The Issue At issue in this case is whether Petitioner's application to register as a family day care home should be granted.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: This case involves Petitioner's application to operate a registered family child care home. Petitioner had been registered as a family child care home from April 1989 to June 1992 and again from February 1995 to August 1998. The Department received Petitioner's most recent application on September 6, 2000. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed child care facility, a licensed family child care home, and a registered family child care home. Sections 402.305 and 402.313, Florida Statutes. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care center involves no Department inspections and only requires that the operator complete a training course and provide to the Department certain paperwork and that the operator and other household members undergo background screening. The operator of a registered family day care home may care for no more than five preschool children from more than one unrelated family. Subsection 402.302(7), Florida Statutes. The application requires disclosure of "other family/household members." Petitioner's application identified David Barcelona as a household member and stated that his family relationship was "friend (roommate)." During her previous periods of registration, Petitioner had been the subject of numerous complaints to the Department. In May 1989, the Department notified Petitioner that she had been found to be caring for more than five preschool children. Petitioner acknowledged that she was operating above capacity, but assured the Department that the situation would be rectified by June 1, 1989. Nonetheless, complaints regarding the number of children at Petitioner's home persisted through at least June 1991. The Department also received several complaints concerning drug use in Petitioner's home. In September 1995, a complaint alleged that Petitioner and several other adults were seen smoking marijuana in the home. A complaint filed by a parent in February 1996 stated that the parent could smell marijuana on his children when he picked them up from Petitioner's home. A complaint from November 1996 stated that Petitioner was seen smoking marijuana in the presence of the children in her care. In each instance, the Department wrote a letter to Petitioner. The Department's letter of February 26, 1996, is representative and is quoted in relevant part: As a registered family day care home, you are not statutorily required to meet all the child care standards established in [then] Rule 10M-12 or 10M-10 of the Florida Administrative Code. In addition, Chapter 402.302-313 of the Florida Statutes does not provide the department with any statutory authority to regulate complaints of this nature within registered family day care homes. However, in the interest of safety and proper child care, we wanted to bring the complaint to your attention so that you might correct the issues as appropriate. Providing care for any child is very important. It is our hope that you are not engaging in any illegal or inappropriate activities which [sic] operating your child care business. During the Department's investigations of these complaints, Petitioner consistently denied that she used any illegal drugs. On August 10, 1998, the Department received a complaint that an unsupervised child was seen outside in the rain at Petitioner's house. On the same date, the Department received another complaint regarding Petitioner's live-in boyfriend, David Barcellona, and whether his presence rendered her home an unsafe environment for children. The complaint stated that Mr. Barcellona had not undergone background screening and had admitted to hitting one of Petitioner's own children. The complaint also stated that children reported witnessing Petitioner's use of marijuana and crack cocaine in the home. These complaints were resolved when Petitioner ceased providing child care. She sold her house and voluntarily relinquished her registration. A child protective services investigation was also commenced on August 10, 1998, by investigator Daniel McLean. His investigation confirmed that Mr. Barcellona had hit Petitioner's ten-year-old son "upside the head with an open hand" because the boy had called him a "faggot." Petitioner had given Mr. Barcellona permission to physically discipline her children. The children expressed a fear of living in the home with Mr. Barcellona. No observable injuries were found on either Petitioner's son or her eight-year-old daughter. Mr. McLean testified that Petitioner told him at least twice that she had smoked marijuana for 15 years. Mr. McLean attempted several times to obtain a drug screen from Petitioner without success. At length, Mr. McLean informed Petitioner that the Department would begin legal proceedings if Petitioner did not voluntarily surrender custody of her children to their natural father. On August 13, 1998, Petitioner signed the papers giving custody of the children to their natural father. She testified that "I picked the drugs over my children at that time." The evidence admitted at hearing established that, despite her denials, Petitioner had been a long-time user of marijuana. By her own admission, Petitioner was addicted to crack cocaine for a period of at least three months in 1998. Petitioner's sister, Lisa Lucius, estimated Petitioner's crack usage lasted for six months. Mr. McLean testified that Petitioner told him she had been using crack for seven months. At some point in 1999, Petitioner shoplifted a pair of tennis shoes, was arrested, and placed on one year's probation for petit theft. Her probation was conditioned upon her entering a 28-day live-in drug rehabilitation and counseling program at the Ruth Cooper Center in Fort Myers. Petitioner successfully completed this program. Another condition of her probation was her attendance twice weekly at Alcoholics Anonymous meetings. She complied with this condition. Finally, Petitioner's probation was conditioned upon providing random urinalysis drug tests. She complied with this condition, and her tests were all drug free. Petitioner testified that she has been drug free since