The Issue The issue is whether Petitioner's application for a license to operate a family day care home should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This licensure proceeding involves a request by Petitioner, Yolanda Cheesmon, for a license to operate a family day care home at 1012 Yates Avenue, Blountstown, Florida. On July 2, 1999, Respondent, Department of Children and Family Services (Department), denied the application on the grounds that Petitioner was "previously denied an application to operate a Licensed Day Care Home"; that she had begun "operating at a Day Care Home at 920 Thomas Avenue without being properly registered"; that she had operated for "an unknown period of time" without a telephone, "which is a requirement"; and that she had "requested to become a licensed home and provided [the Department] with false information and a forged letter." The denial of the application prompted Petitioner to request a hearing. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed family day care facility, a licensed family day care home, and a registered family day care center. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care center involves no Department inspections and only requires that the operator undergo background screening, complete a training course, and provide to the Department certain paperwork, including shot records of the children, in order to secure the registration. On August 19, 1998, Petitioner filed the necessary paperwork to operate a registered family day care center at 1012 Yates Avenue, Blountstown, Florida. She received a registration the same month. In its post-hearing submission, the Department represents that the registration was subsequently "terminated." As noted above, a registered home is the least restrictive type of day care facility, and it only required that Petitioner file an application with the Department, undergo background screening, and provide the Department with certain paperwork. Petitioner was, however, required to conform with certain Department "standards," one of which required that she have a working telephone on the premises of the facility, so that Department personnel could always contact her, if necessary. Whether this requirement is based upon a rule or an informal regulation was not disclosed. In September 1998, a Department licensing counselor, Michelle Barsanti (Barsanti), attempted to contact Petitioner by telephone and learned that the telephone had been disconnected, which violated the unidentified Department requirement. Barsanti then sent a registered letter to Petitioner on October 7, 1998, advising that Petitioner must provide a telephone number. By letter dated October 12, 1998, Petitioner advised Barsanti that after she had received her registration from the Department, she had moved the day care center to 920 Thomas Avenue, Blountstown, Florida, and that she had a new telephone number. This move was made because Petitioner says the Yates property "wasn't properly fixed up and all to pass for the inspection." However, an operator must re-register each time the facility is moved; by operating at the new location without a valid registration, Petitioner contravened a statute which prohibits any person from operating a registered family day care center without a registration. It is fair to infer from the evidence that Petitioner was unaware of this requirement and that the violation was unintentional. On October 23, 1998, Barsanti met with Petitioner to assist her in obtaining a registration for the new location. During that meeting, Barsanti learned that Petitioner now desired to operate a licensed, as opposed to a registered, family day care home at her new address, and that Petitioner leased the property from Judy A. Davis (Davis), an absentee landlord who resided in Riviera Beach, Florida. At some point during this process, Petitioner was also advised that she must close her day care center at 920 Thomas Avenue until she obtained the appropriate license. Rule 65C-20.009(1)(a), Florida Administrative Code, provides that if the operator leases the property on which the facility will be located, "[w]ritten approval from the owner of the property must be secured prior to issuance of the license." Accordingly, Petitioner was required to comply with this requirement since she intended to lease the Davis property. In response to the foregoing requirement, Petitioner provided Barsanti with a letter dated October 7, 1998, purportedly written by Davis, and which stated that Davis "[gave] Yolanda Cheesmon permission to operate a Daycare at my appointed residence." Shortly thereafter, Barsanti received an anonymous letter which caused her to question the authenticity of the Davis letter. After Barsanti contacted Petitioner and requested the address and telephone number of Petitioner's landlord, on October 29, 1998, Petitioner sent Barsanti a letter stating in part as follows: I regret to have to tell you that I lied about the letter. I'm very sorry but I was desperate to go ahead without any delay to be licensed so that I can get the insurance policy that my landlord needs. . . . Please forgive me and I hope this doesn't affect my case in any way. And again, I'm very sorry that I thought I had to lie to you. The foregoing admission confirms the Department's allegation that Petitioner provided the Department "with false information and a forged letter," as charged in the letter of denial. Notwithstanding the foregoing admission, Petitioner pursued her application for a license at the Davis property. The application was preliminarily