The Issue Whether Respondent, Mildred Jones, doing business as Jones Family Day Care (Jones or Respondent), committed the violations alleged in the Administrative Complaint dated May 29, 2012, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent operated a licensed day care facility located in Orange County, Florida. On the date of the attempted inspection in this case, Respondent had six children enrolled in her day care program. Petitioner is the state agency charged with the responsibility of licensing and inspecting day care facilities throughout the State of Florida. As part of that responsibility, Petitioner routinely inspects day care facilities to assure compliance with rules and regulations that govern day care programs. On May 4, 2012, Petitioner’s agent, Luz Torres, inspected Respondent’s home. This was not Ms. Torres’ first visit to the home and, like all other visits, she approached the front door during regular business hours and knocked. Upon knocking, Ms. Torres was greeted by a female voice behind the door who advised that she could not let Ms. Torres into the home. The female, later identified as Christine Randall, refused Ms. Torres admission even after the inspector advised that it was required by law. Despite her efforts to enter the home, Ms. Torres was denied access. Ms. Torres could hear the sounds of children within the home but could not from outside the front door determine the identity or number of the voices. Ms. Randall did not advise Ms. Torres that Ms. Jones was in the rear of the property. Ms. Randall did not direct Ms. Torres to go to the rear of the property. Ms. Torres could not view the rear of the property from the front entrance. Ms. Torres’ efforts to reach Ms. Jones by telephone proved fruitless. Ms. Randall has not been screened or had a background check in years. Ms. Randall was not listed as a substitute caregiver for Respondent’s facility. Ms. Jones’ claim that only Ms. Randall’s two children were present on the date Ms. Torres attempted entrance has not been deemed credible. Ms. Jones also claimed Ms. Randall was present helping her prepare for her inspection. Had only two children been present, Ms. Randall could have easily admitted Ms. Torres, had her observe that the home was being prepared for inspection without other children present, and addressed her role as helper to Ms. Jones with only her own children present in the home. Instead, Ms. Randall denied access to the home and failed to direct Ms. Torres to the rear of the property (presuming Ms. Jones was, in fact, there). Ms. Wright’s suggestion that only Ms. Randall’s children were present on the date in question has not been deemed persuasive as Ms. Wright did not enter the home on that date, did not view the home for the entire time, and does not routinely know who is or is not in the home from her vantage as Respondent’s neighbor and friend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent committed a Class I violation and imposing an administrative fine in the amount of $250.00. DONE AND ENTERED this 1st day of October, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 2012. COPIES FURNISHED: Stefanie C. Beach, Esquire Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801-1782 Mildred Jones Jones Family Day Care Home 5027 Caserta Street Orlando, Florida 32819 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether to deny Petitioner's application to renew her registration to operate a family day care home for the reasons stated in the Notice of Denial dated April 7, 2017.
Findings Of Fact The Department is the agency charged with the responsibility of licensing and registering family day care homes. See § 402.313, Fla. Stat. A family day care home is an "occupied residence in which child care is regularly provided for children from at least two unrelated families and which receives a payment, fee, or grant for any of the children receiving care." § 402.302(8), Fla. Stat. In order to operate a family day care home, the home must be licensed or registered by the Department. § 402.312(1), Fla. Stat. Unlike a licensed home, which is subject to more regulatory oversight, a registered home is not subject to periodic inspections, and the home is only required to undergo an annual evaluation during the registration process. § 402.313(1), Fla. Stat. Petitioner has operated a registered family day care home under the name of Little Bright Stars of Orlando at 4419 Fairlawn Drive, Orlando, for several years. Her most recent registration expired on March 9, 2017. This proceeding concerns Ms. Rosado's application for renewal of her registration. Unless a complete renewal application is filed, the application will be denied. § 402.313(1), Fla. Stat. This is because the Department has no authority to approve an incomplete application conditioned on an applicant filing the missing items at a later time. On March 9, 2017, Petitioner filed her renewal application with the Department. The application did not have the following required items: the application fee; a list of children in her care; a copy of the current immunization record for each child in her care; a copy of a training certificate, an in-service training record form 5268, or a continuing education unit certificate documenting ten clock hours of annual in- service training; a copy of the completed Registered Family Care Home Health and Safety Checklist; a copy of the tear-off section signed by the parent or legal guardian for each child in her care; a copy of the completed Child Abuse & Neglect Reporting Requirements form, signed and dated by the substitute(s); and a Level 2 Background Screening (livescan) for the operator, adult household members, and substitute(s). Petitioner was sent an email the following day informing her that she must file the incomplete and missing items. When the application was filed, Petitioner had several health-related issues, which required her to temporarily stop caring for children in her home. At that time, she was forced to make a choice between paying her medical expenses or the costs associated with renewing her application. She chose the former and submitted an incomplete application without a filing fee. Once the Notice of Denial was