The Issue Did Respondent, Department of Children and Families (Department), correctly deny the application of Petitioner, Laura's Learning and Enrichment Center (Laura's Learning), for licensure renewal for failure to meet the minimum licensing standards for child care facilities?
Findings Of Fact The Legislature has charged the Department with regulating and licensing child care facilities. Laura Smith owns and operates Laura's Learning in Lake Wales, Florida. Since 2009, the Department has licensed Laura's Learning as a child care facility. The charges involved in this proceeding are the first time that the Department has acted against Laura's Learning's license. Ms. Smith submitted an amended application to renew her license on November 21, 2019. The Department proposes to deny renewal of the license because Ms. Smith failed, the Department asserts, to protect her adopted son, B.S., from bizarre punishment and resulting physical and emotional harm. It also alleges that Ms. Smith failed to provide a required update to her renewal application. In its case number 2019-197752-01, the Department made a verified finding of abuse by Ms. Smith of B.S., her adopted son, by failing to protect him from bizarre punishment and physical injury. Because of this, the Department revoked Ms. Smith's license to operate a family foster home. However, Ms. Smith did not oppose revocation and wished to surrender her license. Ms. Smith did not amend her application to advise the Department that it had revoked her foster home license. Ms. Nancy Ebrahimi learned of the verified finding and license revocation during her routine review of Department registries during the license renewal process. August 7, 2019, after a shelter hearing in which Ms. Smith said that she did not want B.S. in her home any longer, the court ordered that B.S. be placed in the shelter custody of the Department. An August 8, 2019, Shelter Order at Review continued this placement. On September 18, 2019, the court granted the Department's Petition for Termination of Parental Rights of B.S. This decision included consideration of the fact that Ms. Smith signed an Affidavit and Acknowledgment of Surrender, Consent to Termination of Parental Rights, and Waiver of Notice form before the Department filed its Termination of Parental Rights Petition. Ms. Smith's relationship with B.S. began when she served as his foster parent. She adopted him when he was about seven (born March 11, 2005). B.S. lived in Ms. Smith's home in Lake Wales, Florida. He occasionally helped with chores, such as yardwork, at Laura's Learning. He was also responsible for chores at home. Ms. Smith had other children, including an adult biological daughter, Jayda Miles, who, at the times involved here, lived in Cocoa Beach, Florida, and visited Ms. Smith's home regularly, often with her husband, Antonio Miles. Mr. and Ms. Miles lived on Patrick Air Force Base because of his service in the Air Force. Another adult sibling, Chaundi Parham, lived at Ms. Smith's home and worked sometimes at Laura's Learning. Young twins who were Ms. Smith's foster children lived in the home with a third foster child. On June 17, 2019, B.S. was doing yardwork at Laura's Learning. Ms. Parham was overseeing him. B.S. could not complete mowing because the mower was flooding. Ms. Parham directed him to sit on a bench and wait for Ms. Smith to arrive. B.S. removed a bag of Cheetos from the back pack of the twins, who were also at Laura's Learning. Ms. Parham caught him eating the Cheetos in the bathroom. She scolded him and called Ms. Smith. Ms. Parham was unable to reach Ms. Smith, so she called her older sister, Ms. Miles. Ms. Parham then told B.S. to sit on a bench to await Ms. Smith. B.S. jumped the fence surrounding the child care center and ran away. B.S. was 14 years old at the time. Ms. Parham reported B.S. as a runaway. During the preceding year, B.S. had started regularly having trouble at school. He frequently got in fights. Lake Wales police officer, Edgar Claros, responded to the report of B.S. running away. On June 18, 2019, Ms. Smith reported to the police that B.S. had returned home. She also reported that he said he wanted to live on the streets and left home again. B.S. had run away two or three times before. The Department assigned Ms. McConnell-Bailey to investigate. On June 18, 2021, Ms. McConnell-Bailey visited Ms. Smith to question her about the runaway report. She also questioned Ms. Smith about reports from an unidentified source, possibly a caller to the Department's abuse line, about maltreatment of B.S. including use of a "taser1", striking him with various 1 "Taser" is a brand name for a stun gun and likely not the brand involved here. The device was a stun gun that required contact of its electrode prongs with the subject's skin, called "drive tasing." There is no evidence that any of the tasing involved darts. "Taser" and "tase" are used in this Order because that is the description the witnesses used. objects including a wooden spoon, and making him sleep in the garage and laundry room. Ms. Smith was visibly angry. She denied the allegations and said B.S. was not going to ruin her business and take everything she had worked so hard for. She said B.S. was lying and that she had no idea where he was, except that some people told her he was somewhere in the neighborhood of a Publix. Ms. Smith did not express concern for B.S.'s well-being. She did tell Ms. McConnell-Bailey that she had removed all pictures of B.S. from displays of family photographs because they upset her. Ms. Smith began crying during the interview. She said the situation upset her and was causing her to get sick. She said she felt she was too old for the troubles B.S. caused and she did not want to deal with him anymore. On June 21, 2019, Ms. Smith called Detective James Lewis and advised him she had heard that B.S. was near the area of G. Street and Lincoln Avenue. Ms. Smith told Detective Lewis that she hoped the officers did not find B.S. and that he keeps running. Ms. Smith also said B.S. had been lying about her family, specifically her daughter, Jayda, falsely claiming abuse. And she said she wanted to file for an injunction against him. Ms. Smith did not express or display any concern for B.S. Ms. Smith, however, told Detective Lewis that she was going to the area where B.S. might be, but that he would run from her. Detective Lewis passed the information about B.S.'s location on to Officer Eric Ricks, who located B.S. in the area. Officer Ricks located B.S., picked him up, and spoke with him. Officer Ricks asked B.S. why he ran away and did not want to return home. B.S. told Officer Ricks that his sister, Ms. Miles, tased him and pepper sprayed him on June 16 in the presence of Ms. Smith, Mr. Miles, and Ms. Parham. B.S. indicated that it was because he had tried to steal something to eat. B.S. was apprehensive about returning to Ms. Smith's home. B.S. appeared to be on the verge of tears. B.S. did not say anything about being tased earlier in the year, around Memorial Day, on the patio. Officer Ricks transported B.S. to the police station where Detective Lewis assumed responsibility for the investigation. Detective Lewis interviewed B.S. with Child Protective Investigator Ruth McConnell-Bailey, for forty-five minutes to an hour, the night of June 21, 2019. B.S. told Detective Lewis that Ms. Miles had repeatedly tased him on his left chest area and on his upper left arm and sprayed him with pepper spray on June 16, 2019. He said this was because he had been caught preparing to steal a honeybun. This, he said, was the reason he ran away and did not want to return. B.S. did not say anything about being tased earlier in the year, around Memorial Day, on the patio. Detective Lewis inspected B.S.'s chest and left arm. He found injuries and scabs that he thought were consistent with the injuries made by a taser. The pain from tasing that B.S. described was consistent with the pain Detective Lewis experienced when he was tased during training. Detective Lewis did not measure the distance between scabs or other injuries to determine if they corresponded with the typical separation of the prongs of a