The Issue The issue is whether Respondent should renew Petitioner's license to operate a child care facility based on an alleged Class I violation of Florida Administrative Code Rule 65C- 22.001(5)(a) and an alleged history of noncompliance with the Florida Administrative Code rules regulating child care facilities.
Findings Of Fact At all times material here, Petitioners owned and operated Child Care 2000, #1 (the facility), located on State Road 44, Sorrento, Florida. Petitioner George Barrett was the licensed child care director of the facility, which had been a child care center for 14 years. The facility had an employee's manual that addresses its policies. The manual contained policies regarding regular staff meetings, parent/teacher conferences, and mandatory initial/in-service training requirements. The manual also included a section on safety, which stated as follows: Do not leave your classroom unsupervised at anytime, indoors or out. All electrical outlets must be covered at all times. Any broken or damaged equipment must be removed or brought to the Director's attention. Remember to count your children every hour. All of these things must be done daily. DO NOT leave children unattended. There will be tolerance for this action. The facility had a time clock, which the employees used to record their time at work. The information from the time clock transferred electronically to the facility's computer, which captured the information for use in a software program that generated payroll. If a teacher's time card was incorrect for any reason, the bookkeeper could manually override the system to correct any error. The facility also used the time clock to log the time that children attended the facility. The attendance records transferred electronically to the facility's computer, which captured the data for use in a software program that generated billing statements. The children's parents used a password to activate the time clock when they dropped off or picked up their children. There is no evidence that anyone at the facility knew how to manually override the children's electronic attendance log. Respondent alleges that its inspector, Glenda McDonald, performed an inspection of the facility on October 27, 2005. The inspection checklist contains allegations that the facility was noncompliant in the following areas: (a) Outdoor Play Area, Florida Administrative Code Rule 65C-22.002(4)(c)(g); (b) Fencing, Florida Administrative Code Rule 65C-22.002(4)(d)(e); (c) Outdoor Equipment/Suitable, Safe, Maintained, Florida Administrative Code Rule 65C-22.002(9)(b); (d) 10-hour In- service, Florida Administrative Code Rule 65C-22.003(6)(a)-(c); (e) Bottles Sanitary and Labeled, Florida Administrative Code Rule 65C-22.005(3)(b)(c); (f) Children's Health/Immunization Records, Florida Administrative Code Rule 65C-22.006(2)(a)-(c); (g) Personnel Records, Florida Administrative Code Rule 65C- 22.006(5)(a)-(c), (e), (f), (6)(e); and (h) Form 5131/Screening Documents, Florida Administrative Code Rule 65C-22.006(5)(d). Respondent did not present Ms. McDonald as a witness at the hearing. Without Ms. McDonald's testimony or an admission by Petitioners, there is no competent evidence by Respondent to show the facility's noncompliance on October 27, 2005. During the hearing, Petitioners did admit that the facility failed to comply with the rules on October 27, 2005, in the following respects: (a) the need to remove or replace a broken swing as required by Florida Administrative Code Rule 65C-22.002(9)(b); and (b) the need to update children's shot records and physicals as required by Florida Administrative Code Rule 65C-22.006(2)(a)-(c). Petitioners presented testimony that the broken swing was repaired immediately after the October 27, 2005, inspection. Additionally, Petitioners admitted that they found it impossible to keep the children's shot records and physicals updated, but that they corrected the problem in a timely manner after the October 27, 2005, inspection. On January 30, 2006, one of Respondent's inspectors, Debbi Mitchell, performed an inspection of the facility. Ms. Mitchell observed that the facility was noncompliant in the following ways: (a) failure to update children's shot records as required by Administrative Code Rule 65C-22.006(2)(a)-(c); and (b) failure to update personnel screening documents as required by Florida Administrative Code Rule 65C-22.006(5)(d) and Section 435.04, Florida Statutes. There is no evidence to dispute Ms. Mitchell's testimony regarding the January 30, 2006, inspection. The failure to keep the children's shot records updated was a repeated offense. On or about March 31, 2006, Petitioner filed an application with Respondent to renew their license. Petitioners' daughter-in-law was the facility's office manager. When Petitioners were unable to be present at the facility, the daughter-in-law was the person in charge of the child care center. If the Petitioners were absent and the daughter-in-law had to leave the premises, Linda Race, a senior pre-kindergarten teacher was in charge of the facility. Ms. Race would take over as the person in charge when Petitioner's daughter-in-law handed her the facility's telephone. A.B. was the son of the daughter-in-law/office manager and the grandson of Petitioners. In the spring of 2006, A.B. was two-years-old. He attended one of the pre-kindergarten classes at the facility. It was not unusual for A.B. to see his mother during the school day. Sometimes A.B. would become upset and cry if he was not allowed to leave his class and go to his mother in the office. On April 25, 2006, Petitioners were not at the facility. Petitioner Alicia Barrett was taking care of Petitioner George Barrett, who was recovering from a serious illness. On April 25, 2006, Petitioner's daughter-in-law clocked into work at the facility at 8:10 a.m. A.B. arrived with his mother then joined his class. Later that morning, A.B. began crying for his mother. Ms. Race attempted to refocus A.B.'s attention before letting him go to his mother. From that time on, Ms. Race believed that A.B. was no longer participating in her class because he was with his mother. Ms. Race understood that A.B.'s mother was planning to leave the facility in the early part of the morning. On April 25, 2006, Petitioner's daughter-in-law clocked out of the facility at 9:59 a.m. She had been at the facility for one hour and 49 minutes before she clocked out. A.B.'s electronic attendance log for that day indicates that he was in attendance for one hour and 49 minutes. A.B.'s mother did not testify at the hearing. Sometime after 10:00 a.m. on April 25, 2006, Ms. Race and her assistant, another teacher identified as Brittany Russell, were with the children on the facility's porch. As the children prepared to move from the porch to their classroom, Ms. Race and Ms. Russell, began taking a head count. About that time, A.B.'s mother approached Ms. Race and handed the facility's telephone to her. Accepting the telephone with a call on the line, Ms. Race realized that A.B. was not with his mother and that he was at the Circle K, a convenience store and gas station located next to the facility. Apparently, employees of the Circle K had called the facility to see if a child was missing. Ms. Race immediately ran from the facility to the Circle K to retrieve A.B. The totality of the circumstances indicates that A.B. was with his mother when he left the facility. The facility's teachers had no reason to believe otherwise. No one at the facility prepared an incident report relative to the events that occurred on April 25, 2006. However, under the circumstances of this case, it is clear that A.B.'s mother was aware of the emergency that was created when A.B. left his mother and went to the Circle K. On May 12, 2006, Ms. Mitchell investigated a complaint against the facility involving the events of April 25, 2006. The investigation of the complaint resulted in Respondent's issuance of an Intent to Impose Administrative Action for the following alleged violations: (a) inadequate supervision as required by Florida Administrative Code Rule 65C-22.001(5)(a), (b), (d)1.