completing the program at the Ruth Cooper Center. Since the conclusion of her probation in 2000, she has discontinued attendance at Alcoholics Anonymous or Narcotics Anonymous meetings. She testified that she no longer has a drug problem. In the registration application at issue in this proceeding, Petitioner listed David Barcellona as a family/household member. Both Petitioner and Mr. Barcellona were required to undergo Level 2 background screening as set forth in Subsection 435.04(1), Florida Statutes. Petitioner successfully passed the background screening and was so notified by a letter from the Department dated October 24, 2000. The letter informed Petitioner that she had passed the screening, but expressly cautioned: "Receipt of this letter does not automatically qualify you for the employment, specific position or license you may be seeking. That determination will be made [by] either an employer or licensing department." The background screening disclosed potentially disqualifying offenses for David Barcellona. As of November 6, 2000, the Department had sent Mr. Barcellona a letter offering him the opportunity to provide documentation as to the disposition of those offenses, but Mr. Barcellona had not responded. On October 31, 2000, Petitioner phoned Sarah Jarabek of the Department to inquire as to the status of her application. Ms. Jarabek told Petitioner that the Department had concerns about her history of substance abuse and about the presence of Mr. Barcellona in the home. They made an appointment to meet in Ms. Jarabek's office on November 6, 2000. On November 6, 2000, Petitioner and Ms. Lucius met with Ms. Jarabek, Nancy Starr, and Patricia Richardson of the Department. Petitioner provided evidence of the drug abuse treatment she had received while on probation. She also produced documentation that she had completed the required 30- hour Family Child Care Training Course, documentation of her church attendance and completion of a single parenting program at her church, and documentation that she had taken a technical training course for legal secretaries. Ms. Jarabek testified that she accepted all of Petitioner's representations at the meeting regarding her treatment and other matters, but that concerns remained because of Petitioner's history of denying her drug use and because the lonely, pressure-filled business of family day care might prove a poor rehabilitative environment. Ms. Starr testified that she believed more time should pass for Petitioner to demonstrate that she was not subject to a relapse. Petitioner had only been off probation since March 2000, and had yet to demonstrate her stability when her activities were not being constantly monitored. Ms. Starr was also concerned because Petitioner was not currently involved in any organized program to maintain her recovery and because Petitioner had denied using drugs when the complaints were filed in 1996 through 1998. At the November 6 meeting, the Department's representatives also raised the question of Mr. Barcellona's continued presence in the house. Petitioner told them that she had broken up with Mr. Barcellona and ejected him from her house, because she thought he was smoking crack cocaine. She told them that Mr. Barcellona had continued to harass her. He would bang on her door late at night, screaming, "I love you." He would spray his cologne outside her house, to "leave his scent." Petitioner and her children were "terrified" of him, and Petitioner was in the process of obtaining a restraining order against him. Ms. Jarabek believed Petitioner's statement that Mr. Barcellona was no longer living in the house, but remained concerned for the safety of children who would be staying at Petitioner's home, given Mr. Barcellona's erratic behavior. By letter dated November 14, 2000, David Barcellona was notified that he was ineligible for a position subject to background screening. Mr. Barcellona had not responded to the prior agency letter offering him the opportunity to provide documentation regarding the disposition of the disqualifying offenses. As the applicant for registration, Petitioner received a copy of the letter to Mr. Barcellona. By letter dated December 1, 2000, the Department notified Petitioner that her application to operate a registered family child care home had been denied. The letter cited the following as grounds for the denial: the history of at least 13 complaints regarding the operation of the home during Petitioner's previous registration periods, including six complaints related to Petitioner's use of marijuana and/or cocaine in the presence of her own or other people's children; the unreported presence of Mr. Barcellona in the home during Petitioner's previous registration periods; and the lack of sufficient time and evidence to demonstrate that Petitioner was capable of providing a safe and healthy environment for children in her care. Petitioner contended that the Department waived its ability to hold her prior complaints against her now because it repeatedly allowed her to re-register during the relevant years despite those complaints. Ms. Jarabek testified that this apparent anomaly was due to a change in Department policy since Petitioner was last registered. The Department previously took the position that it was required to ignore drug usage in a registered family day care home, because Section 402.313, Florida Statutes, did not expressly provide authority to deny or revoke a registration on that ground. Ms. Jarabek testified that the Department's current interpretation of its statutory authority to supervise the provision of child care permits it to consider drug usage in the home. The December 1 letter took note of the "positive changes" in Petitioner's life, but also noted that these changes were too recent to overcome the concerns about Petitioner's past behavior and future stability.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for registration of her family day care home. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2001. COPIES FURNISHED: Richard D. Lakeman, Esquire Law Office of Richard D. Lakeman, P.A. Post Office Box 101580 Cape Coral, Florida 33910 Eugenie G. Rehak, Esquire Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondents violated provisions of Chapter 402, Florida Statutes,1 and Florida Administrative Code Chapter 65C-20, and, if so, what penalty should be imposed.