denied on the ground that Petitioner had provided the Department with a forged document. Petitioner requested a formal hearing, and the matter was assigned Case No. 98-5593. After a formal hearing was conducted on April 22, 1999, Administrative Law Judge Steven F. Dean issued a Recommended Order on June 14, 1999, in which he recommended that Petitioner's application be denied, not on the ground that she had made a false statement as alleged by the Department, but rather because the application was moot by virtue of "the passage of time" since Petitioner had by then moved back to her former residence at 1012 Yates Avenue and desired to operate her facility from that location. In addition, at the conclusion of the evidentiary hearing, Judge Dean advised Petitioner to file a new application for licensure using her most current address. Based on that advice, Petitioner filed the instant application. As noted in Finding of Fact 1, the Department has preliminarily denied the second application on numerous grounds. In a Final Order Reversing Recommended Order and Denying Application for Licensure filed on December 27, 1999, the Department rejected the conclusion that the application was moot and instead denied the application on the ground that Petitioner had failed to "meet all of the Department's requirements for licensure." Therefore, Petitioner has had a prior application denied, as alleged in the Department's letter denying her application. In summary, the foregoing facts establish the Department's contentions that Petitioner operated for a short period of time as a family day care home without an appropriate registration; that she operated without a telephone on the registered premises; that she gave false information to the Department when attempting to secure a license; and that she has had a prior application for licensure denied. At the hearing, Petitioner again apologized for filing a forged document; stated it was based on "bad judgment"; argued that the forged document alone is not a sufficient basis to disqualify her from licensure;, and established that she sincerely desires to engage in the day care business. Petitioner has requested that if the license is denied, that she be allowed to retain her registration previously issued in August 1998.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's application for a license to operate a family day care center at 1012 Yates Avenue, Blountstown, Florida. DONE AND ENTERED this 26th day of January, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2000. COPIES FURNISHED: Virginia Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 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 Yolanda Cheesmon 1012A Yates Avenue Blountstown, Florida 32424 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, No. 252-A Tallahassee, Florida 32399-2949
The Issue The issues are whether Respondent made false reports to the Florida Abuse Hotline in violation of section 39.206, Florida Statutes1/; and, if so, what is the appropriate penalty.
Findings Of Fact The Department is the State agency responsible for managing the Florida abuse hotline and investigating allegations of abuse, abandonment, and neglect of children. Respondent is the biological mother of E.W., a minor child. Respondent called the Florida abuse hotline on August 14, 2014, and reported that the father of E.W., Derwin Worley, was physically abusing E.W. and exposing her to drunken behaviors. In response to the call, the Department generated Intake Report number 2014-213532-01 (First Case), which contains the following allegation narrative: The father spanks [E.W.] and leaves bruises. The father closes and locks the door when he spanks [E.W.]. The father may be using his hand or whatever he can pick up when he spanks [E.W.]. Two days ago, four bruises were observed on [E.W.’s] butt that were caused by the father. The bruises were red. [E.W.] also has bruises on her legs that were explained to have been caused by tubing down the river. It is not believed that the injuries match the explanation. The bruises are small and greenish. [E.W.] also has a bruise under her eye that goes from one side to the other. It was explained that the bruise was from a mosquito bite. The explanation does not match the injuries. The father drank Saturday or Sunday night and law enforcement had to be called to the home. When [E.W.] pees in her diaper, the father lets her sit around in the diaper. It is unknown how long she had been in the diaper. The father curses around [E.W.]. [E.W.] curses because the father curses around her. The mother was allowing the father to babysit more and more, because she doesn’t trust babysitters. The father will not give [E.W.] back to the mother. He has kept [E.W.] from her for one night. The mother has full custody. The mother was trying to move in with he[r] grandmother. The father does not work. He gets disability income. The mother does not believe in spanking a child of [E.W.’s] age. Investigation of the First Case was assigned to Department Child Protective Investigator Sheila Ferguson. During her investigation, Investigator Ferguson found that there had been ongoing custody disputes over E.W. between Respondent and Mr. Worley, and that there were apparently times that Respondent needed assistance in getting E.W. back from Mr. Worley. According to Investigator Ferguson, custody was Respondent’s primary motivation for making the allegations against Mr. Worley. Investigator Ferguson testified that, during her investigation in August of 2014, although Respondent claimed that she had photos of