The Issue The issue is whether Petitioner should revoke Respondent's license to operate a child care facility for failing to provide documentation of the director's credential or training.
Findings Of Fact Carlin and Susan Towels created Respondent in 1990. Their daughter, Angel R. Towels, began working part-time taking care of children at the facility in 1998. Ms. Towels was sixteen-years old at that time. In 1999, the minimum standards for child care personnel included a requirement for the director of a child care facility to be credentialed by January 1, 2000. See § 402.305(2)(f), Fla. Stat. (1999). Additionally, the statute mandated that the director's credential would become a required minimum standard for licensing of child care facilities by January 1, 2003. Id. Prior to November 2003, the Leon County Health Department was responsible for inspecting child care facilities and issuing licenses to them in Leon County, Florida. Respondent has been licensed by the Leon County Health Department as child care facility for many years. In 2000, Ms. Towels began working full-time as part of Respondent's staff. She became the licensed owner and operator/director in 2002. Ms. Towels has never been credentialed to act as Respondent's director because she has not completed a required course of study that would earn her a Child Development Associate (CDA) degree, certificate, or equivalent recognition. Ms. Towels' father was never credentialed to act as Respondent's director. He completed the CDA class but he never passed the examination for the required class entitled Behavior, Observation, and Screening (BOS). In February 2002, the Leon County Health Department sent Ms. Towels a document entitled "Reminder Notice of Director Credential Requirement." Ms. Towels signed the document indicating that she was aware of the need for Respondent's director to be properly credentialed by January 1, 2003, pursuant to Section 402.305(2)(f), Florida Statutes (2001). In 2002, the Legislature amended the statute requiring credentials for directors of child care facilities as a condition of licensing. Section 402.305(2)(f), Florida Statutes (2002), required directors to be properly credentialed by January 1, 2004, instead of January 1, 2003. The most recent license issued to Respondent by the Leon County Health Department was effective January 9, 2003, through January 9, 2004. The license authorized Respondent to care for a maximum of 23 children based on the square footage in the facility. At some point in time, the Leon County Health Department amended the license, authorizing Respondent to care for a maximum of 19 children. The Leon County Health Department amended the license at Respondent's request. Respondent made the request based on the mistaken belief that documentation establishing its director's credentials would not be required for a facility that cared for no more than 19 children. Around November 2003, Petitioner assumed the duties previously performed by the Leon County Heath Department relative to inspections and licensing of child care facilities in Leon County, Florida. In an on-site visit in November or December 2003, Petitioner's staff discussed the need for Respondent's director to be properly credentialed by January 1, 2004. In a letter dated December 31, 2003, Petitioner reminded Respondent of the minimum standard licensing requirement for credentials beginning January 1, 2004. The letter requested Respondent to provide Petitioner with a copy of its director's credential or the director's training transcript within 10 business days. The letter advised that Petitioner would issue Respondent a provisional license, not to exceed six months, if Respondent failed to provide the required documentation. According to the letter, if Respondent failed to comply with the credential requirement within the provisional- license period, Petitioner intended to initiate administrative action to revoke Respondent's license. In a letter dated January 28, 2004, Petitioner again advised Respondent that it was not in compliance with the statute. Petitioner's letter requested Respondent to provide monthly updates on the director's progress toward earning a credential or the facility's progress in hiring a director with the appropriate credential. The letter clearly stated that if Respondent's director was not credentialed at the end of the provisional-license period, Petitioner would take action to revoke Respondent's license. Petitioner enclosed Respondent's provisional license with the January 28, 2004, letter. The provisional license was effective January 2, 2004, through July 2, 2004. The provisional license authorized Respondent to care for 23 children based on the square footage of the facility as stated in Respondent's most recent application for renewal of license. In a letter dated June 1, 2004, Petitioner once again reminded Respondent the director's credential was a minimum licensing requirement. The letter asserted Petitioner's intent to revoke Respondent's license if Respondent did not comply with the requirement for a credentialed director by July 2, 2004. On or about July 12, 2004, Petitioner issued an Administrative Complaint. The complaint alleged that Respondent's director was not properly credentialed and that Petitioner intended to revoke Respondent's license. After Petitioner issued the Administrative Complaint, Petitioner continued to contact Respondent to see if Respondent was making progress in complying with the credential requirement. There were two telephone contacts in July 2004, on-site visits in August and November 2004, and a re-inspection most recently on January 6, 2005. In July 2004, Ms. Towels registered for a course equivalent to the CDA degree. However, she dropped out of the class before completing it. In January 2005, Ms. Towels enrolled in another CDA class, which she had not completed by the time that the hearing commenced. The class Ms. Towels is attending is approximately a one-semester course that students may complete within six months.