taser. B.S. also told Detective Lewis that he was wearing snowman pajamas the night of June 16. After the interview, Detective Lewis and Ms. McConnell-Bailey transported B.S. to the home of Cheryl Jennings who had agreed to provide him lodging. B.S. was happy to be taken there instead of Ms. Smith's home. B.S. said that he felt unsafe at Ms. Smith's home. Detective Lewis and Ms. McConnell-Bailey then went to Ms. Smith's home to obtain clothes for B.S. and to obtain the snowman pajamas. The pajamas had been washed, dried, and folded. Detective Lewis examined the pajamas. He identified one small burn hole on the chest area of the pajamas. He thought the hole was consistent with use of a taser with its prongs placed directly on the person being tased. Although B.S. claimed he had been repeatedly tased on his left chest and left arm, the pajamas had only one possible burn hole. A few days later, Detective Lewis interviewed Ms. Miles. She denied the claims of B.S. She also allowed Detective Lewis to search her car. He did not find a taser or pepper spray. On June 25, 2019, Thia Lomax, Children's Home Society Children's Advocacy Center Case Coordinator, Child Protection Team, interviewed B.S. Ms. Lomax is a trained and experienced forensic interviewer. Ms. Lomax noticed marks on B.S.'s neck. He told her they were from a recent fight. Ms. Lomax interviewed B.S. for about an hour. The record contains a video recording of the interview. The interview is neutral and undirected. Ms. Lomax does not suggest or imply responses by her questions or body language. However, Ms. Lomax also does not test or challenge B.S.'s statements. B.S. basically made the same report about events the night of June 16 as he made earlier to Detective Lewis. He also made a new claim that Ms. Miles tased him on the patio earlier in the year, around Memorial Day, in the presence of Ms. Smith and Ms. Parham. His description did not identify a number of tasings or how long the experience lasted. B.S. also made claims about being struck by a broom and a spoon and made to "work like a slave." On August 6, 2020, the parties deposed B.S. A transcript of the deposition is also part of the record. B.S. did not testify at the hearing. B.S.'s deposition testimony differed from the interviews. B.S. demonstrated confusion and changed the details of his reports. The evidence about the initial events of the night of Sunday, June 16, 2019, is consistent. Mr. and Ms. Miles were spending that night at Ms. Smith's home. On June 16 Ms. Smith took B.S. to Walmart sometime after midnight to buy a Sprite. Antonio Miles was at the Walmart, having arrived separately. He observed B.S. preparing to steal a honey bun. When B.S. saw Mr. Miles watching him, he abandoned his plan to steal a honey bun. Afterwards B.S. returned home with Ms. Smith and went to bed, wearing pajamas with snowmen on them. When Mr. Miles returned to the home, he told Ms. Smith about the honey bun. Ms. Smith called B.S. into the family room. From this point forward, the evidence and the testimony of the witnesses differs significantly. According to Ms. Smith, Ms. Miles, and Mr. Miles, Ms. Smith called B.S. into the family room and asked him about the honey bun incident. He told her he was just looking at the pastry. They further testified that Ms. Smith talked to B.S. about "making bad choices" and sent him back to bed. Ms. Smith, Ms. Miles, Ms. Parham, and Mr. Miles all testified that Ms. Parham was not present because she was with friends in Orlando. Mr. Miles, Ms. Miles, and Ms. Smith are adamant that Ms. Miles did not tase or pepper spray B.S. They also agree that Ms. Parham was not present during the conversation with B.S. about the honey bun because she was in Orlando. And they agree he was not made to sleep in the laundry room. According to B.S., when Ms. Smith called him from his room, all the adults, including Ms. Parham, were present in the family room. He says that when he denied preparing to steal the honey bun, Ms. Smith stated, "No you are lying." In his interviews, B.S. stated that Ms. Miles went to her car and returned with a pink can of pepper spray and a pink "taser" and began tasing him. He said that Ms. Miles tased him five or six times on his upper left arm and the left side of his chest. The taser got tangled in his pajamas he said. Then Ms. Miles began spraying him with pepper spray. According to B.S.'s statements, the adults sent him outside to wash the pepper spray from his face. He then went to bed in the laundry room. He said that Ms. Smith did not intervene. In deposition, subject to cross examination, B.S. amplified and expanded his claims to the point of incredulity. For instance, in his interviews he said Ms. Miles had tased him five or six times the night of June 16. In his deposition testimony, B.S. testified "they were tasing me all over the house." (R. Ex. K, p. 52). He also testified that the tasing went on for two or three hours. He volunteered that Ms. Miles tased him 50 times. He also said that it could have been 100 times. He said his pajamas had 50, maybe 100 holes from the tasing. (R. Ex. K, p. 52). These claims differ significantly from those made in his interviews. Detective Lewis found only one hole that he thought could have been caused by a taser. According to B.S., Ms. Smith did not attempt to intervene to stop Ms. Miles. She also did not report the alleged incident to law enforcement. Ms. Miles, Mr. Miles, and Ms. Smith all firmly denied the allegations of tasing and pepper spraying the night of June 16. During the videotaped interview, B.S. first claimed that Ms. Miles tased him three or four times when on the patio Memorial Day. He did not mention this in his earlier interviews. His deposition testimony about tasing on the patio was very different from his interview statements. He testified that Ms. Miles tased his entire chest and stomach up to his neck Memorial Day. He said Ms. Smith was on the patio and Ms. Parham was sitting on a couch inside looking out. At first, he said Ms. Miles tased him 20 times. He went on to say it was more than 20, maybe 50 or 100 times. He said the Memorial Day tasing lasted from about 6:00 p.m. to 11:00 p.m. He also testified that Ms. Smith and Ms. Miles stayed on the patio the entire time. Ms. Parham, he said, stayed sitting on the couch watching the entire time. Nobody took a break, went to the restroom, or got something to drink, according to B.S.'s testimony. Ms. Miles, Ms. Smith, and Ms. Parham all credibly deny this account. In addition, the claims are implausible because of the varying numbers of tasings claimed and the length of time B.S. said the tasings went on, as well as nobody leaving the patio for five hours. In the course of the interviews and his deposition, B.S. made claims of being hit by a broom, hit by a spoon, made to sleep in the garage, and made to sleep in the laundry room. Ms. Smith denied these allegations. They are not corroborated. The evidence to support these claims is not clear and convincing. B.S.'s shifting version of events, the firm, convincing denials of all other witnesses, and the inconsistency of only one burn on the pajamas from four to six tasings, let alone 50 to 100, keep the evidence of the tasing and pepper spraying from being clear and convincing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, Department of Children and Families, enter a Final Order granting the license renewal application of Petitioner, Laura's Learning and Enrichment Center. DONE AND ENTERED this 19th day of April, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2021. COPIES FURNISHED: Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Hannah George, Esquire Law Firm of Gil Colon, Jr. 325 East Davidson Street Bartow, Florida 33830 Raquel Ramos, Esquire Department of Children and Families 1055 U.S. Highway 17 North Bartow, Florida 33830 Javier A. Enriquez, Esquire Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent, Kurn Tsuk Ho Lam (Respondent), failed to maintain good moral character required of law enforcement officers because he knowingly and willfully1 failed to report suspected child abuse and, if so, what is the appropriate penalty. 1 Pre-hearing stipulation, ¶1.