E.W.’s bruises, including injuries to E.W.’s eye and buttocks, Respondent delayed for over two months in providing any photographs, and when she did, Respondent only provided photos of E.W.’s legs. According to Investigator Ferguson, the photos only showed bruises on E.W.’s legs and shins, which are common childhood injuries and not indicative of abuse. At the time of the August 2014 allegations, Respondent and E.W. were living in the home of Mr. Worley and Loretta Worley, his wife, who was E.W.’s stepmother. Investigator Ferguson said that when she questioned Respondent about the delay in showing the photos, Respondent explained that she delayed because she was afraid that the Worleys would put her out of their home. Investigator Ferguson felt that Respondent’s explanation of delay did not make any sense. Inspector Ferguson reported that she examined the child for marks and bruises and fully investigated the home and care given to E.W. by the Worleys and found no reason to question the child’s safety. According to Inspector Ferguson, she observed a very loving and appropriate relationship between Mr. Worley and E.W. Because of purported lack of evidence to support Respondent’s allegations, and a belief that Respondent did not produce clear facts or timelines and was motivated by a custody dispute, Inspector Ferguson felt that the First Case was a false report. Inspector Ferguson’s supervisor, Holly Cummings, agreed. However, because the First Case was the first report called in by Respondent, Inspector Ferguson only warned Respondent against making false reports and closed the case as “No Indicators.” According to the Department’s internal operating procedures manual, “no indicators” means there was no evidence to support the allegations.2/ On August 27, 2015, Respondent was involved in another call made to the hotline regarding Mr. Worley and E.W. The second report was assigned Intake Report number 2015-229587-01 (Second Case). The reporter who made the call in the Second Case identified herself as Respondent’s friend and asked that the case not to be assigned to Inspector Ferguson. Respondent was in the background during the call at the location where the call originated. The allegation narrative in the intake report from the Second Case states: The father is an alcoholic. The father drinks alcohol to the point of intoxication every day. When the father drinks, he becomes aggressive and belligerent. Law enforcement has been called out to the home several times. When the father drinks he slurs his words and can barely talk on the phone. There are pictures of finger prints on the legs of [E.W.]. The pictures also depict a hand print to the inside thigh of [E.W.]. The pictures were taken about a month ago. It is unknown how the injuries were sustained. There are pictures of [E.W.] being held by her uncle. The uncle is a registered sex offender. There are no indications that the uncle has ever been left alone with [E.W.] or has been sexually abused by him. The mother and father do not get along. The mother temporarily signed over custody to the father but now the father refuses to allow the mother to have custody of [E.W.]. The mother is taking the father to court on 09-30-2015. The Second Case was also investigated by Inspector Ferguson, who once again found that the evidence did not support the allegations. In addition, the Second Case was assigned to the Child Protection Team, a subcontractor of the Gulf Coast Children’s Advocacy Center affiliated with the Florida Department of Health’s Children’s Medical Centers. The Child Protection Team is a separate entity from the Department and its employees are independent from Department personnel. Inspector Ferguson again suspected false reporting because custody was still at issue and Inspector Ferguson did not believe that Respondent produced evidence to support the allegations. However, as in the First Case, instead of concluding that the report was false, the Second Case was also closed with a conclusion of “No Indicators.” On January 19, 2017, Respondent made another call to the Florida abuse hotline and reported that Mr. Worley had sexually abused E.W. The intake report from that call was assigned Intake Report Number 2017-018546-01 (Third Case). The allegation narrative in the Intake Report from the Third Case states: The father has been touching [E.W.’s] vagina and buttocks when she gets up in the morning and while she is asleep. When [E.W.] takes a bath she cries. [E.W.] has been playing with herself. It was reported that [E.W.] learned this behavior from her father. [E.W.] does not feel safe in the father’s home. Three weeks ago, [E.W.] fell and hit a bed or dresser after jumping up and down on a mattress. She sustained a bruise on her head. The bruise looks like a handprint. She was taken to an emergency room. She had bruises on her body in the past. The father has back and heart problems. An additional, related call came into the hotline on February 12, 2017, and was assigned Intake Report number 2017- 044728-01 (Fourth Case). The allegation narrative from the Fourth Case’s Intake Report states: The father has been sexually abusing [E.W.]