completed a minimum of three hours of childcare training as required. Having completed and approved Ms. Law's foster care license application, Ms. Mathews was aware that Ms. Law's long- time employment at Cornerstone Youth Shelter was her sole source of income. Ms. Mathews advised Ms. Law that at the time her family day care license was issued, she would be prohibited from all other employment. To assist Ms. Law in determining the appropriate time to submit her two-week notice of resignation to Cornerstone Youth Shelter, Ms. Mathews was the person to whom Ms. Law would inquire regarding the status of her forthcoming family day care license. Ms. Mathews informed Ms. Law of her successful compliance with minimum requirements and told her the Department was in the process of signing her family day care license. On January 17, 2002, in reliance on Ms. Mathews repeated assurances that her family day care license was forthcoming and to comply with the "no other work outside the home" requirement, Ms. Law gave her two-week notice of resignation to Cornerstone Youth Shelter. Notwithstanding the fact that Ms. Mathews was assigned to the Law application and was working in the Department's family day care licensing unit, the Department's foster care unit's relicensing investigator, Ms. Dishong, never informed Ms. Mathews that the Department's foster care relicensing unit had concerns of such magnitude that they could be the bases for the denial of her family day care license application. The Department's foster care license unit did not inform the family day care license unit that since November 6, 2002, the Department purportedly had received three additional abuse reports (bringing the total abuse reports to five) that would ultimately adversely impact Ms. Law's family day care license application. This is significant in that Ms. Mathews was the person who at that time had determined that Ms. Law met minimum standards for a family day care license. This inexplicable lack of information sharing between the Department's foster unit and its family day care unit continued from January 17, 2002 to January 2003. Ms. Dishong, Ms. Law's foster care unit investigator and the Department's primary witness, (1) could not identify from memory the three abuse reports allegedly filed against Ms. Law, (2) could not find the three abuse reports in her foster unit renewal investigation file, (3) could not proffer any evidence that allegations contained in those three reports were investigated and corroborated by Department investigators, and (4) did not inform Ms. Law that allegations supposedly contained in those three unidentified abuse reports would adversely impact her pending family day care application. This complete failure to identify, investigate, inform, and discuss with Ms. Law the three abuse reports is significant when the Department's processing of abuse reports 2001-051113 and 2002-001260 that were filed against Ms. Law is compared to its processing of the three unidentified abuse reports. In processing abuse reports 2001-051113 and 2002- 001260, the Department first investigated each report. Second, the Department discussed the allegations of each report with Ms. Law. Third, the Department closed each report with a written finding. Lastly, of the three unidentified three abuse reports testified to by Ms. Dishong, and that constituted the primary basis for denial of Ms. Law's family day care license application, the Department did not follow its previous procedure of identification, investigation, advising, and discussion with Mr. Law and the investigator's recorded finding regarding allegations contained in those three reports. According to Ms. Dishong, the Department's foster care license unit held a foster staff committee meeting during some unidentified time in 2002. Ms. Dishong did not provide the names of her foster care unit coworkers who attended the staffing committee nor did she provide the names of the Department's other employees who attended the staffing committee. It is clear that the Department, in part based upon the foster care staff committee results, determined that Ms. Law's family day care license application would be denied. It is also clear that Ms. Mathews did not attend the Department's foster licensing care unit's staffing committee meeting. Ms. Mathews first became aware of the Department's foster care unit's license renewal investigation file on Ms. Law when she reviewed that file in preparation for this final hearing. Upon completion of her review, Ms. Mathews did not change her prior approval and finding that Ms. Law met minimum standards. Based on her review of that file, she did however qualify her prior approval of granting Ms. Law a family day care license to a "but for" the content of the foster care unit's license renewal investigation file. The record contains no evidence from which to determine how the Department's foster care licensing unit's conclusions and decision to not renew Ms. Law's foster care license were conveyed to the Department's family care license unit. It is clear, however, that the Department's decision denying Ms. Law a family day care license was based on uninvestigated and uncorroborated allegations purportedly contained in three unidentified abuse reports. The Department's denial letter of January 29, 2003, unequivocally confirms the fact that the Department's decision to deny Ms. Law's family day care license application was based upon its consideration as fact, uninvestigated and uncorroborated allegations contained in three unidentified abuse reports. The Department's licensure staffing committee's consideration of Ms. Dishong's personal observations and conclusions contained in her foster care closure form, in its deliberations and its ultimate decision to deny Ms. Law's family day care application, were not based on fact and are, therefore, not justified. Ms. Law has, by a preponderance of the evidence, proven that she successfully met the Department's statutory minimum requirements for a family day care licensee.
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 granting Petitioner, Freddie Mae Law, a family day care license. DONE AND ENTERED this 23rd day of July, 2003, 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 23rd day of July, 2003.
The Issue The issue is whether the renewal application for a family day care home license filed by Petitioner should be denied based upon alleged violations of Florida Administrative Code Rule 65C-20.10(1)(f), stated in Respondent's letter of proposed denial dated August 3, 2005.