Findings Of Fact Respondent was certified as a Law Enforcement Officer in the State of Florida by the Commission on August 3, 2017, and issued Law Enforcement Certification #344454. He was employed at age 23 by the Panama City Police Department in the beginning of 2018, prior to the events that are the subject of this proceeding. As an employee of the Panama City Police Department, Respondent was required to review General Orders promulgated by his agency, to include General Order 410.00 which mandates that "all members of the Panama City Police Department shall report any known or suspected child abuse in accordance with F.S.S. 39.201." Respondent reviewed and was familiar with4 General Order 410.00, which defines child abuse as "any willful act or threatened act that results in any physical, mental, or sexual injury or harm." In February 2018, T.M., a seven-year-old minor, lived in a home with her guardians, , and their child D.G., who was a 17-year-old minor at the time. T.M. is 5. . 4 On January 25, 2018, Respondent electronically signed that he reviewed Panama City Police Department's General Order 410.00. At all pertinent times, Respondent had the understanding that T.M. was living with because she had been sexually molested by her father when she was three-years old, and that her natural father and mother were in prison. According to investigative reports and interviews, on or about Thursday night, February 8, 2018, while were at the hospital visiting a relative, D.G. licked his finger and put it in T.M.’s vagina. The reports further inform that, upon their return home, the next morning, February 9, 2018, T.M. told what D.G. purportedly did. Two days later, Sunday, February 11, 2018, called Respondent and advised him that, based on conversations that had with D.G. and his wife, T.M. had said that she had a dream that someone was touching her “down there.” 9. told Respondent that, according to D.G., D.G. was up late on the night of the incident when he heard T.M. scream, and that when D.G. went to check on her, she associated the person who she was dreaming about with D.G. During the telephone conversation, further advised Respondent that T.M. was seeing a counselor because she had recurrent night terrors as a result of being molested by her natural father years before. also told Respondent during that phone call that had stated that D.G. might need to be arrested. At the time, Respondent believed that the incident with T.M. had occurred the night before he received the February 11th phone call from , i.e., on February 10, 2018. At the hearing, Respondent credibly explained his perspective derived from his February 11, 2018, telephone conversation with : So following that conversation, I asked if he wanted to report this, which he said no, and he seemed uncertain if anything did happen, so I had no reasonable suspicion to actually [sic] upon, because he’s telling me something he was told by someone, who he’s not even sure about what to do, and I advised him, because she already seeks counseling for this, you know, night terrors, that that’s what he should do, take it to a medical professional to determine if anything did happen. Respondent believed that, the next day, Monday, February 12, 2018, took T.M. to see her counselor, and that the incident had been reported. That understanding is consistent with Petitioner’s timeline, which states that the Department of Children and Families was notified about the incident involving T.M. on Tuesday, February 13, 2018. On Tuesday, February 13, 2018, D.G. moved because , that the counselor advised that D.G. could not live in the same house with T.M. during the investigation. D.G. spent the nights of Tuesday, February 13, and Wednesday, February 14, 2018, with and their 10-month-old daughter. Respondent explained during his sworn interview at the Panama City Police Department on Thursday, February 15, 2018: . . . . On Thursday, February 15, 2018, while both were at home, D.G. asked and D.G. to take him to the police station. Apparently, D.G. had been contacted by the police and was asked to come to the police station. called his wife, who was on the way back from a job interview in the couple’s only car, and told her they needed to take D.G. to the police station. After wife arrived home, , D.G., and wife got into the car, with wife driving, and headed to the police station. On the way, wife talked to and on the phone and became emotional about taking to the police station. At some point, she stopped the car and switched places with Respondent, and Respondent drove them the rest of the way to the Panama City Police Department. That same day, February 15, 2018, the Panama City Police conducted sworn interviews with wife’s sister, and regarding the allegations and reporting of allegations against D.G.5 were arrested for not properly reporting T.M.'s accusation.6 D.G. was arrested for inappropriately touching T.M.7 The next day, February 16, 2018, law enforcement officers from the Panama City Police Department and Bay County Sheriff’s Department came to Respondent’s house and had him sign papers stating that he was being 5 There may have been other interviews in connection with the case that day, but these were the only interviews that were marked and offered as exhibits in this case. 6 On those charges, both ultimately pled no contest to a misdemeanor charge of contributing to the delinquency of a minor, for which each was adjudicated guilty, received 12 months’ probation, was required to pay fines and fees, and had to perform 50 hours of community service. 7 D.G. pled nolo contendere as a minor to a charge of felony battery under section 784.041(1), and on June 25, 2019, an Order of Delinquency Disposition was entered withholding adjudication of delinquency and imposing juvenile probation on D.G., including, inter alia, 75 hours of community service. terminated from his job as a police officer. They took all of Respondent’s police equipment and arrested him for failure to report child abuse. After his arrest for failure to report child abuse, Respondent spent one day in jail. Respondent was offered, and he accepted, a pretrial intervention consisting of 12 months of probation and 100 hours of community service. Respondent’s probation was ended early and the charge against him for failure to report child abuse was nolle prossed. The four letters submitted by Respondent are all positive letters reflecting his honesty and good moral character. The Department’s counsel stipulated that the letters could be considered as favorable mitigating factors for Respondent. The witness called by Petitioner suggested that Respondent may have been withholding information during his police interview on February 15, 2018. However, upon review of the transcript of that interview, as well as considering Respondent’s testimony and demeanor during the final hearing in this case, it is found that his testimonies regarding this matter were honest and credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 2nd day of April, 2020, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 April, 2020. COPIES FURNISHED: Ray Anthony Shackelford, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed) Kurn Tsuk Ho Lam (Address of record-eServed) Dean Register, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jason Jones, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed)
The Issue The issue addressed in this proceeding is whether Petitioner is entitled to attorney's fees pursuant to Section 120.57(1)(b)5, Florida Statutes.