. The father touches her private area while she sleeps. [E.W.] has been scratches [sic] her private area a lot lately, it is believed this is from the father sexually abusing her. [E.W.]’s private area are [sic] red. The mother is aware the father sexually abusing [E.W.] and is allowing her to go back to the father’s house today, 02/12/2017. The Fourth Case was based on the same allegations as the Third Case, but was reported by a Jackson County Sheriff’s Office deputy after the Sheriff’s office had received notice of Respondent’s allegations of sexual abuse against Mr. Worley. Law enforcement officials are mandatory reporters.3/ The Fourth Case was eventually closed because the Third Case, based on the same allegations, was already opened. Investigation of the Third Case was assigned to Department Child Protective Investigator Daniel Henry. Given the nature of the allegations, Investigator Henry responded “immediately,” which, according to the Department’s protocol, requires investigation within four hours. Investigator Henry arrived at Mr. Worley’s home to investigate the allegations within four hours of the call, and, based upon his meeting with Mr. Worley and E.W., Investigator Henry concluded that E.W. was not in danger. According to Investigator Henry, interactions between E.W. and her father were very “comfortable and free” and the child did not seem afraid of her father in the least. Allegations of sexual abuse, especially when made against a parent, are considered severe in nature and taken very seriously by the Department. Because of this, the Department once again referred E.W. to the Child Protection Team for a “forensic interview.” Angela Griffin with the Child Protection Team conducted the forensic interview of E.W. According to Ms. Griffin, a forensic interview is “a legally-sound interview, non-leading.” From the interview, Ms. Griffin concluded that E.W. had not been abused by Mr. Worley. Ms. Griffin testified that she found E.W. to be very forthcoming and truthful with no hesitation in her statements. She recalled asking E.W. about anyone touching her inappropriately and no disclosures were made. Ms. Griffin reported that she saw no evidence of sexual abuse of E.W. According to Ms. Griffin, after observing E.W. with Mr. Worley, she had no concerns. She reported that E.W. and Mr. Worley appeared to be bonded with a loving and appropriate father-daughter relationship. Ms. Griffin’s interview with E.W. was recorded and offered into evidence at the hearing. Although the recording was delivered to the undersigned at the hearing, ruling on the evidentiary value of that recording was reserved. After the hearing, the undersigned reviewed the recorded interview. Based upon that review, and considering the context and manner in which the recording was offered into evidence, it is found that the recording is non-corroborative hearsay4/ that does not support a finding that Respondent made false accusations or a false report against Mr. Worley.5/ E.W.’s kindergarten teacher, Amy Glass, who has had daily contact with E.W. in her kindergarten class, is of the opinion that E.W. is a well-cared for child and is not concerned that E.W. has been abused. She described E.W.’s father and stepmother as loving and appropriate caregivers. Ms. Glass believes that E.W. is the type of child that would tell her if she was being abused. According to Ms. Glass, E.W. has never told her that she has been abused by her father or stepmother. While Ms. Glass further testified about statements made by E.W. concerning Respondent, those statements, and any other statements attributed to E.W., are hearsay and were not considered. E.W.’s stepmother, Loretta Worley, also testified. Ms. Worley’s testimony confirmed that there have been ongoing disputes between Respondent and Mr. Worley regarding custody of E.W. Ms. Worley testified that she and Mr. Worley provide a loving home for E.W., where E.W. is well cared for. She said that neither she nor Mr. Worley spank E.W. Ms. Worley also testified that Respondent’s accusations against Mr. Worley were false and motivated by Respondent’s desire to gain custody of E.W. Ms. Worley further testified that Respondent has been ordered to pay child support to Mr. Worley for E.W., and that Respondent is over $4,000 behind in those payments. Respondent confirmed that she is behind on child support payments. On the other hand, Ms. Worley’s testimony provided support for Respondent’s allegations regarding Mr. Worley’s drinking. Ms. Worley confirmed that law enforcement has been called to their home on a number of occasions, both before and after 2014. Ms. Worley testified that law enforcement had been called a couple of times while Respondent was living with them for six to eight months in 2014, when Mr. Worley would get angry with Respondent while he and Respondent were bickering back and forth. Ms. Worley also testified that law enforcement had been called “three or four times, maybe” since 2014, because of Mr. Worley’s drunkenness. According to Ms. Worley: Yeah. I mean, I’m not for sure how many - - but I know it ain’t been like she’s claiming; that they’re out there every single day. Her daddy does not drink every single day. Ms. Worley’s testimony regarding Mr. Worley’s drunkenness is credited and inconsistent to departmental investigative findings of “no indicators” in the first two cases. Ms. Worley also offered testimony about things that E.W. allegedly told her that Respondent had said. That evidence, however, was not considered because it is hearsay, is not corroborative of other non-hearsay evidence, and is not otherwise reliable. Notably, while it is found that the video recording of Ms. Griffin’s interview of E.W. offered by the Department is non-corroborative hearsay as to the Department’s case, the video provides statements from E.W. that are contrary to Ms. Worley’s assertion that Mr. Worley does not spank E.W. When asked whether she gets along with everybody in the house, E.W. stated during the recorded