The Issue The issue is whether Petitioner may terminate Respondent's teaching contract for gross insubordination, in violation of Section 1012.33(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B-4.009(4), or incompetency in the form of a lack of emotional stability, in violation of Section 1012.33(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B-4.009(1)(b)(1).
Findings Of Fact Respondent has been employed by Petitioner as a teacher for 14 years. During the 2003-04 school year, Respondent taught first grade at Southside Elementary School, where she has taught for many years. On Wednesday, October 1, 2003, Respondent entered the school cafeteria to pick up her students. As she entered the cafeteria, she met Susan Ross, the school guidance counselor. Ms. Ross informed Respondent that she had seen one of Respondent's male students put his hand on the chair seat of another boy, who was about to sit down, evidently in an attempt to grab the buttocks or genital region of the boy as he sat down. Respondent replied that one of her students had reported that, a few weeks previously, the same male student, while in the boys' restroom, either had pulled another boy's pants down or had tugged at the waistband of another boy's pants. Respondent had never been able to ascertain exactly what, if anything, had happened in the restroom that day because she had not been present and the child told her different versions of the events. At the time of the conversation with Ms. Ross, Respondent viewed the male student's misbehavior as horseplay, not sexual abuse. Obviously, Ms. Ross did not interpret the cafeteria incident that she had witnessed as sexual abuse, or else she would have reported it to the principal and the authorities. At the conclusion of her brief conversation with Ms. Ross, Respondent told Ms. Ross that Respondent would discuss the student's misbehavior with his mother, with whom Respondent had a good relationship, and the mother would help bring the misbehavior to end. Ms. Ross said nothing in response. Later on the same day of the cafeteria incident, Ms. Ross summoned Respondent to Ms. Ross's office. Ms. Ross told Respondent that she could not talk to the student's mother because she "might be in on it," meaning that the mother might be part of some sexual abuse that the child was acting out. Ms. Ross informed Respondent that she needed to report the student's actions because he was perpetrating sexual abuse on another child. At about this point in the conversation, Diana Middleton, who was then in her second year as principal of Southside Elementary School, entered Ms. Ross's office and joined the conversation. Ms. Ross repeated her belief that Respondent was obligated to call the authorities--specifically, the Department of Children and Family Services' child abuse hotline. Ms. Middleton agreed with Ms. Ross and told Respondent that a teacher had a duty to call the Department of Children and Family Services when a child showed the behavior that the male student had shown. Stating that it was not Respondent's job to determine the truth of a child's statement, Ms. Middleton twice directed Respondent to call the child abuse hotline, and she directed her to make a student disciplinary referral and intervention team referral. By these directives, Ms. Middleton implied that the student was or might be a perpetrator of sexual abuse, rather than a victim of sexual abuse. Logically, if Ms. Middleton had believed the child to be a victim of child abuse, she would not have directed Respondent to complete a disciplinary referral, which is punitive in nature. However, Respondent continued to believe that the child's behavior was nothing more than horseplay, and she continued to believe that the mother's intervention was the logical and appropriate first step in dealing with this misbehavior. Respondent also believed that Ms. Middleton and Ms. Ross were overreacting and basing their opinions upon incomplete or inaccurate information. Respondent considered her options and elected to compromise by taking the recommendation of the principal to complete the intervention team referral form. She completed the intervention team referral form by checking eight boxes, including "impulsive," "inappropriate sexual behavior," "hyperactive," and "daydreams." Respondent stated as the reason for the referral: "inappropriate sexual advances: grabbing 'private' areas, pulled down another student's pants in the bathroom." The intervention team referral emphasizes maladaptive behavior, characteristics, and attitudes, such as "loneliness," "fearful," and "immature," rather than outright misbehavior, which is more directly addressed by a disciplinary referral. In completing an intervention team referral form, a teacher or administrator describing the behaviors justifying the intervention does not need to engage in the kind of factfinding that typically precedes the imposition of discipline because the purpose of the intervention team referral is to find additional resources to help a child, not to punish a child or to deter future misbehavior. Over the next couple of days, Ms. Middleton became frustrated with Respondent's passive resistance, rather than outright defiance. By Friday, October 3, 2003, someone else at the school called the child abuse hotline and reported the student as a perpetrator of sexual abuse, based on the alleged restroom incident and possibly the cafeteria incident, as well. By the start of school on Monday, October 6, 2003, the student's mother visited the school after having learned of the abuse report. The mother demanded that Ms. Middleton transfer her child to another classroom immediately, and Ms. Middleton did so. Later in the afternoon of the same day, a child protective investigator from the Department of Children and Family Services visited the school and interviewed Ms. Middleton and Respondent. Respondent gave a statement that corresponds to the facts set forth above. At this point, Ms. Middleton's dissatisfaction with Respondent's performance intensified. Already unhappy with Respondent's failure to call the child abuse hotline, Ms. Middleton now believed that Respondent falsely understated the facts to the investigator, as compared to the facts stated by Respondent in the intervention team referral form described above. It is difficult to justify Ms. Middleton's conclusion that, essentially, Respondent had lied to the investigator. As noted above, the different levels of exactitude appropriate to the intervention form and the statement to a child abuse investigator could account for what little discrepancy--and it is only one of emphasis--between the narrative in the intervention form and Respondent's testimony, which presumably tracks her statement to the investigator. For some reason, as these events were unfolding, Ms. Middleton discredited Respondent's ability to evaluate the source of the alleged restroom incident, although Ms. Middleton admitted at the hearing that Respondent had the responsibility of sorting out the alleged restroom incident to determine whether the male student was guilty of any misbehavior that required reporting to the authorities. Obviously, Ms. Middleton could not reasonably have expected Respondent to report the cafeteria incident, which was witnessed by Ms. Middleton's guidance counselor, not Respondent. Unfortunately, the situation deteriorated. A local television station eventually picked up the story and tried unsuccessfully to interview Respondent. An unidentified person then called Petitioner's Superintendent and reported that Respondent was contemplating suicide. The Superintendent responded by alerting the police, who dispatched uniformed officers to Respondent's home. The police offered Respondent the alternative of arrest or involuntary hospitalization, and she chose the latter. After a short time at a local hospital, where Respondent refused medication, Respondent was transferred that evening to Baptist Hospital in Jacksonville. The next morning, a psychiatrist examined Respondent and, finding no psychiatric basis for an involuntary commitment, changed Respondent's status to voluntary and released her. Evidently in deference to the stress of the prior evening, the psychiatrist wrote Respondent a letter excusing her from work for a week. He later wrote a letter saying that she was able to return to work. The record discloses nothing about any problems or emotional instability that Respondent ever exhibited in the classroom or at school. However, by letter dated January 15, 2004, Respondent's Superintendent demanded, among other things, "[i]nformation relating to your medical condition and/or status at admission and upon your release." Although the Superintendent's letter claimed to be concerned with Respondent's emotional condition and her ability to return to work, most of the items demanded by the Superintendent in this letter pertained to Respondent's involvement in the above- described incidents of early October 2003. Specifically, he demanded information about allegations that Respondent had shared confidential information with the male student's parent, her response to the local television station's coverage of the incident and her letter to the local newspaper that she had been coerced by the school administration to complete the intervention team referral form, her accounting of discrepancies between the information on the intervention team referral form and her statement to the child protective investigator, and a description of her reaction to being told by Ms. Middleton that her work was unsatisfactory. The letter suspends Respondent, with pay, retroactive to January 5, 2004. In his opening statement, Petitioner's counsel predicated the charge of insubordination on Respondent's refusal to file an abuse report and refusal to provide the Superintendent with the medical information that he had demanded. As for Respondent's refusal to supply her medical records to the Superintendent, Petitioner relies on its Rule 3.04(II) for authorizing the Superintendent to demand these documents. However, this rule authorizes Respondent's School Board to require medical or psychiatric examinations when claimed necessary by the Superintendent, and the rule does not give even the School Board the authority to demand records from other examinations. While testifying, the Superintendent admitted as much and disclaimed any reliance, as to the charge of gross insubordination, upon Respondent's refusal to supply him the medical records from her evening at Baptist Hospital. As for Respondent's refusal to file a child abuse report, Ms. Middleton's directive to do so was unreasonable. Ms. Middleton herself acknowledges that a teacher must sort out the facts before filing a child abuse report. Respondent did so in this case and determined that the incident did not constitute a reportable matter. Her determination was factually reasonable, especially given the requirements of the statute governing reports of child abuse, as discussed below.