Findings Of Fact Respondent Traceann Handy owns and operates Traceann Handy Family Day Care Home, a child care facility licensed by the Department. On May 26, 2009, the facility had been inspected by the Department and found to be in compliance with the rules of operation. Due to some missing documentation (CPR and first aid certificates), the facility was issued a Provisional License. As of the date the final hearing in this matter was concluded, the documentation had been submitted, and the facility had a valid license to operate.3 The Department is responsible for inspecting, licensing, and monitoring child care facilities such as the one operated by Handy. It is the Department's responsibility to ensure that all such facilities are safe and secure for the protection of children utilizing the facility. On Friday, June 5, 2009, the Department received a complaint concerning Handy's facility. The complaint alleged that two older children were asked to supervise a younger child without adult supervision and that transportation of the children had been provided without prior authorization. Based upon these complaints and in accordance with its rules, the Department commenced an investigation of the facility. Investigator Anderson (who was on call for the weekend) went to the facility the next day, Saturday, June 6, 2009. She knocked on the front door (although the entrance to the child care facility portion of the home was located on the side of the house). No one answered her knock, but a young man later came out of the house and advised Anderson that the facility was closed and that Handy was not home.4 Anderson called the investigator assigned to the case (Dayna Prevost) to report her findings. While Anderson was making the telephone call, the same young man came out to her car, banged on the car window and loudly repeated that Handy was not home. Anderson smelled an odor which she believed was marijuana while talking with the young man. (The young man was later identified as Handy's adult son, Trauquece Handy.) Anderson then left the premises. The investigation was recommenced on Monday, June 8, 2009. On that date, Investigators Wolbach and Prevost went to the Handy home and knocked on the side door of the home. When there was no answer to the knock, the investigators went to the front door and knocked. Again there was no answer, but they could hear what sounded like children inside the house. The investigators called Handy (who was not at home) and were told by Handy that she would have someone inside the house open the door. Despite the phone call and promise from Handy, no one opened the door, so the investigators called the police for assistance. When the police arrived, a man opened the front door, but the investigators were granted only limited access to the house. An adult female was seen inside the house, along with two small children. The female was questioned and said that she was a housekeeper and that the children inside the home at that time were her children. Upon receiving that information, the investigators again left the premises. On the next day, Tuesday, June 9, 2009, a team of investigators went back to the facility. This time Handy was present, and the team was allowed into the house. Handy's husband was also present at that time. While the team was inspecting the facility, Handy's son came into the house and went directly upstairs. The team reviewed Handy's records concerning attendance at the facility by various children. Handy was interviewed, and due to the previous suspicion of marijuana usage at the home, asked to provide a urine specimen for the purpose of conducting a drug screening test. (There was considerable discussion at final hearing as to how the urine specimen was taken, but that is not an issue in the present proceeding and will not be discussed further.) At one point during the investigative review at the home, a team member approached the inside stairwell and pushed open the gate located at the bottom of the stairs. The gate had been placed there by Handy in response to prior concerns by the Department about children having access to the upstairs portion of the house. The gate was apparently unlatched, although there were no children present at that time near the stairwell. (There was one child present in the home, but that child was in another part of the house.) As the investigator started up the stairs, Handy's husband said that Handy would likely not appreciate them going into her private quarters. As the investigator continued up the stairs, Handy came into the room and voiced her opposition to anyone going upstairs. Handy had been previously advised by the Department that if a gate was in place to keep children from going upstairs, it would be unnecessary for the Department to inspect that area during every regular inspection. It is unclear from the testimony whether Handy misunderstood the Department or whether the Department was only talking about its annual licensure inspection. No matter, Handy told the investigator that she did not want the investigator to go upstairs. The investigator took that remark as a direct order that she not go upstairs, so she did not do so. Instead, the Department sought injunctive relief in Circuit Court to gain access to the upstairs portion of the house. A hearing on the Department's motion was held the next day, Wednesday, June 10, 2009. Handy received notice of the hearing less than an hour before the hearing was scheduled to commence. She called the Circuit Court Judge's assistant to seek a continuance, but was told that the hearing must proceed. The court gave Handy the option of appearing via telephone, if she so desired. Handy wanted to attend the hearing in person, so she went to the courthouse. There was one child at the day care facility at that time. Handy could not find her approved substitute on such short notice, so she called the child's parent (who was Handy's cousin) and asked if it would be okay for Handy's husband to watch the child while Handy attended the hearing. The parent approved that arrangement. The Circuit Court entered an Order