issued, Petitioner decided there was no reason to incur the costs associated with the missing items until she knew whether her application would be approved. As of the date of the hearing, the application was still incomplete. Pursuant to section 39.201(6), Florida Statutes, information in the Department's central abuse hotline and automated abuse information system may be used in its evaluation of a registration application. In May 2016, the Department received a complaint that Petitioner's home was "operating illegally," and she had forced a three-year-old child to clean up his urine when he had an accident. Petitioner characterizes the complaint as "false" and asserts it is based on erroneous information provided by a disgruntled parent who just removed her two children from the home. The Department's subsequent investigation belies this contention. In response to the complaint, a Child Institutional Investigation was conducted by a Department Licensing Counselor and a Child Protective Investigator on May 23, 2016. While investigating the urine incident, the investigators observed an unscreened person, Petitioner's 17-year-old daughter-in-law, living in the home and assisting with the care of the children. They also observed children sleeping on the floor with no mats, a leaking ceiling in the area where the children play, and paint cans that were accessible to the children. These conditions violate Florida Administrative Code Rule 65C-20.010, which establishes health and safety-related requirements for family day care homes. The Department closed the investigation on July 4, 2016, with verified findings of inadequate supervision and environmental hazards. See Dep't Ex. B. The report concluded that based on the confirmed findings, the safety assessment was "low," meaning the deficiencies did not present a high risk of injury to the children. Petitioner was notified by letter dated August 16, 2016, that the investigation was closed and she could request a copy of the report. Petitioner did not request a copy, and she saw the report for the first time when the Department pre-filed its exhibits. At hearing, most of Petitioner's evidence addressed the confirmed findings in the abuse report. She questioned why she was never offered a hearing to contest those findings, but there is no statutory requirement that the Department conduct a hearing to allow a perpetrator to challenge a confirmed report. In any event, Petitioner was allowed to respond to the findings in the report and to provide evidence to mitigate or contradict the observations of the investigators. Petitioner also questioned why a second inspection was never conducted by the Department to determine if the violations observed during the May 23 investigation had been corrected. An abuse investigation, however, differs from a licensing inspection, and there is no requirement that the Department conduct a second inspection to verify that abuse violations have been corrected. At hearing, Petitioner explained that her 17-year-old daughter-in-law was a temporary occupant of the home while her husband (Petitioner's son) was on active duty in the military. She admitted, however, that the daughter-in-law was not screened, which is a requirement for all persons having contact with the children in a family day care home. She also acknowledged that her husband resides in the home but is not screened. At hearing, Petitioner denied that she had forced a child to clean up his urine. She explained that the child had actually spilled water on the bathroom floor while washing his hands and she made the child clean up the spilled water. During the investigation on May 23, 2016, however, Petitioner admitted to the investigators that the child had continued to urinate on himself and she required the child to clean up the urine in the hope that he would not do this in the future. This is a Class 1 violation of rule 65C-20.010(6)(a), which prohibits humiliating a child as a disciplinary measure. It also meets the definition of "abuse," as defined in section 39.01(2), and "harm," as defined in section 39.01(30). For these reasons, the abuse report confirmed the finding of inadequate supervision. Petitioner further explained that on May 23, 2016, her husband was in the process of making repairs to the leaking roof and the damaged ceiling in the home, and these repairs were completed shortly after the investigation. After being told that sleeping mats were required for the children, Petitioner purchased ten mats for the children. Even so, these deficiencies were observed on May 23, 2016, are confirmed by testimony and photographs received in evidence, and are grounds to verify the abuse allegations. Two parents who have used Petitioner's services attested to her good character and the quality of care that their children receive. They urged that the home be allowed to remain open. Even if the abuse report is not considered, the Department would still be required to deny the application because it is incomplete. According to a Department witness, if a complete application had been filed, denial would still be required based on the confirmed abuse report.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying Petitioner's application to renew her family day care home registration. DONE AND ENTERED this 13th day of July, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2017. COPIES FURNISHED: Lisa M. Eilertsen, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Cynthia Rosado 4419 Fairlawn Drive Orlando, Florida 32809-4409 (eServed) Rebecca Falcon Kapusta, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Brian Christopher Meola, Esquire Department of Children and Families. Suite S-1129 400 West Robinson Street Orlando, Florida 32801-1707 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Was Petitioner properly disqualified from working in a position of special trust pursuant to Section 435.04, Florida Statutes, on the basis of a July 21, 1996, incident? If Petitioner was properly disqualified as a result of the July 21, 1996, incident, has she been sufficiently rehabilitated so as to be eligible for an exemption to work in a position of special trust, pursuant to Section 435.07(3), Florida Statutes?