Recommendation RECOMMENDED that the Nassau County School Board enter a final order dismissing the proceeding against Respondent to terminate her employment contract. DONE AND ENTERED this 24th day of March, 2005, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 March, 2005. COPIES FURNISHED: Dr. John L. Ruis, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32034-3499 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Brian T. Hayes Brian T. Hayes, P.A. 247 North Jefferson Street Post Office Box 1275 Monticello, Florida 32344 John Joseph Cascone 101 Centre Street Post Office Box 1852 Fernandina Beach, Florida 32035
The Issue The issue for consideration in this case is whether Respondent's certificate as an educator in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Commissioner of Education, was the state official in Florida responsible for the certification of educators and the regulation of the teaching profession in Florida. Respondent was certified as an educator in this state by the Petitioner, and held Florida Educator's Certificate 554449, valid through June 30, 1995, and covering the area of elementary education. Crystal S. Bush, Respondent's wife, met the Respondent when he was her cross-country coach while she was a sixth grade student at Suncoast Middle School. He became her teacher for English and social studies the following year when she was a seventh grade student at that school. She married him in February 1993, when she turned sixteen years old, while she was in the ninth grade. Respondent and his wife had one child, a boy, in February 1994, and separated in the Spring of 1995 because, she claimed, he became very controlling and verbally abusive. Because she did not have any money, and needed funds on which to live, Mrs. Bush withdrew $400.00 from their joint bank account. With their child, she moved back with her parents, occupying the garage apartment on their property about three and a half miles from where she had lived with Respondent. Mrs. Bush insists that Respondent knew she was leaving, but she did not know if he knew where she was going. She believes he did, however, because he knew she had no place else to go. A day or two after the separation, Respondent came to the apartment where Mrs. Bush and the baby were staying. They were taking a nap at the time. He claims he went to the parents’ house first and was told his wife was in the garage apartment and he should "go on in,” which he did. Respondent entered the apartment and went into the bedroom where Mrs. Bush and the baby were sleeping. According to Mrs. Bush, she was awakened by Respondent's yelling that he wanted his mail-box key and the money she had taken from their joint account. Mrs. Bush contends that though she had her own checking account before this, he opened up the joint account with her as a gift, and it was into this joint account that their sizable tax refund check had been deposited. She claims that they had agreed she was to get half of the refund, but Respondent later reneged on that agreement. Mrs. Bush gave him the mail-box key, but asked him to let her keep a part of the refund. She had stopped working as a club dancer and had no money. Respondent refused. Because of his attitude, she declined to return any of the money she had withdrawn. Because Respondent's yelling was scaring the baby, and Mrs. Bush tried to terminate the conversation, but Respondent would neither be quiet nor let her leave. She tried to ignore him, but, she contends, he picked up an incense box and threatened to kill her with it. Respondent also demanded that she give him the baby. He claims he had had care of the child 5-to-6 nights a week while his wife was working, but when she left, she refused to let him have the child any more. Mrs. Bush contends that when she refused to give up the child, Respondent pushed her to the floor, pulled her hair and hit her on the lip, splitting it. She cannot say whether he hit her with his open hand or his fist, but there is no doubt her lip was split. The injury was observed by Mr. Gregory, a domestic violence investigator with the county, when he interviewed her a few days later. Mrs. Bush also claims that during the course of the fight over the baby, Respondent threatened to break the baby's arm if he had to in order to get the child. Respondent denies this, and there is no evidence that any such injury was inflicted on the child. However, that Mrs. Bush finally gave up the child and the Respondent left the premises. Immediately after Respondent's departure, Mrs. Bush called the police who responded within fifteen minutes. When they arrived, she told them that Respondent had hit her and the child, and she repeated that allegation to the court when she subsequently sought an injunction against him. She also advised an investigator for the Department of Education that Respondent had hit her and had returned the child to her scratched and bruised. This report was also made to child protection investigators with the Department of Health and Rehabilitative Services some weeks later. No evidence was introduced to confirm her allegations of injury to the child, however. Later the day of the incident, Respondent was arrested on a charge of domestic violence, and the child was returned to Mrs. Bush. While the police were at her house, they suggested she sign a document seeking a restraining order against Respondent, which she did. Respondent and his wife talked by telephone several times after his arrest. As a result of these discussions, she put up the funds required to get him released from jail on bond the following morning. Several days after the incident, because she was experiencing pain in the neck, Mrs. Bush saw her doctor. At that visit, no medical attention was required for the injury to her lip. She did not feel it necessary to take the child to the doctor because though, she claims, he had been struck by the Respondent, he did not seem to be injured. In the interim between Respondent's arrest and his subsequent court appearance at which his plea of nolo contendere was entered, Mrs. Bush obtained an order granting a temporary injunction against the Respondent to prevent him from committing any violence against her. This was followed by an amended order which made the injunction permanent. Mr. Gregory, the court's domestic violence and family law investigator, received the same story from Mrs. Bush that she had told to the police, and conducted his own investigation. Gregory claims to have spoken with Respondent during several mediation meetings. On each interview, save one, Respondent had an attorney present. Mr. Gregory contends that Respondent admitted there had been a physical altercation between him and his wife, but that the hitting of Mrs. Bush was an accident which occurred while he was trying to take the child from her arms. Gregory also states that Respondent admitted striking Mrs. Bush in the mouth, pushing her to the floor, pulling her hair, and threatening to take the child away from her. At hearing, Respondent again claimed he was acting in self-defense to his wife’s striking out at him and grabbing him by the genitals. In light of the fact that this defense was not raised to anyone prior to hearing, however, it is rejected. Based on his investigation into the incident, Mr. Gregory recommended that the State Attorney proceed with prosecution of the criminal charges which had been filed against the Respondent. Thereafter, on February 27, 1996, Respondent pleaded nolo contendere in circuit court to a charge of domestic violence. The court withheld adjudication but sentenced the Respondent to one-year probation, a fine of $150.00, required him to attend counseling, and directed him to refrain from contact with Mrs. Bush. In the expert opinion of Marilyn L. Strong, the Director of Personnel Services for the Lee County Schools and an educator with almost a quarter century of administrative and supervisory background, the misconduct attributed to Respondent constitutes both gross immorality and moral turpitude as they are defined in the Florida Statutes and the rules of the Department of Education. However, Ms. Strong’s opinion is not supported by the facts in this case, and it is found that Respondent’s single striking of his wife does not here constitute either gross immorality or moral turpitude.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commissioner of Education enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 16th day of October, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1997. COPIES FURNISHED: J. David Holder, Esquire 14 South Ninth Street DeFuniak Springs, Florida 32433 Lawrence Bush, pro se 4840 East Riverside Drive Fort Myers, Florida 33905 Kathleen M. Richards Executive Director Education Practices Committee 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Pl-08 Tallahassee, Florida 32399-0400
The Issue Whether the Respondent committed an act of violence or used force on any person except in the lawful protection of one's self or another from physical harm and, therefore, should have his license renewal as a Class "D" Security Officer denied pursuant to Section 493.6118(1)(j) and (2), Florida Statutes.
