The Issue Whether Petitioner is entitled to an exemption from disqualification to work in a position of special trust.
Findings Of Fact On June 6, 1979, Petitioner went into a public restroom and attempted to use a urinal. To do so, he had to remove his sexual organ from his clothing. An adult male dressed in beach clothing called to him, "Come here," so Petitioner turned around and took half a step. The man asked, "What do you like?" Petitioner responded, "Women. Excuse me," and faced the urinal again. The other man, a plain-clothes law-enforcement officer, arrested Petitioner. Petitioner was charged with Section 800.03, Florida Statutes, "exposure of a sexual organ (by masturbation) -- misdemeanor." This was a misdemeanor charge at the time committed. Despite there having been no masturbation, in his opinion, Petitioner pled nolo contendere, and adjudication was withheld; he was assigned six months unsupervised probation and paid a fine. It is only on the basis of the foregoing 1979 plea that Petitioner has been disqualified from working in a position of special trust. He was notified by an April 18, 1996 letter that, pursuant to Sections 402.302(8) and 435.04(2), Florida Statutes [1995], he is disqualified as a household member in a family day care home. (Agency Exhibit 1) Petitioner also was arrested in 1982. The record is unclear as to what statute he was charged under at that time, but he did plead guilty and was fined. The circumstances surrounding the 1982 incident were established solely by Petitioner's testimony. He was in a department store restroom. There was a hole cut in the wall between two stalls "and apparently there was someone on the other side, the next stall that prompted me to put my sex organ through the hole in the wall." The person in the next stall was not a law enforcement officer. (TR 37-41, 43-45)1 Petitioner was arrested upon exiting the restroom. He has not been arrested since 1982. Petitioner has been happily married for 27 years. He and his wife have three children and five grandchildren. He and his wife are well-loved by their own children and grandchildren. They have a history of welcoming the troubled friends of their children into their home. The neighborhood children and Petitioner's grandchildren have always affectionately called Petitioner, "Grand-daddy" and have called Petitioner's wife, "Nanny." Their home is, and always has been, a gathering place for the neighborhood children. Petitioner's wife runs a licensed family day care home out of the family home from 6:00 a.m. to 6:00 p.m., Monday through Friday. Although she did not know about Petitioner's 1979 incident before it was disclosed through the agency screening process, she does not believe Petitioner presents a danger to children. She believes the 1979 incident constituted "entrapment". By a second letter dated April 18, 1996, Petitioner's wife was notified that, pursuant to Sections 402.302(8) and 435.04(2) Florida Statutes [1995] (Agency Exhibit 2), Petitioner was forbidden from having contact with any children in her family day care home and that if he is allowed to have contact with children in her care, she would be subject to an administrative fine and possible criminal penalties. The four children currently paying to attend Petitioner's wife's day care home are respectively aged one, two, three, and four years of age. For the last eight years, due to his trade as a self- employed leather worker, Petitioner has traveled a wide circuit from flea market to flea market throughout the week. He is only present in the family home from 10:30 p.m. Fridays to 3:00 a.m. Mondays. His wife's day care home does not operate during those periods that Petitioner is typically at home. Petitioner is a devout Seventh Day Adventist and an elder of his local church. He is the church's Sabbath School Superintendent. Petitioner's daughter and former daughter-in-law wrote letters entered in evidence and also testified that the family home is warm and loving and that Petitioner is a great "Grand- daddy." They rely on Petitioner and his wife for baby-sitting services. In their mutual opinion, Petitioner is not a danger to children, however some of their testimony minimized Petitioner's problems as only being "past mistakes." Neighbors' letters to the effect that Petitioner does not pose a threat to children, is active in his church, and travels except on weekends were admitted in evidence without objection, as was a statement by his pastor that Petitioner is a man of "impeccable character." However, none of these persons was available for cross-examination, and their letters do not clearly show that they had knowledge of Petitioner's past lewd acts or any reason or opportunity to know if he had committed any subsequent ones.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is , reluctantly, RECOMMENDED that the Department of Children and Families enter a Final Order removing Petitioner from the registry of disqualified persons.RECOMMENDED this 6th day of March, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1997.
The Issue Whether Respondent's registration to operate a family day care home should be revoked.