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order revoking Respondent's license. DONE AND ENTERED this 1st day March, 2005, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2005. COPIES FURNISHED: Mary Ellen McDonald, Esquire Department of Children and Family Services 2639 North Monroe Street Building A, Suite 100A Tallahassee, Florida 32399-0700 Angel Towels Luv-A-Lot Child Care Center 2501 Lake Bradford Road Tallahassee, Florida 32310 Joe Garwood, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1371 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue At issue is whether the Respondent committed the violation alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Department is authorized to regulate child care facilities pursuant to sections 402.301-402.319, Florida Statutes.2/ Section 402.310 authorizes the Department to take disciplinary action against child care facilities for violations of sections 402.301-402.319. Magellan is a child care facility operating pursuant to License Number C04DU0288. The facility is located at 10550 Deerwood Park Boulevard, #704, Jacksonville, Florida. Walter Giannone is a child care licensing counselor for the Department. He has worked for the Department for 24 years, all in the area of child care licensing. Mr. Giannone was the licensing counselor assigned to assist Magellan when the company was obtaining its first license to operate a day care roughly a decade ago. He is very familiar with Magellan and its facilities. For the past two years, Mr. Giannone has been assigned to inspect the Magellan daycare. He testified that Magellan's inspections have been uniformly satisfactory. On Friday, December 9, 2011, Mr. Giannone received a complaint that K.J., a two-year-old boy, was injured when he fell from a piece of play equipment at Magellan. The complaint was made by K.J.'s mother, who alleged that the child was alone in the classroom for around seven minutes, that no one came to his immediate assistance when he fell, that 911 was not called and the parents were not immediately notified. On Monday morning, December 12, 2011, Mr. Giannone conducted an on-site investigation of the incident at Magellan. He interviewed several people, including the facility's director, Marilyn Potts. Ms. Potts gave Mr. Giannone her report of the incident and assured him that it was not nearly as severe as the parent's complaint alleged. Mr. Giannone viewed Magellan's security camera video for December 9, 2011. The tape, which had no audio, showed a classroom designated for two-year-olds in which there were eight children and one teacher. The time was around 5:30 p.m., which was parent pick-up time preliminary to Magellan's 6:00 p.m. closure. Most of the children were "milling around the room." At around 5:37 p.m., the teacher placed a female child on the changing table and began changing the child's diaper. The mother of the child was visible in the video, talking to the teacher as the teacher changed her child's diaper. The teacher was facing the classroom and could see the other children in the room. At about 5:39 p.m., K.J. climbed up onto a play stove in the classroom. A few seconds later he was joined by a little girl, who quickly climbed down. Mr. Giannone stated that K.J. was dancing around on top of the stove and appeared to be having fun when he fell from the stove. Mr. Giannone testified that K.J. was on top of the stove for one minute and 19 seconds before he fell. The teacher immediately ran to K.J. The mother took over at the changing table. Mr. Giannone testified that K.J. did not move for a moment or two. The teacher carried K.J. out of the room. About four minutes later, K.J. was brought back into the room and appeared to be fine. K.J.'s mother later took him to the emergency room, where he was pronounced in good health save for a sinus infection. While agreeing that the incident was not nearly as serious as the parent's complaint made it seem, Mr. Giannone still found a violation of the supervision requirement. Because there was no audio on the tape, Mr. Giannone took the teacher's word that she told the child to get down, but he found this insufficient. The child was on top of the play stove for over one minute, yet the teacher did not physically intervene to take him down and did not call for assistance. Mr. Giannone concluded that this was a direct supervision violation. He determined that it was a Class 2 violation, meaning that it could be anticipated to pose a threat to the health, safety or well-being of a child, but that the threat was not imminent. The teacher, Sarah Rahman, testified that she was at the changing table when K.J. began climbing on the play stove. She called out to him to stop and he obeyed, but started climbing again as soon as she looked down to change the diaper of the child on the changing table. She called out again but K.J. would not come down. Ms. Rahman stated that she could not physically intervene because she could not leave the other child alone on the changing table. Ms. Rahman did not adequately explain why she could not have left the child with her mother. She testified that the mother was not present when K.J. began to climb on the stove, but conceded that the mother was present no later than when Ms. Rahman called out to K.J. for the second time. Ms. Rahman further conceded that she could have prevented K.J.'s fall if she had let the mother take care of her own child on the changing table. Ms. Rahman testified that K.J. had a history of climbing on this play equipment, and that