Findings Of Fact Petitioner was licensed through Leon County as a family home day care provider in 1995. Since 1996, she has been operating her family day care home pursuant to an exemption from disqualification by a 1973 disqualifying felony (manslaughter). Petitioner is a high school graduate. She was schooled and certified in New York as a nurse technician. She is certified as a home health aide in Florida. When she sought to renew her license in 2000, Petitioner was required to sign an Affidavit of Good Moral Character. The 2000 Affidavit of Good Moral Character read: By signing this form, I am swearing that I have not been found guilty or entered a plea of guilty of nolo contendere (no contest), regardless of the adjudication, to any of the following charges under the provisions of the Florida Statutes or under any similar statute of another jurisdiction. I also attest that I do not have a delinquency record that is similar to any of these offenses. I understand I must acknowledge the existence of criminal records relating to the following list regardless of whether or not those records have been sealed or expunged. I understand that I am also obligated to notify my employer of any possible disqualifying offenses that may occur while employed in a position subject to background screening under Chapter 435, Florida Statutes. The 2000 Affidavit then listed a number of offenses and the corresponding statute numbers. Among the offenses listed were: Sections 741.30 domestic violence and injunction for protection. 784.03 battery, if the victim was a minor. The 2000 Affidavit is DCF's attempt to paraphrase Section 435.04, Florida Statutes, listing disqualifying offenses. It is flawed and could be misleading because domestic violence can occur without an injunction for protection. Petitioner signed the 2000 Affidavit on January 25, 2000, in the portion declaring herself free of any disqualifying statutory violations and also signed the Affidavit in the portion stating, "To the best of my knowledge and belief, my record may contain one or more of the foregoing disqualifying acts or offenses." Petitioner testified in the instant case that she did not divulge the July 21, 1996, incident on her 2000 Affidavit because she did not think it constituted domestic violence, but why she signed contradictory statements was not explained. Petitioner's day care license was renewed, despite Petitioner's contradictory declarations on her 2000 Affidavit. She was notified of her disqualification when the five-year background screening turned-up an offense that had occurred on July 21, 1996. The Year 2000 background screening results which DCF received from the Florida Department of Law Enforcement indicated that Petitioner had been found guilty of "battery," on the basis of the July 21, 1996, incident. The Department's Background Screening Coordinator then obtained additional documentation from the file of the Leon County Court. Based on the information in the court file, the Department's District II Office concluded that Petitioner was disqualified because of a "domestic battery" offense. Petitioner exhausted informal procedures and timely requested an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes (2000). The instant case followed. The instant case is the second occasion Petitioner has appeared before the Division of Administrative Hearings requesting an exemption from disqualification to work in a position of special trust. The first occasion Petitioner appeared before the Division occurred in September 1996, when she sought an exemption because she had been disqualified due to her 1973 felony manslaughter conviction in New York. Petitioner had failed to disclose the 1973 felony conviction on her 1995 affidavit when she first applied to be a child care worker.1 That disqualifying offense showed-up in the initial screening procedures applicable to such applicants. Petitioner was granted an exemption for the 1973 manslaughter conviction in Harris v. Department of Health and Rehabilitative Services, DOAH Case No. 96-2010 (Recommended Order entered September 10, 1996; Final Order entered October 30, 1996), as more fully described below in Findings of Fact 34-36. She has been a licensed day care provider ever since. In 1996, Petitioner and Frank Fields had a romantic involvement bounded by Mr. Fields' keeping most of his belongings at his sister's apartment and merely sleeping over at Petitioner's home two to three nights per week, on a sporadic basis.2 On these occasions, he brought with him, and occasionally left in Petitioner's home, only his underwear and some music CDs. At all times material, Frank Fields was an adult male. Although younger than Petitioner, he was not a minor. On July 21, 1996, Petitioner, who was then 47 years old, was two months' pregnant with Frank Fields' child. She testified that at that time she was very upset and confused because of her pregnancy; because Mr. Fields was not helping with household expenses; and because she had heard that Mr. Fields was moving from his sister's apartment to an apartment of his own. On July 21, 1996, Petitioner was driving her car on Blountstown Highway. She noticed Mr. Fields' van and also noticed that there was a female in the passenger's seat of the van. Apparently, Petitioner believed that Mr. Fields was romantically involved with his female passenger. Petitioner had one adult daughter; the adult daughter's three children, all under the age of nine years, and her own eight-year-old daughter with her in her car. According to Petitioner's testimony, none of the four children in her car were young enough to require a car seat and none of her day care children were in her car. According to the police officer who later arrested Petitioner, there were six "children" in the back seat of Petitioner's car, not six people in the whole car. Regardless of this discrepancy in testimony, it is undisputed that there were no car seats and insufficient car safety belts for the number of passengers in Petitioner's car on July 21, 1996. Without approving either Petitioner's motivation or her reasoning, I find credible her testimony that she would not have taken her next actions had there been any day care children in her car because if day care parents found out about it, Petitioner could be "put in jeopardy"; she "could be in a lot of trouble"; and she would not have had day care children with her over a weekend. July 21, 1996 was, in fact, a Sunday. In making the immediately foregoing Finding of Fact, I have not overlooked Ms. Brantley's testimony that on occasion Petitioner has kept Ms. Brantley's children in Petitioner's home on nights and weekends while Ms. Brantley traveled. However, even assuming arguendo, but not ruling, that six rather than four children were in Petitioner's car on July 21, 1996, there is no direct evidence that any of them were also day care clients. Petitioner drove her car, filled with passengers, following