The Issue The issue in the case is whether the application for registration of the Tonya Rodreguez Registered Family Day Care Home (Respondent) should be denied.
Findings Of Fact Since 1994, and at all times material to this case, Mrs. Rodreguez has operated the Respondent, which is located at 2736 Lemon Street, Fort Myers, Florida. On October 25, 2010, Mrs. Rodreguez filed an application with the Petitioner for registration of the Respondent. The previous registration had lapsed. Since 1992, and at all times material to this case, Mrs. Rodreguez has been married to her husband, Terry Rodreguez (Mr. Rodreguez). In 1990, Mr. Rodreguez was convicted of possession of a controlled substance and a concealed firearm. Mrs. Rodreguez was aware of her husband's criminal conviction. The registration application included a section where an applicant was directed to list "OTHER FAMILY/HOUSEHOLD MEMBERS." The application filed on October 25, 2010, by Mrs. Rodreguez disclosed only herself and her three children. Mrs. Rodreguez did not list her husband on the application. On June 23, 2010, a child protective investigator (CPI) commenced an unrelated investigation of the Respondent and went to the Lemon Street address. Mr. Rodreguez was present in the home when the CPI arrived. The CPI testified without contradiction that Mr. Rodreguez was uncooperative. She returned to the Respondent later that day accompanied by a law enforcement officer, but, when they arrived, Mr. Rodreguez was no longer present at the Respondent. On June 24, 2010, the CPI returned to the Lemon Street address, and Mr. Rodreguez was again present. During questioning by the CPI on that date, Mr. Rodreguez stated that he resided in the home. Additionally, Mrs. Rodreguez advised the CPI that she and her husband had separated, but acknowledged that she and her husband both resided at the home. At the hearing, Mrs. Rodreguez asserted that she has been separated from her husband for many years; however, she acknowledged that they remain legally married, that he uses her address as his legal address, and that her address is listed on his driver's license. She testified that he is homeless and that he returns to the house to see her children. Mr. Rodreguez was issued several traffic citations between January and July of 2010, and all of the citations identified his address as 2736 Lemon Street, Fort Myers, Florida.
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 the application for registration of the Tonya Rodreguez Registered Family Day Care Home. DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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, 2011.
The Issue Whether the Department of Children and Family Services, properly denied Gaye Brina Vestal's license application to operate a commercial day care facility, pursuant to Section 402.3055, Florida Statutes.
Findings Of Fact Respondent's legal name is "Gaye Brina Vestal." Respondent is married to "Tony L. Vestal" a/k/a "Tony L. Mitchell." The name on Tony's birth certificate is "Tony Mitchell." When he was eight years old, his mother married a man named "Vestal." Thereafter, Tony went by the last name "Vestal." He attended school, obtained a driver's license and a Social Security account number, married, and had children under the name "Vestal." When he divorced, he began using the name "Mitchell" and obtained a different Social Security account number and driver's license under the name "Mitchell." At some point, Tony married Gaye Brina (Respondent) under the name "Vestal." They then remarried under the name "Mitchell." Respondent tried using the name, "Mitchell" with Tony, but due to hostility from Tony's mother, Respondent elected to return to using the name "Vestal." She was unable to persuade Tony to return to using the name "Vestal." 1/ By a September 16, 1997, application for registration of a family day care home in her home on Sisco Street in Pamona Park, Respondent and Tony listed "Tony Vestal" as Respondent's husband with his "Vestal" Social Security Number. "Shirley Vestal," is listed as a character witness for each of them. The forms clearly show "Shirley Vestal" as Tony's "ex-wife" and as Respondent's "friend." Among her own past employments, Respondent claimed to have been the manager of a pizza parlor; she listed her supervisor there as "Tony Mitchell." She also listed another previous employment as being the "owner" of a different pizza parlor which closed in 1996. Both pizza parlors were named "Tony-O's Pizza." The Sisco Street property was shown as belonging to "Tony Mitchell." Either at this point, or later, while Respondent was operating under provisional day care home licenses, Dede Sharples, a Department employee with responsibility to oversee home day care licensing, became concerned as to the true identity of Respondent's husband. She asked Respondent whether "Tony-O's Pizza" had been named for Respondent's supervisor or Respondent's husband. While there is considerable