it had occurred to her that the equipment might pose a fall risk. Magellan has an intercom system that allows teachers to call for assistance from the front office. After K.J. fell, Ms. Rahman used the intercom to call Teresa Sanchez, a fellow employee who was at the desk in the front lobby greeting parents as they arrived to pick up their children. Ms. Sanchez immediately went back to assist. Ms. Sanchez testified that the purpose of the intercom is to allow teachers to push a button and quickly get assistance in the classroom. However, Ms. Rahman failed to ask for assistance until after K.J. fell off the play stove. Magellan presented evidence establishing that K.J. was an unruly, disobedient child. He was very aggressive and was known to slap, kick and spit at his teachers. His mother told school personnel that K.J. climbed on the furniture at home and that she could not control him. At the time of the incident, Magellan was in the process of expelling K.J. for his behavior. Marilyn Potts, Magellan's director, testified that she could not assign a teacher to follow one child around to be sure he does not hurt himself. None of these factors serves to excuse Magellan for this incident. Ms. Rahman testified that whether a child is well behaved has no bearing on her responsibility to ensure the child's safety. The foreknowledge that K.J. was prone to climb on the equipment and was not inclined to obey verbal instructions was all the more reason for Ms. Rahman to intervene physically before the child fell. Magellan argued that Ms. Rahman could not be expected to rush over and pull K.J. off the play stove because Department rules require a 30-second hand wash after the changing of a diaper. This argument is unavailing. Ms. Rahman rushed to K.J. after he fell without bothering to wash her hands. Given the exigent circumstances, Ms. Rahman could as well have gone to K.J.'s assistance before he fell. Finally, Magellan argued that the matter should have been dropped when K.J.'s mother subsequently attempted to withdraw her complaint. Mr. Giannone credibly testified that dropping the matter was not an option. Once a complaint is filed, the Department is required to investigate and determine the facts of the situation regardless of whether the complainant has a subsequent change of heart. Though in this instance the complainant's change of heart was motivated by sincere regret at exaggerating the seriousness of the incident, in other cases a complaint might be withdrawn because the complainant has been intimidated. Mr. Giannone testified that it was important for child safety that the Department follow the facts of each case rather than the whims of the complainant.
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 that Respondent provided inadequate supervision in violation of rule 65c-22.001 (5)(a), imposing a fine of $50.00 upon Magellan Christian Academies, LLC. DONE AND ENTERED this 23rd day of August, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 23rd day of August, 2012.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's license to operate a family day care home should be denied based upon the reasons asserted in the denial letter.
Findings Of Fact The Petitioner, until denial of licensure, owned and operated a licensed day care facility, licensed under Chapter 402, Florida Statutes. The Respondent is an agency of the State of Florida charged, in pertinent part, with administering and regulating the statutory and regulatory provisions governing entry into and licensure of the business of operating day care facilities and with regulating the practice of day care facilities and operators such as the Petitioner. Witness Tamika McConner is the mother of a child who was placed by Ms. McConner in the Petitioner's day care facility under Petitioner's care at the time pertinent hereto. Ms. McConner maintains that the Petitioner struck her child with a sandal while they were in the Petitioner's car or van on one occasion and that the Petitioner did not see to it that the child ate properly or at the proper times while in her facility. The Petitioner denies these occurrences or indications of improper child care. The evidence show that there is a hostile relationship between Ms. McConner and the Petitioner, apparently stemming from a check written by Ms. McConner for services to the Petitioner which was returned for insufficient funds and concerning which they apparently had a dispute. Under these circumstances, it is not found that Ms. McConner's testimony is preponderant evidence to establish that the occurrences she related actually happened. Moreover, as near as can be gleaned from the paucity of concise pleadings of the agency's allegations, this incident or incidents was not the subject of the report which led to license denial. On or shortly before October 3, 1996, an abuse report was received by the above-named agency concerning a child T.S. T.S. was enrolled in the care of the Petitioner in her day care center. An incident occurred that day when the Petitioner was taking the children in her charge to the Regency Mall for shopping. While at the mall, when the Petitioner was in a store shopping with the children, the child T.S. got to close to her and almost knocked something over on a shelf in the store. The Petitioner maintained that the child was so close to her that she contacted him when she turned around and it caused her to lose her balance and start to fall with the result that she reached out, accidentally knocking the child to the floor. Instead, however, witness Quinones testified and at least one witness in the store verified to the Department's investigator (see Respondent's exhibit 5 in evidence and the testimony of Mr. Gore) that the Petitioner struck the child in anger and knocked him