Mr. Fields' van. Mr. Fields turned onto Nekoma Lane and pulled over to the side of the road. Petitioner pulled over and intentionally bumped her car into the back of Mr. Fields' van. Petitioner and Mr. Fields exited their respective vehicles, and Petitioner demanded to know who Mr. Fields' female passenger was, even though Petitioner knew the passenger was named "Melissa." Some screaming ensued, and Petitioner and Mr. Fields "tussled," hitting and scratching each other. Petitioner and her adult daughter testified that they did not know who struck the first blow. The non-hearsay evidence is insufficient to establish that on this occasion Petitioner left a bite mark on Mr. Fields' arm. When Mr. Fields began to wield a stick he had picked up from the side of the road, Petitioner's adult daughter got between him and her mother. Petitioner then drove her car, still containing its passengers, so as to follow Melissa, who had walked around the corner. Petitioner then "had a conversation" with Melissa. There is no evidence that the children were anywhere except inside Petitioner's car during either her confrontation with Mr. Fields or with Melissa. When the police arrived on the scene, Petitioner was arrested for battery and for driving with a suspended driver's license. The suspended license charge arose because, when questioned by the police, Petitioner gave her name as "Veronica L. Wynn." Petitioner's legal name was, in fact, "Veronica Harris." Petitioner also told the officer that her date of birth was September 19, 1959, and that she lived at 2106 Monday Street. Petitioner's true date of birth is September 19, 1949, and her true address was 1229 Elberta Street. When the officer could not find a driver's license record for "Veronica L. Wynn," Petitioner told him that the name on her license might be "Veronica Lee Harris Wynn." After she gave him the name "Veronica Lee Harris Wynn," the officer found Petitioner's driver's license record and learned that her driver's license had been suspended. Petitioner had recently been divorced and had "gone back" to her maiden name, but she testified herein that on July 21, 1996, she deliberately gave incorrect information to the police because she knew her driver's license was suspended and the police were going to check on it. Mr. Fields was provided with a pamphlet explaining his right to request domestic abuse protection and prosecution. Apparently, he did nothing about it. Petitioner was charged, in an Information which recited the statutory language of both Subsections 784.03(1) (a) and (b), Florida Statutes (1995), with "battery (M1)," meaning "first degree misdemeanor battery." The Information cited only "Section 784.03, Florida Statutes," for that offense. The Information also charged Petitioner with "driving while license suspended or revoked (M2)" also a misdemeanor, under Section 322.34(1), Florida Statutes (1995). On August 28, 2000, Petitioner entered a "no contest" plea to both charges. Petitioner was adjudicated guilty of misdemeanor battery and was ordered to serve 12 months of probation with the following conditions: (1) no contact with Frank Fields; (2) $155.00 court costs; and (3) $100.00 fine. She was also required to pay a monthly supervision fee while on probation and a fee for the services of the public defender. There was no charge, plea, or sentence stating "domestic violence" or citing a domestic violence statute. Petitioner was not required to attend a batterers' intervention program, pursuant to Section 741.281, Florida Statutes. No evidence was presented to show that the sentencing court had made written, factual findings that attendance at a batterers' intervention program would be an inappropriate condition for her probation. Petitioner's probation was terminated in December 1997. Petitioner miscarried her child conceived of Frank Fields before a live birth. Petitioner's emotional connection with Mr. Fields seems to have terminated with the July 21, 1996, incident. At the September 9, 1996, formal exemption hearing in Harris v. Department of Health and Rehabilitative Services, DOAH Case No. 96-2010 (see Finding of Fact No. 12) Petitioner and her witnesses did not divulge that six weeks earlier, on July 21, 1996, Petitioner had been arrested for her altercation with Frank Fields or that less than two weeks earlier, on August 28, 1996, Petitioner had pled "no contest" to battery of Frank Fields. Petitioner testified in the instant case that she did not divulge the July 21, 1996, incident during the 1996 formal exemption proceeding before the Division because "it was not part of my day care home and had nothing to do with day care children."3 The Recommended Order in DOAH Case No. 96-2010 observed that "Petitioner, now a grandmother, testified tearfully to her errant behavior at the age of 21, over 24 years ago in New York. Petitioner has never been charged with any legal violation since that time, with the exception of traffic tickets . . .since the [1973] incident, . . . Petitioner has lived an exemplary life . . . ." That Order recommended granting an exemption. The outcome of the Final Order, entered October 26, 1996, was that Petitioner was exempted from the 1973 felony disqualification.4 Petitioner contends that she never committed "domestic violence" and even if she did, she has been "rehabilitated" since July 21, 1996. She feels that she should be granted an exemption because she is sorry for what she did; because if she had been thinking, she would not have done it; and because she loves her day care children. Since 1996, Petitioner has operated her family day care home and has pursued her goal of becoming a Master Provider of day care. In order to become a Master Provider, one must have taken the Second Helping Course (a refresher course for experienced day care providers); have either a Child Development Associate Certificate or national accreditation; and have five years' experience. Currently, there are only two Master Providers in Leon County. In 1998, Petitioner received a $500.00 Caring for Kids Mini-Grant which she used to purchase day care toys. In March 2000, Petitioner received a scholarship from the T.E.A.C.H. Early Childhood Project, which she had planned to use to take classes at Tallahassee Community Hospital towards her Child Development Associate certification. Petitioner has put this project on "hold" during the pendancy of the instant case. In May 2000, Petitioner completed the Second Helping Course. In Leon County, only approximately 20 family home day care providers have taken this course. In 2000, Petitioner received a $275.00 Caring for Kids Mini-Grant which she used to help pay for her Second Helping Course. Petitioner was selected to receive a Kids Incorporated Infant/Toddler Initiative Grant of $3,000, which she intended to use to purchase toys and equipment for her day care home. Petitioner was hand-picked by Kids Incorporated because of her genuine love and concern for the