requiring Handy to allow the Department "a one[-]time inspection . . . of the private part of [the] home." Based upon that Order, the Department sent a team of investigators back to the facility on June 10, 2009, to complete its inspection. Upon completion of its investigation, the Department issued the Administrative Complaint relevant to this proceeding. The Administrative Complaint addresses two alleged violations by Handy: First, that Handy refused to allow the Department access to the entire home during the inspection. Second, that Handy allowed a person who was not currently screened to supervise a child in her care. An administrative fine of five hundred dollars ($500.00) was proposed for each of the two violations.5 Handy does not believe she instructed the investigator not to go upstairs during the June 9, 2009, inspection. She remembers only telling them she did not want them to go upstairs, that it was unnecessary, and that her understanding from prior discussions was that the upstairs would not be inspected. The investigator believes she was specifically and forcefully told not to go up the stairs. In either case, it is clear a court order was obtained to gain access. (At the hearing in Circuit Court, Handy had reiterated that she did not want the investigators to go upstairs.) The gate in question was put in place to prevent children from having access to the upstairs portion of the house. However, the gate was either broken or unlatched (the testimony on this issue is not clear) when there was a child present in the house. Handy's husband did not have a valid background screening in place on June 10, 2009, that would allow him to act as a provider of child care services in the facility. He had been previously screened, but had not had his background screening updated when it expired in June 2008. He had not been re-screened because he and Handy were separated, and he did not intend to be at her house to supervise children any longer. The two are still married, but he only visits the house to do maintenance and repairs as needed. It is clear that Handy's husband was watching the child only due to the exigent circumstances surrounding the court hearing and the unavailability of Handy's approved substitute. Further, the child's parent was made aware of the fact and had acquiesced to this arrangement. Nonetheless, Handy's husband was not technically qualified to watch children attending the child care center at that time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services imposing an administrative fine of $200 against Respondent, Traceann Handy. It is further RECOMMENDED that Handy be ordered to attend remedial classes on the operation and management of a child care facility. DONE AND ENTERED this 13th day of January, 2010, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2010.
The Issue The issue in this matter is whether the Department of Children and Families should impose an administrative fine on Respondent.
Findings Of Fact The Department is the state agency charged with regulating licensed or registered child care facilities in Florida. Respondent is licensed to operate a child care facility in Lakeland, Florida. The Department seeks to sanction Respondent based on an incident that occurred on November 2, 2015. The Department’s Administrative Complaint specifically alleges that: The facility driver, Antuan Bunkley was looking at his phone while transporting children in the facility’s vehicle. Two witnesses observed Antuan Bunkley texting and/or scrolling while driving. The witnesses observed a phone in Antuan’s hands and him looking down several times while driving with children in the van. Several children on the van told the Department that Antuan text [sic] while he drives, plays games on his phone, and receives calls while driving. The Department asserts that Mr. Bunkley must “be able to respond to the needs of the children” and “be alert and avoid any and all distractions in order to effectively respond to those needs.” The Department categorized Respondent’s (i.e., Mr. Bunkley’s) actions as a Class I violation of a child care licensing standard. The Department desires to fine Respondent in the amount of $250 because Mr. Bunkley’s “inadequate supervision posed an imminent threat to the child, or could or did result in death or serious harm to the health, safety or well-being of a child.” The Department issued the Administrative Complaint following a complaint received from Shana Nicholes, who had observed Mr. Bunkley driving Respondent’s van. At the final hearing, Ms. Nicholes testified that on November 2, 2015, at approximately 3:30 p.m., she was driving her sports utility vehicle on Highway 98 North in Lakeland. Her brother was riding with her in the passenger seat. As she drove, her brother called her attention to Respondent’s van which was driving in front of them. He commented that the van was full of children who were not wearing seat belts. As her vehicle drew closer to the van, Ms. Nicholes observed that not only were the children not wearing seat belts, but she believed that she saw the driver (Mr. Bunkley) looking down at his cell phone while driving. Ms. Nicholes explained that Highway 98 North has four lanes through Lakeland. Over a stretch of about three to four miles, Ms. Nicholes drove in the left side lane roughly parallel to Mr. Bunkley. Ms. Nicholes testified that during that drive, she saw Mr. Bunkley holding a phone. She further stated that he looked down at the phone in his lap several times as he drove. Ms. Nicholes guessed that Mr. Bunkley lowered his eyes for approximately 10 to 20 seconds each time he glanced down. She stressed that “he wasn’t paying attention to the road.” Ms. Nicholes expressed that the two vehicles drove as fast as 45 mph. Ms. Nicholes was quite alarmed by Mr. Bunkley’s actions. As she drove next to him, she took several photographs of him with her cell phone. Copies of Ms. Nicholes’ photographs were introduced at the final hearing. The photographs show Mr. Bunkley looking down as he is sitting in the driver’s seat. However, neither Mr. Bunkley’s right hand nor a cell phone are visible in the pictures. (Respondent disputes that the van was moving at the time Ms. Nicholes took the pictures.) Ms. Nicholes