-3.; and (b) failure to document the incident involving A.B. as required by Florida Administrative Code Rule 65C-22.004(2)(d)2. There is no clear and convincing evidence to support these allegations. The facility did not provide inadequate supervision for A.B. because he was with his mother and not under the supervision of the facility when he went to the Circle K. Accordingly, there was no need for the facility to document the incident. On May 12, 2006, Ms. Mitchell also performed an inspection of the facility. During the inspection, Ms. Mitchell observed the following alleged noncompliance: (a) Planned Activities Posted and Followed as required by Florida Administrative Code Rule 65C-22.001(7)(a); (b) Outdoor Equipment/Suitable, Safe, Maintained as required by Florida Administrative Code Rule 65C-22.002(9)(b); (c) First Aid Staff/Supplies as required by Florida Administrative Code Rule 65C-22.004(2)(a)-(c); (d) Accident/Incident Documented as required by Florida Administrative Code Rule 65C-22.004(2)(d)2.- 4.; and (e) Children's Health/Immunization Records as required by Florida Administrative Code Rule 65C-22.006(2)(a)-(c). On May 12, 2006, the plan of classroom activities/schedule for each age group was posted in entrance to the facility near the office. That area was an appropriate place for all parents entering or leaving the facility to access the plan. On May 12, 2006, the facility's playhouse, which was located on its playground, had broken boards. After Ms. Mitchell's inspection, Petitioner immediately repaired the broken boards. The failure to keep the playground equipment properly maintained was a repeated violation. On May 12, 2006, Ms. Mitchell inspected the facility's fist aid kit, finding it extremely incomplete. Petitioners immediately corrected this noncompliance. On May 12, 2006, Ms. Mitchell determined that Petitioner did not prepared an incident report relative to A.B. leaving the facility on April 25, 2006. However, such documentation was not required because A.B. was with his mother, who had clocked him out of the facility. On May 12, 2006, Ms. Mitchell found that the facility had outdated shot records and/or physicals for four students. This was the third consecutive instance of this type of noncompliance. After the inspection, Petitioner corrected the problem in a timely manner. At the time of the hearing, the facility was closed.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioners' application to renew their license to operate the facility, subject to terms and conditions that Respondent deems appropriate. DONE AND ENTERED this 13th day of September, 2006, 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 13th day of September, 2006. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Stella V. Balandran Qualified Representative 95 South Trowell Avenue Umatilla, Florida 32784 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Should the Department of Children and Family Services, (the Department), impose discipline against the license of Happy Days Day Care owned by Carmen Smith upon grounds set forth in the Administrative Complaint dated July 15, 1999?
Findings Of Fact Licensure Carmen Lamb Howard Smith owns a child care facility (facility) in Ocala, Florida. The Department licenses that facility according to Sections 402.301 through 402.319, Florida Statutes. The facility is known as Happy Days Day Care. Food Services The facility provides child care around the clock. The children are normally served dinner at the facility until 8:00 p.m. each day. Until 7:30 a.m. the following morning no other food is served to the children. Notwithstanding the policy not to provide food after 8:00 p.m., a child who is brought to the facility will be fed after 8:00 p.m. when that child has not eaten and is in distress. Ordinarily a parent leaving a child with the facility after dinner time would be expected to feed the child before the child was left with the facility. The food schedule at the facility has posted that there are "no exceptions" to the policy not to provide food beyond 8:00 p.m. As an example of the exception concerning not providing food after 8:00 p.m., if a child has been to a doctor's appointment or come from the hospital or the like, that child would be fed after 8:00 p.m. Another example is that if the child had been receiving Gatorade before coming to the facility, and Gatorade is available, the child is provided Gatorade by the facility. Children kept at the facility at night retire for bed between 8:45 p.m. and 9:00 p.m. Children are provided water before retiring for the evening. During July 1999 approximately 35 children were staying at the facility after 9:00 p.m. After 10:00 p.m. 22 to 26 children were cared for at the facility. After midnight approximately six children remained at the facility. The children who remained overnight were children of parents who worked between 11:00 p.m. and 7:00 a.m. Infants who are cared for in the facility receive a snack between breakfast and lunch. Children of other ages receive a snack between lunch and dinner. Hiring Practices Persons who are hired by the facility to care for children are referred to as teachers. At times relevant to the inquiry, before a teacher was hired, Patricia Mann as Director of Happy Days Day Care, would interview the prospective employee. Ms. Mann would send the prospective employee to be fingerprinted. The prospective employee would be sent to the local police station to get an I.D. and to have the local police department perform a check to see if that person has a criminal history. The information obtained by those persons concerning their background would be brought back to Ms. Mann to be placed in an individual file for the employee. Employee files were maintained by the facility at times relevant to the inquiry. Ms. Mann also reminded prospective employees of the need to receive tuberculosis (TB) tests. Ms. Smith, the facility owner, reviewed applications for employment during the time in question, paying particular attention to the experience that the applicants had in child care. Marsha Carpenter works for the Department as a Family Services Counselor. Additionally, Ms. Carpenter has responsibility for licensing child care facilities. In that capacity she inspects facilities to determine compliance with licensing standards. On May 27, 1999, Ms. Carpenter reviewed employee files at the facility to determine compliance with background screening and other requirements which employees must meet to work in the facility. She discovered that a number of employees did not have the background screening complete. Having identified this inadequacy, the facility was provided 14 days' notice to correct the deficiencies. Patricia Mann signed the inspection checklist that noted these deficiencies. Ms. Mann's signature was provided on the date the inspection took place. More than 14 days passed before re-inspection. The re- inspection was conducted on June 24, 1999. Upon re-inspection it was determined that not all the deficiencies observed on May 27, 1999, had been corrected. Petitioner's Exhibit numbered 6 admitted into evidence lists the employees and the continuing items of non-compliance that had existed on May 27, 1999 and June 24, 1999. The missing items related to background screening, local law enforcement checks, TB test results, and employment history. Ms. Patricia Mann was made aware of these findings and provided a copy of the continuing deficiencies in relation to the areas of concern. The previously mentioned employees cared for children at the facility without completing required background screening and obtaining TB tests. Notwithstanding the expectation by Ms. Mann that those employees would comply with the legal conditions prerequisite to their employment, this was not done. Boyfriend Visits Some members of the night time staff at the facility allowed their boyfriends to visit while the staff was on