Findings Of Fact The Petitioner, Michael S. Snow, was at all times relevant to these proceedings a licensed Class "D" Security Officer. The Respondent is the agency that licenses and regulates security officers pursuant to Chapter 493, Florida Statutes. On or about April 12, 2003, the Petitioner filed an application to renew his license as a Class "D" Security Officer. The Respondent advised the Petitioner by letter of its intent to deny his application; the Petitioner requested a hearing; and these proceedings ensued. Subsequently, the Respondent amended its letter of denial, and the letter of August 14, 2003, (Second Amended Administrative Denial of License), constitutes the charging document. That letter states that the application is denied because of the applicant's failure to qualify under Section 493.6118(1)(j), Florida Statutes, because the applicant committed an act of violence or used force on another person that was not for the lawful protection of himself or another. At the hearing, Union County Deputy Sheriff Terry Cranford was called to testify. Deputy Cranford identified an affidavit that he had prepared on November 24, 2002, in relation to an investigation in which the Petitioner was the alleged perpetrator of abuse of an 18-month old child. The affidavit, Respondent's Exhibit numbered 1, was prepared by the deputy after he had interviewed various witnesses in the case; however, the deputy did not observe any of the alleged conduct. The deputy did observe the child on November 22, 2002, during the course of his investigation. The alleged incident, which involved the Petitioner striking the child in the face, took place on November 21, 2002, some 24 hours earlier. The deputy did not mention in his affidavit any injuries he observed. The deputy did not testify at hearing to any injuries to the child. The deputy stated that the child was too young to provide any information on the incident. The deputy's investigative focus at the time he prepared the affidavit was on the mother of the child and another relative. He did not interview the Petitioner. All the information that he obtained about the Petitioner's involvement was through the Child Protective Investigator, Ms. Joiner. The Respondent called Janice Joiner, an investigator with the Department of Children and Family Services (DCFS), who testified regarding her investigation of the incident. Like the deputy, above, Ms Joiner did not observe the incident. It is clear from her testimony and that of the child's mother, that the child's natural father reported the incident. He picked up the child from the daycare on the afternoon of November 21, 2002, and raised questions about the red handprint on the child's face. As a result of the investigation, DCFS initiated a dependency action, which precluded with the right of the child's mother to have custody of the child during the investigation, legal proceedings, and subsequent mediation between attorneys representing the child's mother and father. As a result of the investigation initiated by the child's father, his ex-wife, the child's mother, had to agree to end her relationship with the Petitioner. Ms. Joiner testified regarding what the Petitioner told her. He admitted he struck the child while putting the child in his car seat, when the child grabbed his uniform epaulet and would not let go. Ms. Joiner opined that this was abusive, and stated that the doctor who examined the child said it was abusive. Ms. Joiner did not state upon what information she based this opinion. She mentioned the handprint she saw on the day following the incident, which she described as faint. The Petitioner entered pretrial intervention on the charges brought against him, and successfully completed the program which called for him, to among other things, attend parenting and anger management classes. He was never tried; has never plead or been found guilt of any offense related to this incident; and his civil rights were never affected.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department issue the Petitioner a Class D Security Officer's license. DONE AND ENTERED this 20th day of May, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2004. COPIES FURNISHED: Michael S. Snow Post Office Box 1131 MacClenny, Florida 32063 Michael T. McGuckin, Esquire Assistant General Counsel Department of Agriculture and Consumer Services Division of Licensing Post Office Box 6687 Tallahassee, Florida 32314-6687 Brenda D. Hyatt, Bureau Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32314-6687 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32314-6687
The Issue The issue in this case is whether the Respondent’s certifications as a Correctional and Law Enforcement Officer should be disciplined and, if so what penalties should be imposed.