to the floor. Ms. Quinones testified that the child didn't cry but was visibly shaken and Ms. Quinones was concerned that the Petitioner appeared to lose control of her temper on that occasion. Witness David Gore of the Department of Children and Family Services is in the business of inspecting and licensing child care facilities and has owned and operated a child care facility himself. He inspected the Petitioner's facility and found deficiency problems involving immunization records, some sanitary conditions, inoperative smoke detectors and hazardous household products left in reach of children, an incomplete first aid kit and paint and lumber left in the play area. The paint and lumber was there temporarily for the purpose of building a swing set for the children. The deficiencies were promptly corrected by the Petitioner. These deficiencies, however, were not the basis for the notice of licensure denial to the Petitioner however. Witness Roxanne Jordan testified on behalf of the Petitioner. The Petitioner cares for her child or did before the licensure problem arose and said she never had a problem with the Petitioner's care for her child nor did she observe any deficiencies or improprieties in the care of other children she observed at the Petitioner's facility. Ms. Jordan's describes the Petitioner as an excellent caregiver for children. This testimony is corroborated by substantial number of "testimonial letters" from people who have experience with her child care activities, in evidence as "corroborative hearsay." These served to establish that indeed the Petitioner is a caring, compassionate keeper of children in the operation of her day care facility and in the course of her duties baby-sitting for friends' children before she was licensed as a day care facility operator. The Petitioner is in earnest about pursuing the profession of child care and becoming re-licensed to do that. The Petitioner has demonstrated a long-standing interest and aptitude for caring for children. Indeed, in the last two years, she has earned approximately 55 hours of educational training at Florida Community College in Jacksonville in courses generally applicable to the profession of child care. The direct, competent evidence of record and the corroborative hearsay evidence in the form of testimonial letters, from people who have experience with her child care skills and her personality, establish that she has been, in most ways, a competent child care facility operator and caregiver for children and has the capability of becoming more so. In order to justify her re- licensure, however, she must demonstrate a willingness to and a capability of controlling her anger and enhancing her positive child discipline skills.
Recommendation Accordingly, in consideration of the greater weight of the evidence, supportive of the above findings of fact and these conclusions of law, it is
The Issue The issues in this matter are whether Respondent, the owner of a child care facility, committed the violations alleged in the Administrative Complaint; and, if so, what is the appropriate sanction for the violation.
Findings Of Fact Based on the evidence adduced at hearing, and the complete record, the following Findings of Fact are made: DCF is authorized to regulate child care facilities pursuant to sections 402.301 through 402.319, Florida Statutes. Section 402.310 authorizes DCF to take disciplinary action against child care facilities for violations of sections 402.301 through 402.319. A to Z Child Development Center (A to Z) is a child care facility owned and operated by Jill Johnson at 1049 East 8th Street, Jacksonville, Florida. The license number is C04DU1409. It is undisputed that on December 20, 2020, Respondent received a citation for employing a person for which she had not conducted a background screening following a 90-day break in employment. At all times material to this matter, E.L. was a child care provider working at A to Z. She began working with the facility on February 2, 2021. E.L. had been cleared and found “eligible” to work as a child care provider on April 6, 2017, at a different child care facility. On April 22, 2021, Gretrell Marshall, a DCF licensing counselor, conducted a routine inspection of the child care facility. Ms. Marshall has 20 years working with DCF. She has worked as a family services counselor for three years and has been trained to inspect child care facilities. Before working with DCF, Ms. Marshall owned a family day care home for two years and served as a director for a child care facility for seven years. During her inspection of A to Z, Ms. Marshall reviewed the employment records for each employee of the facility. Specifically, she reviewed the file for E.L. and discovered that the background screening for E.L. was completed on April 9, 2021. This was a concern for Ms. Marshall as child care personnel should update their background screening if there is more than a 90-day absence from working as a child care provider. Ms. Marshall reviewed the completed background screening report and employment history form for E.L. The background screening report dated February 3, 2021, reflected that E.L. had successfully passed a background screening on April 6, 2017. The employment history and reference form reflected that E.L. was last employed as an assistant teacher at Nono’s Home Daycare (Nono’s). The employment dates were listed as October 2019 to Present. Although there is a question regarding whether E.L. had a 90-break in employment or worked at Nono’s, she was subsequently she was deemed eligible to work with children. Ms. Marshall then reviewed the DCF Child Care Administration, Regulation and Enforcement System (CARES). CARES maintains employment history information for child care personnel, including