was shocked by the incident. She was worried for the safety of the children in the van. She commented that if her child were riding in the van, and the driver was distracted like Mr. Bunkley was, she would be furious. Later that day, Ms. Nicholes posted her photographs of Mr. Bunkley driving Respondent’s van on her Facebook page. She added the caption, “Well, this is safe, we’re doing about 45 down 98 and this guy is texting with a van full of children. Not cool, dude.” The next morning, Ms. Nicholes was still distressed by what she had witnessed. Therefore, she decided to visit Respondent’s place of business to discuss the incident. Ms. Nicholes had no knowledge of Respondent prior to November 2, 2015. She identified Respondent from the name on the side of the van. Ms. Nicholes maintained that her only interest in approaching Respondent was to alert Respondent of the risk to the children in the van because of a distracted driver. When Ms. Nicholes arrived at Respondent’s facility, she spoke to Elizabeth Jackson. Ms. Nicholes advised Ms. Jackson that she had observed her van driver using his cell phone while driving, and she showed Ms. Jackson her photographs. Ms. Jackson informed Ms. Nicholes that the driver was her son, Antuan Bunkley. Ms. Jackson told Ms. Nicholes that she would be taking him off driving until the matter was resolved. After her meeting with Ms. Jackson, Ms. Nicholes drove to Subway for lunch. While standing in line, she was approached by a woman who identified herself as an employee of Respondent. The employee asked Ms. Nicholes if she was the one who had posted the photos of the van driver on Facebook. At that point, Mr. Bunkley entered Subway. Ms. Nicholes took a picture of Mr. Bunkley while he was standing in line behind her. The next day, Ms. Nicholes reported the incident to the Department. Upon receiving Ms. Nicholes’ complaint, the Department initiated an investigation. The case was assigned to Brandy Queen, a Child Protective Investigator. Cheryl Dishong, a Child Care Regulations Counselor, assisted her. Ms. Queen testified that she started her investigation by visiting Respondent’s facility. She was accompanied by Ms. Dishong. There, she met Ms. Jackson. During their conversation, Ms. Jackson acknowledged that her facility owned the van and that the driver was Mr. Bunkley. Ms. Jackson told Ms. Queen that Mr. Bunkley had picked up six children on the afternoon of November 2, 2015. She provided the children’s names to Ms. Queen. Ms. Jackson also allowed Ms. Queen and Ms. Dishong to examine the van. Ms. Queen and Ms. Dishong spent some time climbing through the van. The van has two bucket seats in the front row and three rows of back seats. Ms. Queen and Ms. Dishong sat in different seats to determine the vantage point of the driver by the children riding in the van. They wanted to see if the children could have observed Mr. Bunkley texting while he drove. Ms. Dishong climbed into the back rear seat. Taking into account that she is taller than the children who rode in the van, Ms. Dishong slouched down to simulate a child passenger. Ms. Queen stated that Ms. Dishong believed that a child could adequately see the driver from the back, rear seat. However, Ms. Queen conceded that during their inspection of the van, no one was sitting between the rear back seat and the drivers’ seat. Neither did a driver sit in the front seat to determine whether Mr. Bunkley’s body would prevent a clear view of his hand while he was driving (particularly, a driver as large as Mr. Bunkley as discussed below). Next, Ms. Queen interviewed the six children who had been riding with Mr. Bunkley on the afternoon of November 2, 2015. At the final hearing, Ms. Queen explained that, before she asked the children about Mr. Bunkley’s driving, she presented several preliminary questions to ascertain whether the children understood the difference between telling the truth and telling a lie. Ms. Queen testified that she believed the children were telling her the truth during her interview. However, the children’s statements were not given under oath.3/ Ms. Queen stated that, based on the evidence she gathered, which included the children’s statements, Ms. Nicholes’ pictures,4/ and her own observations of the van, she “verified” that Mr. Bunkley’s conduct constituted inadequate supervision. Ms. Queen further stated that Mr. Bunkley’s driving while distracted caused concern since he ran “the risk of getting into a wreck.” She believed that he had placed himself and the children in his care “at risk of harm, of dying.” Of the six children, the Department presented A.O. at the final hearing to tell her story.5/ A.O. was seven years old at the time of the incident. (She was eight years old on the date of the final hearing.) A.O. testified that she had attended Respondent’s child care facility for about a year. A.O. was familiar with Mr. Bunkley and identified him in Ms. Nicholes’ photographs. A.O. relayed that three to four different people had driven her in Respondent’s van, including Mr. Bunkley. A.O. stated that on the afternoon in question, Mr. Bunkley picked her up after school in Respondent’s van. At the final hearing, A.O. demonstrated proficient knowledge of the functions of a cell phone. A.O. described various uses of a cell phone including talking, texting, playing games, and looking at Facebook. A.O. testified that Mr. Bunkley used his cell phone when he drove the van. A.O. stated that Mr. Bunkley texts while driving. By “texting,” A.O. recounted that she observed Mr. Bunkley moving his fingers on the phone at the same time he was driving. A.O. also described seeing Mr. Bunkley looking at Facebook on his cell phone while he was driving the van. A.O. added that sometimes when she was riding with Mr. Bunkley, he swerved off the road while he was using his phone. She also described how the van would sometimes get near other cars on the road. She commented that Mr. Bunkley occasionally drives the van with his knees. She imparted that the way he drove scared her sometimes. A.O. expressed that when she rode in the van, she sat in the very back seat on the right side. A.O. conveyed that, despite sitting in the very back row, she could still see Mr. Bunkley hold and use a cell phone. At