Findings Of Fact At all times material to the allegations of this case, Respondent, Kathy Stone, d/b/a Stone Family Day Care, was registered by the Department to operate a day care facility in her home located at 272 Southwest Fairchild Avenue, Port St. Lucie, Florida. As part of the registration for such day care home, Respondent was required to complete forms on which Respondent was to identify all members of the household residing at the registered location. Specifically, Respondent was to disclose any person over twelve years of age residing at the home. None of the registration forms completed by Respondent disclosed that an individual named Kevin Schaffer resided at the registered home. On more than one occasion law enforcement authorities were called to Respondent's residence in order to intervene in domestic disputes between Respondent and an individual named Kevin Schaffer. On all such occasions, Mr. Schaffer listed his residence as that of the Respondent's day care home. Mr. Schaffer is a convicted felon. Respondent failed to disclose that Mr. Schaffer was a resident over the age of twelve years residing at the registered day care facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order revoking Respondent's registration as a home day care facility. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. J. D. 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998. COPIES FURNISHED: 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, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Sydney L. Schwartz, Esquire Department of Children and Family Services 1436-C Old Dixie Highway Vero Beach, Florida 32960 Katherine Stone, pro se 272 Southwest Fairchild Avenue Port St. Lucie, Florida 34984
The Issue Whether the Department of Children and Family Services ("Department") properly revoked the Petitioner's, Elena Highland's, family child care home registration because her husband, a member of the household, has a verified abuse of report of sexual abuse of a child.
Findings Of Fact The Petitioner, Elena Highland, is registered to operate a family day care home, located at her home. She has been so registered since March 1, 2002. W.H., the husband of Mrs. Highland, lives with her in their home where she operates the family day care home. W.H. also works outside the home. W.H. is the designated substitute for the family day care home. In March 1992, the Union County Sheriff's Department investigated the circumstances of an attempted suicide and sexual battery of a 15-year-old female victim in Case No. 92-46- CFA. During the investigation W.H. admitted to John Dempsey that he had sexual relations with the girl on one occasion, but it was consensual. W.H. was 21 years old at the time. W.H. was later arrested. The Department also investigated the case and verified Abuse Report No. 92-035063, against W.H. for the March 1992, sexual molestation of the 15 year-old victim for the following reasons: W.H. admitted to Deputy Dempsey that he had consensual sexual relations with the girl on one occasion. The victim was not dating W.H., was not "sweet" on him, and he was dating her aunt. The victim denied that the sex was consensual. The victim's suicide note and subsequent statements indicated that her suicide attempt was because W.H. had been forcing her to have sex over a three-year period. The victim's statements were consistent throughout the investigation, and she was severely depressed because of the abuse. The victim remained hospitalized for two months. The victim's mother had found her daughter's dresser blocking the door on one occasion, which was consistent with the girl's statement. The victim told her mother her brothers were bothering her. Another household member had seen W.H. supposedly ironing in the dark at the home on one occasion. W.H. stayed at the victim's home and at her grandmother's home on occasion. His family lived in the same projects complex as the victim's family. The prosecution of W.H. was dropped because the victim was to fragile and did not want to testify. Sandy Looney, day care licensing supervisor, testified that the Department's policy is never to register or license and/or revoke the registration or license of family day care homes with a household member who has a verified abuse report for sexual abuse in order to protect the children. Ms. Looney stated that Mrs. Highland's receipt of a family day care registration in March 2002 was a Department error. W.H. denied at hearing that he ever had sex with the victim and that he ever stated to Deputy Dempsey that he had consensual sex with the girl.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint be dismissed. DONE AND ENTERED this 21st day of April, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 21st day of April, 2003. COPIES FURNISHED: Elena Highland 1823 Southwest Judy Lane Lake City, Florida 32025 Lucy Goddard-Teel, Esquire Department of Children and Family Services Post Office Box 390, Mail Sort 3 Gainesville, Florida 32602-0390 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this matter is whether the Department of Children and Families should deny Respondent’s application for registration as a family day care home.