Findings Of Fact On or about April 7, 1989, a report of child abuse was received by the Florida Protective Services System alleging that E.S. had injured two children enrolled at the Gladys Morris Elementary School, Taylor County, Florida. On April 10, 1989, the HRS Protective Services Investigator, Linda Douglass, conducted an investigation of the circumstances. The investigation revealed that E.S. had removed C. from her third grade classroom. She held him by the scruff of his neck and his arm. During the process of removal, E.S. accidentally ran C. into a wall or door frame. No physical or mental injuries were sustained by C. as a result of E.S.'s actions. Likewise, no harm appeared to be threatened by E.S.'s method of removing C. from her classroom. No investigation was conducted to determine why C. was being removed or how much resistance C. had undertaken to avoid his removal. The second incident involved a student named D. When D. got up to sharpen her pencil without permission, E.S. shook D by the shoulder. During the shaking, D.'s nose began to bleed. D. was given some paper towels to put on her nose and was sent to the infirmary.No investigation was conducted to determine whether the nose bleed was caused by the shaking or how hard the shaking action had been. After the case had been forwarded for a formal hearing, it was discovered that the nose bleed was unrelated to D. being shaken. Other than the nose bleed, there was no physical or mental injury caused or threatened by E.S.'s actions. On April 20, 1989, the report of abuse was classified as "confirmed." In both instances, the actual abuse found was categorized under "other physical injury" and "excessive corporal punishment/beatings." The narrative in the child abuse report states: (E.S.) was observed dragging the C. child from the classroom by an arm and the back of his neck. She then ran the child's face into a brick wall. The child was crying. The teacher has shaked a child named D. until her nose bled. The children in her third grade room at Gladys Morse Elementary School are "out of control, they cut up each other's shoes," and (E.S.) -"can't control the class so she starts slapping them around and things". This has been going on for years and nobody does anything about it. Following an internal review, the data entry was completed on April 24, 1989 and the investigatory process was closed. Because of the unusual statutory process established in Chapter 415, Florida Statutes, E.S. was listed as an abuser of children on the Florida Child Abuse Registry upon confirmation of the abuse report. Her job as a teacher was thereby placed in jeopardy and she was suspended with pay. Her name would remain on the Abuse Registry for the next fifty years unless E.S. won an expunction of her record through the administrative process. On April 26, 1989, formal notification was provided to E.S. by letter notifying her that she had been "confirmed" as a child abuser and advising her that she had a right to request the amendment or expunction of the confirmed report by making a request for such within thirty days of the date of the notice. On May 18, 1989, E.S., through her counsel, requested that the record be amended and expunged since there was no evidence that any injury had occurred to the alleged victims and that the evidence was wholly insufficient to establish any wrongdoing on the part of E.S.. Although not specifically mentioned, this letter places HRS on notice that it may be facing charges of frivolousness should this matter not be resolved during the agency's review process. By letter dated May 18, 1989, the Department of Health and Rehabilitative Services confirmed receipt of Petitioner's request to expunge the confirmed report. On May 31, 1989, the Petitioner through her counsel, supplemented the request for expunction. Based upon a complete review of the HRS file, the supplement again pointed to the absence of any injury or "harm" to the children involved in the alleged abuse. Again, HRS was placed on notice of a potential claim of frivolousness should a formal proceeding be required. When more than the thirty days provided for review by the Secretary of an expunction request elapsed, the Petitioner on July 7, 1989, requested a formal administrative hearing to challenge the finding of "confirmed" abuse. This letter initiated the formal proceedings contemplated under Section 120.57(1), Florida Statutes. When an additional six week period passed without response to the first hearing request, the Petitioner made a second request for hearing on August 24, 1989. The August 24th letter to Secretary Gregory L. Coler pointed out that the Administrative Procedure Act requires a hearing request be granted or denied within fifteen days of the request's receipt. On September 12, 1989, a third request for hearing was made to the Department of Health and Rehabilitative Services. The September 12th letter outlined this proceeding's history of delay and the non-responsiveness of HRS. 1/ By letter dated September 18, 1989, counsel for the Petitioner received notification from the Department of Health and Rehabilitative Services that her request for expunction was, on that date, being denied and that if the Petitioner wished to have a hearing still another request for hearing was necessary. The letter was signed by a representative of HRS and was filed in the formal administrative proceeding by HRS. This letter constituted the action which should have been taken by HRS within 30 days of Petitioner's first request for amendment or expunction of the report. The agency's action was three months late. A fourth demand for formal hearing was made by letter dated September 25, 1989. Referral of the expunction request was forwarded to the Division of Administrative Hearings and a hearing was scheduled to be held on November 15, 1989. Prior to hearing, the parties prepared and filed an undated prehearing stipulation outlining the issues which remained for resolution. The stipulation established the following issues for resolution at the hearing: 7. Issues of Fact to be Litigated - Whether the Respondent engaged in any activity which caused "harm" [as defined in Chapter 415] to any child over which she exercised control; Whether any child was injured as a result of the actions or inactions of the Respondent; The Respondent asserts whether information deemed confidential by Section 415.51, Florida Statutes (1988), was disclosed to unauthorized recipients is