duty to supervise children. The administration at the facility reprimanded the staff for this misconduct. Ms. Smith promptly met with the staff following discovery of the problem and conducted a staff meeting. Ms. Smith prepared a document addressed "To All Staff" reminding staff that the facility had a policy that states, "if you don't work there, you can't visit there unless you have children there. If you are not a parent, or a worker or you don’t have any business there, you don't have any business being there." Beyond the meeting Ms. Smith has not been informed that the problem of night time visits by boyfriends persists. Inappropriate Discipline It had been reported that Rogenia Thomas, who cared for children from ages 6 to 13 years at the facility, slapped a child in the face and pinched another child. No other adult was present when these events were alleged to have transpired. Ms. Thomas denied the incidents in conversation with Ms. Mann. Nonetheless, Ms. Mann suspended the employee for three days as evidenced in an employee warning report dated June 8, 1999. Petitioner's Exhibit numbered 7. That report reflects that Ms. Thomas was told that if the incident happened again she would be terminated. At the time Ms. Thomas was on probation, according to the report. Following the three-day suspension Ms. Thomas was not allowed full-time contact with children; she only had contact with children at times when other teachers took breaks. That contact was with children age six weeks through five years. Later, for reasons that are unexplained in the record, Ms. Thomas was terminated. Viola Rayam was a teacher at the facility who cared for children six weeks through 13 years old. Complaints were made that Ms. Rayam had cursed a child in her charge. Ms. Rayam in conversation with Ms. Mann denied the incident. The record does not reveal that the alleged incident was observed by anyone other than the child. Ms. Rayam was suspended for a week and a half based upon the accusations. After the incident that led to the one and a half week suspension Ms. Rayam was allowed to care for children six weeks to five years old. Ms. Smith terminated Ms. Rayam from employment at the facility for an unrelated matter. Although Ms. Thomas and Ms. Rayham denied the allegations concerning misconduct, the administrators in the facility imposed in-house discipline to assuage any concerns which the Department had about the alleged misconduct. None of the children alleged to have been victimized by the conduct attributed to Ms. Thomas and Ms. Rayam testified at hearing. It was not proven that the alleged acts of misconduct by Ms. Thomas and Ms. Rayam took place. Karen Merton works for the Department as a Family Services Counselor in the adoption unit. Sometime around June 10, or 11, 1999, she visited the facility. It was a hot day. While outside Ms. Merton observed a facility staff member sending some children to what the staff member called "time-out." These children were being sent from the shade afforded by the facility building to sit in the sun for "time-out." There were three or four children involved. One was a blond-haired, fair- skinned little girl whom Ms. Merton estimated to be a first or second grader. By the time Ms. Merton departed the scene, the little girl had been standing in the sun for approximately 15 minutes. Before Ms. Merton left the facility she reminded a person located at the front of the facility that the little girl had been outside in the sun for about 15 minutes. That person walked outside observed the child and stated "Oh," remarking that this person knew the child. The person at the front of the facility where Ms. Merton had signed in then returned to her station in the facility without taking action concerning the little girl's circumstance. Ms. Merton then left the facility.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered which imposes a $500.00 administrative fine for the violations in paragraph 3.d. and imposes a one-month suspension for the violations in paragraph 7, and dismisses the remaining alleged violations in the administrative complaint. DONE AND ENTERED this 22nd day of May, 2000, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 22nd day of May, 2000.
Findings Of Fact After respondent Debra T. Acosta and her husband Joe, a noncommissioned Air Force officer, the parents of Joseph M., 16 at the time of hearing, Jason M. (13), Shawn W. (9), and Tisouli (6), applied to HRS for a day care center license, they were required to have their fingerprints taken and to undergo a background check or "screening." The background check turned up a report of an investigation Air Force personnel had conducted on account of information Carla Burrell, formerly known as Carla Knight, had supplied. The first two numbered paragraphs of the report read: On 2 Mar 88, SSgt CARLA K. BURRELL, USAF Clinic, RAF Bentwaters (RAF), UK provided the following information: She arrived at RAFB from Eglin AFB (EAFB), FL on 21 Apr 85. She was stationed at EAFB from Jan 83 until Apr 85. While stationed at EAFB, her daughter, Angela Kristen Knight, female born: 21 Jan 80, VA, Civ, SSAN: 066-70-1577 (hereafter referred to as VICTIM) stayed with a babysitter during the day. The babysitter was identified as DEBRA ACOSTA, dependent wife of SUBJECT who resides at 318 Blackjack Court, EAFB, FL. DEBRA ACOSTA babysat for several families. After arrival at RAFB, VICTIM entered school and seemed to be worried about something but BURRELL wasn't sure of what it was. According to BURRELL, VICTIM received briefings in school about sexual abuse and was told it wasn't nice for adults to touch children in certain places. This led VICTIM to confide in BURRELL that while they had been stationed at EAFB, SUBJECT would make VICTIM and other young females being babysat by SUBJECT's wife take off their clothes and lie on the bed. On numerous occasions, SUBJECT had placed his hands on VICTIM's bottom and had placed his hands between VICTIM's legs. SUBJECT had touched VICTIM's vagina but had never actually penetrated her vagina. SUBJECT has done the same thing to other female children, but VICTIM stated SUBJECT didn't do anything to boys. In addition, VICTIM told BURRELL SUBJECT would drop his pants and underwear and would place his penis between the legs of the females but did not insert his penis into their vaginas. On 6 Mar 88, VICTIM was interviewed by SA STANLEY B. CRISP and SA BETTY J. WILKINS in the presence of her mother. VICTIM provided essentially the same information as was provided by her mother on 2 Mar 88. VICTIM provided the following additional information not previously reported by her mother. SUBJECT had made her and other young females go into the bedroom at the same time, sometimes even with DEBRA ACOSTA being at home. VICTIM stated however that DEBRA didn't know what SUBJECT was doing. At other times DEBRA wouldn't be at home when the incidents took place. VICTIM couldn't recall the names of the other children who were involved, but stated there were others in the bedroom at the same time. VICTIM stated SUBJECT had never hurt her and had never threatened her with harm. SUBJECT had told the children that they shouldn't tell anyone about what he was doing to them. VICTIM said she wasn't afraid of SUBJECT. The bedroom used was described by VICTIM as an upstairs, spare bedroom. SUBJECT had never made the children go into his bedroom. VICTIM had never told anyone about the incidents until she was told in school of the actions of SUBJECT were wrong. Petitioner's Exhibit No. 7. In February of 1988, Mary Vinyard had given respondent and her husband a letter she and her husband had received from Ms. Burrell. Respondent's Exhibit No. 6. This letter reads: Tom and Mary, Remember me? . . . I'm sorry to say the reason I'm writing is because of a concern I have. I've had nothing but problems with Krissy ever since we got to England. She's doing very well in school, however her behavior has gotten to the obnoxious state. Recently she was referred to a child psychiatrist