Findings Of Fact The Department is the state agency charged with regulating providers that are licensed or registered as family day care homes. Family day care homes must register annually with the Department. See § 402.313(1)(a), Fla. Stat. Respondent is owned and operated by Cherrie Scally. Ms. Scally has registered Respondent as a family day care home since 1997. In or about August 2015, Ms. Scally filed an application with the Department to renew Respondent’s registration as a family day care home for 2016. Respondent's registration for 2015 expired on October 30, 2015. Upon receiving Ms. Scally’s application, the Department reviewed whether to renew Respondent’s registration as a family day care home. As part of its determination, the Department examined the Florida Central Abuse Hotline Records Search (“CAHRS”). In CAHRS, the Department identified an Investigative Summary involving Respondent that verified a finding of “inadequate supervision” in March 2015. Based on the CAHRS Investigative Summary, the Department issued an Administrative Complaint in November 2015, revoking Respondent’s registration as a family day care home.2/ The Department determined that it could no longer approve Respondent’s registration “based on the verified finding of inadequate supervision.” The CAHRS resulted from an incident that allegedly occurred on March 5, 2015. On March 6, 2015, the Central Abuse Hotline received an anonymous phone call reporting an injury to a child at Respondent’s family day care home. A four-year-old girl who attended Respondent’s family day care home reported to her mother that another child had hurt her.3/ Jessica Baloy, a child protective investigator with the Department, was assigned to investigate the incident. Her duties include investigating facilities regarding complaints of child abuse and neglect. Ms. Baloy prepared the CAHRS Investigative Summary. Ms. Baloy visited Respondent's family day care home on March 9, 2015, to investigate the allegation. Ms. Scally informed Ms. Baloy that she had no knowledge of how or when the child was injured. Ms. Scally did not learn of the incident until the child’s mother called her the evening after the child was picked up. Ms. Scally thought that the incident may have occurred in her “playroom” while she was in her kitchen either cleaning up another child or preparing snacks.4/ During her visit, Ms. Baloy found that the part of Ms. Scally’s home used for childcare consists of two rooms, a “playroom” and a kitchen. The rooms are located next to each other, but a wall separates them. Ms. Baloy observed that the wall obstructs the view between the playroom (where the injury allegedly occurred) and the kitchen where Ms. Scally believes she was located at the time of the incident. Ms. Scally admitted to Ms. Baloy that, while she is able to hear the children in the playroom from the kitchen, she is unable to see directly from the kitchen into the playroom. In her investigation, Ms. Baloy reported that the child had “no indicator” of physical injury. In other words, Ms. Baloy did not find evidence to suggest the child had sustained an injury. Ms. Baloy personally interviewed the child and did not observe any discomfort or physical injuries. Ms. Baloy also received information from the child’s mother that a doctor had examined the child and determined that she had not suffered any trauma, just “some irritation.” The child’s mother decided that no further medical treatment or examination was needed. In her Investigative Summary, Ms. Baloy reported that “[o]bservations of the home daycare were positive that it was not hazardous for the children.” Ms. Baloy also declared that Ms. Scally “once notified by a parent completed the proper notifications needed in regards to this incident.” However, Ms. Baloy did have “some concerns in regards to supervision.” She found that when Ms. Scally was working/standing in her kitchen, she could not view the children in the playroom. Consequently, if something bad happened, she would not be able to see it. Also during her visit to Respondent, Ms. Baloy observed 11 children in Respondent’s facility. Consequently, Respondent was over capacity by one child. (As discussed below, family day care homes are restricted to a maximum of ten children at one time.) After her visit, Ms. Baloy closed her investigation with “verified findings for inadequate supervision.” Ms. Baloy was not aware of any prior investigations involving Respondent. Dinah Davis is the policy supervisor for the Department’s Office of Childcare Regulation. Her responsibilities include approving applications for family day care home registrations with Samantha Wass de Czege, the Department’s Director for the Office of Childcare Regulation. Ms. Davis expressed that the Department was concerned with Ms. Baloy’s Investigative Summary because the finding of “inadequate supervision” indicated that Ms. Scally left the children unattended outside of her direct supervision. The Department’s “rule of thumb” regarding supervision is that a caregiver must be within “sight and sound of the children and [be] able to respond to emergency situations.” Ms. Davis expressed that a constant sightline is crucial to allow the caregiver to respond to and prevent an emergency or potentially harmful situation. Adequate “sight” supervision means that children should be at least within the caregiver’s peripheral vision. In addition, Ms. Davis explained that, by statute, no family day care home is allowed to care for more than ten children at one given time. Ms. Davis referred to section 402.310 as the Department’s authority to deny Ms. Scally’s application. Although section 402.310 allows the Department to place a family day care home registration on probation status, Ms. Davis stated that the Department did not consider the option to place Respondent on probation. Ms. Wass de Czege also testified regarding the Department’s decision to revoke (deny) Respondent’s