children and because Kids Incorporated felt that Petitioner only needed additional toys and equipment in order to improve her day care home. However, because of the instant case, Kids Incorporated has not yet disbursed this money to Petitioner. Kids Incorporated wants to be assured the money will go to someone who will be a day care provider for the long-term. Petitioner has volunteered for the school readiness program sponsored by Kids Incorporated, which has resulted in additional visits and evaluations of her day care home. Her day care children have all scored "above average" in the program. Katherine Schmidt, a Family Child Care Specialist with Kids Incorporated, testified that she has evaluated and assessed Petitioner's day care home in her capacity with Kids Incorporated and during the period she was helping Petitioner obtain the grants mentioned above. Ms. Schmidt believes Petitioner is an excellent day care provider and would not be a danger to the children in her care. Ms. Schmidt also believes Petitioner would be a benefit to the children and their families. The Leon County Home Day Care Providers Association and Support Group meets monthly, and Petitioner regularly attends. Two day care providers wrote letters in support of Petitioner. Cicely Brantley is a professional music education teacher in Leon County's public school system. Ms. Brantley's two children attend Petitioner's family day care home. She has seen Petitioner briefly at least five days per week for the last two years. Ms. Brantley's older child is two and one-half years old and has been in Petitioner's day care home since he was nine months' old. Her younger child is 15 months old and has been in Petitioner's day care home since she was eight weeks old. Ms. Brantley testified that she trusts Petitioner with her children and that she trusts and values Petitioner's judgment when it comes to the children. Ms. Brantley often asks Petitioner's advice about parenting, discipline, and health issues involving her children. Ms. Brantley testified that other than her husband, Petitioner is the person she trusts the most with her children and that Petitioner goes above and beyond what most day care providers would do, both in education and care. Ms. Brantley was aware of the battery incident that occurred between Petitioner and Mr. Fields, but it did not change her opinion of Petitioner. She does not believe that Petitioner would ever be a danger to her children. Ms. Brantley really does not want to have to find other child care if Petitioner is unsuccessful in getting an exemption, and it is apparent that this concern has influenced her testimony. Versee Hoffman is a Pioneer with the Jehovah's Witnesses. This means that she has committed to serving 70 hours per month with her ministry. Ms. Hoffman met Petitioner approximately five years ago through church. Ms. Hoffman and Petitioner studied the Bible together periodically. At that time, Ms. Hoffman felt that Petitioner was not really committed to the church or its moral standards, and their studies ended. Thereafter, Ms. Hoffman did not see Petitioner for approximately two years. In early 1999, Petitioner approached Ms. Hoffman and told Ms. Hoffman that she wanted to renew their Bible studies. Ms. Hoffman agreed, and they have been studying the Bible together weekly ever since. Ms. Hoffman testified that the Jehovah's Witnesses expect their members to attend five weekly meetings and that Petitioner consistently attends those meetings. Ms. Hoffman testified that Petitioner has grown spiritually and personally since Ms. Hoffman first met her five years ago. Ms. Hoffman believes that Petitioner is truly committed to leading a spiritual life and to meeting the Jehovah's Witnesses' moral standards against violence. Ms. Hoffman believes that Petitioner will continue to meet these standards.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order determining that Petitioner is not disqualified from working in a position of special trust solely on the basis of her 1996 battery conviction. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2000.
The Issue The issue is whether Respondent should have granted Petitioner a license to operate a family day care home.
Findings Of Fact In January 1992, Petitioner operated a foster home for dependent children. The foster home was licensed by Respondent's predecessor, the Department of Health and Rehabilitative Services (hereinafter referred to as Respondent). In January 1992, Respondent received a report that Petitioner and her husband, Jim Shell, had meted out bizarre and excessive punishments to the children in their foster home. The report also alleged that Petitioner tied the younger foster children into their cribs at night. This report resulted in an investigation by Respondent. In the year prior to the initiation of the investigation, the following children stayed in Petitioner's foster home: H.S. (d.o.b. 4-6-89); S.S. (d.o.b. 10-1-86); T.H. (d.o.b. 5-3-89); S.A.C. (d.o.b. 9-18-88); B.Y. (d.o.b. 11-2-80) and G.Y. (d.o.b. 12-2-82. H.S. and S.S. were sisters. S.A.C., B.Y. and G.Y. were siblings. T.H. was mentally retarded. Petitioner gave B.Y. more household duties in the home than would be expected as chores for a child of her age. These responsibilities included housecleaning, laundry and child care. Additionally, Petitioner often kept B.Y. home from school to do housework. To excuse B.Y.'s absence, Petitioner would write notes to the school, falsely stating that B.Y. had a doctor's note and stayed home sick. B.Y. and G.Y. were forced to do push-ups as punishment for minor infractions. Petitioner's testimony that the children were required to do these push-ups as a joke or game is not persuasive. Mr. Shell spanked G.Y. for mis-reciting spelling words. This occurred once a week. On one occasion, B.Y. observed Mr. Shell hit G.Y. on the buttocks with a two by four. On another occasion, Mr. Shell jerked S.A.C. off a trampoline in the backyard, spanked her and threw her onto the ground. As a result of this rough treatment, S.A.C.'s head struck a tree. Petitioner regularly tied H.S.; S.S.; T.H.; and S.A.C. into their cribs at night because they would get up after being put down for the night. When B.Y. untied the children, Petitioner told her that when the children are tied up, they are supposed to remain that way. There was great strife in the Shell household. Petitioner and her husband often argued. For example, on B.Y's first night in the home, Petitioner hit Mr. Shell on the head with a frying pan. It is contrary to Department policy to physically restrain or punish children in foster care. Foster parents learn this in the training they receive before receiving their foster care licenses. Notwithstanding Petitioner's claim that she is separated from her husband, they continue to live under one roof. The house they live in is on the same property where Petitioner intends to operate a family day care home. The