The Issue The issues in this case are: (a) Whether Petitioner's license as a family day care home should be renewed; (b) Whether Petitioner was required to list her son, Stephen Randall, as a household member on her annual registration application for a family day care home for 2000 and 2001; and (c) Whether Stephen Randall was a member of Petitioner's household at any time in 2000 and 2001.
Findings Of Fact Based on the testimony and demeanor of the witnesses and the documentary evidence presented, the following findings of fact are made: Petitioner's application for license for a family day care home dated October 20, 1997, was received by Respondent on November 20, 1997. Listed among the "household members" on the application was Petitioner's son, Stephen H. Randall, whose date of birth is March 28, 1981. On January 10, 1998, Petitioner submitted her application for registration for a family day care home; the application was received by Respondent on January 14, 1998. Stephen Randall is also listed as a household member on this application. On January 15, 1998, Respondent wrote a letter to Petitioner acknowledging her desire to withdraw her application for license as a family day care home. On February 18, 1998, Petitioner was registered as a family day care home for one year effective February 28, 1998. The letter advised: To maintain your registration in accordance with Section 402.313, Florida Statutes, you must do the following: * * * (3) Send in background screening forms including fingerprints for household members who become 18 years of age, or for adults who move into your home, or when your substitute changes and has not been screened. On October 26, 1998, Petitioner forwarded a renewal application for registration as a family day care home which listed Stephen Randall as a "household member." As a result of a December 9, 1998, inspection by Respondent, it was determined that an adult who had not been screened was living in the registered day care home and, therefore, Petitioner was notified that screening was to be accomplished "ASAP." On January 12, 1999, Respondent sent Petitioner a Certified Letter reminding her that "Adult members residing in the family day care home must go through a background screening process in accordance with Florida Statutes, " On January 28, 1999, Petitioner telephoned Respondent indicating that she "changed her mind about daycare." This telephone call was followed by a letter from Respondent to Petitioner dated January 29, 1999, indicating, "Per your request January 28, 1999, we have withdrawn your Family Day Care license application and closed your registration effective this date." On April 9, 1999, Petitioner submitted an original registration application which listed her 18-year-old son, Stephen Randall, as living in the home which was to become the registered family day care home. On July 6, 1999, Petitioner, by letter, advised Respondent that "My son Stephen H. Randall is no longer living with me (Maxine Torres)." On July 20, 1999, Respondent mailed Petitioner a letter advising that "The Department of Children & Family Services has registered your Family Day Care Home for one year effective July 30, 1999." The letter also advised Petitioner of the necessity of advising Respondent when unscreened adults move into the home in the same language as contained in paragraph 4, supra. On September 23, 1999, Respondent sent Petitioner a Certified Letter which stated: We have received your letter dated July 7, 1999 in reference to your son, Stephen Randale [sic], moving out of your home. Should he return, he must be background screened within ten (10) days. Please remember that all household members must be screened in accordance with F.S. Section 202.303 and 402.305. Failure to do so in a timely manner may result in administrative action, which could result in a fine, suspension, or revocation. On October 31, 2000, the Circuit Court in and for Orange County, Florida, in Case Number CR-O-00-4737/A adjudicated Stephen Henry Randall, Petitioner's son, guilty of violating the following criminal statutes: Subsections 806.13(1)(b)1, 810.02(3), and 812.014(2)(c)5, Florida Statutes, two of which offenses are felonies, and sentenced him to one day in jail and three years' probation. Stephen Randall had been arrested in April 2000 for the criminal offenses he committed. The offenses occurred at a residence two residences away from Petitioner's home, the registered family day care home. Petitioner submitted an application for re-licensure dated May 14, 2000, in which she was required to disclose the name of "everyone who lives in your home." By signing the application, Petitioner attested that the information on the application was "truthful, correct, and complete." Stephen Randall was not listed as living or residing at Petitioner's home. Respondent's investigators and independent witnesses presented credible testimony indicating that Stephen Randall was residing in Petitioner's residence (the registered day care home) during the calendar year 2000. In particular, an abuse report of an incident in January 2000, indicates that Petitioner reported that she "left her teenage son in the home" purportedly to supervise the children left in Petitioner's care; in June 2000, Petitioner again told an investigator, that if she wasn't there her son, Stephen Randall, her daughter or husband watch the children. In addition, independent witnesses, whose children were at the day care home, reported repeatedly seeing Stephen Randall there. Stephen Randall was living in the residence of Petitioner, which was a registered day care home, during the calendar year 2000 and had not been screened as required by Florida Statutes because Petitioner did not advise Respondent that he had returned and was residing in the home. Respondent investigated two Florida Protective Services abuse hotline complaints against Petitioner and determined the complaints to be well-founded. In both instances, Petitioner failed to properly supervise children left in her care and, as a result, failed to ensure the safety of the children. Independent witnesses confirmed the abuse hotline complaints and presented other complaints, all confirming that Petitioner failed to properly supervise children left in her care and failed to ensure their safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for re-licensure of her family day care home. DONE AND ENTERED this 16th day of May, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 16th day of May, 2002. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 James Sweeting, III, Esquire 506 West Washington Street Orlando, Florida 32801 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner is entitled to a license to operate a family day care home under the provisions of Chapter 402, Florida Statutes (2003).