application for registration. Ms. Wass de Czege stated that the Department’s action was based on the child protective investigator’s findings of “inadequate supervision” and overcapacity. Ms. Wass de Czege agreed with Ms. Davis that supervision in a family day care home requires “direct sight and hearing of the children at all times” so that the caregiver is “able to respond to meet the needs of the children.” Ms. Wass de Czege explained that based on the floor design of Ms. Scally’s home, “she could not have the children in her sight. So, she was not meeting that parameter of the definition of supervision.” Ms. Wass de Czege explained that the Department’s definition of “inadequate supervision” for family day care homes is found in Florida Administrative Code Chapters 65C-22 and 65C-20.5/ Ms. Wass de Czege also remarked that having more than ten children in care at a family day care home is considered overcapacity. Therefore, having 11 children present in the home at the time of Ms. Baloy’s visit caused Respondent to be out of compliance with the governing regulation. Ms. Wass de Czege also conveyed that registration of a family day care home is basically a paper process. The applicant submits the paperwork. The Department checks off the information listed in section 402.313(1)(a). If approved, the applicant can care for children. Ms. Wass de Czege commented that, because of a lack of manpower and resources, a registered family day care home is not subject to routine inspections by the Department. Consequently, the Department has little regulatory oversight of Ms. Scally’s home. Based on its review of the CAHRS, the Department determined that Respondent failed the background check necessary to register as a family day care home for 2016. Ms. Scally testified on behalf of Respondent at the final hearing. Ms. Scally has operated her family day care home since 1997. She has successfully registered with the state every year since then. She cares greatly for the children entrusted to her. This current matter is the first issue she has encountered regarding her registration. Regarding the incident on March 5, 2015, Ms. Scally did not learn that a child may have been harmed at her home until the child’s parent called her that evening to report an injury. The parent relayed that her daughter told her that another child had poked her in a sensitive area, drawing blood. Upon learning of the injury, Ms. Scally immediately took action. That evening, she spoke with the parents of both children involved to make sure all parties were aware of the situation. The next morning, Ms. Scally called the injured child’s parent back to inquire of her well-being. Ms. Scally also contacted her own pediatrician seeking advice on the situation. Ms. Scally offered to arrange for her pediatrician to examine the child. Ms. Scally herself was the anonymous caller reporting the incident to the Central Abuse Hotline.6/ She called the abuse hotline on the next morning. (The CAHRS Investigative Summary notes that the call was received on March 6, 2015, at 10:38 a.m.) Ms. Scally called the abuse hotline because she knew reporting the injury was the proper and legally required step to take. Ms. Scally commented that the Department would not have learned of the incident but for her phone call. Ms. Scally conceded that, when she is standing in her kitchen, she does not have a direct line of sight with the children in her playroom. Consequently, Ms. Scally admitted that if the child was injured in the playroom while she was in the kitchen, the child was out of her sight for a short period of time. On the other hand, Ms. Scally asserts that she can always hear her children from the kitchen. Furthermore, no child is ever out of her eyesight for more than a couple of moments. Ms. Scally also represented that she has taken steps to ensure that she can maintain “sight and sound” supervision over her children in the future. She has purchased a mirror to place in the hallway between the playroom and the kitchen. This mirror allows her to see into either room from the other. Ms. Scally stated that in her 19 years of childcare, she has never had any incidents in her family day care home. Ms. Scally acknowledged that she might have had 11 children in her care on the occasion of Ms. Baloy’s visit to her home on March 9, 2015. Ms. Scally explained that it was likely during a “transition” period as her children were being picked up and dropped off and was not a regular occurrence or for an extended period of time. Based on this incident, Ms. Scally asserts that she will be extra cautious about the interactions between the children in her care. Ms. Scally presented testimony from several parents whom she serves. They each asserted that Respondent provides a valuable service, and they trust her with their children in her home. Mia Carla Hagins placed her daughter with Respondent from 2009 through 2014. Ms. Hagins testified that Ms. Scally ensures safety, nurturing, and care for the children she supervises. Thomas Breck placed two children with Ms. Scally from 1996 through 2000. Mr. Breck testified that Ms. Scally provided excellent care and demonstrated complete professionalism. Mizanne Brown placed her child with Ms. Scally for ten years. Ms. Brown testified that Ms. Scally was fabulous, nice, and wonderful. Ms. Scally also produced 26 letters of recommendation from parents and teachers of children for whom she has cared. Ms. Scally asserted that these letters show how positively her community views her, her home, and her childcare services. Based on the competent substantial evidence presented at the final hearing, the Department failed to establish, by a preponderance of the evidence, sufficient grounds to deny Respondent’s application for registration as a family day care home under the provisions of section 402.310. Accordingly, the Department should approve Respondent’s application to register as a family day care home.