interview, “Daddy get me in trouble.” When asked what happens when she gets in trouble, E.W. replied, “He pop my butt.” When asked what her daddy pops her butt with, E.W. responded, “With his hand.” When asked does something happen to her butt when he pops her with his hand, E.W. stated, “When I be bad, he pops me.” When further asked whether something happens to her butt when he pops her, E.W. shook her head from side to side, and Ms. Griffin stated, “No?” in confirmation of E.W.’s head gesture. When asked if something else happens when he pops her, E.W. changed the subject. Aside from being hearsay that should not be considered because it does not corroborate any competent evidence, even if the video of E.W.’s “forensic interview” is taken into account, it does not support a finding that Respondent’s reports were false, and does not disprove Respondent’s allegation that Mr. Worley was sexually abusing E.W. Contrary to the Department’s findings of “no indicators,” the evidence adduced at the hearing provided support for Respondent’s allegations regarding Mr. Worley’s drinking behavior, as well as for alleged bruises and E.W’s contact with a sex offender while in Mr. Worley’s custody. In addition, although the Department made an issue of the timing of Respondent’s presentation of photographic evidence in support of her allegations, Respondent provided photographs of bruises to E.W.’s legs and a photograph of Mr. Worley’s brother, a convicted sex offender, holding E.W. These photos were presented by Respondent to the Department prior to the hearing, as well as at the hearing. In fact, during the time period of one of Inspector Ferguson’s investigations, Respondent went to the Department’s local office and attempted to present the photographs, but Department personnel involved in the investigation were too busy to see her. Respondent also presented a compact disk that purportedly has a recording of E.W. making statements about sexual abuse by her father. That recording, however, is unintelligible and is otherwise non-corroborative hearsay. The facts that Respondent and Mr. Worley were having ongoing custody disputes and that Respondent was behind on child support payments raise suspicions about Respondent’s motive in calling in the reports. Those suspicions, however, are not more persuasive than the evidence supporting the first two calls to the hotline. The Department’s failure to acknowledge that evidence in its investigations, instead finding “no indicators,” undermines the Department’s preliminary determinations and the reliability of its case against Respondent. And, while the evidence does not prove that E.W. was subjected to sexual abuse, the Department’s submissions were insufficient to support a finding that E.W. was not sexually abused. In sum, the Department did not prove that Respondent called in false reports to the hotline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 2nd day of February, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2018.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's child care license should be renewed based upon a purported violation of rules contained in Florida Administrative Code Chapter 65C-20, concerning adequate supervision of children left in the Petitioner's care and custody.
Findings Of Fact The Petitioner, Clara Fail, is the operator of a licensed child care home or facility. The Respondent is an agency of the State of Florida charged with licensure and regulation of the operation of child care facilities in accordance with Florida Administrative Code Rule Chapter 65C-20. By its letter of July 7, 2004, the Respondent Agency advised the Petitioner that her application to renew her license to operate a child care facility was denied based upon failure to adequately supervise a child left in her care. In essence, it is charged that the Petitioner failed to supervise a minor child left in her care by failing to safely maintain the child at the Petitioner's home, the licensed facility. On or about April 9, 2004, Heidi Stalice who lives in the neighborhood of the Petitioner's daycare facility located a nine year-old child wondering on her street. The nine-year-old identified himself and was unsure where he lived, upon inquiry from Ms. Stalice. Ms. Stalice took the child to her nearby residence and kept him safe with her own son, who is approximately the same age. Mr. Stalice attempted to locate the child's address by driving him around the neighborhood without success. She then contacted the Marion County Sheriff's Office and Deputy Shively. Deputy Shively went to Ms. Stalice's residence and also contacted the foster care personnel of the Department. He was advised by them that the child's foster mother was Patti Green. The employees at the foster care office made contact with Ms. Green who advised them that the child was supposed to be at the Petitioner's house at 5501 Southeast 29th Court, his "babysitter." Deputy Shively made contact with the Petitioner Clara Fail, by phone who advised him that this was the first day she had kept the child who was a foster child of Ms. Green and had been placed in foster care with her the day before. Ms. Fail advised Deputy Shively that the child had walked away from her residence earlier that morning at approximately 11:00 a.m., and had returned a short time later and ate lunch. Ms. Fail advised Deputy Shively that the child again left the residence on foot at approximately 2:00 p.m., at which time she stated that she called the foster mother Ms. Green, at work, but did not get a response. Investigator Blystone spoke