at Lakenheath (Bentwaters doesn't have one). The Dr. there seems to think part of Krissys problem is that there has been some sort of sexual abuse in the past. She makes up stories, so I have no way of being certain of what she says. Last week after talking to the Dr, on the way home, Krissy suddenly said there had been someone in Florida that had done things he shouldn't have done. She said it was Joe, Debra's husband. I at first couldn't believe it, but she went on to talk about things an 8 year old child really should have no knowledge of. I really don't know what to think however I really don't want to screw up anyone's life. We don't see the psychologist again until next week. I called him and told him of this new development, and he said after two years nothing could be done anyway. I don't believe that. The Air Force seems to be taking a rather relaxed view on this. The reason I'm writing you is to inquire if your children are still in Debra's care. Are you having any trouble with either of them, ightmares, bedwetting, whining? Please do write me back. An answer of any sort will help put my mind at ease. If it is just conjecture, no harm is done. If there is something going on, and Debra is still babysitting, it needs to stop. I just don't want any other parents to go through what I'm going through right now. You may or may not want to consider another babysitter. Please don't tell Debra I wrote, I always thought the world of her and I know the kids loved her. I don't wish to upset their family, especially if this turns out to be nothing; but I'm very suspicious. The day after the Vinyards gave this letter to respondent, Mr. Acosta took it to his commanding officer, Captain Gilmore, and protested his innocence. Captain Gilmore made a copy of the letter and launched the investigation that eventuated in the Office of Special Investigations (OSI) report, set out in part above. Petitioner's Exhibit No. 7. No action was taken against Mr. Acosta as a result of the Air Force's investigation. He has consistently denied Krissy's reported allegations, and did so under oath at the formal hearing in this case. After the OSI report came to HRS' attention, an HRS employee decided "that Debra could get licensed, to continue with the paperwork" (T.370) but as to her only. Eventually HRS did license Debra Acosta to operate Kare Free Day Care (KFDC) at 15 Eglin Street in Fort Walton Beach. KFDC opened in July of 1990. Nobody from HRS asked Mr. Acosta to agree to stay off the day care center premises and neither he nor Ms. Acosta agreed that he would. His presence during various HRS inspections elicited no official, contemporaneous response. T.406-7. Another Allegation Reported Michelle G'Sell dropped her four-year-old daughter Amber and her two- year-old son Adam off at the Acosta family home about seven o'clock in the morning on Mother's Day, May 12, 1991, in keeping with the arrangement she had made with Ms. Acosta the afternoon before, when she picked up her children at KFDC, after their first stay there. At quarter past three Sunday afternoon, Ms. G' Sell again picked Amber and Adam up at KFDC. Ms. Acosta had taken them (and her own two youngest children) to KFDC that morning after feeding Shawn and Tisouli breakfast. As Ms. G'Sell walked to her car with her children "around three steps out of the house" (T.113) Amber said, "Mommy, my twat hurts." Id. Asked when, the child "said when she pees." Id. According to her mother, when they had reached the car, Amber said, "He touched me," id., and, asked who had touched her, pointed to Mr. Acosta, who was standing on the roof of the KFDC building, "and said, 'Him.'" Id. But Jason and Mrs. Acosta (T.512) testified that Mr. Acosta was not at KFDC when Amber left, and Jason testified that his father had not been on the roof that day. T.313. The next morning Ms. G'Sell dropped Adam off at KFDC and signed Amber in, having arranged for her to be brought to KFDC later in the day. But, after somebody at work told her, "You must believe her, and you must report it," (T.115) she called her father and asked him not to take Amber to KFDC. She also reported to HRS that Mr. Acosta had sexually abused Amber the day before, and HRS began an investigation eventuating, according to HRS, in FPSS Report No. 91-050519, "alleging sexual abuse on a female child who was enrolled at KFDC . . . [allegedly perpetrated by] Joe A., the husband of D. A." HRS' Proposed Recommended Order, page 3. On May 17, 1991, Mr. Acosta was arrested on criminal charges of sexually abusing Amber, charges which remain pending. Admitted to bail on condition that he stay away from children under 18 years of age, he was rearrested for being in the presence of his own children. (Neither he nor Mrs. Acosta had realized that their children fell within the reach of the condition.) He has since been readmitted to bail and moved out of the family home. HRS also launched a separate, exhaustive investigation into the operations of KFDC which, while apparently not turning up any other allegation of sexual misconduct, gave rise to the allegations on the basis of which HRS seeks to revoke KFDC's day care center license. Husband Occasionally Helped Out While Anna Maria Root worked at KFDC in the winter and spring of 1991, Joe Acosta brought her eight-year old son to the Center after school, on the same run on which he picked up his own children. T.218. He may have brought another child, too, aside from the Root child and his own children. T.272. On two or three occasions Joe Acosta transported Shawn Holbert to school. T.379. He drove a brown van, "the one we were licensed to transport children in." T.379. After KFDC's initial licensure, Ms. Acosta requested an extension or expansion of the license to authorize KFDC to offer child care in the evening, but HRS denied the request. When KFDC closed for the day, children still there were taken to the Acosta home. A "couple of times," (Hoffman Deposition, p.9) Joe Acosta drove the van to the Acosta home after KFDC closed with as many as four or five children who were to be cared for there, id. 9, 56, "and Debra would stay and close up." Waller Deposition, p.14. Twice Mr. Acosta was alone with the children when Stacy Stowell collected her sons, Matthew and Aaron, at KFDC. T.12. But Lynn Hoffman, an employee, was never aware of his being alone with children. Hoffman Deposition, p.11. Nor was Julie Ann Merrill, who worked at KFDC from September to December 1990. Merrill Deposition, p.5, 20-21. It rarely happened. The morning after a fire at the Acosta home, Ms. Acosta sent Mr. Acosta to open up KFDC, and he was present when at least one child arrived, before either Ms. Acosta or Vicki Waller got there. Sole Supervisors Under Age and/or Uncertified When Vicki Waller, then 19 years old, began working for KFDC, neither she nor the Acostas were aware of the HRS rule forbidding leaving the children in the unsupervised care of anybody under 21 years of age. The three of them learned of the requirement in a 20-hour course they took together in the fall of 1990. Before that time, Ms. Waller had been left in charge mornings "from about 7:00 to 7:30," (Waller Deposition, p.6) and all day on one or two Saturdays. She was not left in charge after they learned of the rule against it. Ms. Waller did not have first aid or CPR certification when she took sole responsibility for children at KFDC. Chris Fitzpatrick worked as the only person caring for children at KFDC one Saturday, although she had not yet taken the first aid course she had signed up for. She also lacked CPR certification. Similarly untrained and uncertified, Denise Carla Yates had charge of the children by herself sometimes on Saturdays. Robin Lynn Bedmar was the only person responsible for the children on two or more Saturdays, even though her CPR certification had expired. Sometimes Sandra Lynn Hoffman, who did not have CPR training, was responsible for children at KFDC by herself, or shared responsibility only with Ms. Waller. Chris Fitzpatrick, Denise Caren Yates, Robin