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 approving Respondent’s application for registration as a family day care home. DONE AND ENTERED this 2nd day of August, 2016, 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 2nd day of August, 2016.
The Issue The issue is whether Respondent should renew Petitioner's license to operate a large family child care home.
Findings Of Fact Petitioner has owned and operated Jeannie's Child Care in her home as a licensed 24-hour facility since 1988. Petitioner's license allows her to keep up to 12 children at a time. She also owns another offsite daycare center that is not at issue here. Petitioner's license to operate a large family child care home expired on December 2, 2001. Prior to the expiration of the license, Respondent designated Petitioner's facility as a Gold Seal Quality Care Program. There is no credible evidence that Petitioner is responsible for any child being spanked with a paddle or a belt. She normally puts children in the corner for time out when they misbehave. However, competent evidence indicates that Petitioner sometimes threatens to spank children that are difficult to control. On at least one occasion, Petitioner spanked third and fourth grade sisters with a rolled up newspaper, telling them that if they behaved like dogs, she would treat them like dogs. On other occasions, Petitioner spanked C.F. and F.D. by hand. Because C.F. was particularly hard to manage, his mother and her boyfriend gave Petitioner permission to spank C.F. The children in Petitioner's care sometimes bite other children. Usually these children are toddlers. To discourage biting, Petitioner told her staff to put a drop of hot sauce on a finger then put the finger in the child's mouth and on the gum. Petitioner used hot sauce in the manner described on F.D. and at least one other toddler. Petitioner's adult son drove the facility's vans. He also played with the children in the yard. At times, he would let the children exercise with him by doing push ups or sit ups and running laps. Occasionally, Petitioner's son or teachers at the facility would encourage C.F. or other school-aged children to exercise and run laps. The purpose of the exercise was to burn excess energy. To the extent that exercise was used to control the behavior of the children, there is no persuasive evidence that it was excessive. It is acceptable to discipline children by placing them in time-out. It is not acceptable to require the children to hold their hands up in the air or to hold books in their hands during a time-out period. There is no persuasive evidence that Petitioner was responsible for children having to hold their hands in the air or to hold books in their hands while they were in time-out. Petitioner's method of disciplining children varied depending on how difficult it was to control them. In some cases, the parents of the children approved Petitioner's unorthodox discipline. However, there is no evidence that any child in Petitioner's home facility were bruised or physically injured as a result of punishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order renewing Petitioner's license to operate a large family day care home subject to appropriate terms and conditions. DONE AND ENTERED this 18th day of July, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2002. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Edward L. Scott, Esquire Edward L. Scott, P.A. 409 Southeast Fort King Street Ocala, Florida 34471 Paul F. Flounlacker, Jr., 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 in this case is whether Petitioner is entitled to a license to operate a family day care home under the provisions of Chapter 402, Florida Statutes (2003).