Findings Of Fact Respondent, Fedrick Williams, was certified as a Correctional and Law Enforcement Officer on June 26, 1992, holding Certificate Numbers 55153 Correctional and 55152 Law Enforcement. He was employed by the Leon County Sheriff’s Office in 1992 as a Deputy. From 1992 until 1996 he served without incident. In 1996, Respondent took a leave of absence for two years. In 1998 he returned to the Sheriff’s Office and served without incident until he was criminally charged with Aggravated Child Abuse by Malicious Punishment, a second degree felony, pursuant to Section 827.02(2), Florida Statutes. The alleged violation of the lesser included offense of child abuse under that statute forms the basis for the discipline sought by the Department in this proceeding. B.B. is the biological son of Lisa Williams and stepson of Respondent. B.B. suffers from a growth hormone deficiency. Because of the deficiency, B.B. is required to take hormones as well as adhere to a special diet to help with his condition. However, even with treatment, B.B. is unusually small for his age and, during the time of these events, B.B. was approximately four feet, four inches tall and weighed approximately 63 pounds. The B.B. and his mother had a history of physical confrontation that, at times, resulted in both Department of Children and Family Services and police intervention. Indeed, in 2001, B.B. received two permanent scars from his mother’s beating him. B.B. was arrested for hitting his mother with a pogo stick. When B.B. was released from the Department of Juvenile Justice (DJJ) his mother refused to pick him up. Respondent picked up B.B. from DJJ. B.B. also stole and forged checks from his mother on at least two occasions. Additionally, he threatened his cousin with a knife when he became angry at him. Things were so strained between B.B. and his mother that after the criminal actions involved with the incident related to this proceeding, B.B.’s mother voluntarily terminated her parental rights and gave up custody of B.B. to a relative. On the other hand, Respondent and B.B. had a good relationship. They did many things together and B.B. often came to Respondent for advice, help or just to talk. The termination of his wife’s parental rights and loss of his stepson greatly distressed Respondent and causes him heartache to this day. In fact, Respondent still communicates with B.B. and wishes he were home with him. Respondent’s disciplinary style was not generally physical. Witnesses described him as a gentle man. In fact, Respondent preferred to talk things out if there was a problem. He rarely utilized corporal punishment and always exercised restraint if he had to resort to such. Indeed, Respondent talked to B.B. and placed him on restrictions when B.B. forged his mother’s checks and threatened his cousin with a knife. On November 8, 2002 at about 6 p.m., B.B.’s mother discovered that B.B was sneaking and hiding candy and junk snack food in his bedroom. There were crumbs and packages from his food stash in his dresser drawers and around his room. As indicated above, the reason B.B.’s behavior was serious was that B.B.’s health required that he adhere to a diet that did not include junk food. B.B. had been warned on multiple occasions about eating candy and other junk foods. He had also been on restriction multiple times for such behavior. On November 8, 2002, B.B was either on or had just gotten off of restriction Respondent had placed him on for eating such junk foods. B.B.’s mother called Respondent into B.B.’s bedroom. Respondent first talked to B.B. and then got his service belt and swatted him at most four or five times across B.B.’s buttocks. There was no injury to B.B. at this time. He then talked to B.B. some more and left the room to take care of B.B.’s younger brother in the living room where the TV was on. Respondent has consistently denied injuring B.B. and has consistently reported the same facts as above. After Respondent left the room, B.B.’s mother entered the room. Respondent’s teenage daughter, who was doing her homework at the dining room table and could hear what was happening in B.B.’s room, heard B.B’s mother yelling and cursing at B.B., things falling off the furniture and loud banging noises around the room. Respondent was not in a position to hear what was occurring in B.B.’s room. B.B.’s mother testified that B.B. was not injured when she left B.B.’s room. Eventually, B.B. was sent to bathe and get ready for bed. Respondent’s daughter did not see any injuries to B.B.’s face when he left his room to bathe. While in the bathroom, B.B. went to the bathroom window and climbed out. The bathroom window was high as it relates to the B.B.’s height of four feet and four inches. The window was not large enough for B.B. to have crawled through in an upright manner so that he could land on his feet once outside. On the outside and under the window there was a three foot wide thorny rose bush and a brick ledge. It is highly likely that B.B. hit both the bush and the ledge on his way down from the window. Both obstacles could have caused long strap-like bruises to B.B.’s body as well as injury to his eye and other abrasions. Respondent’s home was surrounded by fairly thick forest. The forest appears to be thick enough to have also caused bruising or other injuries to B.B. B.B.’s foot prints were found leading away from the house towards the woods. B.B. traveled about six miles through thick forest to the James’ property. He climbed into Mr. James’ truck and went to sleep. At some point, B.B.’s absence was discovered. B.B.’s mother reported B.B. as a runaway on the evening of November 8, 2002. A lengthy search by Respondent and the police ensued which was not successful. B.B. was discovered the next morning by Mr. James when he was leaving for work. Mr. James brought B.B into his home and left him with his wife. Both neighbors observed that B.B. had several bruises on his arms and a very swollen black eye. According to Ms. James, B.B. had an eye that was swollen shut and had red marks above his eye extending to his hairline. One of the James’ called the police to report that they had found a child. When asked by Ms. James’ who had hit him. B.B. reported that his mother had hit him and caused his injuries. B.B. was not present and did not testify at the hearing. The effort used by the Department to secure B.B.’s presence at the hearing was minimal given the importance of B.B.’s role in these events. The Department’s efforts consisted of four telephone calls on Friday, August 25, 2006 that resulted in a message being left. There was no response to these calls. On Monday, August 28th and on Tuesday, August 29th, the Department again unsuccessfully called and left messages. One such call seemed to be interrupted by the phone being picked up and then hung up. Other than that one interruption, the Department offered no proof that anyone actually received the messages left on the answering machine. No subpoena of B.B. was attempted by Petitioner. No certified letter was sent to secure the presence of B.B. by Petitioner. Counsel for the Respondent made Petitioner aware of B.B.’s whereabouts several weeks before the hearing. No one from the Department traveled to that location to try to find B.B. No continuance was requested in order to locate B.B. The Department’s efforts, or lack of effort, to secure B.B.’s presence at the hearing do not demonstrate that B.B. was unavailable for the hearing. Instead the Department offered into evidence the transcripts from B.B.’s deposition taken as part of Lisa Williams’ criminal case, case number 2202 CF 4227-B1. This deposition was taken Tuesday, October 14, 2003, and was offered as Petitioner’s Exhibit numbered three. The deposition indicates that Respondent was responsible for B.B.’s injuries. Although Respondent was criminally charged based on similar fact evidence, the deposition of B.B. was not part of Respondent’s case and Respondent was not a party to that criminal case. The motive for Respondent to fully and adequately develop the testimony of B.B. was not as vital as it would be had the deposition been conducted for Respondent’s own case. Moreover, B.B.’s accounts of the evening of November 8 vary widely as to which parent was responsible for his injuries. Little credit is given to any of B.B.’s statements regarding the events of November 8, 2002. Deputy Hunter picked B.B. up from the James’ residence. He took B.B. to Tallahassee Memorial Hospital’s emergency room where the child was interviewed and extensively photographed. The photographs showed a variety of bruises and abrasions over B.B.’s body and a very swollen eye. Some of the bruises were long strap-like marks. Crime Scene Detective Patrick Lyons met with B.B., Deputy Hunter, and a member of the Child Protection Team at the emergency room. There were dozens of photos taken by Detective Lyons. One of the interviewers was Cynthia Y. Burns, RN. She stated that B.B. stated that his step father hit him in the eye. B.B. was also interviewed by Elain Sofkis, RN. He made a similar statement to her. The lead investigator was Detective Derek Terry of the Leon County Sheriff’s Department. On November 9, 2002, B.B. variously told Detective Terry that his stepfather beat him with a belt and hit him in the face with the belt, after which his mother immediately jumped on him and punched him in the face 20 or more times. A short time later, B.B. stated that he was hit 20 times with the belt, after which his mother entered his room and punched him in the stomach and chest, but not the face. Detective Terry never went to the house where the alleged abuse occurred. Again, B.B.’s statements are not credible. On November 9, 2002, Respondent was criminally charged with Aggravated Child Abuse of B.B. Shortly thereafter, Respondent was terminated from his