an issue; the Petitioner disagrees; and, Whether there is competent and substantial evidence to retain a confirmed abuse finding on the Florida Protective Services System. On November 6, 1989, the deposition of Linda Douglass was taken by Petitioner, E.S., in preparation for the November 15, 1989, hearing. The deposition was filed at the evidentiary hearing on Petitioner's Motion For Attorney's Fees. Since a Section 120.57(1)(b)5., Florida Statutes, motion is part of the original child abuse action, Ms. Douglass' deposition was filed in the initial proceeding for purposes of a motion for attorney's fees under this section. Ms. Douglass' deposition constitutes the primary evidence in this case and comprises the entire investigation of this matter by HRS. After a review of this deposition, there can be no question that this case was poorly investigated with very important and essential facts not looked into; facts made essential because they are required by the statute in order to make a "confirmed" finding of child abuse. Essential facts not investigated were the connection between any alleged injuries and Petitioner's actions, whether there was any significant emotional harm to the alleged victims resulting from the alleged abuse, or, in the case involving C., what C. was being disciplined for and whether such "punishment" was excessive. 2/ See B.B. v. Department of Health and Rehabilitative Services, 542 So.2d 1362 (Fla. 3d DCA 1989). Failure to investigate such essential facts constitutes a failure to conduct a reasonable inquiry. On the facts revealed in the deposition, which were not materially different from the investigative report, this case should never have been confirmed. The evidence necessary to support a case of confirmed child abuse was never developed or investigated. Of greater concern, however, is that this case was confirmed for reasons other than the criteria contained in Chapter 415, Florida Statutes. One such reason, apparent from the deposition, was that Ms. Douglass did not think Petitioner should be teaching and did not want to chance her daughter being taught by Petitioner. In other words, this case was confirmed in order to affect Petitioner's future employment with the school or any other school because there was a very real difference in philosophy between Ms. Douglass and Petitioner on how to handle the children in her class. Such a confirmation is completely improper. However, the evidence does not demonstrate that the agency was aware of its investigator's motives until her deposition testimony. What the agency should have been aware of was the obvious lack of any substantial evidence on the statutorily required areas noted above. Failing to adduce such evidence and rubber-stamping its investigator's confirmation, thereby forcing a formal hearing, when the statute affords an agency a second chance to review the merits of its case needlessly increases the cost of litigation and is a failure to conduct a reasonable into the matter at hand. The foregoing is especially true when the statute specifically provides HRS with an abuse classification which covers situations in which abuse is indicated but cannot be confirmed with substative evidence. The classification is known as an indicated abuse report. The report is maintained in the Abuse Registry for seven years. There is no right to a formal administrative hearing when a report is classified as "indicated." On November 8, 1989, counsel for the Department of Health and Rehabilitative Services notified counsel for the Petitioner that the Department had determined to reclassify the "confirmed" report as "indicated" and therefore moved to dismiss the pending proceedings. The main proceeding was dismissed with jurisdiction reserved on the issue of attorney's fees. On these facts, Petitioner would ordinarily be entitled to an award of attorney's fees pursuant to Section 120.57(1) (b)5. However, in addition to demonstrating that there was no reasonable inquiry, Petitioner has the burden to show that the Department's case was totally without merit, both legally and factually. In this case, there was some, although highly tenuous, evidence present that supported the Department's allegations under Chapter 415. Having some basis in fact for the continued maintenance of its case, the Department's pursuit of this matter to the point at which it reclassified the report cannot be said to be totally without merit and Petitioner is not entitled to an award of attorney's fees and costs.
Findings Of Fact In March of 1987, the Petitioner, Mitchell M. Green, was employed with the Department of Health and Rehabilitative Services as a child support enforcement investigator. He had been employed by the Department since 1982. On March 17, 18 and 19, 1987, the Petitioner did not report for work, and did not call in to any of the persons who supervised him to explain his absence. Previously, the Petitioner had not requested leave for March 17-19, and leave had not been authorized. On March 20, 1987, the Department notified the Petitioner that his failure to report for work on March 17, 18 and 19 when he was scheduled to work, without contacting his supervisor, and without authorized leave, constituted abandonment and resignation from the position under Rule 22A-7.010(2), Florida Administrative Code, and that his employment was terminated. The Petitioner was aware of the abandonment provision in the Department's rules. He had acknowledged receipt of a copy of the Department handbook containing these rules on July 8, 1986. The testimony of the Petitioner, his father, and his mother established that the Department had given the Petitioner an "Exceeds Performance Standards" rating on his last evaluation, that the Petitioner had been diagnosed as having cancer in February of 1985, that the Petitioner had requested leave in January, 1987, but was refused because he had no more leave, and that the Petitioner was upset about conditions at work. These factors are irrelevant, however, because they do not excuse or justify a failure to report to work without obtaining authorized leave or notification that assigned work will not be performed because of absence.
The Issue The issue in this case is whether Petitioner should have her application to renew her childcare facility license denied by Respondent, Department of Children and Families (“Department”), for the reasons set forth in the Amended Denial of Application to Renew Child Care Facility License.