the final hearing, Mr. Bunkley acknowledged that he was driving Respondent’s van on November 2, 2015, and was the individual seen in Ms. Nicholes’ photographs. Mr. Bunkley also confirmed that he was transporting children in the van at that time. Mr. Bunkley firmly denied that he was texting while driving Respondent’s van. He denied ever using his phone while driving the van. Mr. Bunkley admitted that he does carry his cell phone when he drives. However, he claimed that he routinely keeps his phone in his pocket. Mr. Bunkley asserted that he would only use his cell phone in the case of an emergency. Mr. Bunkley expressed that Ms. Nicholes must have seen him looking down at his transportation log when she observed him on November 2, 2015. Mr. Bunkley explained that his log sheet registers when and where he is to pick up and drop off children. Mr. Bunkley relayed that he periodically reviews the log sheet as he transports children. However, he only checks the transportation log when the van is stopped. He remarked that Ms. Nicholes must have taken her pictures of him on Highway 98 North when they were stopped at a stoplight. Mr. Bunkley stated that he is 5’11” tall and weighs 330 pounds. Because of his large size, he did not believe that it was possible for A.O. to see anything he held in his lap from her seat in the right rear of the van. Mr. Bunkley offered his cell phone records to support his assertion that he was not texting on the afternoon of November 2, 2015. However, the phone records do not confirm whether Mr. Bunkley was accessing or reading text messages as he was driving. Nor do they provide any information regarding his alleged “scrolling” or using Facebook. Respondent is owned and operated by Ms. Jackson. She is also Mr. Bunkley’s mother. Ms. Jackson did not believe that Mr. Bunkley was texting on his cell phone while he was driving the van. Instead, she posited that the van was stationary when Ms. Nicholes took her pictures, and that Mr. Bunkley was looking down at his transportation log. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record does not establish that Mr. Bunkley was scrolling and/or texting on his cell phone while driving Respondent’s van on November 2, 2015. Accordingly, the Department failed to meet its burden of proving that Respondent committed “inadequate supervision” which would support an administrative fine under section 402.310.
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 Respondent, The Early Years Child Development Center. DONE AND ENTERED this 30th day of March, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 30th day of March, 2017.
The Issue Did Respondent, Department of Children and Families (Department), correctly deny the application of Petitioner, Laura's Learning and Enrichment Center (Laura's Learning), for licensure renewal for failure to meet the minimum licensing standards for child care facilities?
Findings Of Fact The Legislature has charged the Department with regulating and licensing child care facilities. Laura Smith owns and operates Laura's Learning in Lake Wales, Florida. Since 2009, the Department has licensed Laura's Learning as a child care facility. The charges involved in this proceeding are the first time that the Department has acted against Laura's Learning's license. Ms. Smith submitted an amended application to renew her license on November 21, 2019. The Department proposes to deny renewal of the license because Ms. Smith failed, the Department asserts, to protect her adopted son, B.S., from bizarre punishment and resulting physical and emotional harm. It also alleges that Ms. Smith failed to provide a required update to her renewal application. In its case number 2019-197752-01, the Department made a verified finding of abuse by Ms. Smith of B.S., her adopted son, by failing to protect him from bizarre punishment and physical injury. Because of this, the Department revoked Ms. Smith's license to operate a family foster home. However, Ms. Smith did not oppose revocation and wished to surrender her license. Ms. Smith did not amend her application to advise the Department that it had revoked her foster home license. Ms. Nancy Ebrahimi learned of the verified finding and license revocation during her routine review of Department registries during the license renewal process. August 7, 2019, after a shelter hearing in which Ms. Smith said that she did not want B.S. in her home any longer, the court ordered that B.S. be placed in the shelter custody of the Department. An August 8, 2019, Shelter Order at Review continued this placement. On September 18, 2019, the court granted the Department's Petition for Termination of Parental Rights of B.S. This decision included consideration of the fact that Ms. Smith signed an Affidavit and Acknowledgment of Surrender, Consent to Termination of Parental Rights, and Waiver of Notice form before the Department filed its Termination of Parental Rights Petition. Ms. Smith's relationship with B.S. began when she served as his foster parent. She adopted him when he was about seven (born March 11, 2005). B.S. lived in Ms. Smith's home in Lake Wales, Florida. He occasionally helped with chores, such as yardwork, at Laura's Learning. He was also responsible for chores at home. Ms. Smith had other children, including an adult biological daughter, Jayda Miles, who, at the times involved here, lived in Cocoa Beach, Florida, and visited Ms. Smith's home regularly, often with her husband, Antonio Miles. Mr. and Ms. Miles lived on Patrick Air Force Base because of his service in the Air Force. Another adult sibling, Chaundi Parham, lived at Ms. Smith's home and worked sometimes at Laura's Learning. Young twins who were Ms. Smith's foster children lived in the home with a third foster child. On June 17, 2019, B.S. was doing yardwork at Laura's Learning. Ms. Parham was overseeing him. B.S. could not complete mowing because the mower was flooding. Ms. Parham directed him to sit on a bench and wait for Ms. Smith to arrive. B.S. removed a bag of Cheetos from the back pack of the twins, who were also at Laura's Learning. Ms. Parham caught him eating the Cheetos in the bathroom. She scolded him and called Ms. Smith. Ms. Parham was unable to reach Ms. Smith, so she called