Findings Of Fact On February 16, 2004, the Department notified Petitioner that her application for a license to operate a family day care home was denied. The denial was based on information obtained by the Department as part of the background check it conducted in review of Petitioner's application. The denial letter advised Petitioner that the family day care home license was denied based on information contained in Abuse Hotline Report No. 2002-132739 (2002 Abuse Report). According to the 2002 Abuse Report, Petitioner failed to take her daughter to the doctor for a follow-up visit three weeks after he removed a cast from her arm, so that the doctor could insure that the injury was healing properly. As a result of the foregoing allegations, the 2002 Abuse Report concluded that there were "some indicators" of medical neglect by Petitioner. The Department's background investigation revealed that Petitioner's husband, Darrell Faniel, who resided with her, pled nolo contendre to the charge of selling cocaine, a felony offense, and was adjudicated guilty of that offense in 1991 in Case No. CF90-5739 in the Circuit Court of the Tenth Judicial Circuit in and for Polk County, Florida, Criminal Division. As a result of this felony conviction on July 25, 1991, Mr. Faniel was placed on probation for five years, but was discharged from probation about 16 months early pursuant to a court order which stated that Mr. Faniel "has complied with the rules and regulation of probation and is no longer in need of supervision." The family day care home license for which Petitioner applied would allow her to care for up to ten children in her home. Given the foregoing information obtained by the Department as part of its background investigation, the Department had doubts about whether Petitioner could provide a safe day care home for children. Accordingly, the Department denied Petitioner's application. The foregoing facts have not been refuted by Petitioner, nor did she present any evidence to demonstrate that she is eligible for licensure as an operator of a family day care home. As noted in the Preliminary Statement, Petitioner did not appear at hearing, and no evidence was presented on her behalf.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner a license to operate a family day care home. DONE AND ENTERED this 20th day of July, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Cutina Faniel 2404 Temple Circle Haines City, Florida 33884 Paul F. Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent's license to operate a family day care home should be revoked.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties The Department is the state agency responsible for licensing and regulating child care facilities, including family day care homes. The Department routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Any problems found during the inspection are noted on a report which is provided to the home's operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections -- monthly or every six weeks - - are conducted on family day care homes which have a provisional license rather than a standard license. The Department also conducts inspections in response to complaints it receives, and it has the authority to inspect family day care homes at any time with or without notice. Respondent is the owner and operator of a licensed family day care home located at 1218 Jordan Avenue in Orlando, Florida (hereafter "Respondent's facility" or "the facility"). Respondent and her husband reside at that address as well. Respondent has operated day care homes in Florida since 1992, and she has been involved in child care for approximately 21 years. As a result, she is or should be familiar with the rules regulating family day care homes. Respondent keeps children in the back portion of her home. The children also play in Respondent's backyard, which is enclosed by an approximately six-foot high wooden fence. A wooden gate in the fence connects Respondent's backyard to the backyard of the house immediately behind Respondent's home. That house has been rented by Annette Rodgers since November 2002. Respondent does not have a pool in her yard. Ms. Rodgers' yard does have a pool, which at the time of the Department's February 27, 2003 inspection (discussed below), was only partially filled with water. Ms. Rodgers' pool is not visible from Respondent's back yard because of the wooden fence and gate. The photographs and videotape received into evidence show that Ms. Rodgers' pool is now completely enclosed by a series of fences.4 The evidence does not clearly and convincingly establish that the fences were not in place on February 27, 2003. Indeed, the weeds and high grass which can be seen along the base of and around the posts of the chain-link fence and the discoloration on some of the fence posts indicate that at least that fence has been in place for quite some time.5 Previous Inspections of Respondent's Facility and Actions Taken by the Department Respondent's facility was inspected on May 28, June 14, and September 30, 2002. Several areas of noncompliance were identified during each of those inspections, including inadequate supervision of children, unsafe storage of chemicals, evidence of roaches in the home, and incomplete enrollment and health records for the children at the home. On each occasion, Respondent was given a period of time within which to correct the areas of noncompliance. The inadequate supervision for which Respondent was cited in June 14, 2002, involved several children playing unsupervised in Respondent's carport area, which has access to the street; several children playing in the backyard under the "supervision" of Respondent's mother, who was not an authorized caregiver; and several children playing unsupervised on the porch area in the vicinity of tools and small screws. The Department issued Respondent a provisional license on October 28, 2002, presumably as part of the license renewal process. The provisional license was based upon Respondent's history of noncompliance with the Department's minimum standards, and it was valid through April 2, 2003, unless Respondent applied for an received a change in license status (which she apparently did not) or "if the license is suspended or revoked by the Department." A provisional license is issued where the Department has continued concerns regarding the day care home's compliance with the applicable statutes and rules. A provisional license is issued in lieu of denying a license renewal or suspending or revoking the home's license. A provisional license gives the licensee an opportunity to correct the areas of noncompliance, and because such homes are inspected more frequently, the Department has an opportunity to monitor the licensee's progress. On October 29, 2002, Respondent was assessed an administrative fine of $100.00 based upon deficiencies identified during the May 28 and June 14, 2002, inspections. The fine was based primarily upon the incident described above involving inadequate supervision of the children at the home. Respondent apparently did not contest the administrative fine or the issuance of the provisional license rather than a standard license. Despite the provisional license and the administrative fine, the Department's inspections continued to identify areas of noncompliance at Respondent's facility. For example, the November 14, 2002, inspection identified "evidence of rodents/vermin in the home" as well as incomplete enrollment and immunization records for the children in the home. The December 18, 2002, inspection identified these same deficiencies, including "live roaches in the children's area and the kitchen," as well as the storage of plastic shopping bags and chemicals which can pose dangers to children in an unlocked cabinet accessible to the children. These violations were the same as or similar to those for which Respondent had been previously cited and which led to the imposition of the administrative fine and issuance of the provisional license. The Department did not take immediate action to suspend or revoke Respondent's license based upon the results of the November 14 and December 18, 2002, inspections. Instead, the Department continued to give Respondent an opportunity to bring her home into compliance with the minimum standards in the Department's licensing rules and statutes. Inspection of Respondent's Facility on February 27, 2003 The Department next inspected Respondent's facility on February 27, 2003. That inspection was conducted by Department employee Brandi Blanchard. Ms. Blanchard had been responsible for inspecting Respondent's facility since at least September 2002, so she was familiar with the layout of the facility and its history of noncompliance. Respondent testified that Ms. Blanchard, unlike the prior inspector, had been "very good to her." Ms. Blanchard arrived at Respondent's facility by car between 8:30 a.m. and 8:45 a.m. As she arrived, Respondent was pulling her car into the driveway/carport at the facility. Ms. Blanchard parked her car directly behind Respondent's car. Ms. Blanchard got out of her car as Respondent was getting out of hers, and she said, "Hello, Ms. Alli," to Respondent. Upon seeing Ms. Blanchard, Respondent quickly went into the house through the carport door. Ms. Blanchard followed Respondent into the facility. Ms. Blanchard lost sight of Respondent as she went