Findings Of Fact On February 16, 2004, the Department notified Petitioner that her application for a license to operate a family day care home was denied. The denial was based on information obtained by the Department as part of the background check it conducted in review of Petitioner's application. The denial letter advised Petitioner that the family day care home license was denied based on information contained in Abuse Hotline Report No. 2002-132739 (2002 Abuse Report). According to the 2002 Abuse Report, Petitioner failed to take her daughter to the doctor for a follow-up visit three weeks after he removed a cast from her arm, so that the doctor could insure that the injury was healing properly. As a result of the foregoing allegations, the 2002 Abuse Report concluded that there were "some indicators" of medical neglect by Petitioner. The Department's background investigation revealed that Petitioner's husband, Darrell Faniel, who resided with her, pled nolo contendre to the charge of selling cocaine, a felony offense, and was adjudicated guilty of that offense in 1991 in Case No. CF90-5739 in the Circuit Court of the Tenth Judicial Circuit in and for Polk County, Florida, Criminal Division. As a result of this felony conviction on July 25, 1991, Mr. Faniel was placed on probation for five years, but was discharged from probation about 16 months early pursuant to a court order which stated that Mr. Faniel "has complied with the rules and regulation of probation and is no longer in need of supervision." The family day care home license for which Petitioner applied would allow her to care for up to ten children in her home. Given the foregoing information obtained by the Department as part of its background investigation, the Department had doubts about whether Petitioner could provide a safe day care home for children. Accordingly, the Department denied Petitioner's application. The foregoing facts have not been refuted by Petitioner, nor did she present any evidence to demonstrate that she is eligible for licensure as an operator of a family day care home. As noted in the Preliminary Statement, Petitioner did not appear at hearing, and no evidence was presented on her behalf.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner a license to operate a family day care home. DONE AND ENTERED this 20th day of July, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Cutina Faniel 2404 Temple Circle Haines City, Florida 33884 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 Should the Petitioner's application for registration to operate a family day care home be approved?
Findings Of Fact In August 1998, Petitioner, Yolanda Cheesmon, registered her home at 1012 Yates Avenue in Panama City, Florida, as a family day care home with Respondent, Department of Children and Family Services. In September 1998, Michelle Barsanti, the Department's Licensing Counselor, attempted to reach Ms. Cheesmon at her home by telephone. She was unable to do so because the telephone had been disconnected. Because the Department's day care standards required day care homes to have telephones, Ms. Barsanti continued to try an reach Petitioner. She eventually contacted Petitioner by phone, found she had moved, and sent her a new application to 920 Thomas Avenue, Panama City, Florida. On October 23, 1998, Ms. Barsanti attempted to visit Ms. Cheesmon at her new home. It was only then that she noticed that Ms. Cheesmon's address had changed. She obtained directions to the new home, and went there to discuss with Ms. Cheesmon licensing her home as a family day care home. During this visit, Ms. Barsanti reminded Ms. Cheesmon that it was the home and not the operator which was licensed or registered; and, therefore, the Department had to be notified whenever the operator of a family day care home changed residence. Ms. Barsanti discussed with Ms. Cheesmon during this meeting that Ms. Cheesmon would have to procure a written statement form the landlord approving the use of the property as a family day care home. The facts reveal a mix up between the Petitioner and the investigator regarding almost every aspect of Petitioner's application. As both women endeavored to perfect the application, more and more things arose which needed to be done. All of this occurred under circumstances in which the Petitioner's income was reduced because she had quit her job to care for children. Ms. Cheesmon filed her application and a letter which purported to be from her landlord giving Ms. Cheesmon permission to operate a family day care home on the property. Ms. Barsanti received an anonymous letter alleging the permission letter was a forgery. After being confronted by Ms. Barsanti Ms. Cheesmon admitted that she had forged the permission letter. Ms. Cheesmon testified that she forged the letter which she gave to Ms. Barsanti in order to get the application processed and obtain insurance which the landlord required as a condition for approval. The landlord did not disapprove of the child care activity. The landlord wanted insurance to hold her blameless. The Petitioner needed approval by the Department to obtain insurance. Petitioner's forgery was not so much a false statement of the landlord's position, as an improper means to accomplish what the landlord wanted. By the time of hearing, the Petitioner had moved back to her original address into property which she does not rent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order which would deny the current application as moot. DONE AND ENTERED this 14th day of June, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 14th day of June, 1999. COPIES FURNISHED: Yolanda Cheesmon 1012 Yates Avenue Blountstown, Florida 32424 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