Findings Of Fact Petitioner, Roslyn Smith, holds license No. C07V00140, by which she is licensed to operate the Rising Stars childcare facility pursuant to chapter 402, Florida Statutes, and Florida Administrative Code Chapter 65C-22. Petitioner has operated the Rising Stars childcare facility for 12 years. She serves very low-income children in the Daytona Beach area. There is no question but that Petitioner offers superior service to the children under her care. Petitioner maintains a clothing bank to ensure that the children in her care are adequately clothed. Petitioner prepares wholesome, homemade, nutritious meals for the children, eschewing the more common chicken nuggets and corn dogs offered up at other facilities. The children are encouraged in their classrooms, with appropriate and well-kept educational materials. The facility is clean and well maintained. Petitioner’s husband frequents the facility to perform maintenance and upkeep. The children in her care love Petitioner, a feeling that she returns in kind. On September 20, 2010, Petitioner and the Department entered into a Settlement Agreement to resolve several background screening and training violations. The agreement resulted in Petitioner’s license being placed on probationary status for a period of six months. The Department’s denial of Petitioner’s license renewal was based solely on alleged violations discovered during an inspection conducted on November 3, 2010, and on an alleged violation discovered on February 2, 2011. The November 3, 2011 inspection was conducted by Patricia Medico. Ms. Medico began working for the Department on May 18, 2010. The November 3, 2010 inspection was her first at Rising Stars. Despite having been trained since her hire, and having had a small caseload in DeLand, Ms. Medico considered herself to be “a very new counselor starting at [Petitioner’s] place in November.” Ms. Medico made it a practice to inspect facilities without first reviewing any information or previous Department inspection reports, a common practice with other inspectors. She believed that by going out “cold,” it allowed her to be more objective, and to have no preconceived notions or prejudices. On November 18, 2010, a re-inspection of the facility was performed by Ms. Medico. All deficiencies identified during the November 3, 2010 inspection had been resolved, and no further violations were discovered. Since the November 3, 2010 inspection, Rising Stars has been in substantial -- if not almost perfect -- compliance with all childcare facility standards. From November 3, 2010 through the August 26, 2011 inspection, the only violations discovered were Quinetta Edwards’ missing affidavit of good moral character discussed below, one classroom without a posted lesson plan in March 2011, a minor attendance roster discrepancy in March 2011 that was corrected during the inspection, and one time when the posted lunch menu was not dated. The evidence demonstrates that Petitioner made substantial, effective, and sufficient progress toward compliance since the entry of the settlement agreement on September 20, 2010, and it is so found. The specific violations that form the basis for the denial of Petitioner’s license renewal are as follows: Training Violations Veronica Dickson The Department listed, as a basis for the denial of Petitioner’s license renewal, that Petitioner did not have documentation in the employment file of Veronica Dickson showing that she had started her 40-clock-hour training within 90 days of commencement of her employment at Rising Stars. The evidence suggests that the documentation of Ms. Dickson’s training was in her file since at least October 8, 2010, and another copy was printed from the Daytona State College website and provided to Ms. Medico during the inspection. Ms. Medico stated that she had no recollection of having seen Ms. Dickson’s training records during the inspection. At various times, Ms. Medico admitted that due to her large caseload, she was unclear as to the specifics of any given inspection. However, she indicated that the inspection report is her contemporaneous statement of the facts. She further indicated that it was her practice to print out a copy of the report and go over it with the licensee before having the licensee sign it. When Ms. Medico left a facility, the inspection report provided to the licensee “isn’t necessarily the written in stone inspection.” Rather, it is subject to review, occasionally with items that were found to be non-compliant changed to being compliant, and items that were found to be compliant changed to being non-compliant. If items were changed, Ms. Medico would call the licensee to advise them of the change. Contrary to Ms. Medico’s description of the process, Petitioner testified that, as the normal practice, Ms. Medico did not go over the inspection reports point-by-point. Rather, she indicated that she would receive an unsigned report from Ms. Medico after having accompanied her during the inspection and having discussed -- and oftentimes resolved -- problems at the time. She would sign the computerized signature block without reviewing the report, relying on the earlier discussions. If necessary, she would review the report after the inspection. Having personally provided Ms. Dickson’s training records to Ms. Medico, Petitioner did not realize that the training records were identified as a violation on November 3, 2010. Petitioner would have disputed the violation had she known at the time that she was being cited. The evidence as to whether the training documentation was in Ms. Dickson’s file is contradictory. However, the more persuasive evidence supports a finding of fact that the documentation was provided at the time of the inspection, but was either overlooked or forgotten by Ms. Medico. Therefore, there was no violation of any childcare standard associated with Ms. Dickson’s training records. Alicia Thomas The Department listed, as a basis for the denial of Petitioner’s license renewal, that Alicia Thomas had not started her 40-hour training within 90 days of having started employment in the childcare industry. According to the Department’s personnel records, Ms. Thomas was first employed in the childcare industry on April 5, 2010. There is no evidence to indicate by whom she was employed on that date. The Department provided no information as to how a licensee is to know when a person is employed “in the industry.” However, it is clear that a candidate for employment at a child care facility is to commence training within 90 days of employment at any licensed childcare facility, and that the employing childcare facility is responsible for obtaining documentation from childcare personnel. The evidence is undisputed that Ms. Thomas’s background screening was complete and clear. Furthermore, Ms. Thomas had completed her required in-service training by June 30, 2010. The Department personnel summary sheet indicates that Ms. Thomas started her employment at Rising Stars on May 5, 2010. However, the greater weight of the evidence indicates that Ms. Thomas was hired by Petitioner in July, 2010. From July through November, 2010, which was the period of Ms. Thomas’s employment at Rising Stars, she worked fewer than 30 days due to various medical issues. The evidence indicates that Ms. Thomas’s failure to commence her 40-hour training was not cited by the Department as a violation on November 3, 2010. The unsigned inspection report provided by Ms. Medico for Petitioner’s review did not list a violation related to Ms. Thomas’s training. Ms. Medico testified that she did not cite Petitioner for a violation related to Ms. Thomas on November 3, 2010. Rather, she indicated that “all I did was tell her in notes that Alisca needed to get this,” and that “the next time I went out, she would be cited if she did not correct that.” (emphasis added). Ms. Adams testified that “technically, [Petitioner] should have been cited additionally for Alisca Thomas not starting her training on time,” but that “I overlooked it, and I don’t know what [Ms. Medico’s] rationale was [for not citing], but I overlooked it.” Petitioner testified that Alisca Thomas never appeared on any inspection report that she received. The greater weight of the evidence demonstrates that Petitioner was not cited for a violation related to Ms. Thomas’s training status, and that the deficiency would be considered to be a violation only if it was not corrected by the November 18, 2010 re-inspection. By the time of the November 18, 2010 re-inspection, Ms. Thomas had commenced her training, documentation of which was in her file. Thus, Petitioner made sufficient progress toward compliance, and in fact completely resolved the issue, by the time Ms. Medico went back to the facility. Despite having come into compliance with her training requirements, Ms. Thomas was let go shortly after November 18, 2010 due to her ongoing health issues. Based on the foregoing, Ms. Thomas’s training status, having been completely resolved prior to it being cited as a violation, and its having had no proven effect on the health, safety, or child development needs of the children in Petitioner’s care, is not a sufficient basis for