foregoing facts, among others, were set forth in the Respondent's final investigative report, Florida Protective Services System Abuse Report Number 92-007405. On April 22, 1992, the Respondent sent a certified letter to Petitioner informing her that the investigative report had been classified as proposed confirmed, that she had the right to request that Respondent amend or expunge the report, and that any such request would be considered only if received by Respondent within sixty days of her receipt of the April 22, 1992 letter. The letter contained the following language: If you do nothing, your right to appeal the classification of the report will be completely barred. By not choosing [to ask for amendment or expungement], this report will automatically be classified as CONFIRMED. This means that you do not contest the department's right to maintain the report findings as stated, including your identification as a perpetrator. A perpetrator in a confirmed report of abuse, neglect or exploitation may be disqualified from working in certain positions of trust, including working with children, disabled adults or aged persons. (Emphasis supplied). Petitioner signed the acknowledgment of receipt for the April 22, 1992, letter on April 27, 1992. She never requested amendment or expungement of the investigative report. Because neither amendment nor expungement of the report was sought, the confirmed classification became final agency action sixty days after Petitioner's receipt of the letter on April 27, 1992. In other words, the agency action became final on June 26, 1992. No appeal was taken from this action.1 In 1994, the Agency for Health Care Administration granted Petitioner an exemption from disqualification from employment in positions covered by Section 400.512, Florida Statutes. That section discusses the requirement for employment screening, using level 1 standards, for home health agency personnel, persons referred for employment by nurse registries, and persons employed by sitter, companion, or homemaker services registered under Section 400.509, Florida Statutes. The record does not indicate whether the Agency for Health Care Administration conducted an evidentiary hearing before making its decision to grant Petitioner the exemption.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying the application of Petitioner Patricia Shell to operate a registered family day care home. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998.
The Issue 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 Whether Respondent's registration to operate a family day care home should be revoked.
Findings Of Fact At all times material to the allegations of this case, Respondent, Kathy Stone, d/b/a Stone Family Day Care, was registered by the Department to operate a day care facility in her home located at 272 Southwest Fairchild Avenue, Port St. Lucie, Florida. As part of the registration for such day care home, Respondent was required to complete forms on which Respondent was to identify all members of the household residing at the registered location. Specifically, Respondent was to disclose any person over twelve years of age residing at the home. None of the registration forms completed by Respondent disclosed that an individual named Kevin Schaffer resided at the registered home. On more than one occasion law enforcement authorities were called to Respondent's residence in order to intervene in domestic disputes between Respondent and an individual named Kevin Schaffer. On all such occasions, Mr. Schaffer listed his residence as that of the Respondent's day care home. Mr. Schaffer is a convicted felon. Respondent failed to disclose that Mr. Schaffer was a resident over the age of twelve years residing at the registered day care facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order revoking Respondent's registration as a home day care facility. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Sydney L. Schwartz, Esquire Department of Children and Family Services 1436-C Old Dixie Highway Vero Beach, Florida 32960 Katherine Stone, pro se 272 Southwest Fairchild Avenue Port St. Lucie, Florida 34984
The Issue The issue in this proceeding is whether Respondent properly revoked Petitioner's license to operate a family day care home.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the owner and operator of a family day care home and, until the revocation which is the subject of this action, held license number 07C696L. In response to a parent's complaint that she had arrived at the family day care home to find her child crying in a room in which an unidentified man was sleeping, the Department's investigator, Brandi Blanchard, made an unscheduled visit to Petitioner's family day care home immediately following receipt of the complaint. The only evidence that this event occurred as portrayed by the complaining parent is contained in the Department reports and testimony by Department employees who were not present when the event occurred. When questioned regarding the parent's complaint, Petitioner advised that she had left the children for about 15 to 20 minutes in the care of Sibyl Dexter, an authorized substitute caregiver. In addition, there was some discussion about the identity of an adult male sleeping in the family day care home who had been reported by the complaining parent. Other than the hearsay report of the complaining parent, no corroborative evidence was received regarding the identify of this adult male, nor did any witness testify as to having seen this adult male. It was suggested that the "adult male" was Petitioner's husband; this was denied by Petitioner. In her investigative report, Ms. Blanchard indicates that the substitute caregiver stated that she had not been at the family day care home on the particular day in question; however, Mrs. Dexter, the substitute caregiver, did not testify, and, therefore, this hearsay statement by Ms. Blanchard is not being considered. In her testimony, as in her letter contesting the license revocation and requesting this hearing, Petitioner maintained that the substitute caregiver, Mrs. Dexter, was present. In the absence of testimony by the complaining parent or the substitute caregiver, Petitioner's testimony is credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered reinstating Petitioner's license to operate a family day care home. DONE AND ENTERED this 1st day of April, 2005, 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 1st day of April, 2005. COPIES FURNISHED: Kozette King 3914 Travati Street Orlando, Florida 32839 Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, S-1106 Orlando, Florida 32801 Gregory D. Venz, 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 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner is entitled to issuance of a license to operate a family day care home, pursuant to chapter 402, Florida Statutes, and Florida Administrative Code Rule 65C-20.008.