Lynn Bedmars and Sandra Lynn Hoffman were 21 or older, as far as the record shows, when they were left alone with the children. Occasionally Substandard Supervision Until a refrigerator was installed in the infant room, the worker supervising infants left them unattended in order to get milk from the kitchen. Similarly, in order to change an older (but disabled) child's diapers, the person responsible for his age group left his peers unattended to take him to a mat in another room. Sometimes only one KFDC employee supervised more than six infants for a full day. On at least four occasions, and possibly on as many as eight occasions (T.71; Waller Deposition p.9) there were more than six babies in the infant room, which had six cribs and two pallets, even after the playpen was removed at HRS's behest. T.71. Towards the end of the day infants along with older children, sometimes aggregating as many as ten or more, were left in the care of a single KFDC employee. Children played outside, sometimes without adult supervision. Twice, Jason Acosta was outside with children at KFDC "sort of keeping an eye on things while," (Waller Deposition, p.10) his mother was inside with other children. Respondent once asked Jason and Joseph to stay in the baby room with the children there. T.44. Hygiene The parents of two children complained to Ms. Acosta that their children's diapers were dirty when they picked the children up; and the grandmother of a third testified that, at least twice a week, he had "poopy pants" (T.30) when she came for him at KFDC, or at least by the time she had driven him some ten minutes away. Generally, children at KFDC with soiled diapers got fresh ones promptly. Ms. Acosta had extra diapers and clothes for the children on hand. Nutrition For every day a child who ate lunch failed to bring his own, KFDC charged his or her parents a dollar. But some or all of the food supplied these children came from the lunch bags sent with other children. Ms. Acosta or an employee opened the bags and divided the food onto plates without regard to the intended recipients' (or their parents') desires. Mornings and afternoons snacks were almost always provided to the children, but food with which to prepare snacks was occasionally unavailable to staff. The menu sometimes posted at KFDC was not always followed. Once, after two or three children drank from the same glass, respondent refilled it and gave it back to a child, perhaps unaware of its history. Before she obtained the KFDC license, Ms. Acosta registered her home as a family day care center, and the home was inspected by the fire department. T. 497. After her licensure, as before, Ms. Acosta cared for Kyle Dunbar, who has cerebral palsy, at her house, while his mother worked evening shifts. BreAnn's mother, Paige Kelso, also worked nights and left her child in respondent's care when she did. Respondent charged for taking care of these children and sometimes had them both in her home at the same time. Friends of her children spent the night sometimes, and she occasionally took care of a friend's two sons as a favor. Other Matters Ms. Acosta conducted several fire drills at KFDC but sometimes "the month would go by . . . [without one] and then she would write it in" (Waller Deposition, p. 58) anyway, as if one had actually occurred. T.113. Infants were not removed, even when fire drills did take place. Id. Whether falsified records of fire drills were ever submitted to HRS is not clear. Ms. Acosta and others on the KFDC staff relied on "time outs" as their principal disciplinary method. But Ms. Acosta once swatted a little girl's behind. The witness who testified to this incident also testified, "I'm not saying that the child did not like Debra [Acosta, the respondent] or was scared of Debra." Waller Deposition, p. 61.
Recommendation HRS proved several significant violations. But HRS did not prove, or even allege, that respondent's husband sexually abused a child or children. Instead, HRS alleged and proved that such allegations are the basis for pending criminal and (other) administrative proceedings. It is, accordingly, RECOMMENDED: That HRS suspend respondent's day care center license for one year, with credit for the time already elapsed in which HRS has prevented respondent from operating a day care center. That HRS place respondent's license on probation thereafter for a period of at least two years, on condition that respondent comply with all applicable statutes and rules for two years; on condition that respondent not charge for children she cares for at her home; and on condition that Mr. Acosta stay off KFDC premises while children other than his own are there, and have no contact with children who are cared for at KFDC (other than his own), until and unless he is exonerated in both the criminal and administrative proceedings now pending. DONE and ENTERED this 22 day of May, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of May, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1, 3, 4, 5, 6, 7, 10, 11, 12, 13, 17, 20 and 26 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 2, KFDC was licensed earlier than January 1, 1991. With respect to petitioner's proposed finding of fact No. 8, the court order was not in evidence. With respect to petitioner's proposed finding of fact No. 9, the substance is addressed in later proposed findings of fact. With respect to petitioner's proposed findings of fact Nos. 14 and 15, the evidence did not show routine noncompliance. With respect to petitioner's proposed finding of fact No. 16, this occurred only rarely. With respect to petitioner's proposed finding of fact No. 18, it was not clearly and convincingly shown that the screening had not be completed. With respect to petitioner's proposed finding of fact No. 19, it was not clearly and convincingly shown that the children received less than what was nutritionally necessary. Petitioner's proposed findings of fact Nos. 21, 23 and 24 were not proven. With respect to petitioner's proposed finding of fact No. 22, it was not clear that respondent "extended her day care license to her home without authority" as opposed to acting in good faith under supposed authority antedating issuance of KFDC's license. Vicki Waller did not see all those children at the same time, as far as the record shows. With respect to petitioner's proposed finding of fact No. 25, the credible evidence did not clearly and convincingly establish any improper discipline other than the swat. With respect to petitioner's proposed finding of fact No. 27, the violation consisted only of being in the presence of his own children. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 9, 11, 12, 14, 15, 17, 18 and 20 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 7, an adult was inside when the boys were asked to watch the infants, but no adult was outside three or more times when one of the Acosta sons supervised. With respect to respondent's proposed finding of fact No. 8, noncompliance with ratios was sometimes more than momentary. With respect to respondent's proposed finding of fact No. 10, diapers were changed regularly. With respect to respondent's proposed finding of fact No. 13, morning snacks were not always given. With respect to respondent's proposed finding of fact No. 16, children whose parents did not pick them up at KFDC were also brought to the Acosta home. With respect to respondent's proposed finding of fact No. 19, no improper discipline other than a single swat was proven. With respect to respondent's proposed finding of fact No. 21, this is properly a conclusion of law. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 S. J. DiConcilio, Esquire Rodney M. Johnson, Esquire P.O. Box 8420 Pensacola, FL 32505-0420 Mary Koch Polson, Esquire P.O. Box 96 Fort Walton Beach, FL 32549
The Issue Whether petitioner should take disciplinary action against respondent for the reasons (other than the alleged existence of a substantiated indicated abuse report) alleged in the amended administrative complaint?