position with the Leon County Sheriff’s Office at the recommendation of the Career Services Board. The termination was conditioned upon the Respondent pleading to or being convicted of Aggravated Child Abuse or any lesser included offense in his criminal case. At the conclusion of the criminal case Respondent plead to two counts of disorderly conduct, which are misdemeanors of the second degree. Respondent entered his plea because he could not financially afford to continue the legal process and he wanted to return to work at the Sheriff’s Office. Since disorderly conduct was not a lesser included offense of aggravated child abuse, Respondent was reinstated to his former position without pay for the time missed from work in 2004. In the final analysis, the evidence presented at this hearing did not demonstrate that Respondent committed any acts of aggravated child abuse or child abuse. The more credible evidence demonstrated that Respondent did not cause any injury to B.B. and that the injuries that B.B. had on November 9, 2002, were either inflicted by his mother or B.B.’s encounter with the environment outside the house and his subsequent long trek through the woods in the dark. Moreover, the evidence did not demonstrate that Respondent’s moral character was impaired or diminished by these events. The only thing Respondent did was spank his stepson with a belt. He did not injure him or maliciously punish him. Therefore, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding Respondent not guilty of violating Section 943.1325(6) or (7), Florida Statutes, and dismissing the Administrative Complaint. DONE AND ENTERED this 6th day of February, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2007. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Deveron L. Brown, Esquire Brown & Associates, LLC The Cambridge Center 223 East Virginia Street Tallahassee, Florida 32301 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Respondent is a 120 bed skilled nursing home facility for the chronically ill. It has over 80 employees, and is owned by H.M.O. of Brandon, Florida. It is an employer within the meaning of Pinellas County Ordinance 84-10. The Petitioner is a mature, black woman who worked for Respondent as a certified nursing assistant for 14 years. She received average and above average evaluations during her tenure with Respondent, which ended on September 28, 1988. Other than the matters set forth herein, there were no other reports of patient abuse involving Petitioner during her employment with Respondent. By her demeanor and testimony at hearing, it is found that Petitioner had a sincere concern for the welfare of her patients, and was a dedicated employee whose life centered around her job and her patients. All of the witnesses testifying on behalf of the Respondent, as well as the patient involved in the alleged incidents which lead to the Petitioner's termination, are white. According to an incident report completed by Diane Roberts, former Director of Nursing, a patient at Respondent's nursing home, M.T., complained on September 28, 1988, that a black female aide fitting Petitioner's description had squeezed her hand very hard, causing her pain. While looking into this matter, Respondent's former Administrator, Barbara Johnson, learned of an earlier alleged slapping incident, which Roseanne Ingroia, a nursing aide, then confirmed. An incident report was completed about the slapping incident by Antoinette Clausi, Director of Nursing, on September 29, 1988. Ingroia testified that she heard the Petitioner and the patient, M.T., arguing on September 11, 1988, and that she heard a slap. She did not appear clear and certain in her testimony, however, and her testimony about her exact location when this incident occurred was contradictory. As a result of these allegations of abusive conduct toward the patient, M.T., Petitioner was called at home on September 28, 1988, and was told she was being terminated by Respondent. Respondent acted without giving Petitioner an opportunity to even address the charges being made against her. The allegations were taken at face value, and without any meaningful investigation at all, Respondent terminated the 14 year employment of this dedicated employee. This allegation of abuse was eventually reported to the Department of Health and Rehabilitative Services (Department) sometime after Petitioner was terminated, and after preliminary investigation, the Department initially classified the report as "confirmed". However, on January 24, 1989, the classification of this report was changed to "indicated", and the Petitioner is no longer identified as the "alleged perpetrator". However, since Petitioner was terminated prior to any report of alleged abuse being filed with the Department, the appearance of Petitioner's name on the abuse registry as a result of the filing of this allegation could not have been a factor in the Respondent's decision to terminate her. The Respondent acted precipitously, without any reasonable investigation, and before any report of alleged abuse was filed with the Department. On or about October 5, 1988, Petitioner filed a complaint of discrimination with the Clearwater Office of Community Relations against Respondent alleging that she was unlawfully terminated due to her race, black. After investigation by staff, a recommendation of probable cause was made, and after conciliation efforts failed, the matter was referred by the Office of Community Relations to the Division of Administrative Hearings for formal hearing. It was established that patient abuse or neglect is set forth in the Respondent's Personnel Policies as a specific cause for immediate termination without prior warning. Employees who are terminated for cause are ineligible for rehire. No testimony was received from anyone who witnessed the alleged hand squeezing incident, and Ingroia's testimony about the alleged slapping incident was not convincing, especially in view of the reclassification of this report of abuse by the Department of Health and Rehabilitative Services from "confirmed" to "indicated". The former Director of Nursing, Diane Roberts, who apparently interviewed the patient, M.T., did not testify, nor did the former Administrator who actually terminated Petitioner, Barbara Johnson. Thus, there is no competent substantial evidence in the record which would support a finding that Petitioner abused the patient, M.T., and that therefore Respondent had cause to terminate her. As such, Respondent's action is inconsistent with, and violates its Personnel Policies. Thus, Petitioner is not ineligible for rehire since she was not terminated for cause. Respondent terminated Petitioner immediately, and without notice on September 28, 1988. A report of abuse had not yet been filed against Petitioner with the Department of Health and Rehabilitative Services, and therefore, at the time of her termination, there was no reasonable appearance of a legitimate, non-discriminatory reason for the action taken by Respondent. With the reclassification of this report by the Department to "indicated", and with the Respondent's failure to establish at formal hearing that Petitioner abused M.T. in any way, there is no legitimate, con-discriminatory basis for Respondent's action, and for its refusing to rehire Petitioner.
Recommendation Based upon the foregoing, it is recommended that the City of Clearwater, Community Relations Board, enter a Final Order finding that Respondent unlawfully discriminated against Petitioner based upon race, and ordering that upon the occurrence of the next available vacancy, Respondent reinstate Petitioner to her former position at her former salary, plus any salary increases which have been granted in the interim, and with full back pay and benefits from the date of her termination to the date of her rehire. DONE AND ENTERED this 15 day of February, 1990, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 15 day of February, 1990. COPIES FURNISHED: Barbara Forbes 508 East Boyer Street Tarpon Springs, FL 34688 David A. Crosby, Administrator Tarpon Springs Convalescent Center P. O. Box 1058 Tarpon Springs, FL 34688-1058 Ronald McElrath, Manager Office of Community Relations P. O. Box 4748 Clearwater, FL 34618 Miles A. Lance, Esquire P. O. Box 4748 Clearwater, FL 34618
The Issue The issue at the hearing was whether Petitioner is entitled to an exemption from disqualification of employment as a person who has direct contact with aged or disabled adults.
Findings Of Fact In 1993, Petitioner was 25 years old. Petitioner was employed by Sunland to care for its disabled clients. Petitioner's duties included direct contact with the clients of Sunland. The background screen revealed that on November 9, 1993, Petitioner plead guilty to two counts of battery (domestic violence). The conviction was the result of a physical altercation between Petitioner and Petitioner's live-in boyfriend, during which Petitioner threw an iron at her boyfriend missing him and striking her 3 year-old child. As a consequence of the conviction, Petitioner was fined the minimum amount and sentenced to two years' probation. She was adjudicated guilty. Contrary to Petitioner's testimony, the evidence showed that Petitioner has had at least two other encounters with the criminal justice system. The greater weight of the evidence showed that Petitioner has a problem with controlling her anger and in controlling her violent response thereto. Based on the record in this case, Petitioner has not established by clear and convincing evidence that she will not be and is not a danger to disabled or elderly persons with which she might come into contact and that she has not learned to control her anger and use of physical aggression. The Petitioner is therefore not entitled to an exemption from disqualification from employment.