down a hallway towards the back of the house where the children were located. The backdoor of the house was open, and by the time that Ms. Blanchard caught up with Respondent, Respondent was directing the children through the facility's backyard towards the back gate connecting Respondent's yard to Ms. Rodgers' yard. Several of the children, led by Ms. Rodgers' 14-year-old son carrying an infant in a car seat and Ms. Rodgers' 13-year-old son carrying a toddler had already reached Ms. Rodgers' yard. Ms. Blanchard told Respondent to stop and return to the facility with the children, which she did. Ms. Blanchard went through the open gate onto Ms. Rodgers' property and directed Ms. Rodgers' sons to return to Respondent's facility with the children, which they did. While on Ms. Rodgers' property, Ms. Blanchard saw a partially-filled swimming pool and other ongoing construction. Ms. Blanchard did not notice any fencing around the pool and saw one of the children, which she estimated to be three or four years old, walking in the construction area close to the edge of the pool. After the children had been returned, Ms. Blanchard assessed the situation and commenced her inspection of the remainder of Respondent's facility. Ms. Blanchard found roach droppings in the bathtub and in other locations in the facility. Respondent acknowledged a roach problem, but claimed that she had an exterminator working on the problem and that he was due to come out and treat the facility. Respondent did not present any documentation to Ms. Blanchard to corroborate her claims regarding the exterminator, nor did she introduce such documentation at the hearing. Ms. Blanchard found plastic bags in an unlocked cabinet accessible to the children. Respondent acknowledged at the hearing that the bags were in the cabinet and further acknowledged the suffocation danger that they posed to young children. Ms. Blanchard's review of the facility's records identified missing enrollment and immunization records for the children in the home. However, Ms. Blanchard did not document the children whose records were missing and she did not determine whether, as Respondent claimed at the time and in her testimony at the hearing, any of the missing records were for students who had enrolled in Respondent's facility within the prior two weeks. Ms. Blanchard documented the results of her inspection, including the events surrounding the movement of the children to Ms. Rodgers' yard on her inspection report. The inspection report identified each of the violations that she observed, including inadequate supervision based upon Respondent's absence from the facility, unsafe storage of materials dangerous to children (i.e., plastic bags) in a location accessible to the children, evidence of roaches, incomplete enrollment and immunization records, and more than the allowed number of children in the home. Ms. Blanchard also cited Respondent's facility for the dangers posed by Ms. Rodgers' pool since the children were being taken onto Ms. Rodgers' property. With respect to the citation for having too many children, Ms. Blanchard's inspection report did not include any detailed information about the children such as their names (or initials), ages, or descriptions. The report simply stated that Ms. Blanchard counted seven children at the facility -- i.e., "3 infants, 3 preschool and 1 school age child." Ms. Blanchard's testimony at the hearing referred to only two infants, which was consistent with Respondent's testimony on that issue. As a result, the evidence is not clear and convincing that there were seven children in Respondent's care at the facility rather than the authorized six children. During the course of her inspection, Ms. Blanchard did not see any adults (other than Respondent, who arrived as Ms. Blanchard was arriving) at the facility. It is undisputed that Respondent's husband, who is the designated substitute caregiver, was not at the facility that morning. There is no credible evidence that Respondent's 22- year-old son, Abdel, was at the facility that morning. He did not testify at the hearing, and, if as Respondent claims, Abdel was at the facility that morning, Ms. Blanchard would have seen him at some point during the commotion surrounding Respondent's rushing the children out the back door or during her subsequent inspection of the facility. In any event, Abdel was not the substitute caregiver designated by Respondent. He was not even authorized to watch the children because, although he had been background screened by the Department, he had not taken the Department's mandatory child care training program and was not certified in cardiopulmonary resuscitation (CPR). It is more likely than not that Ms. Rodgers' teenage sons were actually left to supervise the children at Respondent's facility during the time that Respondent was gone on the morning of February 27, 2003. Indeed, that is the most likely explanation of their presence at the facility and their involvement in the movement of the children to Ms. Rodgers' yard. However, the evidence on this issue is not clear and convincing. Respondent's explanation of her actions on the morning of the inspection -- i.e., that she hurried into the house upon her arrival and directed all of the children to Ms. Rodgers' yard so she could convey an important message to Ms. Rodgers -- is not credible. Her explanation of the roach droppings that Ms. Blanchard found in the bathtub -- i.e., that it was actually dirt from washing one of the children's feet -- is also not credible. By contrast, Respondent's explanation of the incomplete records -- i.e., that the missing records were for those children who had enrolled in the facility within the prior two weeks -- is reasonable. Because Ms. Blanchard's inspection report did not identify the children whose records were missing and did not document the date of their enrollment, the evidence is insufficient to prove this violation. Respondent admitted at the hearing that she "was taking a chance" by leaving the children at the facility without her husband, the designated substitute caregiver, being present. Respondent testified that she was gone only 15 minutes to drop one of her children off at school, and that she follows that same routine every day although her husband is usually at the facility while she is gone. After Ms. Blanchard completed her inspection, she discussed the results with Respondent and provided Respondent a copy of the inspection report. Ms. Blanchard then went back to her office and discussed the results of the inspection with her supervisor, Patricia Richardson. Based upon the results of the February 27, 2003, inspection and the history of noncompliance at Respondent's facility (both before and after the provisional license), Ms. Richardson determined that Respondent's license should be revoked. Thereafter, on February 28, 2003, Ms. Richardson sent a letter to Respondent informing her that her license was being revoked and advising Respondent of her right to "appeal" that decision through the administrative process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order revoking Respondent's license to operate a family day care home. DONE AND ENTERED this 12th day of June, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2003.
The Issue The issue for disposition in this proceeding is whether Petitioner is entitled to licensure as a family day care home.
Findings Of Fact Petitioner resides in Lakeland, Florida. In the fall of 2002, she applied for a license to operate a family day care home in her residence. In the course of discharging its statutory responsibility of investigating applicants seeking licensure for family day care homes, a representative of Respondent, Gloria Mathews, an experienced child care licensing inspector, visited Petitioner's residence and discovered numerous instances of non- compliance with requirements of Sections 402.301 through 402.319, Florida Statutes (2002), and Florida Administrative Code Chapter 65C-20. Ms. Mathews talked with Petitioner, pointed out the various instances of non-compliance, and made suggestions regarding correcting the various instances of non-compliance. Ms. Mathews anticipated that upon Petitioner’s correcting the areas of non-compliance, Petitioner would notify her and request a re-inspection. She was not contacted by Petitioner for several months. On May 20, 2003, Francis Williams, an employee of Youth and Family Alternatives, a private, not-for-profit agency that contracts with Respondent to provide assistance to individuals seeking family day care licensure, went to Petitioner's home to provide guidance and assistance to Petitioner in her effort to obtain licensure. Ms. Williams determined that several instances of non- compliance continued. In addition, Ms. Williams noted that Petitioner was caring for five non-related children without being licensed and later discovered that a sixth child had gone unsupervised for more that 15 minutes while Petitioner, Ms. Williams, and five children were in the yard noting various non-compliant conditions and discussing required improvements. On July 28, 2003, Ms. Williams again visited Petitioner's home, found discrepancies, noted that Petitioner was caring for non-related children, and, in Petitioner's absence, discovered a substitute caregiver who had not been screened. On August 27, 2003, Ms. Mathews revisited Petitioner's home and discovered that she was not in compliance; she did not have health examination forms for all of the children. Ms. Mathews and Ms. Williams, both having extensive experience in family day care facilities, testified that they did not believe that Petitioner should be licensed based on her continuing disregard for the rules provided for the safety and protection of children. Petitioner had little to offer regarding the failure of her home to qualify due to the various instances of non- compliance and her violation of the prohibition of caring for non-related children without being licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's application for a family day care home license. DONE AND ENTERED this 26th day of February, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 26th day of February, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Cassandra Napier 1535 Peavy Court Lakeland, Florida 33801 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Should Respondent’s annual renewal of her family day care home registration be denied?