with Deputy Shively by phone and advised the deputy that the foster mother, Patti Green, was going to Ms. Stalice's residence and that he was to relinquish custody of the child to Ms. Green, his foster mother with the understanding that the child was not to be taken back to Ms. Fail's residence until an investigation by DCF could be completed. Ms. Michaeline Cone is a family services counselor. She and her supervisor Diana McKenzie, who is a family services counselor supervisor both went to Ms. Fail's home to investigate this matter. Ms. Fail acknowledged the incident and told Ms. Cone that the child had wandered away twice and she had been unable to keep him in the fenced area that day. Ms. McKenzie established that children playing in the fenced yard area at Ms. Fail's home could not be in Ms. Fail's view at all times if Ms. Fail was inside the house, and that therefore to that extent they were sometimes unsupervised. Upon Ms. Cone's June 2, 2004, visit she had asked Ms. Fail if the three dogs she saw present in her yard had been vaccinated. Ms. Fail replied that she did not own any of the animals and that they belonged to neighbors. Ms. Cone requested that the dogs be removed from the property and that the gates be secured so that the animals could not return to the property. On June 15, 2004, when Ms. McKenzie and Ms. Cone again made an inspection of the Fail home, Ms. McKenzie observed Ms. Fail taking the three dogs from the front of the yard to the rear yard. When asked about the dogs during that visit Ms. Fail once again stated that the dogs did not belong to her. Ms. McKenzie again reminded her to remove the dogs from the premises.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services imposing an administrative fine in the amount of $500.00 and imposing the requirement of a provisional licensure not to exceed six months duration after which licensure shall be again reviewed by the Department, and during which six month period at least monthly inspections for the safety and proper operation of the facility shall be conducted. DONE AND ENTERED this 6th day of April, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 6th day of April, 2005. COPIES FURNISHED: Joe Garwood, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Clara Fail 5501 Southeast 29th Court Ocala, Florida 34480 T. Shane Deboard, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785
The Issue Whether Respondent, a day-care center, committed the violations alleged in the Administrative Complaint, and if so, the penalties Petitioner should impose against Respondent.
Findings Of Fact Petitioner is the regulatory authority responsible for licensure and enforcement of day-care centers in Florida. Respondent is a day-care center in Miami, Florida, and currently holds child care license C11MD0340. Respondent has operated as a day-care center since April 19, 1990. At the time of the formal hearing, Kevin Lennon was the owner and operator of Respondent. S.B. and L.B. are young sisters who stayed at Respondent’s day-care center in July 2014. On July 9, 2014, one of Respondent’s employees gave S.B. and L.B. a small cup of Cheez-Its as a snack. Mr. Lennon was present when the two girls were sharing the cup of Cheez-Its. After S.B., who is the older and bigger child, finished her share of the Cheez-Its, S.B. began to hit her sister to take her sister’s share of the Cheez-Its. Mr. Lennon separated the two girls and permitted L.B. to eat her share of the Cheez-Its. Mr. Lennon testified, credibly, that he did not take the Cheez-Its from S.B. to punish S.B. Petitioner offered no competent, credible evidence to refute Mr. Lennon’s testimony. On March 25, 2014, Petitioner received from Respondent an “Application for a License to Operate a Child Care Facility” (the application). Mr. Lennon completed the application on behalf of Respondent. The application contained an attestation section that required Mr. Lennon’s signature to be notarized. On March 25, 2014, Petitioner received an attestation section (first attestation section) signed by Kevin Lennon on February 28, 2014. The first attestation section contains Ivanne Albarran’s notary seal and a signature dated February 28, 2014. Mr. Lennon testified, credibly, that he signed the first attestation section as Kevin Lennon. Mr. Albarran testified, credibly, that he signed the first attestation section as the notary public. Petitioner offered insufficient evidence to refute that testimony. The application package contains a second attestation section that was received by Petitioner on March 28, 2014. The second attestation section contains Mr. Lennon’s signature and a date of March 26, 2014. The second attestation section contains Mr. Albarran’s notary seal and a signature dated March 28, 2014. Mr. Lennon testified, credibly, that he signed the second attestation section as “Kevin Lennon.” Mr. Albarran testified, credibly, that he signed the second attestation section as the notary public. Petitioner offered no competent, credible evidence to refute that testimony.
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. DONE AND ENTERED this 9th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 9th day of January, 2015. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street, Suite 210 Miami, Florida 33156 (eServed) Karen A. Milia, Esquire Department of Children and Families 401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128 (eServed) Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399 (eServed) Rebecca Kapusta, Interim General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