Findings Of Fact The Parties Petitioner, Shaguandra Ruffin Bullock, is an applicant for a family day care home license for the Ruffin Bullock Family Day Care Home. Respondent is the state agency responsible for licensing family day care homes in Florida. § 402.312(1), Fla. Stat. Events Giving Rise to this Proceeding A "family day care home" is an occupied residence in which child care is regularly provided for children from at least two unrelated families and which receives a payment, fee, or grant for any of the children receiving care, whether or not operated for profit. § 402.302(8), Fla. Stat. On or about July 6, 2017, Petitioner filed an application to operate a family day care home. Respondent reviewed the application and determined that it was incomplete, pending completion of the background screening required by sections 402.313(3), 402.305, and 402.3055.2/ On or about December 8, 2017, Respondent sent Petitioner a Notice of Intent to Deny Family Day Care Home Licensure ("NOI"), informing her of Respondent's intent to deny her application for a family day care home. The NOI stated, in pertinent part: On October 10, 2017, the Department received background clearance letters from child care personnel at Respondent's Family Day Care Home. Pursuant to Section 402.313(3), Florida Stat., childcare personnel in family day care homes are subject to applicable screening provisions. Pursuant to Section 402.302(15), Florida Stat. and Section 39.201(6), Florida Stat., The Department assessed the background of child care personnel at Respondent's family day care home including, but not limited to information from the central abuse hotline. The Department's assessment revealed the Respondent did not meet minimum standards for child care personnel upon screening which requires personnel to have good moral character pursuant to Section 402.305(2)(a), Florida Stat. The foregoing violates Rule 65C- 22.008(3), Fla. Admin. Code,[3/] Section 402.305(2)(a), Fla. Stat. and Section 402.313(3), Florida Stat. Based on the foregoing, Ruffin Bullock Family Day Care Home's, [sic] pending licensure application will be denied. Evidence Adduced at the Hearing At the final hearing, Respondent acknowledged that the background screening for Petitioner and her husband, Marlon Bullock, did not reveal that either had ever engaged in any of the offenses identified in section 435.04, Florida Statutes, which establishes the level 2 screening standards applicable to determining good moral character in this proceeding, pursuant to section 402.305(2)(a).4/ Rather, Respondent proposes to deny Petitioner's license application solely based on two confidential investigative summaries ("CIS reports") addressing incidents—— one involving Petitioner that occurred over 11 years ago, and one ostensibly involving Marlon Bullock that allegedly occurred almost 11 years ago. The CIS report for Intake No. 2007-310775-01 addresses an incident that occurred on or about January 16, 2007. Petitioner acknowledges that the incident addressed in the CIS report for Intake No. 2007-310775-01 occurred. Petitioner testified, credibly and persuasively, that at the time of the incident, Petitioner and her then-husband, Bernard L. Johnson, were going through a very difficult, emotionally-charged divorce. Petitioner went to Johnson's home to retrieve their minor children. An argument between her and Johnson ensued, and she threw a car jack through the back window of Johnson's vehicle. As a result of this incident, Petitioner was arrested. However, she was not prosecuted, and the charges against her were dropped. Respondent's witnesses, Ann Gleeson and Suzette Frazier, both acknowledged that they did not have any independent personal knowledge regarding the occurrence, or any aspects, of the incident reported in the CIS report for Intake No. 2007-310775-01. The other CIS report, for Intake No. 2007-455485-01, addresses an incident that ostensibly took place on September 7, 2007, involving Marlon Bullock, who is now Petitioner's husband. Petitioner was not married to Bullock at the time of the incident reported in the CIS report for Intake No. 2007- 455485-01. She credibly testified that she was completely unaware of the incident, and had no knowledge of any aspect of it, until she saw the CIS report in connection with this proceeding. Gleeson and Frazier both acknowledged that they did not have any independent knowledge regarding the occurrence, or any aspects, of the incident addressed in the CIS report for Intake No. 2007-455485-01.5/ The CIS reports and their contents are hearsay that does not fall within any exception to the hearsay rule.6/ The CIS reports and the information contained therein consist of summaries of statements made by third parties to the investigators who prepared the reports. The investigators did not have any personal knowledge about the matters addressed in the reports. It is well-established that hearsay evidence, while admissible in administrative proceedings, cannot form the sole basis of a finding of fact in such proceedings. § 120.57(1)(c), Fla. Stat. Accordingly, the CIS reports do not constitute competent, substantial, or persuasive evidence in this proceeding regarding the matters addressed in those reports. Thus, Petitioner's testimony constitutes the only competent substantial evidence in the record regarding the matters addressed in the CIS report for Intake No. 2007-310775-01, and there is no competent substantial evidence in the record regarding the matters addressed in the CIS report for Intake No. 2007-455485-01. Respondent has not adopted a rule defining the term "good moral character." Therefore, it is required to determine an applicant's "good moral character" based on the definition of that term in statute. As noted above, section 402.305(2)(a) provides that "good moral character" is determined "using the level 2 standards for screening set forth in" chapter 435. Ann Gleeson reviewed Petitioner's application for a family day care home license. She testified that based on her review of the CIS reports for Intake No. 2007-310775-01 and Intake No. 2007-455485-01, she "didn't feel comfortable" recommending approval of Petitioner's application for a family day care home license, and she recommended that the license be denied. As noted above, Gleeson did not have any personal knowledge of any of the matters in the CIS reports. She relied on the reports and their contents in making her recommendation to deny Petitioner's application. Suzette Frazier, Gleeson's supervisor, made the ultimate decision to deny Petitioner's application for the license. At the final hearing, Frazier testified that she determined that Petitioner's