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida with whom a family day care home must register annually if that family day care home is not required to be licensed by the Department or the county within which the family day care home is located. Annie P. Smith owns and operates Smith Family Day Care Home, which is located in Highlands County, Florida. Respondent is not required to be licensed by the Department or Highlands County but must register annually with the Department. On or about October 28, 1999, Respondent applied to renew her annual family day care home registration. On or about November 10, 1999, the Department screened Florida Abuse Hotline Information System (FAHIS) which revealed report number 1998-094609, an alleged report of child abuse or neglect filed against Respondent. FAHIS report number 1998-094609 alleges that while the child D.W.H., aged 6 months, was under the care of Respondent the child received a large bruise on his upper, inside left thigh. The report characterizes Respondent's role as an alleged perpetrator of child abuse. On or about March 29, 2000, the Department received FAHIS report number 2000-050228, alleging that the child, K.L.B. was picked up from Respondent's day family care home with a broken arm. By an Amended Administrative Complaint dated April 28, 2000, the Department advised Respondent that it was denying her application for annual renewal of her family day care home registration. The Department's denial of Respondent's application for renewal of her registration for her family day care home was based on Respondent's: (a) failure to provide satisfactory proof of screening in accordance with Section 402.313(1)(a)5., Florida Statutes; (b) failure to protect and maintain the safety of the child, D.W.H. while the child was in her care; and (c) failure to protect and maintain the safety of the child, K.L.B. while the child was in her care. The Department presented no evidence concerning FAHIS report number 2000-050228 or the alleged abuse of the child, K.L.B. In fact, the Department announced at the hearing that it was dropping Count III of the Administrative Complaint concerning the alleged abuse of the child, K.L.B. After picking D.W.H. up from Respondent's family day care home on August 25, 1998, T.W., the child's mother, transported the child to Heartland Pediatrics of Avon Park for a scheduled appointment with Dr. Deshipande for the child's regular check-up. During the child's examination, Dr. Deshipande, discovered bruises on the inner thigh of the child's left leg. Dr. Deshipande described the bruises as a "large area on (l) inner thigh of bruising in various stages -- dark purple to pink. No tenderness. No other bruises elsewhere." (Emphasis furnished). Dr. Deshipande suspected possible child abuse and instructed one of his staff to notify the Department's abuse hotline. Subsequently, the Department conducted an investigation into the allegations of abuse. Ray Starr, a former Child Protective Investigator (CPI), with the Department, was the person primarily responsible for the Department's investigation and preparation of the abuse report. Starr's testimony that he contacted Respondent during his investigation by telephone concerning the alleged abuse is inconsistent with the abuse report and with Respondent's testimony. The abuse report indicates that Starr talked with Respondent in person concerning the alleged abuse. Respondent testified that neither Starr nor anyone else from the Department talked to her by telephone or in person concerning the alleged abuse during the time of the investigation. After discussing the background of the child's parents with local law enforcement and Department personnel, including one Department employee who was a "good friend" of the child's father, Starr determined that the child's parents were not responsible for the bruises. Without any further investigation (except possibly one telephone call to Respondent) Starr determined that the bruises were either the direct result of Respondent's action with the child or her inattention to the child which resulted in the bruises by whatever means. Starr made no effort to discuss Respondent's reputation as a caregiver with any of Respondent's present or past clients or to determine if there had been any problems with Respondent's care of other children. Based on the testimony of several of Respondent's present and past clients, Respondent enjoys a reputation of being an excellent caregiver for children, particularly younger children. On August 25, 1998, the child's mother, while giving the child's medical history to Dr. Deshipande, indicated that the child had been going to Respondent's family day care home for a period of 12 days and that bruising had been noted once before. However, at the hearing the child's mother testified that she could not recall how long the child went to Respondent's family day care home and that there had been no problem with the child's suffering any bruising at Respondent's day care home prior to the day of the alleged incident. The child's mother could not recall what time she left the child at Respondent's home or picked him up from Respondent's home on the day of the alleged incident or any other day. The child's mother could not recall virtually anything about the incident other than her assertion that she checked her child thoroughly before she took him anywhere and checked him thoroughly after picking him up, which she described as "a mother's thing." Based on this assertion, the mother concluded that the child must have been bruised between the time she left him in Respondent's care on August 25, 1998, and the time she picked him up from Respondent's day care home on August 25, 1998. Karen Babcock, a Licensed Practical Nurse, employed by Heartland Pediatrics of Avon Park saw the bruises on the child on August 25, 1998, while he was being examined by Dr. Deshipande. Babcock testified that although she was not present when the photographs were taken by a Department employee on August 26, 1998, the bruises on the child's leg as shown by the photographs depict a fair and accurate representation of the bruises as they appeared on August 25, 1998. Ray Starr was present when the photographs were taken on August 26, 1998, and testified that the bruises on the child's leg as shown by the photographs depict a fair and accurate representation of the bruises as they appeared on August 26,1998. Dr. Deshipande did not testify at the hearing and, other than his description of the bruises, did not state in his notes an opinion as to when he considered the bruises may have occurred. The fact that he noted bruises "in various stages" indicates that the bruises occurred at various times. Nothing in Ray Starr's testimony or the abuse report indicates that Ray Starr talked with Dr. Deshipande concerning the timing of the bruising. Likewise, none of the other witnesses talked with Dr. Deshipande concerning the timing of the bruising. Dr. Deshipande's description of child's bruises does not describe bruises that are alleged to have occurred earlier in the day on August 25, 1998, during the time the child was in the care of the Respondent. Likewise, the photographs, when viewed in light of Dr. Deshipande's description of the bruising as it appeared to him on August 25, 1998, do not depict bruising that is alleged to have occurred earlier in the day on August 25, 1998, during the time the child was under the care of Respondent. Therefore, although it is clear that the child was bruised, it is not at all clear that the child was bruised during the time he was under the care of Respondent on August 25, 1998, either by Respondent directly or as a result of Respondent's inattention, notwithstanding the testimony of the child's mother to the contrary, which I find lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Respondent's application for renewal of her annual family day care home registration. DONE AND ENTERED this 9th of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2001. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Sidney M. Crawford, Esquire Sidney M. Crawford, P.A. Post Office Box 5947 Lakeland, Florida 33807 Virginia A. Daire, 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 Whether Petitioner is entitled to an exemption from disqualification to work in a position of special trust.