disagreement between the two witnesses as to exactly what was said, and while Ms. Sharples' questioning may have been tenuous and Respondent's response may have been intended to be humorous, Respondent still left the Department representative with the impression that there were two different "Tony's." On October 16, 1997, the Department did a home inspection. Respondent thereafter corrected the Sisco Street location for fire inspection purposes. By a December 18, 1997, application for a family day care home license at her Sisco Street home, Respondent listed "Tony Lee Vestal" as a household member and listed the owner of the property as "Tony Mitchell." In reviewing the December 18, 1997, application, Ms. Sharples told Respondent that Respondent would need to have Mr. Mitchell sign a letter saying that Respondent had his permission to run a day care facility on his property. 2/ Respondent told Ms. Sharples that "Tony Mitchell" was a good friend that had gone to Indiana and then elsewhere and that he did not want his address given out. She further stated that her home was in Mitchell's name because she had damaged credit and had an oral agreement with Mitchell to pay on the house until it was paid for and then Mitchell would sign the house over to Respondent and Respondent's husband. Ms. Sharples cautioned Respondent that this was a dangerous practice which could leave Respondent with no house and no recourse to her money expenditure for the house. Respondent was granted two six-month provisional family day care home licenses while awaiting Florida Department of Law Enforcement screening and abuse registry screening of herself and "Tony Vestal." On January 12, 1998, the Department received a clear background check/screening on Respondent but no information concerning "Tony Vestal." On February 12, 1998, Ms. Sharples inspected the home on Sisco Street for a compliance check. Respondent was notified of items to correct. On March 9, 1998, the Department sent a certified letter to Respondent because it had not received any communication from her that the noncompliance items had been corrected in anticipation of a second compliance visit. On April 8, 1998, Ms. Sharples secured a copy of the deed to the Sisco Street address. It showed the property to be owned by "Tony Mitchell and Gaye Brina Mitchell, his wife." Respondent admitted to Ms. Sharples that Respondent once was married to "Tony Mitchell," but Respondent did not volunteer that "Tony Mitchell" and "Tony Vestal" were one and the same person. By a November 25, 1998, application for a commercial day care facility license on Grove Avenue in Crescent City, Respondent listed her name as "Gaye Brina Vestal," her address as a post office box, and the owners of the Grove Avenue real property as "Tony L. Mitchell" and herself as "Gaye Brina Mitchell." Respondent signed the application as "Gaye Brina Vestal." Also on November 25, 1998, Respondent submitted an application fee of $25.00 by a check drawn on the account of "L & M Falling Tree Service" signed by "Tony Mitchell." Ken Barnett processes commercial family day care facility license applications for the Department. He is Ms. Sharples' supervisor. On November 18, 1998, the Department sent Respondent a letter verifying that she had not renewed her family day care home license because she was applying for a commercial family day care facility license and informing her that her family day care home must close on December 31, 1998. Respondent asked Mr. Barnett when she would be licensed for a commercial family day care facility license. He replied that if the final inspection went all right, Respondent would be licensed within two weeks of December 31, 1998. As a result of her conversation with Mr. Barnett, Respondent did not timely renew her family day care home license. Her day care home license has since expired. 3/ At some point that is unclear from the record, the Department discovered that "Tony Vestal" and "Tony Mitchell" were one and the same person with two different driver's licenses and two different Social Security account numbers. As a result, on February 4, 1999, the Department denied Respondent's pending application for a commercial day care facility license. At some date that is unclear from the record, the Florida Department of Law Enforcement background screening and the abuse registry screening came back clear on Respondent, "Tony Vestal," and "Tony Mitchell," e.g. "Tony" under both Social Security numbers. Tony testified that he originally had used the name "Mitchell" to hide his children by his first wife so that his first wife would not take their children to Mexico. Tony testified that he never used his Social Security card for a job; he only used it "privately," to keep his ex-wife from finding him. As of the date of the disputed fact hearing, Tony had not notified the Federal Social Security Administration that he had two Social Security identities/accounts. Since the Department's denial, but prior to the disputed fact hearing, Tony's driver's license in the name "Vestal" had been turned-in to the Florida Department of Highway Safety and Motor Vehicles (DHSMV) and his driver's license in the name of "Mitchell" had been revoked by that agency. 