her older sister, Ms. Miles. Ms. Parham then told B.S. to sit on a bench to await Ms. Smith. B.S. jumped the fence surrounding the child care center and ran away. B.S. was 14 years old at the time. Ms. Parham reported B.S. as a runaway. During the preceding year, B.S. had started regularly having trouble at school. He frequently got in fights. Lake Wales police officer, Edgar Claros, responded to the report of B.S. running away. On June 18, 2019, Ms. Smith reported to the police that B.S. had returned home. She also reported that he said he wanted to live on the streets and left home again. B.S. had run away two or three times before. The Department assigned Ms. McConnell-Bailey to investigate. On June 18, 2021, Ms. McConnell-Bailey visited Ms. Smith to question her about the runaway report. She also questioned Ms. Smith about reports from an unidentified source, possibly a caller to the Department's abuse line, about maltreatment of B.S. including use of a "taser1", striking him with various 1 "Taser" is a brand name for a stun gun and likely not the brand involved here. The device was a stun gun that required contact of its electrode prongs with the subject's skin, called "drive tasing." There is no evidence that any of the tasing involved darts. "Taser" and "tase" are used in this Order because that is the description the witnesses used. objects including a wooden spoon, and making him sleep in the garage and laundry room. Ms. Smith was visibly angry. She denied the allegations and said B.S. was not going to ruin her business and take everything she had worked so hard for. She said B.S. was lying and that she had no idea where he was, except that some people told her he was somewhere in the neighborhood of a Publix. Ms. Smith did not express concern for B.S.'s well-being. She did tell Ms. McConnell-Bailey that she had removed all pictures of B.S. from displays of family photographs because they upset her. Ms. Smith began crying during the interview. She said the situation upset her and was causing her to get sick. She said she felt she was too old for the troubles B.S. caused and she did not want to deal with him anymore. On June 21, 2019, Ms. Smith called Detective James Lewis and advised him she had heard that B.S. was near the area of G. Street and Lincoln Avenue. Ms. Smith told Detective Lewis that she hoped the officers did not find B.S. and that he keeps running. Ms. Smith also said B.S. had been lying about her family, specifically her daughter, Jayda, falsely claiming abuse. And she said she wanted to file for an injunction against him. Ms. Smith did not express or display any concern for B.S. Ms. Smith, however, told Detective Lewis that she was going to the area where B.S. might be, but that he would run from her. Detective Lewis passed the information about B.S.'s location on to Officer Eric Ricks, who located B.S. in the area. Officer Ricks located B.S., picked him up, and spoke with him. Officer Ricks asked B.S. why he ran away and did not want to return home. B.S. told Officer Ricks that his sister, Ms. Miles, tased him and pepper sprayed him on June 16 in the presence of Ms. Smith, Mr. Miles, and Ms. Parham. B.S. indicated that it was because he had tried to steal something to eat. B.S. was apprehensive about returning to Ms. Smith's home. B.S. appeared to be on the verge of tears. B.S. did not say anything about being tased earlier in the year, around Memorial Day, on the patio. Officer Ricks transported B.S. to the police station where Detective Lewis assumed responsibility for the investigation. Detective Lewis interviewed B.S. with Child Protective Investigator Ruth McConnell-Bailey, for forty-five minutes to an hour, the night of June 21, 2019. B.S. told Detective Lewis that Ms. Miles had repeatedly tased him on his left chest area and on his upper left arm and sprayed him with pepper spray on June 16, 2019. He said this was because he had been caught preparing to steal a honeybun. This, he said, was the reason he ran away and did not want to return. B.S. did not say anything about being tased earlier in the year, around Memorial Day, on the patio. Detective Lewis inspected B.S.'s chest and left arm. He found injuries and scabs that he thought were consistent with the injuries made by a taser. The pain from tasing that B.S. described was consistent with the pain Detective Lewis experienced when he was tased during training. Detective Lewis did not measure the distance between scabs or other injuries to determine if they corresponded with the typical separation of the prongs of a taser. B.S. also told Detective Lewis that he was wearing snowman pajamas the night of June 16. After the interview, Detective Lewis and Ms. McConnell-Bailey transported B.S. to the home of Cheryl Jennings who had agreed to provide him lodging. B.S. was happy to be taken there instead of Ms. Smith's home. B.S. said that he felt unsafe at Ms. Smith's home. Detective Lewis and Ms. McConnell-Bailey then went to Ms. Smith's home to obtain clothes for B.S. and to obtain the snowman pajamas. The pajamas had been washed, dried, and folded. Detective Lewis examined the pajamas. He identified one small burn hole on the chest area of the pajamas. He thought the hole was consistent with use of a taser with its prongs placed directly on the person being tased. Although B.S. claimed he had been repeatedly tased on his left chest and left arm, the pajamas had only one possible burn hole. A few days later, Detective Lewis interviewed Ms. Miles. She denied the claims of B.S. She also allowed Detective Lewis to search her car. He did not find a taser or pepper spray. On June 25, 2019, Thia Lomax, Children's Home Society Children's Advocacy Center Case Coordinator, Child Protection Team, interviewed B.S. Ms. Lomax is a trained and experienced forensic interviewer. Ms. Lomax noticed marks on B.S.'s neck. He told her they were from a recent fight. Ms. Lomax interviewed B.S. for about an hour. The record contains a video recording of the interview. The interview is neutral and undirected. Ms. Lomax does not suggest or imply responses by her questions or body language. However, Ms. Lomax also does not test or challenge B.S.'s statements. B.S. basically made the same report about events the night of