Findings Of Fact On June 6, 1979, Petitioner went into a public restroom and attempted to use a urinal. To do so, he had to remove his sexual organ from his clothing. An adult male dressed in beach clothing called to him, "Come here," so Petitioner turned around and took half a step. The man asked, "What do you like?" Petitioner responded, "Women. Excuse me," and faced the urinal again. The other man, a plain-clothes law-enforcement officer, arrested Petitioner. Petitioner was charged with Section 800.03, Florida Statutes, "exposure of a sexual organ (by masturbation) -- misdemeanor." This was a misdemeanor charge at the time committed. Despite there having been no masturbation, in his opinion, Petitioner pled nolo contendere, and adjudication was withheld; he was assigned six months unsupervised probation and paid a fine. It is only on the basis of the foregoing 1979 plea that Petitioner has been disqualified from working in a position of special trust. He was notified by an April 18, 1996 letter that, pursuant to Sections 402.302(8) and 435.04(2), Florida Statutes [1995], he is disqualified as a household member in a family day care home. (Agency Exhibit 1) Petitioner also was arrested in 1982. The record is unclear as to what statute he was charged under at that time, but he did plead guilty and was fined. The circumstances surrounding the 1982 incident were established solely by Petitioner's testimony. He was in a department store restroom. There was a hole cut in the wall between two stalls "and apparently there was someone on the other side, the next stall that prompted me to put my sex organ through the hole in the wall." The person in the next stall was not a law enforcement officer. (TR 37-41, 43-45)1 Petitioner was arrested upon exiting the restroom. He has not been arrested since 1982. Petitioner has been happily married for 27 years. He and his wife have three children and five grandchildren. He and his wife are well-loved by their own children and grandchildren. They have a history of welcoming the troubled friends of their children into their home. The neighborhood children and Petitioner's grandchildren have always affectionately called Petitioner, "Grand-daddy" and have called Petitioner's wife, "Nanny." Their home is, and always has been, a gathering place for the neighborhood children. Petitioner's wife runs a licensed family day care home out of the family home from 6:00 a.m. to 6:00 p.m., Monday through Friday. Although she did not know about Petitioner's 1979 incident before it was disclosed through the agency screening process, she does not believe Petitioner presents a danger to children. She believes the 1979 incident constituted "entrapment". By a second letter dated April 18, 1996, Petitioner's wife was notified that, pursuant to Sections 402.302(8) and 435.04(2) Florida Statutes [1995] (Agency Exhibit 2), Petitioner was forbidden from having contact with any children in her family day care home and that if he is allowed to have contact with children in her care, she would be subject to an administrative fine and possible criminal penalties. The four children currently paying to attend Petitioner's wife's day care home are respectively aged one, two, three, and four years of age. For the last eight years, due to his trade as a self- employed leather worker, Petitioner has traveled a wide circuit from flea market to flea market throughout the week. He is only present in the family home from 10:30 p.m. Fridays to 3:00 a.m. Mondays. His wife's day care home does not operate during those periods that Petitioner is typically at home. Petitioner is a devout Seventh Day Adventist and an elder of his local church. He is the church's Sabbath School Superintendent. Petitioner's daughter and former daughter-in-law wrote letters entered in evidence and also testified that the family home is warm and loving and that Petitioner is a great "Grand- daddy." They rely on Petitioner and his wife for baby-sitting services. In their mutual opinion, Petitioner is not a danger to children, however some of their testimony minimized Petitioner's problems as only being "past mistakes." Neighbors' letters to the effect that Petitioner does not pose a threat to children, is active in his church, and travels except on weekends were admitted in evidence without objection, as was a statement by his pastor that Petitioner is a man of "impeccable character." However, none of these persons was available for cross-examination, and their letters do not clearly show that they had knowledge of Petitioner's past lewd acts or any reason or opportunity to know if he had committed any subsequent ones.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is , reluctantly, RECOMMENDED that the Department of Children and Families enter a Final Order removing Petitioner from the registry of disqualified persons.RECOMMENDED this 6th day of March, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1997.
The Issue Whether the Department of Children and Family Services (the "Department") had just cause to revoke the license of Petitioner to operate a family day care home.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: From April 15, 1987, through March 31, 2001, Marcia Edwards operated a registered family day care home at 15475 Chloe Circle, Fort Myers, Florida 33908. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed child care facility, a licensed family child care home, and a registered family child care home. Sections 402.305 and 402.313, Florida Statutes. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care home involves no Department inspections and only requires that the operator complete a training course and provide to the Department certain paperwork and that the operator and other household members undergo background screening. The operator of a registered family day care home must comply with the limits on the number of children under care, as set forth in Subsection 402.302(7), Florida Statutes. Ms. Edwards had been reminded of the requirement for background screening of household members at least once, via letter dated February 12, 1993. Nonetheless, the Department received two complaints in December 1994, regarding the presence of an unidentified person in the home. One complaint noted that an "unidentified male houseguest was eating and drinking the children's food." The second complaint noted that Ms. Edwards was out of town and left the children in the care of her mother and "a guy named Wayne." On January 4, 1995, the Department sent Ms. Edwards a letter informing her of the complaints and reminding her that she could not leave children with persons who had not undergone background screening. The letter noted that neither Ms. Edwards' mother nor "Wayne" had undergone background screening. The adult male referenced in the complaints was Wayne Brueckman, who was residing in the Edwards home. On February 6, 1995, in compliance with the Department's letter, Ms. Edwards submitted the necessary information to initiate background screening on Mr. Brueckman, listed as a "Household Member" and "Sitter/Relief." Mr. Brueckman's background screening revealed no disqualifying information. Ms. Edwards was reminded of the statutory capacity limitations in person and in writing at least 11 times between September 1987 and June 1999. On at least five occasions, Ms. Edwards responded that she understood the capacity limitations. Nonetheless, Department employees personally observed violations of the capacity limitations on at least five separate occasions. By letter dated July 7, 1999, the Department gave Ms. Edwards an administrative warning that she would be subject to imposition of a fine if she continued to operate in violation of the statutory capacity limitations. On August 13, 1996, an abuse report was received by the Department that Wayne Brueckman sexually abused D.S., a three- year-old boy, in the Edwards home. The child had told his mother that Mr. Brueckman kissed his penis, put a "white thing" in his anus, and spanked him when he defecated in his pants. However, the child would not repeat his allegations to protective investigator Mae Cook, and an examining physician could find no physical evidence of sexual abuse. Mr. Brueckman denied the allegations. Ms. Edwards was interviewed by Ms. Cook concerning the August 13, 1996, complaint. Ms. Edwards denied any inappropriate activity and vouched for Mr. Brueckman as her friend of 20 years. Though she closed the file because she did not have sufficient evidence to confirm the allegations, Ms. Cook strongly suggested that children staying overnight not be allowed to sleep in Mr. Brueckman's room and that he not be left alone at any time with children, to avoid any repetition of such allegations. A repeated citation in the violation notices from this point forward was that Ms. Edwards would leave Mr. Brueckman alone with the children in her care for extended periods of time. Concerns regarding Mr. Brueckman were also raised during an investigation of another sexual abuse report received by the Department on November 18, 1996. This complaint involved Z.A., a three-year-old boy in care at the family day care home. The child told a story of some adult in the Edwards home rubbing his genitals, but his limited verbal skills made it unclear whether a man or woman did the touching. Wayne Brueckman and Marcia Edwards were both interviewed by the protective investigator and both denied any inappropriate activity. Again, there was no physical evidence to confirm the allegations. On February 5, 2001, the Department received an abuse report that W.W., a 19-month-old boy in care at the Edwards home, had bruises along his spine and arms, two large bumps on his head, and a patch of hair loss on the top of his head. Medical examinations by the Child Protection Team and the child's pediatrician determined the injuries were significant, inflicted and the result of physical abuse. The abuse report was called in by J.W., the divorced father of the child. W.W. lived with his father and his older sister in the home of J.W.'s mother. J.W.'s teenaged nephew also lived in the house. W.W. did not see his biological mother. J.W. worked as a chef, and left W.W. and his older sister at the Edwards home on evenings that he worked. The medical determination of the approximate time of injury indicated the injuries occurred either at the