4/ Respondent asserted that DHSMV compromised what could have been harsher civil and/or criminal penalties upon its determination that Tony had no intent to defraud. However, Respondent introduced no corroborative evidence of this assertion. At all times material, Respondent knew about Tony's two Social Security cards and two driver's licenses in different names. Respondent and Tony signed all the departmental forms referred-to above pursuant to the penalty of perjury for not telling the truth thereon. Incredibly, Respondent testified that it did not occur to her that the use of different names on the documentation supporting her several applications would create confusion within the Department. Equally incredibly, Respondent testified that she had assumed that the preliminary background screenings and fingerprint checks would disclose all identities so that full disclosure would be made and all discrepancies explained.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order denying Respondent's application for a commercial day care facility license. DONE AND ENTERED this 2nd day of November, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1999.
The Issue Was Petitioner properly disqualified from working in a position of special trust pursuant to Section 435.04, Florida Statutes, on the basis of a July 21, 1996, incident? If Petitioner was properly disqualified as a result of the July 21, 1996, incident, has she been sufficiently rehabilitated so as to be eligible for an exemption to work in a position of special trust, pursuant to Section 435.07(3), Florida Statutes?
Findings Of Fact Petitioner was licensed through Leon County as a family home day care provider in 1995. Since 1996, she has been operating her family day care home pursuant to an exemption from disqualification by a 1973 disqualifying felony (manslaughter). Petitioner is a high school graduate. She was schooled and certified in New York as a nurse technician. She is certified as a home health aide in Florida. When she sought to renew her license in 2000, Petitioner was required to sign an Affidavit of Good Moral Character. The 2000 Affidavit of Good Moral Character read: By signing this form, I am swearing that I have not been found guilty or entered a plea of guilty of nolo contendere (no contest), regardless of the adjudication, to any of the following charges under the provisions of the Florida Statutes or under any similar statute of another jurisdiction. I also attest that I do not have a delinquency record that is similar to any of these offenses. I understand I must acknowledge the existence of criminal records relating to the following list regardless of whether or not those records have been sealed or expunged. I understand that I am also obligated to notify my employer of any possible disqualifying offenses that may occur while employed in a position subject to background screening under Chapter 435, Florida Statutes. The 2000 Affidavit then listed a number of offenses and the corresponding statute numbers. Among the offenses listed were: Sections 741.30 domestic violence and injunction for protection. 784.03 battery, if the victim was a minor. The 2000 Affidavit is DCF's attempt to paraphrase Section 435.04, Florida Statutes, listing disqualifying offenses. It is flawed and could be misleading because domestic violence can occur without an injunction for protection. Petitioner signed the 2000 Affidavit on January 25, 2000, in the portion declaring herself free of any disqualifying statutory violations and also signed the Affidavit in the portion stating, "To the best of my knowledge and belief, my record may contain one or more of the foregoing disqualifying acts or offenses." Petitioner testified in the instant case that she did not divulge the July 21, 1996, incident on her 2000 Affidavit because she did not think it constituted domestic violence, but why she signed contradictory statements was not explained. Petitioner's day care license was renewed, despite Petitioner's contradictory declarations on her 2000 Affidavit. She was notified of her disqualification when the five-year background screening turned-up an offense that had occurred on July 21, 1996. The Year 2000 background screening results which DCF received from the Florida Department of Law Enforcement indicated that Petitioner had been found guilty of "battery," on the basis of the July 21, 1996, incident. The Department's Background Screening Coordinator then obtained additional documentation from the file of the Leon County Court. Based on the information in the court file, the Department's District II Office concluded that Petitioner was disqualified because of a "domestic battery" offense. Petitioner