denial of the renewal license. Record-Keeping Course Violation The Department listed, as a basis for the denial of Petitioner’s license renewal, that Petitioner did not complete the Guide to Record Keeping online course or the CEU assessment as required by the September 20, 2010 settlement agreement. As part of the settlement agreement, Petitioner was required by the Department to take and pass the course, and get credit for the Continuing Education Units (CEUs). Petitioner had taken the course in 2009, and had received a certificate of completion. The certificate had not expired. Petitioner attempted to take the Guide to Record Keeping online course as required by the settlement agreement. When Petitioner tried to enroll for the course, the course provider refused to allow her to pay the fee or enroll. Such refusal is consistent with the warning on the course registration home page, which states that “[y]ou can only earn one certificate for each course, and you may not earn CEUs for a course you have previously taken.” Petitioner testified that she advised Ms. Medico and Ms. Adams of the problem with taking the online course. Ms. Adams had a recollection of meeting Petitioner in the lobby of the DCF building, and discussing Ms. Dickson’s and Ms. Thomas’s training issues with her, but did not mention discussing Petitioner’s difficulty in taking the record keeping class. Whether Ms. Adams was told of the problem or not is immaterial. The evidence is sufficient to demonstrate, at the very least, that Petitioner advised Ms. Medico, a representative of the Department, of the problem in taking the course. The Department should have known of the restriction on retaking the course at the time it imposed that requirement on Petitioner. Petitioner had no reason to expect that the Department’s required settlement condition could not be performed, and did not know of the restriction until she attempted to comply. Petitioner made a good faith effort to comply with the condition but, since the course provider prohibited Petitioner from retaking the course and receiving CEU credit, performance of that element of the settlement agreement was impossible. Based on the foregoing, Petitioner’s failure to take, complete, and receive CEU credit for the Guide to Record Keeping course, in light of the impossibility of doing so, is not a sufficient basis for denial of the renewal license. Untimely Meeting Violation The Department listed, as a basis for the denial of Petitioner’s license renewal, that Petitioner failed to meet with Susan Liebee, a coordinator at the Daytona State College, within 10 days of the date of the settlement agreement to discuss staff training requirements. The meeting was to have been held by September 30, 2010, but did not take place until October 8, 2010. Petitioner testified that she went to Ms. Liebee’s office to meet with her, but that she was not there. She subsequently called and made an appointment with Ms. Liebee to meet on October 8, 2010, and met as scheduled. Petitioner made every reasonable effort to meet the time frame for the meeting established in the settlement agreement, but due to reasons outside of her control was not able to meet until Ms. Liebee was available on October 8, 2010. Petitioner’s testimony on that point was credible, and there was no evidence to the contrary. Based on the foregoing, Petitioner’s failure to meet with Ms. Liebee due to circumstances involving Ms. Liebee’s schedule that were out of Petitioner’s control, is not a sufficient basis for denial of the renewal license. Affidavit of Good Moral Character Violation The Department listed, as a basis for the denial of Petitioner’s license renewal, that an Affidavit of Good Moral Character was not in the file of new hire Quinetta Edwards. Ms. Edwards was hired effective February 1, 2010. The inspection during which Ms. Edward’s employment file was reviewed was conducted on February 2, 2010. As stated by Ms. Medico, a new employee’s background investigation consists of the level 2 background screening required in Chapter 435, the Affidavit of Good Moral Character signed by the employee, the signed and notarized Child Abuse Reporting Form, the employee’s employment history, checked references for two years, and a supplemental statement that the employee has not had a child care license denied or revoked in the past. All of the screening requirements listed by Ms. Medico, and established in rule 65C-22.006(4), had been met but for the affidavit. Due to a simple oversight, Ms. Edwards failed to execute the Affidavit of Good Moral Character prior to her employment with Petitioner. Upon learning of the oversight, Ms. Edwards executed the Affidavit on February 8, 2010. Petitioner thereupon submitted the affidavit to the Department by facsimile on that date. There was no attempt to backdate the form, or to do anything other than honestly correct the oversight. Ms. Edwards has cleared all screening, meets all employee standards, and remains on the staff of Rising Stars without any problems to this day. The simple and unintentional oversight in having Ms. Edwards execute her affidavit one week after commencement of employment, given that all other background screening was completed without incident, had no effect on the health or safety of the children attending Rising Stars. That oversight was not a material violation of the Department’s licensing standards or of the settlement agreement, and is not a sufficient factual basis for the denial of Petitioner’s license renewal. Other Violations Not Pled In addition to the issues pled as reasons for denial in the Department’s Amended Denial of Application to Renew Child Care Facility License, the parties introduced testimony and documentary evidence regarding a number of alleged minor deficiencies at the Rising Stars facility discovered during the November 3, 2010 inspection. Both Ms. Medico and Ms. Adams admitted that the deficiencies did not form the basis for the Department’s proposed action. As to the facility violations -- which included among other minor deficiencies, a missing lesson plan; exposed “S” hooks on the swing set; worn electrical outlet covers; an exposed, but generally inaccessible screw point underneath a bench; uneven boards on a deck; and two forks in a drawer accessible but off-limits to children -- the evidence demonstrates conclusively that those deficiencies are “common problems” and that “those things, they happen everywhere.” The evidence further demonstrates that Petitioner’s husband keeps the facility well kept and maintained, and that Petitioner does a “wonderful job” with the Rising Stars facility. The evidence is undisputed that each of the alleged violations identified in the November 3, 2010 inspection report were either corrected on the spot during the inspection, or were corrected by the November 18, 2010 re-inspection. They have not recurred. To the extent that those alleged deficiencies are considered in the final decision regarding renewal of Petitioner’s license, despite having not been pled by the Department, it is found that the alleged deficiencies, have had no adverse effect on the health, sanitation, safety, and adequate physical surroundings for the children in Petitioner’s care, have had no adverse effect on the health and nutrition of the children in Petitioner’s care, and have had no adverse effect on the child development needs of the children in Petitioner’s care. Therefore, those alleged deficiencies do not form a sufficient basis for denial of Petitioner’s license renewal. Finally, evidence was received regarding the employment of Jennifer Geier by Petitioner during a period that she was disqualified from employment. Petitioner was not aware that Ms. Geier was subject to disqualification, especially since she had received a letter from the Department of Corrections dated September 9, 2009, stating that “there are no stipulations in her order that prevents her from employment in a child care facility.”1/ Upon discovering that the offense was, in fact, disqualifying, Ms. Geier was terminated. It is clear that at the time the Department issued its Amended Denial of Application to Renew Child Care Facility License on August 2, 2011, the Department was well aware of Ms. Geier and her relationship with Petitioner, with all aspects of her employment at Rising Stars having been resolved in the September 20, 2010 Settlement Agreement, and with her having received a Final Order from the Department granting an exemption from disqualification on January 3, 2011. Since all aspects of Ms. Geier’s employment were resolved by the settlement agreement, and since Ms. Geier’s employment by Petitioner was not pled by the Department, her previous employment does not form a sufficient basis for denial of Petitioner’s license renewal.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order granting the renewal of license, No. C07V00140, to Petitioner Roslyn Smith for the operation the Rising Stars childcare facility. DONE AND ENTERED this 4th day of November, 2011, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 4th day of November, 2011.
The Issue Whether the Petitioners are entitled to participate in the Florida Retirement System (FRS).