child's residence or the Edwards family day care home. When at his residence, W.W. was in his father's care. J.W. denied inflicting the injuries on his son, and discounted the possibility that anyone else living in his household might have done so. J.W. was certain that his son's injuries were inflicted at the Edwards home. W.W.'s older sister told investigators that "bad boys" at the Edwards home had inflicted the injuries on the boy. J.W. readily consented to the CAT Scan, eye examination, and clotting factor test recommended by the pediatrician. The father expressed concern about the supervision provided by the family day care home. He recalled several times in the past that when he came to pick up his children at night, he could look in the window of the Edwards home and see Mr. Brueckman sleeping. It required lengthy knocking and ringing of the doorbell to finally rouse Mr. Brueckman or anyone else in the home. Wayne Brueckman and Marcia Edwards were interviewed by the Protective Investigator. Both denied any inappropriate activity or failure to supervise. However, based upon the medical evidence, and multiple interviews including questioning of the children in attendance at the family day care home, the report was closed as verified. The Protective Investigator concluded that the child was injured by other children at the family day care home. The case determination found that Marcia Edwards and Wayne Brueckman inadequately supervised and neglected W.W. On February 22, 2001, while the W.W. case was being investigated, Ms. Edwards applied to renew her family day care home registration. Based upon the W.W. investigation, the Department issued a denial of registration on May 29, 2002. Ms. Edwards requested a formal administrative hearing to contest the denial of registration. The Department forwarded the matter to the Division of Administrative Hearings, where it was assigned DOAH Case No. 01-2840. A hearing was scheduled for September 19, 2001, in Fort Myers, Florida, before Judge Daniel S. Manry. Counsel for Ms. Edwards requested a continuance due to a scheduling conflict. Judge Manry granted the continuance and rescheduled the hearing for October 19, 2001. On October 12, 2001, the Department filed a motion to relinquish jurisdiction, accompanied by a settlement agreement between the parties. On October 15, 2001, Judge Manry entered an order closing the file in DOAH Case No. 01-2840. The settlement agreement required licensure of the family day care home, which would obligate the family day care home to comply with increased regulatory standards. One such standard prohibits the owner from working out of the home during the hours the family day care is operating. Rule 65C- 20.009(1)(a), Florida Administrative Code. In the settlement agreement, Ms. Edwards affirmatively recognized her on-going obligation to comply with all requirements of the Florida Statutes and Administrative Code applicable to family day care homes. The settlement agreement also provided that the Edwards home would receive a consultation by Child Care of Southwest Florida ("CCSWF"), a private, non-profit regional organization that, among many other services, provides training and technical assistance to home-based child care providers. This consultation would be at the Department's expense. CCSWF's consultant would assess the home's compliance with licensing standards and make suggestions as to implementation of best practices. The Department's experience has been that CCSWF's consultation, technical assistance, and training have proven successful in improving marginal child care providers. On December 17, 2001, Lisa Bledsoe, the infant/toddler coordinator for CCSWF, visited the Edwards home for the required consultation. Ms. Bledsoe rated the home based on the Family Day Care Rating Scale ("FDCRS"), an objective tool developed by the National Network for Child Care for the assessment of infant/toddler group care. The FDCRS consists of 32 items which assess the quality of center-based child care for children up to 30 months of age. This 32-item scale covers six categories: Space and Furnishings for Care and Learning, Basic Care, Language and Reasoning, Learning Activities, Social Development, and Adult Needs. Each item can be ranked from 1 to 7. A ranking of 1 describes care that does not even meet custodial care needs while a ranking of 7 describes excellent, high- quality personalized care. The Edwards family day care home received a cumulative score of 2.375 on the FDCRS. Deficits included a sterile and child-unfriendly interior, lack of interesting and colorful pictures and no pictures at child's eye level, insufficient opportunity for outdoor play, minimum hand washing requirements not met, diapers not checked regularly, failure to conduct regular fire drills, dim lighting, and insufficient activities to encourage language development. Ms. Bledsoe contacted Ms. Edwards to notify her the completed rating would be mailed to her. Ms. Bledsoe offered follow-up visits, technical assistance, and training classes for caregivers. Ms. Edwards rejected the offer of further assistance. While acknowledging that her recommendations were not mandatory, Ms. Bledsoe could recall no other day care provider rejecting additional help from CCSWF, which is provided free of charge. The need for Ms. Edwards to provide supervision at the family day care home and to be present was an important issue in the settlement of DOAH Case No. 01-2840. On October 10, 2001, prior to the signing of the settlement agreement, Ellen Blake, a licensing counselor for the Department, conducted a pre- licensing orientation and review at the Edwards home. Ms. Blake and Ms. Edwards had a lengthy discussion about supervision requirements. Ms. Edwards told Ms. Blake that she would be absent only when taking and picking her children up from school. She and Mr. Brueckman were sharing the care of the children. After obtaining licensure, Ms. Edwards appeared to be providing closer supervision of Mr. Brueckman. Ms. Edwards was present for six of the seven licensing inspections the Department performed between October 10, 2001, through June 18, 2002. However, testimony from Ms. Edwards' own witnesses established Ms. Edwards was readily available in the evenings to do extensive hours of volunteer work. Additionally, she transported her own minor children to after-school and weekend activities and was always available to transport other people's children to and from school and outside activities. Further, Ms. Edwards operated a photography business that often involved out-of-home shoots, including a large annual undertaking at St. Xavier School. Mr. Brueckman was left alone with children when Ms. Edwards was out of the home. Ms. Edwards' witnesses also established that she provides child care 24 hours a day, 7 days per week, which is a service not readily available in the community. The home is consistently well utilized, especially during the expanded hours. Mr. Brueckman was providing evening and night supervision, and slept in the same room as the children under his care. The Edwards have three minor children who often have multiple friends spend the night for sleep-overs. Neither the Edwards children nor their friends were restricted from access to the designated child care room. On June 13, 2002, the Department received an abuse report stating that Wayne Brueckman sexually abused D.S., a two- and a half-year-old boy in care at the Edwards family day care home. On June 20, 2002, during an interview with the Lee County Sheriff's Office, Mr. Brueckman admitted to inappropriately touching the child's penis and having the child touch his penis during diaper changes. Mr. Brueckman has been charged with two counts of felony lewd and lascivious molestation and is awaiting trial. Commission of sexual battery on a two-and-a-half-year- old child is a serious violation of the obligation of a child care provider to supervise a child entrusted to their care and for which they are receiving payment. Molestation of a child creates a great likelihood of actual or potential harm. Mr. Brueckman lived at the Edwards home and received only room and board for the continuous care he provided for the children of paying clients, as well as Ms. Edwards' three minor children and their numerous friends. Mr. Brueckman admitted to having had no dating or sexual relationships with an adult for over ten years. He had no private time and felt overwhelmed by his work situation. On June 20, 2002, the Department cited Ms. Edwards for a deficiency in supervision as she failed to meet the needs of children in her care due to Wayne Brueckman's molestation of D.S. The operator of a family day care home is ultimately responsible for the supervision of the children in care. Rule 65C-20.009(3)(a), Florida Administrative Code. Upon learning of Mr. Brueckman's actions, Ms. Edwards immediately evicted him from her house. To meet the requirement that she have a trained substitute caregiver in the home, Ms. Edwards designated her husband as her substitute in July 2002. As of the date of hearing, Mr. Edwards had not completed the required training. During the nine licensing inspections the Department performed between October 10, 2001 through July 1, 2002, various violations of minimum licensing standards were found, including: inadequate lighting in the playroom; failure to keep up-to-date immunization records; failure to keep on file the required enrollment information; ants on the kitchen table; home, furnishings, toys and equipment not kept clean and in good repair; incomplete first aid supplies; and hazardous materials (alcoholic beverages and protein shake mix) within a child's reach. Ms. Edwards corrected all these violations. The Department never sought to fine Ms. Edwards for any of the cited violations. By notice, dated August 14, 2002, the Department revoked Ms. Edwards' license based on the reasons delineated in the letter including past history, licensing inspections, the arrest of Mr. Brueckman for lewd and lascivious molestation of a child at the family day care home, and the ongoing failure to have a qualified substitute.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking the license of Marcia Edwards to operate a family day care home. DONE AND ENTERED this 5th day of February, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 5th day of February, 2003.