new employee information, verifying existing employees, and checking employment history. The information input in the system is reported by employers. However, employees do not have access to review information in the system. Ms. Marshall’s review of CARES reflected that E.L.’s most recent employer was with T and A Learning Center, which terminated in February 2020. CARES did not reflect that E.L. worked at Nono’s. After review of E.L.’s employee records, Ms. Marshall concluded that E.L.’s background screening should have been completed on February 2, 2021, when E.L. began working at A to Z. Ms. Marshall testified that the form reflected that Jill Johnson was identified as the person contacted to verify employment. The evidence of record demonstrated that the person contacted was actually Nono Johnson (owner of Nono’s) instead of Respondent’s owner, Jill Johnson. Ms. Marshall also reviewed the renewal application records for Nono’s. There was no record in the renewal applications that E.L. was an employee. Relying upon her review of E.L.’s records maintained by Jill Johnson, the renewal applications for Nono’s, and the CARES records, Ms. Marshall determined that a background screening was warranted for E.L. because it appeared that she had a 90-day break in employment. Ms. Marshall did not interview Nono Johnson and she did not interview E.L. In addition, neither person testified at the final hearing. Ms. Marshall testified that a factor in making her decision was that the employment history form for E.L. did not clearly indicate the person contacted for employment verification. However, the record reflects that Nono Johnson was listed as the person contacted to verify the background reference check. The threshold issue in this matter is whether E.L. worked for Nono’s. If E.L. worked for Nono’s, the background screening would not be required. On the other hand, if E.L. did not work for Nono’s, E.L. would be required to perform the background screening due to the 90-day break in employment. Ms. Johnson presented the testimony of Crystal McMillion, who assisted Ms. Johnson with the reference checks. She testified that she spoke to Nono Johnson and verified that E.L. worked at Nono’s during the dates provided on the employment history form. Ms. McMillion testified that she then logged into the background screening portal and verified that E.L. had previously successfully completed a background screening in 2017. Ms. McMillion was the only witness with direct knowledge of the employment verification for E.L. Ms. McMillion has experience as a child care facility operator and understands what is required to conduct employment verification. The undersigned found her to be credible and truthful. However, her testimony was uncorroborated hearsay.1 Such evidence may not be considered by the undersigned as a basis for findings of fact. Assuming Ms. McMillion made an error in her employment verification as argued by Petitioner, the question remains whether Nono’s failed to properly disclose all its employees and E.L. was in fact an employee. The undersigned finds it unlikely, but possible, that E.L. presented erroneous employment history information. Another possibility is that the records for Nono’s did not accurately reflect all of its employees and, thus, such information was not put into CARES. Neither Nono Johnson nor E.L. testified at the hearing. Likewise, the record does not include any interview statement made by Nono Johnson or E.L. The only evidence presented by DCF to demonstrate that E.L. had a 90-day break in employment was the absence of records for Nono’s, a facility over which Respondent has no control. This evidence is not sufficient to meet the clear and convincing evidence burden in this matter. Ultimate Finding of Fact Based on the evidence presented at the hearing, the undersigned finds that there was no clear and convincing evidence to establish that E.L. had a 90-day break in employment. As a result, there is no clear and convincing evidence to establish that Respondent was required to obtain background re-screening for E.L. DCF’s burden in this case is to prove the facts alleged in the Administrative Complaint by clear and convincing evidence, and the credible admissible evidence did not meet that burden. 1 Because Nono Johnson did not testify during the final hearing, the portion of Ms. McMillion’s testimony concerning Nono’s verification of employment is uncorroborated hearsay that cannot support a finding of fact. See § 120.57(1)(c), Fla. Stat. (2020)(providing that “[h]earsay evidence may be used for the purpose
Conclusions For Petitioner: David Gregory Tucker, Esquire Department of Children and Families 5920 Arlington Expressway Jacksonville, Florida 32211 For Respondent: Jill Johnson, pro se A to Z Child Development Center 1049 East 8th Street Jacksonville, Florida 32206
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 dismissing the Administrative Complaint against Jill Johnson d/b/a A to Z Child Development Center. DONE AND ENTERED this 30th day of August, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2021. COPIES FURNISHED: Shevaun Harris, Secretary Department of Children and Families 2415 North Monroe Street, Suite 100 Tallahassee, Florida 32303 David Gregory Tucker, Esquire Department of Children and Families 5920 Arlington Expressway Jacksonville, Florida 32211 Javier Enriquez, General Counsel Department of Children and Families Office of the General Counsel 2415 North Monroe Street, Suite 100 Tallahassee, Florida 32303 Jill Johnson A to Z Child Development Center 1049 East 8th Street Jacksonville, Florida 32206 Danielle Thompson, Agency Clerk Department of Children and Families Office of the General Counsel 2415 North Monroe Street, Suite 100 Tallahassee, Florida 32303