Findings Of Fact Anderson's Child Care Center at 507 Texas Avenue in Crestview was one of the day care centers Mr. Brown of the Okaloosa County Health Department routinely inspected. Respondent testified without contradiction that she has operated a child care center at her Texas Avenue home since September of 1973, with the exception of the time petitioner closed her down. See Anderson v. Department of Health and Rehabilitative Services, 482 So. 2d 491 as clarified on reh. 485 So. 2d 849 (Fla. 1st DCA 1986). From this evidence it is inferred that she holds a license for a child care center. No evidence suggested otherwise. In the summer and fall of 1985, Lucy's husband Charles lived with her and worked at the child care center. J. S. On July 18, 1985, J.S., who was born January 5, 1982, spent his first day at the Anderson Child Care Center. J.S. was "right about the age [for] learning but c[ould]n't void on command." (T.48). He lacked "the voluntary control" (T.48) to "void on command," but he had learned to restrain himself before attending the Anderson Child Care Center. Although he was toilet trained before he began attending Anderson Child Care Center, he "started having lots of accidents and messing in his pants" (T. 73) after July 18, 1985. When left at the center, J.S. "got where he would throw a fit. He would not want to stay. And when . . . [Mrs. S.] would go pick him up, he would still be crying." (T. 77 ) September 11, 1985, was his thirteenth and final day at the Anderson Child Care Center. On September 12, 1985, A.S.'s mother took her to Eglin Regional Hospital in order to be examined, on account of the redness of her 23-month-old vaginal area. (T.74) J.S. accompanied his mother and sister. Leslie Price Kurtz, an Air Force Officer and pediatrician who saw A.S., diagnosed a rash on her nates as impetigo. In the course of inquiring about A.S., Dr. Kurtz was told by Mrs. S (who relayed information she had received from M.S., 8-year-old brother of J.S. and A.S.) that J.S. did not like to go to the bathroom at Anderson's Child Care Center, which all three S. children attended, because of immodest conditions there. The story Dr. Kurtz got was that the children were directed to use the bathroom at specific times and had no privacy when they did. (T.50) Based on this information, and on Mrs. S's report that J.S. had once been potty trained but had recently regressed, Dr. Kurtz suggested to Mrs. S. that she remove her children from Anderson's Child Care Center. Dr. Kurtz contacted the Department of Health and Rehabilitative Services which, as far as she knew, took no action at that time. In Dr. Kurtz's opinion, "a disturbance . . . had occurred with [J.S.] . . . secondary to the child's behavior as described . . . by the mother." (T.50) J. N. On September 25, 1985, Dr. Kurtz saw J.N. who was brought to her with complaints of an ear infection. There was no mention of any problem with his hands but Dr. Kurtz noticed that J.N., who was 20 months old at the time, had red and macerated fingers. J.N., who was born January 4, 1984, began at the Anderson Child Care Center on July 15, 1985, and attended regularly through September 27, 1985, although he missed a total of nine days, for sickness and other reasons. His parents drove him to the Center on their way to work, dropping him off about seven in the morning, and returned to pick him up about quarter past four in the afternoon. The first day he was there, three or four fingers were swollen a little when his parents picked him up. But in general things seemed to go well, at first. There were no more swollen fingers for two to four weeks and his parents saw him try to sing along with songs and do exercises at home they assumed he had learned at Anderson Child Care Center. There came a point when J.N. began to cry and cling to his mother when he was dropped off at respondent's. From then on, he cried nine times out of ten when he was left at the Anderson Child Care Center and he also frequently chewed on his fingers. One day when his father came for him, J.N. was sitting on the ground looking as if he had been crying. He refused to get up even though his father called him twice. Only after Charles Anderson told J.N. to go to his father did the child go to him. His parents never noticed J.N. chew his fingers before he began at the Anderson Child Care Center and this behavior has all but disappeared since he began attending another child care center. Only during the time he attended Anderson's did his fingers become red, swollen and infected. "[I]t was almost like he had bit right through his fingernails he had been chewing on them so much." Deposition of J.N., p.ll. They have healed completely since he left Anderson's Child Care Center. J.N. was not toilet trained when he started at Anderson's Child Care Center. He was still in diapers. After he had been at the Center two weeks, Mrs. Anderson told his mother that he seemed to have "a bowel movement after naptime when he would be outside playing,"(T.115) and suggested that he "be put on the potty at that time of the day." (T.115) Mrs. N. did not object to this proposal. Thereafter J.N. was placed on the toilet "after naptime" and regularly defecated, without crying or complaining. Child care center personnel did not punish him for accidents. Only after J.N. began at Anderson's Child Care Center, however, did his parents notice J.N. at home "go behind the furniture to go potty. It seemed like he was afraid . . ." (Deposition of J.N., P. 11) J.N. also seems to fear toilets. Id., P. 2. After J.N.'s parents related his circumstances to Dr. Kurtz, Dr. Kurtz concluded that the changes in his behavior were "most likely . . . [attributable to] conditions at Anderson Day Care Center," (T. 52) and contacted HRS. She also advised J.N.'s parents to remove him from Anderson Child Care Center immediately. J.N.'s parents sent him to Anderson Child Care Center the next day nevertheless. [T]hen we talked some more; we decided we would take him out because in -- when you're in the air force, you have your family. But in matter of speaking, the air force can run that family for you -- because if we wouldn't have taken him out of there and the doctor would have found out about it, she could have forced us to take him out of there. Deposition of J.N., P. 19. Respondent learned of dissatisfaction with the care J.N. received at the Center only after the present proceedings began. Toileting Generally In response to petitioner's interrogatories, Mrs. Anderson described toileting procedures at the Anderson Child Care Center. Petitioner offered her description in evidence: Under two years of age, after the parents agree the time for pottie training is to start, The children are exposed to the pottie usually during diaper change time. After pottie training depending on liquid ingestion, weather, child, time of day, and other variables, the children are given an opportunity