The Issue The issue in the case is whether the Petitioner's application for renewal of a family day care home license should be granted.
Findings Of Fact At all times relevant to this case, the Petitioner owned and operated a licensed family day care home in Lakeland, Florida. On March 26, 2003, representatives of the Respondent arrived at the Petitioner's facility to assist in distributing materials that had been obtained by the facility. There were six children in the facility on March 26, 2003. The Petitioner was the only adult present and available to supervise the children. Upon arriving at the facility, one of the Respondent's representatives discovered an unsupervised "toddler" playing in the bathroom. The child's hands were in a toilet that was unclean and unflushed. One of the Respondent's representatives removed the child's hands from the toilet intending to wash the child's hands, but there was no soap or toweling available. It is unclear whether the Petitioner was aware that the child was in the bathroom, but in any event the child was unsupervised. Subsequently during the same visit, the Petitioner took the children outside into a play area and then returned inside to talk to the Respondent's representatives, leaving all of the children outside and unsupervised. The Respondent's representatives terminated their visit after advising the Petitioner to return outside and supervise the children. On March 27, 2003, a child protective investigator (CPI) employed by the Respondent arrived at the facility to investigate a report of inadequate supervision received on the previous day. Upon arriving, the CPI asked the Petitioner, who was the only adult present in the facility, as to the census and was advised that there were five children in the facility. The CPI observed the five children in a playroom. A few minutes later, the CPI responded to noise coming from the bathroom and discovered a sixth child, unsupervised and playing in the apparently-clean toilet water. The CPI removed the child's hands from the water. At one point, the Petitioner took another child into the bathroom and left him there. At another point, the Petitioner put infants into a room to nap, leaving the other children unsupervised while she did so, and then leaving the infants unsupervised while they napped. One child ran into an enclosed garage area without the Petitioner's knowledge. The Petitioner was unable to properly identify all of the children by name when requested to do so by the CPI. When asked to retrieve files on the children, the Petitioner left all the children unsupervised while she went to her automobile to get the files. The Petitioner asserted that the CPI had offered to watch the children while she went outside to get the files. The CPI denied having agreed to supervise the children. The greater weight of the evidence fails to support the Petitioner's assertion that the CPI offered to supervise the children during the visit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order denying the Petitioner's application for renewal of licensure as a family day care home. DONE AND ENTERED this 24th day of September, 2003, 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 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 September, 2003. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Wanda Williams Williams Family Daycare Home 1630 Fruitwood Drive Lakeland, Florida 33805 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700
The Issue At issue in this case is whether Petitioner's application to register as a family day care home should be granted.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: This case involves Petitioner's application to operate a registered family child care home. Petitioner had been registered as a family child care home from April 1989 to June 1992 and again from February 1995 to August 1998. The Department received Petitioner's most recent application on September 6, 2000. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed child care facility, a licensed family child care home, and a registered family child care home. Sections 402.305 and 402.313, Florida Statutes. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care center involves no Department inspections and only requires that the operator complete a training course and provide to the Department certain paperwork and that the operator and other household members undergo background screening. The operator of a registered family day care home may care for no more than five preschool children from more than one unrelated family. Subsection 402.302(7), Florida Statutes. The application requires disclosure of "other family/household members." Petitioner's application identified David Barcelona as a household member and stated that his family relationship was "friend (roommate)." During her previous periods of registration, Petitioner had been the subject of numerous complaints to the Department. In May 1989, the Department notified Petitioner that she had been found to be caring for more than five preschool children. Petitioner acknowledged that she was operating above capacity, but assured the Department that the situation would be rectified by June 1, 1989. Nonetheless, complaints regarding the number of children at Petitioner's home persisted through at least June 1991. The Department also received several complaints concerning drug use in Petitioner's home. In September 1995, a complaint alleged that Petitioner and several other adults were seen smoking marijuana in the home. A complaint filed by a parent in February 1996 stated that the parent could smell marijuana on his children when he picked them up from Petitioner's home. A complaint from November 1996 stated that Petitioner was seen smoking marijuana in the presence of the children in her care. In each instance, the Department wrote a letter to Petitioner. The Department's letter of February 26, 1996, is representative and is quoted in relevant part: As a registered family day care home, you are not statutorily required to meet all the child care standards established in [then] Rule 10M-12 or 10M-10 of the Florida Administrative Code. In addition, Chapter 402.302-313 of the Florida Statutes does not provide the department with any statutory authority to regulate complaints of this nature within registered family day care homes. However, in the interest of safety and proper child care, we wanted to bring the complaint to your attention so that you might correct the issues as appropriate. Providing care for any child is very important. It is our hope that you are not engaging in any illegal or inappropriate activities which [sic] operating your child care business. During the Department's investigations of these complaints, Petitioner consistently denied that she used any illegal drugs. On August 10, 1998, the Department received a complaint that an unsupervised child was seen outside in the rain at Petitioner's house. On the same date, the Department received another complaint regarding Petitioner's live-in boyfriend, David Barcellona, and whether his presence rendered her home an unsafe environment for children. The complaint stated that Mr. Barcellona had not undergone background screening and had admitted to hitting one of Petitioner's own children. The complaint also stated that children reported witnessing Petitioner's use of marijuana and crack cocaine in the home. These complaints were resolved when Petitioner ceased providing child care. She sold her house and voluntarily relinquished her registration. A child protective services investigation was also commenced on August 10, 1998, by investigator Daniel McLean. His investigation confirmed that Mr. Barcellona had hit Petitioner's ten-year-old son "upside the head with an open hand" because the boy had called him a "faggot." Petitioner had given Mr. Barcellona permission to physically discipline her children. The children expressed a fear of living in the home with