Findings Of Fact The Respondent, Department of Management Services, Division of Retirement (Respondent or Department), is the state agency charged with the responsibility of administering the FRS. Accordingly, the Respondent must resolve as part of its normal course of duties whether or not individuals are eligible to participate in the FRS. The Petitioner, Eric Eggen, is an attorney authorized by the Florida Bar to practice law within the State of Florida. Mr. Eggen has practiced law since 1974. On March 15, 1991, Mr. Eggen was appointed by the Chief Judge of the First Circuit to serve as a "part time Child Support Hearing Officer." Mr. Eggen was directed to perform such duties as part of a program that coordinates the enforcement of child support. Although Florida's First Circuit encompasses more than two counties, the vast majority of Mr. Eggen's work has been performed for and funded primarily by Escambia County and Santa Rosa County. The child support program pertinent to these cases is a federally funded program that channels monies from the federal government to local governments through the State Department of Revenue. Local governments are required to "match" a certain percentage in order to receive the federal funds. In these cases, the First Circuit (when the program was initiated) decided to use non-Article V hearing officers to perform the work. This process had been approved by the Florida Supreme Court and allows the judges of the First Circuit more time to perform their other responsibilities. Accordingly, for reasons not fully set forth in this record, Mr. Eggen was selected to be the hearing officer for the First Circuit child support enforcement program. How or by whom Mr. Eggen would be compensated for his efforts was not set forth by any written document. He was simply designated by the Chief Judge to be the person who would do the work. The work consisted of conducting child support hearings to determine whether child support was owed, whether someone had the ability to pay child support, and whether someone might be willfully refusing to pay child support. Issues such as paternity required an Article V judge. Mr. Eggen was not authorized to make such determinations. Initially the work was considered part-time, but as the volume of cases increased over time Mr. Eggen's ability to perform other legal work diminished. He maintains that the child support enforcement work now consumes his full-time schedule. Exactly when Mr. Eggen went to full-time work as a hearing officer was not proved. The contracts governing how monies are treated by Escambia County and Santa Rosa County do not include any specification regarding the Petitioners by name. Presumably any individual performing Mr. Eggen's duties would be entitled to the compensation he receives for the work performed. In fact, when Mr. Eggen substitutes for another hearing officer he is similarly compensated. Mr. Eggen does not have a permanent office within the court facilities, does not receive office supplies through the court or county facilities, and does not have sick leave or annual leave through any agency. When Mr. Eggen performs the work, he is paid by submitting invoices to the counties for whom the work is performed. Neither the First Circuit, the Court Administrator's Office, nor the Department of Revenue pays Mr. Eggen directly for the work performed. In remitting funds to Mr. Eggen the counties do not deduct social security, withholding, or any other amount such as medical insurance costs. There is no evidence that Mr. Eggen receives any benefits such as medical insurance, dental insurance, or deferred compensation through any entity. Further, there is no evidence that those types of benefits were made available to Mr. Eggen but declined by him. Typically those types of benefits are available to full- time state employees. At all times prior to the initiation of these cases, the Petitioner Eggen held himself out as "self-employed." Mr. Eggen's work as a hearing officer did not preclude him from representing private clients on matters not in conflict with his role as the child support enforcement hearing officer. The extent of Mr. Eggen's private practice before the volume of child support enforcement hearings caused him to work full-time as a hearing officer is not proved. Whether or not he could perform other legal work at this time is also unknown. The Petitioner Munro is a full-time employee of Mr. Eggen. She is paid a salary and receives a W-2 from Mr. Eggen. Her services to the child support enforcement program are billed to the counties at a daily rate as "clerical assistance." Mrs. Munro designates herself as a "judicial assistant." Mr. Eggen uses monies from the paid county invoices to partially fund Mrs. Munro's monthly wage. Mrs. Munro was hired by Mr. Eggen in approximately 1975. No one from the counties, the Court Administrator's Office, or the Judges of the First Circuit had any input to Mr. Eggen's selection of Mrs. Munro. No one from those entities can fire Mrs. Munro, discipline her, reward her, or pay her. Her sole source of remuneration flows through Mr. Eggen. How Mrs. Munro accounts for her work time to Mr. Eggen was not proved. Neither Mr. Eggen nor Mrs. Munro is required to account for time spent on child support cases to the Court Administrator's Office, the Judges of the First Circuit, or the Department of Revenue. The Petitioners Eggen and Mrs. Munro set the hearing schedule for the child support cases, coordinate the hearings with court space available to conduct the cases, and complete the paperwork associated with the cases at their own designated pace. No one instructs Mr. Eggen as to when he must work, how he must work, or whether he must work. If Mr. Eggen chose not to work, he would not be paid. The completion of the work drives the payments. No work and no invoice to counties would lead to no compensation to Mr. Eggen. Whether Mrs. Munro would be paid by Mr. Eggen under those circumstances was not proved. Neither Petitioner is identified or specified as an employee of the Court Administrator's Office. Neither Petitioner is identified or specified as an employee of the First Circuit. Neither Petitioner is identified or specified as an employee of the Department of Revenue. Neither Petitioner holds a position or job classification that has been identified, specified, or funded by the Florida Legislature. Prior to the initiation of this action, neither Petitioner had ever publicly claimed to be a "state employee." There is no evidence that either Petitioner received a statement of benefits accrued from any state entity setting forth the Petitioners' entitlements or declined benefits. Whether or not any entity pays workers' compensation, leave, or insurance benefits for the Petitioners was not proved. There is no evidence that any state, court or county agency does so. The Court Administrator of the First Circuit is a state agency as contemplated by Chapter 121, Florida Statutes. When the Petitioners first believed they were entitled to benefits as an "officer" or "state employees" was not proved. Clearly, the first claim for FRS entitlement was not filed until 2001, some ten years after Mr. Eggen had been designated to do the work as a child support enforcement hearing officer. Other child support enforcement hearing officers who are considered "state employees" for purposes of working through the Court Administrator's Office are designated "OPS." As such, those employees are not eligible to participate in the FRS nor do they receive other benefits afforded to state employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, issue a Final Order denying eligibility to these Petitioners. DONE AND ENTERED this 1st day of April 2004, in Tallahassee, Leon County, Florida. S J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2004. COPIES FURNISHED: Sarabeth Snuggs, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 George R. Mead, II, Esquire Moore, Hill & Westmoreland, P.A. SunTrust Tower, Ninth Floor 220 West Garden Street Pensacola, Florida 32501