periodically to use the pottie. If the children are inside they are given the opportunity every hour. If the children are outside they are given an opportunity every 1-1/2 to 2 hours. If the children need to go in the interim they are allowed to do so. If the children are going on a field trip or leave the center they are encouraged to use the bathroom before leaving. The children are also encouraged to use the bathroom right after lunch. The same procedure is employed for the children 2 through 5 and older as is the case with the children under 2 years of age after those children under 2 are pottie trained as above outlined. Usually the children are selected randomly while listening to a story for the purpose of an opportunity to use the bathroom. Petitioner's Exhibit No. 2. Mrs. Anderson's testimony at hearing was consistent with this account, as regards events after July 1, 1985. Staffing On October 9, 1985, Lucy Anderson was at Anderson's Child Care Center all day. At eight that morning Debbie Underwood and Pat Todd arrived and began work. At noon Charles Anderson came home. Thirty minutes later Debbie Underwood left the premises for lunch and at one o'clock Pat Todd left for the day. At 1:30 p.m., Debbie Underwood returned from lunch and Ann Parker reported for work. At half past two, Mr. Anderson left, but Kelley Anderson came home ten minutes later. Both Mrs. Parker and Mrs. Todd left for the day at five, but Kelley helped her mother till six. Between two and three o'clock on the afternoon of October 9, 1985, Arthur Alvin Brown, an inspector with the Okaloosa County Health Department, called at Anderson's Child, Care Center. Mrs. Anderson and three other women supervised the children while Mr. Brown was there. He stayed "probably somewhere in the neighborhood of fifteen, twenty, thirty minutes." (T.89) He counted four children inside sleeping on mats, and approximately 65 outside playing. Because he "knew the licensed capacity was fifty-five [he counted] a number of times." (T.89) Children were coming and going while he was there and he tried to take that into account. No more than five children left during his stay, however. Of the children who respondent's own records reflect were at the Center from two or earlier till three or later on the afternoon of October 9, 1985, four were ten years old, three were nine years old, eight were eight years old, two were seven years old, five were six years old, five were five years old, six were four years old, three were three years old, four were two years old and Matthew Newell was the only one-year-old. Petitioner's Exhibit No. 2. According to respondent's records, 29 other children were at the Center for some part of the time between two and three o'clock that afternoon. The age of one of the children in this group is not clear from the record. Of the others, two were two years old, only Candace Cox was three years old, two were five years old, four were six years old, eight were seven years old, three were eight years old, four were nine years old, three were ten years old and Kevin Barrow was the only eleven- year old. Petitioner's Exhibit No. 2.
The Issue The issue in the case is whether Respondent should be subjected to a civil penalty and the revocation of her family day care license because of the violations alleged in the Administrative Complaint dated September 14, 2010.
Findings Of Fact The Department is responsible for the registration, licensure and supervision of family day care homes, pursuant to section 402.313, Florida Statutes. Section 402.302(8), Florida Statutes, defines "family day care home" as: [A]n occupied residence in which child care is regularly provided for children from at least two unrelated families and which receives a payment, fee, or grant for any of the children receiving care, whether or not operated for profit. A family day care home shall be allowed to provide care for one of the following groups of children, which shall include those children under 13 years of age who are related to the caregiver: A maximum of four children from birth to 12 months of age. A maximum of three children from birth to 12 months of age, and other children, for a maximum total of six children. A maximum of six preschool children if all are older than 12 months of age. A maximum of 10 children if no more than 5 are preschool age and, of those 5, no more than 2 are under 12 months of age. Respondent, Kimberley Fulton-Pryor, has been licensed to operate Emmielee Miracle family day care pursuant to license number F04DU0892. Ms. Fulton-Pryor is the director of the family day care home as well as the provider of child-care to the children in her home. Ms. Fulton-Pryor's husband, J.T. Pryor, has worked for an employee leasing company, Remedy Intelligent Staffing, since April 5, 2010. Mr. Pryor's working hours are 9:00 a.m. to 5:00 p.m., Monday through Friday. Mr. Pryor has not cleared background screening pursuant to chapter 435, Florida Statutes, and is therefore not allowed to supervise children in the family day care. In an earlier enforcement action, the Department and Ms. Fulton-Pryor agreed that Emmielee Miracle's continued licensure was contingent upon Mr. Pryor's not being at the family day care home while children other than his own were present. Ms. Fulton-Pryor's brother is the fiancé of Portia Standberry and is the father of Ms. Standberry's son, T.J, who was three years old at the time of the incidents at issue in this case. Ms. Fulton-Pryor provided day care services at Emmielee Miracle for T.J. and his six-year-old sister. Ms. Standberry ordinarily picked up T.J. and his sister from Emmielee Miracle between 4:30 and 5:00 p.m. Her children were frequently the last ones picked up from the day care. On May 4, 2010, Ms. Standberry recalled that she picked up the children at around 4:30 p.m., but conceded that it could have been as late as 5:15 p.m. When Ms. Standberry arrived at Emmielee Miracle, she noticed that Ms. Fulton-Pryor's personal car was not in the driveway, although the van used to transport children was in the driveway. Ms. Standberry testified that as she entered the day care home, she saw several of the children, including her daughter, in a room without adult supervision. She walked farther into the house and saw Mr. Pryor. She asked him where T.J. was. Mr. Pryor told her that T.J. was in the back of the house with Jaquan, Ms. Fulton-Pryor's 15-year-old son. Ms. Standberry walked to Jaquan's room in the back of the house. When she entered the room, she saw T.J. in the bed, under the covers. Jaquan had his hands under the covers. Ms. Standberry thought "something was weird." She pulled the covers back and Jaquan pulled his hand back. T.J. was laughing. Ms. Standberry told T.J. it was time to go. As she was leaving the house, Ms. Standberry asked Mr. Pryor where Ms. Fulton-Pryor was, because she did not like the idea of her son being alone in a bedroom with