exhausted informal procedures and timely requested an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes (2000). The instant case followed. The instant case is the second occasion Petitioner has appeared before the Division of Administrative Hearings requesting an exemption from disqualification to work in a position of special trust. The first occasion Petitioner appeared before the Division occurred in September 1996, when she sought an exemption because she had been disqualified due to her 1973 felony manslaughter conviction in New York. Petitioner had failed to disclose the 1973 felony conviction on her 1995 affidavit when she first applied to be a child care worker.1 That disqualifying offense showed-up in the initial screening procedures applicable to such applicants. Petitioner was granted an exemption for the 1973 manslaughter conviction in Harris v. Department of Health and Rehabilitative Services, DOAH Case No. 96-2010 (Recommended Order entered September 10, 1996; Final Order entered October 30, 1996), as more fully described below in Findings of Fact 34-36. She has been a licensed day care provider ever since. In 1996, Petitioner and Frank Fields had a romantic involvement bounded by Mr. Fields' keeping most of his belongings at his sister's apartment and merely sleeping over at Petitioner's home two to three nights per week, on a sporadic basis.2 On these occasions, he brought with him, and occasionally left in Petitioner's home, only his underwear and some music CDs. At all times material, Frank Fields was an adult male. Although younger than Petitioner, he was not a minor. On July 21, 1996, Petitioner, who was then 47 years old, was two months' pregnant with Frank Fields' child. She testified that at that time she was very upset and confused because of her pregnancy; because Mr. Fields was not helping with household expenses; and because she had heard that Mr. Fields was moving from his sister's apartment to an apartment of his own. On July 21, 1996, Petitioner was driving her car on Blountstown Highway. She noticed Mr. Fields' van and also noticed that there was a female in the passenger's seat of the van. Apparently, Petitioner believed that Mr. Fields was romantically involved with his female passenger. Petitioner had one adult daughter; the adult daughter's three children, all under the age of nine years, and her own eight-year-old daughter with her in her car. According to Petitioner's testimony, none of the four children in her car were young enough to require a car seat and none of her day care children were in her car. According to the police officer who later arrested Petitioner, there were six "children" in the back seat of Petitioner's car, not six people in the whole car. Regardless of this discrepancy in testimony, it is undisputed that there were no car seats and insufficient car safety belts for the number of passengers in Petitioner's car on July 21, 1996. Without approving either Petitioner's motivation or her reasoning, I find credible her testimony that she would not have taken her next actions had there been any day care children in her car because if day care parents found out about it, Petitioner could be "put in jeopardy"; she "could be in a lot of trouble"; and she would not have had day care children with her over a weekend. July 21, 1996 was, in fact, a Sunday. In making the immediately foregoing Finding of Fact, I have not overlooked Ms. Brantley's testimony that on occasion Petitioner has kept Ms. Brantley's children in Petitioner's home on nights and weekends while Ms. Brantley traveled. However, even assuming arguendo, but not ruling, that six rather than four children were in Petitioner's car on July 21, 1996, there is no direct evidence that any of them were also day care clients. Petitioner drove her car, filled with passengers, following Mr. Fields' van. Mr. Fields turned onto Nekoma Lane and pulled over to the side of the road. Petitioner pulled over and intentionally bumped her car into the back of Mr. Fields' van. Petitioner and Mr. Fields exited their respective vehicles, and Petitioner demanded to know who Mr. Fields' female passenger was, even though Petitioner knew the passenger was named "Melissa." Some screaming ensued, and Petitioner and Mr. Fields "tussled," hitting and scratching each other. Petitioner and her adult daughter testified that they did not know who struck the first blow. The non-hearsay evidence is insufficient to establish that on this occasion Petitioner left a bite mark on Mr. Fields' arm. When Mr. Fields began to wield a stick he had picked up from the side of the road, Petitioner's adult daughter got between him and her mother. Petitioner then drove her car, still containing its passengers, so as to follow Melissa, who had walked around the corner. Petitioner then "had a conversation" with Melissa. There is no evidence that the children were anywhere except inside Petitioner's car during either her confrontation with Mr. Fields