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 Petitioner, Tammie Collins, an exemption from disqualification from employment. DONE AND ENTERED this 11th day of February, 1999, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1999. COPIES FURNISHED: Steven Wallace, Esquire Department of Children and Family Services Suite 252 2639 North Monroe Street Tallahassee, Florida 32399-2949 Tammie Collins Post Office Box 208 Greenwood, Florida 32444 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The Respondent, Andromeda Preschool (hereafter, Andromeda) seeks a formal hearing on the proposed administrative fine assessed by the Department. The only issue is whether Andromeda knew or had reasonable cause to suspect that an incident of abuse had occurred, and violated Section 415.504(1), Florida Statutes, by failing to report timely the alleged incident.
Findings Of Fact It is uncontested that Andromeda, as a licensed day care facility, is subject to the reporting requirements of Section 415.504, Florida Statutes. On January 16, 1998, a Friday, between 3:00 and 4:00 p.m., M.H. overheard E.H., an 8 year-old boy at Andromeda, telling at least two other boys that S.R., a 17 year-old male employee of the Andromeda, had wanted to perform oral sex on E.H. M.H., who is the sister of S.R. and also an employee of the school, reported the conversation she overheard to J.L., another employee of Andromeda. J.L. immediately reported the overheard conversation to Adrain Campbell, a co-director of Andromeda. Both M.H. and J.L. reported the conversation because of concern about the vulgar and graphic language used by E.H., who had exhibited a history of using vulgar language. Ms. Campbell conducted interviews with M.H., E.H., and the two boys with whom he was talking. E.H. told Ms. Campbell that S.R. had told him that S.R. wanted to perform oral sex on him. The two friends of E.H. reported to Ms. Campbell what E.H. said, but reported the conversation about oral sex between E.H. and S.R. took place while S.R. was baby-sitting E.H. M.H. reported to Ms. Campbell that S.R. had never baby-sat for E.H. Following the interview with the younger children, Ms. Campbell interviewed S.R. S.R. vehemently denied the accusations and appeared to be visibly shaken. Ms. Campbell sent a letter to the parents of E.H. on Friday, January 16, 1998, requesting a meeting with the mother of E.H. on Monday morning, January 19, 1998. The letter was hand delivered to the father of E.H. between 4:00 p.m. and 4:30 p.m. on January 16, 1998. The letter set out the essence of the reported conversation, and expressed Ms. Campbell's concern for the type of language and conversation used by E.H. Ms. Campbell did not consider the reported conversation as an allegation of misconduct by S.R., but an incident of vulgar language use by E.H. On Monday, January 19, 1998, S.H., the mother of E.H., met with Lori Studenski, co-director of Andromeda, and Margie Smith, an employee of Andromeda. The mother advised Smith and Studenski that she had questioned E.H. the preceding evening about allegations reported by Ms. Campbell, and E.H. informed her that S.R. had “touched his privates.” This alleged touching had not previously been disclosed to Andromeda. Smith and Studenski advised the mother that they believed S.R.'s denials, and that they felt E.H. was being influenced by older children. S.H. indicated she would question E.H. further. Both E.H. and his sister attended Andromeda on January 19, 1998, according to their normal schedule. On Tuesday morning, January 20, 1998, another meeting was held between Ms. Studenski and S.H., the allegedly abused child's mother. S.H. reported to Studenski that E.H. was again questioned by S.H. and her husband on Monday evening, January 19, 1998. E.H. related to them how S.R. had performed oral sex on E.H. twice in the kitchen at Andromeda with E.H. shouting, “No, no.” This was the third version of events reported by E.H. S.H. advised Ms. Studenski that she would be speaking with the pastor of their church. Again, E.H. and his sister both attended Andromeda as normal on Tuesday, January 20, 1998. Ms. Campbell and Ms. Studenski doubted that the alleged incident could have occurred in the kitchen as described by E.H. because the kitchen at Andromeda is very open. It has a large, open window that looks into the children’s game room/dining area. Further, the doorway into the kitchen is adjacent to that window and has a split door, the top half of which is approximately the same height as the open window, and all of the classrooms at Andromeda have glass panels in the doors and windows without shades. Paul Campanale, an employee of the Department of Children and Family Services whose duties include investigating allegations of child abuse, testified. His office received a report from the Central Abuse Reporting Hotline in Tallahassee at approximately 3:39 p.m. on January 20, 1998, and Campanale began his investigation at 4:42 p.m. on the same date. The report of abuse upon which Mr. Campanale based his investigation was that S.R. had performed oral sex on E.H. before Christmas 1997. Mr. Campanale testified that he had no record of when the incident was first reported, either to the parents of E.H. or to Andromeda. This allegation by E.H. was not related to the staff at Andromeda until January 20, 1998. By telephone, Mr. Campanale spoke with Margie Smith and Lori Studenski of Andromeda. Campanale was advised that the alleged incident was not reported earlier by Andromeda because Andromeda was conducting an internal investigation. He interviewed E.H. around noon on January 21, 1998. E.H. reported that he was in the kitchen at Andromeda around the New Year washing dishes, when S.R. performed oral sex on him. Following his interview with E.H., Mr. Campanale concluded that there were “some indicators” of an incident of abuse based solely on his interview with E.H. Mr. Campanale did not conduct any further follow-up investigation or interviews with any of the Andromeda personnel or S.R., nor did he visit the facilities at Andromeda. Vivian Farley and Maurice W. Murray, Jr., also testified as witnesses for the Department. Mr. Murray is the day care facility supervisor for the Department covering an area of five counties. Ms. Farley is involved with the licensing of day care facilities and her duties include investigating complaints of noncompliance with reporting requirements. Mr. Campanale filed a complaint regarding the failure to report the incident with the Petitioner on February 19, 1998. Mr. Murray, as supervisor, assigned the responsibility of investigating the non-reporting to Ms. Farley. Although a variety of resources and information is available to day care centers, there are no specific guidelines promulgated by the Department that defines reasonable cause to suspect abuse. Ms. Farley indicated that any report of an incident by a child, no matter how far-fetched, should be reported. Ms. Farley was the only witness testifying on behalf of the Department who was familiar with the facilities at Andromeda. She concurred in the testimony given by Ms. Campbell and Ms. Studenski as to the openness of the kitchen area where the alleged incident purportedly occurred, as well as the visibility features of the classrooms at Andromeda.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED: That a final order be entered finding that the allegations of the administrative complaint not proven; that Section 415.504(1), Florida Statutes, was not violated; and that the imposition of a civil penalty in the amount of $250.00 be rescinded. DONE AND ENTERED this 21st day of August, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1998. COPIES FURNISHED: S. Grier Wells, Esquire 3100 Barnett Center 50 North Laura Street Jacksonville, Florida 32202 Roger L.D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Department of Children and Family Services (Department) properly denied the renewal of Clay and Diana Merritt's family foster home license, No. 019917.