Mr. Barcellona. No observable injuries were found on either Petitioner's son or her eight-year-old daughter. Mr. McLean testified that Petitioner told him at least twice that she had smoked marijuana for 15 years. Mr. McLean attempted several times to obtain a drug screen from Petitioner without success. At length, Mr. McLean informed Petitioner that the Department would begin legal proceedings if Petitioner did not voluntarily surrender custody of her children to their natural father. On August 13, 1998, Petitioner signed the papers giving custody of the children to their natural father. She testified that "I picked the drugs over my children at that time." The evidence admitted at hearing established that, despite her denials, Petitioner had been a long-time user of marijuana. By her own admission, Petitioner was addicted to crack cocaine for a period of at least three months in 1998. Petitioner's sister, Lisa Lucius, estimated Petitioner's crack usage lasted for six months. Mr. McLean testified that Petitioner told him she had been using crack for seven months. At some point in 1999, Petitioner shoplifted a pair of tennis shoes, was arrested, and placed on one year's probation for petit theft. Her probation was conditioned upon her entering a 28-day live-in drug rehabilitation and counseling program at the Ruth Cooper Center in Fort Myers. Petitioner successfully completed this program. Another condition of her probation was her attendance twice weekly at Alcoholics Anonymous meetings. She complied with this condition. Finally, Petitioner's probation was conditioned upon providing random urinalysis drug tests. She complied with this condition, and her tests were all drug free. Petitioner testified that she has been drug free since completing the program at the Ruth Cooper Center. Since the conclusion of her probation in 2000, she has discontinued attendance at Alcoholics Anonymous or Narcotics Anonymous meetings. She testified that she no longer has a drug problem. In the registration application at issue in this proceeding, Petitioner listed David Barcellona as a family/household member. Both Petitioner and Mr. Barcellona were required to undergo Level 2 background screening as set forth in Subsection 435.04(1), Florida Statutes. Petitioner successfully passed the background screening and was so notified by a letter from the Department dated October 24, 2000. The letter informed Petitioner that she had passed the screening, but expressly cautioned: "Receipt of this letter does not automatically qualify you for the employment, specific position or license you may be seeking. That determination will be made [by] either an employer or licensing department." The background screening disclosed potentially disqualifying offenses for David Barcellona. As of November 6, 2000, the Department had sent Mr. Barcellona a letter offering him the opportunity to provide documentation as to the disposition of those offenses, but Mr. Barcellona had not responded. On October 31, 2000, Petitioner phoned Sarah Jarabek of the Department to inquire as to the status of her application. Ms. Jarabek told Petitioner that the Department had concerns about her history of substance abuse and about the presence of Mr. Barcellona in the home. They made an appointment to meet in Ms. Jarabek's office on November 6, 2000. On November 6, 2000, Petitioner and Ms. Lucius met with Ms. Jarabek, Nancy Starr, and Patricia Richardson of the Department. Petitioner provided evidence of the drug abuse treatment she had received while on probation. She also produced documentation that she had completed the required 30- hour Family Child Care Training Course, documentation of her church attendance and completion of a single parenting program at her church, and documentation that she had taken a technical training course for legal secretaries. Ms. Jarabek testified that she accepted all of Petitioner's representations at the meeting regarding her treatment and other matters, but that concerns remained because of Petitioner's history of denying her drug use and because the lonely, pressure-filled business of family day care might prove a poor rehabilitative environment. Ms. Starr testified that she believed more time should pass for Petitioner to demonstrate that she was not subject to a relapse. Petitioner had only been off probation since March 2000, and had yet to demonstrate her stability when her activities were not being constantly monitored. Ms. Starr was also concerned because Petitioner was not currently involved in any organized program to maintain her recovery and because Petitioner had denied using drugs when the complaints were filed in 1996 through 1998. At the November 6 meeting, the Department's representatives also raised the question of Mr. Barcellona's continued presence in the house. Petitioner told them that she had broken up with Mr. Barcellona and ejected him from her house, because she thought he was smoking crack cocaine. She told them that Mr. Barcellona had continued to harass her. He would bang on her door late at night, screaming, "I love you." He would spray his cologne outside her house, to "leave his scent." Petitioner and her children were "terrified" of him, and Petitioner was in the process of obtaining a restraining order against him. Ms. Jarabek believed Petitioner's statement that Mr. Barcellona was no longer living in the house, but remained concerned for the safety of children who would be staying at Petitioner's home, given Mr. Barcellona's erratic behavior. By letter dated November 14, 2000, David Barcellona was notified that he was ineligible for a position subject to background screening. Mr. Barcellona had not responded to the prior agency letter offering him the opportunity to provide documentation regarding the disposition of the disqualifying offenses. As the applicant for registration, Petitioner received a copy of the letter to Mr. Barcellona. By letter dated December 1, 2000, the Department notified Petitioner that her application to operate a registered family child care home had been denied. The letter cited the following as grounds for the denial: the history of at least 13 complaints regarding the operation of the home during Petitioner's previous registration periods, including six complaints related to Petitioner's use of marijuana and/or cocaine in the presence of her own or other people's children; the unreported presence of Mr. Barcellona in the home during Petitioner's previous registration periods; and the lack of sufficient time and evidence to demonstrate that Petitioner was capable of providing a safe and healthy environment for children in her care. Petitioner contended that the Department waived its ability to hold her prior complaints against her now because it repeatedly allowed her to re-register during the relevant years despite those complaints. Ms. Jarabek testified that this apparent anomaly was due to a change in Department policy since Petitioner was last registered. The Department previously took the position that it was required to ignore drug usage in a registered family day care home, because Section 402.313, Florida Statutes, did not expressly provide authority to deny or revoke a registration on that ground. Ms. Jarabek testified that the Department's current interpretation of its statutory authority to supervise the provision of child care permits it to consider drug usage in the home. The December 1 letter took note of the "positive changes" in Petitioner's life, but also noted that these changes were too recent to overcome the concerns about Petitioner's past behavior and future stability.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for registration of her family day care home. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2001. COPIES FURNISHED: Richard D. Lakeman, Esquire Law Office of Richard D. Lakeman, P.A. Post Office Box 101580 Cape Coral, Florida 33910 Eugenie G. Rehak, Esquire Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