or with Melissa. When the police arrived on the scene, Petitioner was arrested for battery and for driving with a suspended driver's license. The suspended license charge arose because, when questioned by the police, Petitioner gave her name as "Veronica L. Wynn." Petitioner's legal name was, in fact, "Veronica Harris." Petitioner also told the officer that her date of birth was September 19, 1959, and that she lived at 2106 Monday Street. Petitioner's true date of birth is September 19, 1949, and her true address was 1229 Elberta Street. When the officer could not find a driver's license record for "Veronica L. Wynn," Petitioner told him that the name on her license might be "Veronica Lee Harris Wynn." After she gave him the name "Veronica Lee Harris Wynn," the officer found Petitioner's driver's license record and learned that her driver's license had been suspended. Petitioner had recently been divorced and had "gone back" to her maiden name, but she testified herein that on July 21, 1996, she deliberately gave incorrect information to the police because she knew her driver's license was suspended and the police were going to check on it. Mr. Fields was provided with a pamphlet explaining his right to request domestic abuse protection and prosecution. Apparently, he did nothing about it. Petitioner was charged, in an Information which recited the statutory language of both Subsections 784.03(1) (a) and (b), Florida Statutes (1995), with "battery (M1)," meaning "first degree misdemeanor battery." The Information cited only "Section 784.03, Florida Statutes," for that offense. The Information also charged Petitioner with "driving while license suspended or revoked (M2)" also a misdemeanor, under Section 322.34(1), Florida Statutes (1995). On August 28, 2000, Petitioner entered a "no contest" plea to both charges. Petitioner was adjudicated guilty of misdemeanor battery and was ordered to serve 12 months of probation with the following conditions: (1) no contact with Frank Fields; (2) $155.00 court costs; and (3) $100.00 fine. She was also required to pay a monthly supervision fee while on probation and a fee for the services of the public defender. There was no charge, plea, or sentence stating "domestic violence" or citing a domestic violence statute. Petitioner was not required to attend a batterers' intervention program, pursuant to Section 741.281, Florida Statutes. No evidence was presented to show that the sentencing court had made written, factual findings that attendance at a batterers' intervention program would be an inappropriate condition for her probation. Petitioner's probation was terminated in December 1997. Petitioner miscarried her child conceived of Frank Fields before a live birth. Petitioner's emotional connection with Mr. Fields seems to have terminated with the July 21, 1996, incident. At the September 9, 1996, formal exemption hearing in Harris v. Department of Health and Rehabilitative Services, DOAH Case No. 96-2010 (see Finding of Fact No. 12) Petitioner and her witnesses did not divulge that six weeks earlier, on July 21, 1996, Petitioner had been arrested for her altercation with Frank Fields or that less than two weeks earlier, on August 28, 1996, Petitioner had pled "no contest" to battery of Frank Fields. Petitioner testified in the instant case that she did not divulge the July 21, 1996, incident during the 1996 formal exemption proceeding before the Division because "it was not part of my day care home and had nothing to do with day care children."3 The Recommended Order in DOAH Case No. 96-2010 observed that "Petitioner, now a grandmother, testified tearfully to her errant behavior at the age of 21, over 24 years ago in New York. Petitioner has never been charged with any legal violation since that time, with the exception of traffic tickets . . .since the [1973] incident, . . . Petitioner has lived an exemplary life . . . ." That Order recommended granting an exemption. The outcome of the Final Order, entered October 26, 1996, was that Petitioner was exempted from the 1973 felony disqualification.4 Petitioner contends that she never committed "domestic violence" and even if she did, she has been "rehabilitated" since July 21, 1996. She feels that she should be granted an exemption because she is sorry for what she did; because if she had been thinking, she would not have done it; and because she loves her day care children. Since 1996, Petitioner has operated her family day care home and has pursued her goal of becoming a Master Provider of day care. In order to become a Master Provider, one must have taken the Second Helping Course (a refresher course for experienced day care providers); have either a Child Development Associate Certificate or national accreditation; and have five years' experience. Currently, there are only two Master Providers in Leon County. In 1998, Petitioner received a $500.00 Caring for Kids Mini-Grant which she used to purchase day care