Findings Of Fact The Department of Children and Family Services is the administrative agency responsible for the licensing of foster homes under the laws of the State of Florida. The Department is responsible for investigating allegations of child abuse against citizens of the State of Florida. The Respondents, Clay Merritt and Diana Merritt were the holders of a foster care home license which was issued by the Department on January 27, 1997. That license was renewed in 1998 and provisionally renewed in 1999. During the period of time that the Respondents were a legally licensed foster home, three different children resided in their home, Amy C., Bo T. and Joe H. On January 27, 1999, an argument ensued between Respondents and Amy C. over Amy C.'s returning late from a date. During that argument, Amy stated that she would report the Merritts for sexual abuse if they did not relax their restrictions upon her. When the Respondents refused to relax their restrictions, Amy C. requested that she be removed from the home. The Department was called and Amy C. was removed from the foster home, and placed in a facility for run-a-way children in Gainesville, Florida. Very soon thereafter, Amy C. alleged that she had been sexually abused by the Respondent, Clay Merritt, on three occasions, all of which included sexual intercourse. The Respondent, Clay Merritt, denies the allegations in their entirety. Amy C. had been a prior victim of sexual abuse by her father, her brother, and her half brother. Amy C.'s father and her brother were convicted of sexually abusing her, and her father is still incarcerated. Amy C. testified at her father's criminal trial. Because of her prior abuse, Amy C. suffers from a number of mental disorders, to include post-traumatic stress syndrome, dysthymia, and attachment disorder. The child further evidences self-destructive behavior and vindictive behaviors against others. Susan Pierce counseled Amy C. for approximately nine months from early 1998 until the end of January of 1999. During that period of time, she developed a close therapeutic relationship with the child, and believed that the child was comfortable with her as a therapist. During that nine-month time period, the child never made any allegations of sexual abuse against the Respondent, Clay Merritt, although she discussed other instances of abuse with the counselor unrelated to the Respondents. Ms. Pierce felt Amy C. would have revealed abuse by Clay Merritt had such abuse occurred. The child lied on numerous occasions to her counselor and the Respondents. The child became increasingly interested in psychopathic murder, which was indicative of the disorders that were suffered by the child in Pierce's opinion. The child stated that she had been sexually abused by Clay Merritt in July, August, and September of 1997 and had a miscarriage in November or December of 1997. However, her diaries indicate that she had menstrual periods on October 25th and November 14th, 1997, thus precluding the possibility of pregnancy. The child further testified that the miscarriage was one of the most painful things she had ever encountered. The child stated under oath that she had not reported the miscarriage because "she did not want to hurt Diana's feelings." She stated to investigators that she did not report the abuse because she did not want to be taken out of the foster home. Throughout the period of time that Amy C. resided with the Respondents, she was a discipline problem. In June of 1998, Respondent, Diana Merritt, discovered Amy C. at home one afternoon with a boy with whom she had just completed having sexual intercourse. Diana Merritt took Amy C. to medical professionals for pregnancy testing and tests for sexually transmitted diseases. Diana Merritt counseled with Amy C. about the dangers of her conduct, and the Merritts maintained a closer watch upon the child. Amy C. refused to comply with the requests of the Respondents to restrict her sexual activities which led to numerous disagreements and arguments with Amy C. These arguments culminated in the argument of January 27, 1999, which resulted in Amy C.'s removal from the home. Amy C. was asked to take a voice stress test by the Sheriff's department, but she declined. The statements of Amy C. are contradictory with regard to specific facts. She gave two different dates for her alleged miscarriage: June and November 1997. She described severe physical trauma associated with the alleged miscarriage, but did not seek or receive medical assistance. She was subsequently examined and tested for sexually transmitted diseases as the result of an unrelated, consensual sexual relationship, and no findings were made indicating a prior, terminated pregnancy. Amy C.'s diaries are vague and unrevealing, except for the reporting the commencement of a menstrual period in October and in November. This is inconsistent with a reported miscarriage in December 1997. Because of the Amy C.'s prior abuse, resort to physical examination, or her description of details about the encounter is not helpful in resolving the her credibility. The allegations by Amy C. of sexual abuse by Clay Merritt are unsupported by any tangible evidence. Amy C.'s reputation for truth and veracity is not good. Her allegations are not supported by her diaries. Her allegations were made almost one and one-half years after the alleged events, and immediately after a fight with the Merritts. The Department's investigation revealed that the Merritts had spanked one of the other children on occasion in contravention of a Department policy banning corporal punishment. The Merritts did not deny this allegation; however, there was no evidence that these spankings were abusive. The spanking was a violation of agency policy; however, testimony was received that this type of conduct was generally not a basis for revoking a license by itself. The Respondent, Diana Merritt, is a licensed practical nurse who is employed by the Putnam County health Department. She has no prior criminal record, no prior child abuse record, nor has she had any legal difficulties in her life. The Respondent, Clay Merritt, is employed as a paramedic and firefighter. He is certified as a paramedic. He has never been arrested nor had any child abuse allegations filed against him in his entire life. The guardian ad litem for Bo T. testified that Bo T. was suffering as the result of his removal from the Respondents' home. Bo T. was the child who was spanked. His guardian ad litem favored placing the child back in the Merritt's home and care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order renewing the foster home license No. 19917 of the Respondents. DONE AND ENTERED this 3rd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2000. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 Richard J. D'Amico, Esquire 619 North Grandview Avenue Daytona Beach, Florida 32118 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Respondent owned and operated a licensed child care facility in Fort Myers, pursuant to a license that expired June 30, 1997. The name of the licensed facility was Patti Cake Nursery. Respondent is not presently licensed to operate Patti Cake Nursery. By final order in DOAH Case No. 97-3032 on May 1, 1998, Petitioner either revoked this license or denied an application for its renewal on grounds separate from the training violations that are the subject of this Recommended Order. In the Partial Final Order and Remand Order, Petitioner cited the following paragraphs from the Administrative Complaint dated February 11, 1997, which commenced DOAH Case No. 97-2146: 10. [sic] On June 14, 1996, an agent from the Department conducted a routine inspection. At that time, five employees were lacking the 30 hours of training. An administrative warning letter was sent on June 24, 1996, giving a deadline for corrective action of December 30, 1996, and advising that future deficiencies would result in an administrative fine of $25.00 per employee per day of every day of noncompliance. 9. On January 28, 1997, an agent from the Department conducted a recall inspection and determined that staff had completed the 20 hour training, however, the 10 hour portion of the 30 hour training had not yet been obtained. On February 3, 1997, Child Care of Southwest Florida, Inc., had no record of their enrollment for this training. 