June 16 as he made earlier to Detective Lewis. He also made a new claim that Ms. Miles tased him on the patio earlier in the year, around Memorial Day, in the presence of Ms. Smith and Ms. Parham. His description did not identify a number of tasings or how long the experience lasted. B.S. also made claims about being struck by a broom and a spoon and made to "work like a slave." On August 6, 2020, the parties deposed B.S. A transcript of the deposition is also part of the record. B.S. did not testify at the hearing. B.S.'s deposition testimony differed from the interviews. B.S. demonstrated confusion and changed the details of his reports. The evidence about the initial events of the night of Sunday, June 16, 2019, is consistent. Mr. and Ms. Miles were spending that night at Ms. Smith's home. On June 16 Ms. Smith took B.S. to Walmart sometime after midnight to buy a Sprite. Antonio Miles was at the Walmart, having arrived separately. He observed B.S. preparing to steal a honey bun. When B.S. saw Mr. Miles watching him, he abandoned his plan to steal a honey bun. Afterwards B.S. returned home with Ms. Smith and went to bed, wearing pajamas with snowmen on them. When Mr. Miles returned to the home, he told Ms. Smith about the honey bun. Ms. Smith called B.S. into the family room. From this point forward, the evidence and the testimony of the witnesses differs significantly. According to Ms. Smith, Ms. Miles, and Mr. Miles, Ms. Smith called B.S. into the family room and asked him about the honey bun incident. He told her he was just looking at the pastry. They further testified that Ms. Smith talked to B.S. about "making bad choices" and sent him back to bed. Ms. Smith, Ms. Miles, Ms. Parham, and Mr. Miles all testified that Ms. Parham was not present because she was with friends in Orlando. Mr. Miles, Ms. Miles, and Ms. Smith are adamant that Ms. Miles did not tase or pepper spray B.S. They also agree that Ms. Parham was not present during the conversation with B.S. about the honey bun because she was in Orlando. And they agree he was not made to sleep in the laundry room. According to B.S., when Ms. Smith called him from his room, all the adults, including Ms. Parham, were present in the family room. He says that when he denied preparing to steal the honey bun, Ms. Smith stated, "No you are lying." In his interviews, B.S. stated that Ms. Miles went to her car and returned with a pink can of pepper spray and a pink "taser" and began tasing him. He said that Ms. Miles tased him five or six times on his upper left arm and the left side of his chest. The taser got tangled in his pajamas he said. Then Ms. Miles began spraying him with pepper spray. According to B.S.'s statements, the adults sent him outside to wash the pepper spray from his face. He then went to bed in the laundry room. He said that Ms. Smith did not intervene. In deposition, subject to cross examination, B.S. amplified and expanded his claims to the point of incredulity. For instance, in his interviews he said Ms. Miles had tased him five or six times the night of June 16. In his deposition testimony, B.S. testified "they were tasing me all over the house." (R. Ex. K, p. 52). He also testified that the tasing went on for two or three hours. He volunteered that Ms. Miles tased him 50 times. He also said that it could have been 100 times. He said his pajamas had 50, maybe 100 holes from the tasing. (R. Ex. K, p. 52). These claims differ significantly from those made in his interviews. Detective Lewis found only one hole that he thought could have been caused by a taser. According to B.S., Ms. Smith did not attempt to intervene to stop Ms. Miles. She also did not report the alleged incident to law enforcement. Ms. Miles, Mr. Miles, and Ms. Smith all firmly denied the allegations of tasing and pepper spraying the night of June 16. During the videotaped interview, B.S. first claimed that Ms. Miles tased him three or four times when on the patio Memorial Day. He did not mention this in his earlier interviews. His deposition testimony about tasing on the patio was very different from his interview statements. He testified that Ms. Miles tased his entire chest and stomach up to his neck Memorial Day. He said Ms. Smith was on the patio and Ms. Parham was sitting on a couch inside looking out. At first, he said Ms. Miles tased him 20 times. He went on to say it was more than 20, maybe 50 or 100 times. He said the Memorial Day tasing lasted from about 6:00 p.m. to 11:00 p.m. He also testified that Ms. Smith and Ms. Miles stayed on the patio the entire time. Ms. Parham, he said, stayed sitting on the couch watching the entire time. Nobody took a break, went to the restroom, or got something to drink, according to B.S.'s testimony. Ms. Miles, Ms. Smith, and Ms. Parham all credibly deny this account. In addition, the claims are implausible because of the varying numbers of tasings claimed and the length of time B.S. said the tasings went on, as well as nobody leaving the patio for five hours. In the course of the interviews and his deposition, B.S. made claims of being hit by a broom, hit by a spoon, made to sleep in the garage, and made to sleep in the laundry room. Ms. Smith denied these allegations. They are not corroborated. The evidence to support these claims is not clear and convincing. B.S.'s shifting version of events, the firm, convincing denials of all other witnesses, and the inconsistency of only one burn on the pajamas from four to six tasings, let alone 50 to 100, keep the evidence of the tasing and pepper spraying from being clear and convincing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, Department of Children and Families, enter a Final Order granting the license renewal application of Petitioner, Laura's Learning and Enrichment Center. DONE AND ENTERED this 19th day of April, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 19th day of April, 2021. COPIES FURNISHED: Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Hannah George, Esquire Law Firm of Gil Colon, Jr. 325 East Davidson Street Bartow, Florida 33830 Raquel Ramos, Esquire Department of Children and Families 1055 U.S. Highway 17 North Bartow, Florida 33830 Javier A. Enriquez, Esquire Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