Findings Of Fact Based upon the observation of and the demeanor of the witnesses while testifying, documentary materials in evidence, stipulations of the parties, and evidentiary rulings during the hearing, the following relevant, material, and substantial facts are determined: Petitioner was initially granted her first family day care home license to operate a family day care home at 2829 Kathryn Drive, Lakeland, Florida 33805, on August 3, 2003, and her family day care home license was renewed by Respondent for operation at the above address for one additional year on August 3, 2004. At the time of the 2004 family day care home license renewal, Petitioner was in compliance, with no noncompliant items noted in her record from 2003 through 2004 that would have justified denial of the license renewal. On an unspecified date prior to August 3, 2005, Petitioner made an application to renew her family day care home license. On August 3, 2005, Respondent notified Petitioner by letter of the proposal to deny her application for renewal of her family day care home license. Petitioner contested the proposed denial resulting in this administrative hearing on November 7, 2005. The denial letter of Respondent indicated that the decision was based upon, "[y]our inability to ensure the safety of children in your care." The letter continued stating: "Your Family Day Care Home was found to be out of compliance in regards to the fencing requirements as stated in 65C-20.10(1)(f), Florida Administrative Code (F.A.C.), on 07/28/03, 03/22/04, 01/12/05, 01/20/05, and 06/10/05." Petitioner acknowledged that the fence was missing a few boards during the above period. It is undisputed that the January 12, 2005, inspection by Timothy Graddy, child care licensing inspector, found numerous violations. Upon reinspection by Mr. Graddy on January 20, 2005, the violations noted during his January 12, 2005, inspection were corrected, but for repair of the fence around the home and the undated fire extinguisher inspection certification. Mr. Graddy was not called to testify regarding the severity of the noncompliance violations, the probability of harm to health or safety of the children nor actions taken by Petitioner to correct the cited violations. No other witness testified regarding these mandatory items. It is likewise undisputed that Respondent imposed an administrative fine on Petitioner for noncompliance items identified during an undated inspection in 2004. Petitioner, without requesting a Chapter 120, Florida Statutes, hearing, paid the administrative fine of $100 on December 9, 2004, for violations noted in compliance inspections that occurred between January and December of 2004. It is likewise undisputed that the Department imposed a second administrative fine on Petitioner for those violations noted from inspections that occurred between January 1, 2005, and June 21, 2005. Again, and without requesting a Chapter 120, Florida Statutes, hearing, Petitioner paid the administrative fine of $250 on June 1, 2005. William Wright, child care licensing inspector and a member of the license application review committee, reviewed the relicensing application filed by Petitioner, voiced as his primary concern a July 2005 central abuse hotline report of an incident that occurred July 11, 2005. In the abuse report, a two-year-old male child was reported to have had bruises on both facial cheeks. The allegations narrative reflected the child received the bruises by falling/tripping over his shoes. Petitioner called the father of the child, who came by, observed the bruise on his child's cheeks, signed an incident statement prepared by Petitioner, and took his child home. The father did not return his child to Petitioner's family day care home. During the subsequent investigation of the abuse incident, bruises were found on the child's thigh(s). Two or three days after the July 11, 2005, incident report, a subsequent investigation by local law enforcement and follow-up investigation by Respondent's personnel resulted in conflicting and unresolved accounts of how the child received the bruises, where the child received the bruises, and who was at fault for the bruises. It was unclear to the investigators where and how the child received the bruises on his thighs. What is clear is that the child did not receive thigh bruises while in Petitioner's family day care home. Respondent closed the abuse report with "[S]ome indicator of bruises, welts and marks. No intervention services were needed." There is insufficient evidence to conclude, infer or establish that while in Petitioner's care the child sustained bruises on his thighs that were discovered several days after the July 11, 2005, abuse report and, thus, to conclude the child's safety was at risk while in Petitioner's family day care home. Another review committee member, Patricia Hamilton, child care licensing supervisor, opined the proposed denial was based upon "the Department's belief" that Petitioner was not able to operate a day care without violating one or more Florida Administrative Code rules. It is her belief that children in Petitioner's family day care home would not be safe because the historical inspection record compiled by Respondent, in her opinion, demonstrated Petitioner could not consistently comply with the rules of operating a safe family day care home. This is a reasonable inference drawn from a historical review of Petitioner's family day care home inspection record. Petitioner, as of November 28, 2005, filed a Notice of Change of Address. Petitioner now resides at 7354 Beaumont Drive, Lakeland, Florida. By moving to a new residence, Petitioner effectively withdrew the family day care home license application for license of the residence at 2829 Kathryn Avenue, Lakeland, Florida 33805, the subject of this case.
Recommendation Based upon the foregoing findings of fact and conclusions of law hereinabove, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing the petition filed by Tarsha Seay, d/b/a Seay Family Day Care Home. DONE AND ENTERED this 24th day of February, 2006, 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 24th day of February, 2006.