toys. In March 2000, Petitioner received a scholarship from the T.E.A.C.H. Early Childhood Project, which she had planned to use to take classes at Tallahassee Community Hospital towards her Child Development Associate certification. Petitioner has put this project on "hold" during the pendancy of the instant case. In May 2000, Petitioner completed the Second Helping Course. In Leon County, only approximately 20 family home day care providers have taken this course. In 2000, Petitioner received a $275.00 Caring for Kids Mini-Grant which she used to help pay for her Second Helping Course. Petitioner was selected to receive a Kids Incorporated Infant/Toddler Initiative Grant of $3,000, which she intended to use to purchase toys and equipment for her day care home. Petitioner was hand-picked by Kids Incorporated because of her genuine love and concern for the children and because Kids Incorporated felt that Petitioner only needed additional toys and equipment in order to improve her day care home. However, because of the instant case, Kids Incorporated has not yet disbursed this money to Petitioner. Kids Incorporated wants to be assured the money will go to someone who will be a day care provider for the long-term. Petitioner has volunteered for the school readiness program sponsored by Kids Incorporated, which has resulted in additional visits and evaluations of her day care home. Her day care children have all scored "above average" in the program. Katherine Schmidt, a Family Child Care Specialist with Kids Incorporated, testified that she has evaluated and assessed Petitioner's day care home in her capacity with Kids Incorporated and during the period she was helping Petitioner obtain the grants mentioned above. Ms. Schmidt believes Petitioner is an excellent day care provider and would not be a danger to the children in her care. Ms. Schmidt also believes Petitioner would be a benefit to the children and their families. The Leon County Home Day Care Providers Association and Support Group meets monthly, and Petitioner regularly attends. Two day care providers wrote letters in support of Petitioner. Cicely Brantley is a professional music education teacher in Leon County's public school system. Ms. Brantley's two children attend Petitioner's family day care home. She has seen Petitioner briefly at least five days per week for the last two years. Ms. Brantley's older child is two and one-half years old and has been in Petitioner's day care home since he was nine months' old. Her younger child is 15 months old and has been in Petitioner's day care home since she was eight weeks old. Ms. Brantley testified that she trusts Petitioner with her children and that she trusts and values Petitioner's judgment when it comes to the children. Ms. Brantley often asks Petitioner's advice about parenting, discipline, and health issues involving her children. Ms. Brantley testified that other than her husband, Petitioner is the person she trusts the most with her children and that Petitioner goes above and beyond what most day care providers would do, both in education and care. Ms. Brantley was aware of the battery incident that occurred between Petitioner and Mr. Fields, but it did not change her opinion of Petitioner. She does not believe that Petitioner would ever be a danger to her children. Ms. Brantley really does not want to have to find other child care if Petitioner is unsuccessful in getting an exemption, and it is apparent that this concern has influenced her testimony. Versee Hoffman is a Pioneer with the Jehovah's Witnesses. This means that she has committed to serving 70 hours per month with her ministry. Ms. Hoffman met Petitioner approximately five years ago through church. Ms. Hoffman and Petitioner studied the Bible together periodically. At that time, Ms. Hoffman felt that Petitioner was not really committed to the church or its moral standards, and their studies ended. Thereafter, Ms. Hoffman did not see Petitioner for approximately two years. In early 1999, Petitioner approached Ms. Hoffman and told Ms. Hoffman that she wanted to renew their Bible studies. Ms. Hoffman agreed, and they have been studying the Bible together weekly ever since. Ms. Hoffman testified that the Jehovah's Witnesses expect their members to attend five weekly meetings and that Petitioner consistently attends those meetings. Ms. Hoffman testified that Petitioner has grown spiritually and personally since Ms. Hoffman first met her five years ago. Ms. Hoffman believes that Petitioner is truly committed to leading a spiritual life and to meeting the Jehovah's Witnesses' moral standards against violence. Ms. Hoffman believes that Petitioner will continue to meet these standards.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order determining that Petitioner is not disqualified from working in a position of special trust solely on the basis of her 1996 battery conviction. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2000.