Jaquan. Mr. Pryor answered that his wife had gone "around the corner somewhere," but would be right back. Ms. Standberry left the house with her children. As they were getting in the car, the situation continued to nag at Ms. Standberry. She asked T.J. whether Jaquan had touched or hit him. T.J. told her that Jaquan had "touched my pee-pee." Ms. Standberry went back into the day care in search of Ms. Fulton-Pryor. She confronted Mr. Pryor with the allegation that Jaquan had molested T.J. Mr. Pryor attempted to reach Ms. Fulton-Pryor by telephone. Ms. Standberry, still very angry, went home. She returned to the day care a little while later with her fiancé, Terry Chance. By this time, Ms. Fulton-Pryor had returned to the day care home. She was interrogating Jaquan in an effort to understand what had happened. Ms. Standberry left again, this time going to her mother's house and calling the Jacksonville Sheriff's Office ("JSO"). Deputy M.A. Drayton of the JSO met Ms. Standberry at her mother's home. He interviewed Ms. Standberry, who explained the situation to him. She further told Deputy Drayton that her sister had spoken to T.J., who had demonstrated the manner in which Jaquan had reached inside his underwear to touch his genitals. Ms. Standberry then accompanied Deputy Drayton to the day care home. On the way to the home, Ms. Standberry spoke to Ms. Fulton-Pryor on her cell phone. Both Ms. Standberry and Deputy Drayton heard Ms. Fulton-Pryor plead to Ms. Standberry not to call the police. Ms. Fulton-Pryor assured Ms. Standberry that she would try to get help for Jaquan and that Jaquan would no longer be present in the home. Deputy Drayton referred the matter to the JSO's sex crimes unit. The JSO put in place a safety plan that called for Jaquan to stay at his aunt's home pending the outcome of the investigation. The record of this proceeding did not disclose the results of the JSO investigation. After receiving a complaint on May 20, 2010, the Department conducted an investigation of this matter as an incident of sexual abuse. T.J. was interviewed by the child protective team and repeated the allegation. Jaquan steadfastly denied the allegation. The Department's investigation could not establish a finding of sexual abuse based only on T.J.'s allegation. However, the Department's abuse investigator did verify the report for "inadequate supervision," because Ms. Fulton-Pryor was absent from the home and Mr. Pryor was supervising the children in her absence. These events set off recriminatory legal actions among factions of this extended family. On May 25, 2010, a report was phoned in to the Department alleging that Ms. Standberry's children were "filthy" and that their home was "filthy and very unsanitary." The Department's investigator found that the children were well cared for, healthy and happy. Ms. Standberry, understandably assuming that Ms. Fulton-Pryor was the source of the report, filed a verified petition for injunction for protection against sexual violence on May 27, 2010, against Ms. Fulton-Pryor and Jaquan Fulton. On the same date, Ms. Standberry filed a verified petition for injunction for protection from repeat violence against Ms. Fulton-Pryor. In these petitions, Ms. Standberry verified that Jaquan sexually molested T.J., that Ms. Fulton-Pryor was not in the day care home at the time, and that Mr. Pryor was supervising the children in the home. Ms. Standberry later dropped the petitions for injunction when she learned that the complaint against her had been lodged not by Ms. Fulton-Pryor but by Dushella Fulton, a cousin of Ms. Fulton-Pryor. Ms. Fulton-Pryor denied that Mr. Pryor was in the home on May 4, 2010, at the time Ms. Standberry arrived to pick up her children. Ms. Fulton-Pryor introduced records from Remedy Intelligent Staffing indicating that Mr. Pryor worked a full 40 hours during the week of May 4, 2010. Mr. Pryor got off work at 5:00 p.m., and Ms. Fulton-Pryor contended that it would have been impossible for him to get to her house by 5:15 p.m. The records presented by Ms. Fulton-Pryor show only that Mr. Pryor worked 40 hours on the week of May 4, 2010. They provide no specifics as to how many hours he worked each day, whether he might have started early and finished early on a given day, or whether he might have worked extra hours on a given day and received compensatory leave on another. Ms. Fulton-Pryor was adamant that Mr. Pryor was paid only for the hours that he worked, and that he was allowed to work only from 9 to 5, Monday through Friday. Had he left work early on May 4, the records would show something less than 40 hours for the week. He was allowed to clock in early or late only with a supervisor's permission. The records presented by Ms. Fulton-Pryor were insufficient to negate the credible eyewitness testimony of Ms. Standberry regarding Mr. Pryor's presence in the home. On this point, Ms. Standberry's credibility is bolstered by the fact that her primary concern was the alleged abuse committed against her son. Mr. Pryor's presence in the home was an incidental detail of her testimony and her verified complaints, a detail that she was unlikely to have invented in the heat of the moment on May 4, 2010. Davetis Fulton, a volunteer at the day care home, testified that she was at the home on the day in question and that Mr. Pryor was not there. However, Ms. Fulton also testified that she left the day care home between 4:30 and 4:45 p.m., and was not actually present when Ms. Standberry arrived to pick up her children. Aside from her denial that Mr. Pryor was in the house, Ms. Fulton-Pryor offered no plausible alternative version of the events of May 4, 2010. In particular, Ms. Fulton-Pryor did not deny that she was out of the home when Ms. Standberry arrived to pick up her children. She did not identify the adult in charge of the children in her absence, if it was not Mr. Pryor. The greater weight of the evidence establishes that Ms. Fulton-Pryor was out of the day care home during operating hours on May 4, 2010, and that she left her husband, J.T. Pryor, in sole charge of the children for an unspecified period that included the time during which Ms. Standberry entered the home to pick up her children.
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 imposing a fine of $1,000.00 and declining to renew the license of Kimberly Fulton-Pryor, d/b/a Emmielee Miracle family day care home. DONE AND ENTERED this 21st day of March, 2011, 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 21st day of March, 2011. COPIES FURNISHED: Kimberly Fulton-Pryor Kimberly Fulton-Pryor, d/b/a Emmielee Miracle 2812 West 10th Street Jacksonville, Florida 32254 David Gregory Tucker, Esquire Department of Children and Family Services 5920 Arlington Expressway Post Office Box 2417 Jacksonville, Florida 32211 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, Acting General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