license should be denied based on the matters addressed in the CIS reports. Frazier testified that Petitioner's application raised particular concerns because of the two CIS reports, even though the CIS report for Marlon Bullock contained a "Findings – No Indicator" notation.7/ Frazier testified that it is Respondent's "policy" to deny an application for a family day care home license in every case in which the background screening for the applicant reveals an incident addressed in a CIS report. According to Frazier, this policy applies even if the background screening shows that the applicant does not have a history involving any of the offenses listed in section 435.04. Further to this point, when Petitioner asked Frazier at the final hearing what she (Petitioner) could do to demonstrate that she has good moral character for purposes of obtaining her license, Frazier told her that although she could reapply, she would never qualify to get the license because of the CIS reports. Frazier testified that, in her view, the CIS reports contain information indicating that both Petitioner and Marlon Bullock have a "propensity" toward violent behavior. Webster's Collegiate Dictionary, 11th edition,8/ defines "propensity" as "a natural inclination or tendency." A "tendency" is "an inclination, bent, or predisposition to something." Id. An "inclination" is a "tendency toward a certain condition." Id. A "predisposition" is a "tendency to a condition or quality." Id. Frazier's view that Petitioner and Marlon Bullock have a "propensity" toward violent behavior is not supported by the competent, substantial, or persuasive evidence in the record. To the extent Frazier relies on the information contained in the CIS reports to conclude that Petitioner and Marlon Bullock have a "propensity" toward violent behavior, neither of these reports constitutes competent substantial evidence regarding the matters addressed therein. Furthermore, to the extent Petitioner acknowledges that she engaged in the conduct addressed in CIS report Intake No. 2007-310775-01, the competent, substantial, and persuasive evidence shows that this incident——which was an isolated event that occurred in the context of an extremely emotional and difficult personal event in Petitioner's life——simply does not establish that she has a "tendency" or "inclination" or "predisposition" toward violent behavior. To the contrary, the competent, persuasive evidence shows that this was a one-time event that happened over 11 years ago, that Petitioner did not have any instances of violent behavior before then, and that she has not had any instances of violent behavior since then. Far from showing a "propensity" toward violent behavior, the competent, persuasive evidence shows that Petitioner has exhibited an otherwise completely non-violent course of conduct throughout her life. Additionally, as previously noted, the evidence shows that neither Petitioner nor Marlon Bullock have any history involving any of the offenses listed in section 435.04. There is no competent substantial evidence in the record showing that Petitioner has engaged, during the past 11-plus years, in any criminal or other conduct that would present a danger to children, and there is no competent substantial evidence in the record establishing that Marlon Bullock has ever engaged in any criminal or other conduct that would present a danger to children. To the contrary, the competent substantial evidence establishes that Petitioner and Marlon Bullock are law-abiding citizens. Petitioner is employed as the manager of a department for a Wal-Mart store. Marlon Bullock is, and has worked for 23 years as, a chef. Petitioner credibly and persuasively testified that she is a Christian who attends, and actively participates in, activities with her church. Petitioner also credibly and persuasively testified that she has raised her four sons from her previous marriage to be law-abiding, upstanding citizens. None of them has ever been arrested or involved in any criminal behavior, and her three adult children are all gainfully employed. Petitioner posits, persuasively, that her children are testaments to the stability of her character and her ability to provide a safe, nurturing environment for the care of children. Frazier testified that Respondent's review of Petitioner's application showed that apart from the good moral character requirement, Petitioner's application met all other requirements to qualify for a family day care home license.9/ Findings of Ultimate Fact Although Respondent has adopted a rule, detailed in its Handbook, which establishes the background screening process for purposes of determining good moral character, Respondent has not adopted a rule defining "good moral character" or establishing, apart from the standards set forth in section 402.305(2)(a), any other substantive standards for determining "good moral character." Accordingly, pursuant to the plain language of section 402.305(2)(a), the level 2 screening standards set forth in section 435.04 are the standards that pertain in this proceeding to determine good moral character. Pursuant to the foregoing findings of fact, and based on the competent, substantial, and persuasive evidence in the record, it is found, as a matter of ultimate fact, that Petitioner and Marlon Bullock are of good moral character. Conversely, the competent, substantial, and persuasive evidence in the record does not support a determination that Petitioner and Marlon Bullock do not have good moral character. As noted above, Respondent determined, in its review of Petitioner's application, that other than the good moral character requirement, Petitioner met all other statutory and rule requirements for a family day care home license. Because it is determined, in this de novo proceeding under section 120.57(1), that Petitioner and Marlon Bullock meet the good moral character requirement, Petitioner is entitled to issuance of a family day care home license pursuant to sections 402.305(2)(a), 402.312, and 402.313 and rule 65C-20.008. Finally, it is noted that Respondent has not adopted as a rule pursuant to section 120.54(1)(a), its "policy" of denying applications for family day care home licenses in every case in which the background screening for the applicant reveals an incident addressed in a CIS report. Accordingly, pursuant to section 120.57(1)(e)1., Respondent cannot rely on or apply this "policy" to deny Petitioner's application for a family day care home license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's license for a family day care home. DONE AND ENTERED this 12th day of April, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2018.