The Issue The issue is whether Respondent should have granted Petitioner a license to operate a family day care home.
Findings Of Fact In January 1992, Petitioner operated a foster home for dependent children. The foster home was licensed by Respondent's predecessor, the Department of Health and Rehabilitative Services (hereinafter referred to as Respondent). In January 1992, Respondent received a report that Petitioner and her husband, Jim Shell, had meted out bizarre and excessive punishments to the children in their foster home. The report also alleged that Petitioner tied the younger foster children into their cribs at night. This report resulted in an investigation by Respondent. In the year prior to the initiation of the investigation, the following children stayed in Petitioner's foster home: H.S. (d.o.b. 4-6-89); S.S. (d.o.b. 10-1-86); T.H. (d.o.b. 5-3-89); S.A.C. (d.o.b. 9-18-88); B.Y. (d.o.b. 11-2-80) and G.Y. (d.o.b. 12-2-82. H.S. and S.S. were sisters. S.A.C., B.Y. and G.Y. were siblings. T.H. was mentally retarded. Petitioner gave B.Y. more household duties in the home than would be expected as chores for a child of her age. These responsibilities included housecleaning, laundry and child care. Additionally, Petitioner often kept B.Y. home from school to do housework. To excuse B.Y.'s absence, Petitioner would write notes to the school, falsely stating that B.Y. had a doctor's note and stayed home sick. B.Y. and G.Y. were forced to do push-ups as punishment for minor infractions. Petitioner's testimony that the children were required to do these push-ups as a joke or game is not persuasive. Mr. Shell spanked G.Y. for mis-reciting spelling words. This occurred once a week. On one occasion, B.Y. observed Mr. Shell hit G.Y. on the buttocks with a two by four. On another occasion, Mr. Shell jerked S.A.C. off a trampoline in the backyard, spanked her and threw her onto the ground. As a result of this rough treatment, S.A.C.'s head struck a tree. Petitioner regularly tied H.S.; S.S.; T.H.; and S.A.C. into their cribs at night because they would get up after being put down for the night. When B.Y. untied the children, Petitioner told her that when the children are tied up, they are supposed to remain that way. There was great strife in the Shell household. Petitioner and her husband often argued. For example, on B.Y's first night in the home, Petitioner hit Mr. Shell on the head with a frying pan. It is contrary to Department policy to physically restrain or punish children in foster care. Foster parents learn this in the training they receive before receiving their foster care licenses. Notwithstanding Petitioner's claim that she is separated from her husband, they continue to live under one roof. The house they live in is on the same property where Petitioner intends to operate a family day care home. The foregoing facts, among others, were set forth in the Respondent's final investigative report, Florida Protective Services System Abuse Report Number 92-007405. On April 22, 1992, the Respondent sent a certified letter to Petitioner informing her that the investigative report had been classified as proposed confirmed, that she had the right to request that Respondent amend or expunge the report, and that any such request would be considered only if received by Respondent within sixty days of her receipt of the April 22, 1992 letter. The letter contained the following language: If you do nothing, your right to appeal the classification of the report will be completely barred. By not choosing [to ask for amendment or expungement], this report will automatically be classified as CONFIRMED. This means that you do not contest the department's right to maintain the report findings as stated, including your identification as a perpetrator. A perpetrator in a confirmed report of abuse, neglect or exploitation may be disqualified from working in certain positions of trust, including working with children, disabled adults or aged persons. (Emphasis supplied). Petitioner signed the acknowledgment of receipt for the April 22, 1992, letter on April 27, 1992. She never requested amendment or expungement of the investigative report. Because neither amendment nor expungement of the report was sought, the confirmed classification became final agency action sixty days after Petitioner's