11. The acts and practices in paragraphs 9 & 10 above violate 402.305(2)(d) Florida Statutes and Rule 10M12-12.002(4) Florida Administrative Code, which requires all employees to within 90 days of employment, [sic] child care personnel shall begin training to meet the 30 hour training requirement and must complete the requirement within one year of the date on which training began. The Department imposes the minimum fine of $25.00 per employee per day of noncompliance. To date there have been 30 business days of noncompliance by 3 employees for a fine thus far of $2,250.00. This fine will continue to accrue until compliance is met. The Preliminary Statement of the Recommended Order states, in relevant part, that the material allegations were that Respondent "employed staff without the required amount of training on January 28, 1997; and employed staff without the required amount of training on June 14, 1996. Petitioner sought fines of $200 for the January 28 violations and ongoing fines of $2250, plus $25 per day times three employees, for the June 14 violations." The $200 in fines sought for the January 28 violations pertained solely to the violations of the staffing-ratio and supervision requirements; Petitioner sought no fine for the January 28 alleged training violation. The Recommended Order ultimately sustained the staffing-ratio and supervision allegations and noted that Petitioner properly sought fines totaling $200 for these two separate violations. The only fines sought for training violations pertained to the alleged June 14 violations. The Recommended Order states that the Administrative Complaint charged that, as of the June 1996 inspection, five employees lacked the required 30 hours of training, but the Administrative Complaint did not charge that these employees were employed on the corrective date of December 30, 1996, and had failed to complete the required training by that date. The Recommended Order states that the Administrative Complaint charged that, as of the January 1997 "recall inspection," unidentified staff had failed to complete the required 10 hours, which is part of the 30 hours of required training. The amount of the fine for the alleged training violations confirms that they pertain to the failure to obtain the required training by the December 30 corrective date. As noted above, the fine is $2250 and accrues at $25 daily times three employees for the June 14 violations. A fine of this amount represents 30 days of violation: $2250 divided by three employees divided by $25. Likely, Petitioner calculated the fine from December 31, 1996, which was the first day following the end of the corrective period arising from the June 14 violations. Likely, the calculation did not run through the date of the Administrative Complaint due to the lapse of time between the preparation and filing of the Administrative Complaint. The allegations are thus that three employees who had not completed their required training as of the June 14, 1996, inspection had failed to complete their required training by the corrective date of December 30, 1996. The June 14, 1996, inspection report found that unnamed employees had not completed their required training. According to the Partial Final Order and Remand Order, by letter dated June 24, 1996, Petitioner identified five employees as lacking the required training. These employees were Michelle Stroman, Westonia Walker, Debra Dorenus, Joan Grey, and Dana Royal. Clearly, the appellate court concurred with the reasoning of the Partial Final Order and Remand Order that the June 14 inspection report must be read in conjunction with the June 24 letter, and, together, these documents charge that Respondent violated the training requirements because Ms. Stroman, Ms. Royal, and Ms. Grey had not completed the required training by the end of 1996. In its opening statement, Petitioner confirmed this interpretation of the issue when its counsel asserted that she would show that three employees had not completed their required training within one year and 90 days of their date of hire, which had expired by the time of the June 14 inspection; that these three employees likewise failed to complete their required training within the additional time granted by Petitioner through the December 30 corrective date; that two of the employees had not completed their required training until April 30, 1997; and that the third employee had not completed her required training through the date of the final hearing, May 20, 1997. One of Petitioner’s witnesses was Marjorie Wilson, who was employed as the Director of Education by Child Care of Southwest Florida, Inc. Child Care of Southwest Florida, Inc., held a contract with the State of Florida to provide the required 30 hours of training for staff of child care facilities. However, Child Care of Southwest Florida, Inc., is not the sole provider of such training in the State of Florida. There is no central registry of information concerning who has taken the required coursework. Each training provider must search its own records for such information. In this case, Ms. Wilson testified that she searched the records of only Child Care of Southwest Florida, Inc., and found information concerning Ms. Stroman, Ms. Royal, and Ms. Gray. Ms. Wilson testified that Ms. Stroman and Ms. Royal completed their 30 hours of training on April 30, 1997. Ms. Wilson testified that Ms. Grey completed the 20-hour class on November 2, 1996, but, checking their 10-hour classes "back over a couple of years [we] saw nothing and don’t know where else we could look." Tr. p. 68. At the hearing, Petitioner’s counsel admitted that she had not deposed Ms. Stroman, Ms. Royal, or Ms. Gray. Evidently, Petitioner did not serve requests for admission concerning their training. Petitioner’s counsel accurately noted that the required certificates of completion were not in the respective personnel files of these employees, but she conceded that this omission was relevant only as proof of the lack of required training and was not alleged as a separate basis for discipline. Petitioner proved that Ms. Stroman, Ms. Royal, and Ms. Gray took classes following the June 14 inspection. It is unclear why Petitioner did not obtain the testimony of these three employees to establish that they had never completed the necessary training in the required timeframe. Absent such affirmative evidence, Petitioner invites inferences based on the absence of findings from an examination of the records of Child Care of Southwest Florida, Inc., and the subsequent enrollment in classes of the three employees. However, these sources of information do not provide the same quantum of evidence that would be provided by the testimony of the three employees. As already noted, the records of Child Care of Southwest Florida, Inc., do not purport to be the records of all persons who have completed the required training, and the testimony of Ms. Wilson at times did not inspire great confidence. Absent testimony from the three employees, their motivation in taking the classes is open to speculation. Perhaps they took the classes to obtain the required training; perhaps, having already obtained the required training, they, unaware of the legal requirements, took the classes to satisfy the demands of the inspector or Respondent. At the hearing, Petitioner attempted to establish the dates of hire for these three employees through Petitioner Exhibit 12. This document is a form completed by Petitioner’s inspector based on her review of the personnel files kept at Respondent’s child care facility. Representing herself, Respondent objected on the basis of repetitiousness, and Judge Meale overruled her objection. However, this exhibit constitutes hearsay, and findings cannot be predicated strictly on hearsay. Even if Respondent waived her objection to this exhibit, the weight of the exhibit is a matter for the Administrative Law Judge to determine. In this case, the summary document prepared by Petitioner’s inspector does not provide clear and convincing evidence of the dates of hire for these three employees. Electing not to subpoena the personnel records themselves, Petitioner has failed to establish the claimed dates of hire for these three employees: February 10, 1994, for Ms. Stroman; February 28, 1995, for Ms. Royal; and February 28, 1995, for Ms. Grey. Respondent testified briefly on the training allegations. Her testimony did not establish any hire dates. As for training, her testimony was confusing as it attempted to establish a training deadline of November 1997. She was evidently less concerned with providing factual testimony than in advancing a legal argument directed toward the "proper" calculation of the one year and 90 days within which an employee must obtain the required training. At one point (Tr. p. 205), Respondent testified: "I feel that right now I have one that has not complied with this, and that’s Mrs. Joan Gray." This apparent concession does not make Petitioner's case, even as to only Ms. Gray. First, the apparent concession does not establish the direct facts of date of hire or date of completion of training; rather, it concedes only a failure to comply with Respondent’s imperfect and somewhat incomprehensible "understanding" of the ultimate legal requirements concerning training. Second, as for Respondent's knowledge of Ms. Gray's training, it is difficult even to infer that, given her imperiousness and lack of cooperation, Respondent would have bothered to talk to Ms. Gray to find out her training status. Even if she had, Respondent's knowledge would be hearsay that is insufficient to establish the fact of training. For these reasons, Respondent's apparent concession as to Ms. Gray fails to establish, by clear and convincing evidence, her dates of hire and completion of training.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing the remainder of the Administrative Complaint against Respondent. DONE AND ENTERED this 3rd day of December, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 3rd day of December, 1998. COPIES FURNISHED: Eugenie G. Rehak District Legal Counsel Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906-0085 Bruce A. Tischler Greene & Tischler, P.A. 2503 Del Prado Boulevard, Suite 402 Cape Coral, Florida 33904 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Office of the General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