receipt of the letter on April 27, 1992. In other words, the agency action became final on June 26, 1992. No appeal was taken from this action.1 In 1994, the Agency for Health Care Administration granted Petitioner an exemption from disqualification from employment in positions covered by Section 400.512, Florida Statutes. That section discusses the requirement for employment screening, using level 1 standards, for home health agency personnel, persons referred for employment by nurse registries, and persons employed by sitter, companion, or homemaker services registered under Section 400.509, Florida Statutes. The record does not indicate whether the Agency for Health Care Administration conducted an evidentiary hearing before making its decision to grant Petitioner the exemption.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying the application of Petitioner Patricia Shell to operate a registered family day care home. DONE AND ENTERED this 2nd day of November, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998.
The Issue The issue in this case is whether Petitioner, Sabra Portwood, is entitled to register her home as a family day care home under the provisions of Chapters 402 and 435, Florida Statutes.
Findings Of Fact On August 10, 2000, Petitioner was married to Randy Shoaff. She had two children, twins, by him and is currently pregnant with another of his children. Although estranged at present, they remain married. Petitioner is in the preliminary stages of dissolving the marriage and intends to complete the dissolution process. Petitioner and Mr. Shoaff have had a rocky relationship. On October 4, 2000, less than two months into their marriage, Mr. Shoaff struck Petitioner several times in the head from behind. She was pregnant at the time of the attack. The incident was reported to law enforcement. On March 12, 2001, Petitioner swore out a Petition for Injunction for Protection Against Domestic Violence, naming her husband as Respondent. The essential facts to which she swore and testified to at hearing were as follows: On February 23, 2001, at 705 W. Wilcox the Respondent Randolph Shoaff told me that the only reason I was still alive was because I was pregnant and that I have 3 other children. He said that he wanted to shoot me & then kill himself. Because of his actions before I have been afraid of him on 3 or 4 different occasions, and I would just be quiet & not say anything & wait for him to go to work. On Oct. 4th (there should be a police report) there was a dispute between us & he started hitting me in the head repeatedly when I was 3 months pregnant & had only been home for 3 hrs from the doctor because I was bleeding during pregnancy. I am afraid because I asked his coworker if his (Randy's) gun was under the counter & he said it wasn't there. As a direct result of Petitioner's request for a domestic violence injunction, the Third Circuit Court issued a Temporary Injunction. Subsequently, the injunction was conditionally dissolved. However, Mr. Shoaff was ordered to have no personal contact with Sabra Portwood at her home. A third Order was subsequently entered in order to facilitate visitation with his children, allowing non-hostile contact between the parties. Mr. Shoaff does not live with Petitioner. However, Petitioner and Mr. Shoaf are presently married. Therefore, Mr. Shoaf is currently a member of Petitioner's family and is required to undergo background screening for Petitioner's registration. Mr. Shoaff did not pass the background screening because of the injunction based on domestic violence entered against him. No exemption from disqualification was sought. Because of the failed background screening, Petitioner, who was the victim of domestic violence and took steps to protect herself from that violence, was denied registration based on the actions of her estranged husband.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services denying Petitioner's request to register her home as a family day care home. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2002. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Building A, Suite 104 Tallahassee, Florida 32399-2949 Sabra Portwood 140 Regina Road Perry, Florida 32348 John Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue 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.
