The Issue The issue is whether Petitioner's application for licensure to operate a family day care home should be denied.
Findings Of Fact On June 6, 2008, Petitioner applied for a license to operate a family day care home in Bartow, Florida. As part of the licensure process, the Department is required to conduct an inspection of the home where Petitioner's proposed family day care would be operated. The inspections are conducted by the Department's family safety counselors. Patricia Step was the family safety counselor initially responsible for conducting the licensure inspection of Petitioner's home. On February 20, 2009, prior to conducting the actual inspection, Ms. Step completed a preliminary walk-through of Petitioner's home. The purpose of the walk-through was to advise Petitioner of areas of her home and property that were not in compliance with required standards and needed to be corrected or addressed prior to the licensure inspection. After completing the initial walk-through, Ms. Step listed the areas that needed to be corrected or addressed prior to the licensure inspection in preliminary review notes, which she gave to Petitioner. Those areas were as follows: (1) a fence at least four feet high was needed around the playground area in the backyard; (2) the alarm on one of the two doors in the master bedroom, specifically, the master bathroom door leading to the pool, needed to be repaired; (3) the screen door needed to be locked from the inside so that a child playing outside could not access the swimming pool5; and (4) locks needed to be placed on kitchen cabinets containing cleaning supplies and other harmful items, and knives needed to be placed in upper cabinets. On February 27, 2009, a week after the initial walk-through, Ms. Step conducted a licensure inspection of Petitioner's home. This date was mutually agreed upon by Petitioner and Ms. Step on February 20, 2009, after Petitioner indicated that she could have the four areas of non-compliance corrected or addressed in a week. During the licensure inspection, Ms. Step determined that Petitioner had addressed and/or corrected three of the four items listed in the preliminary review. The one item that had not been addressed was the "pool alarm on the [master bathroom] door" leading to the swimming pool. The alarm on the master bathroom door was part of Brinks' alarm system that included all the other doors in the house which led outside or to the pool area. Petitioner and her husband had this "high tech" alarm system installed after the April 23, 2006, incident discussed below. The alarm system could be programmed to allow each interior door to cause either the alarm to sound or a "chiming sound" when anyone opened the interior door to exit the house. At the time of the inspection, all the interior doors leading to the pool were programmed so that when the alarm system was turned on, the alarm would sound if anyone opened those doors.6 Except for the master bathroom door, the alarm on all the other doors leading to the pool were working properly. Ms. Step recorded the results of the February 27, 2009, inspection on the Department's Inspection Checklist form ("Inspection Checklist"). Of the 38 areas listed on the Inspection Checklist, Ms. Step indicated that Petitioner's application and/or home were non-compliant in two areas-- background screening and swimming pools. In the area of background screening, Ms. Step noted that there was no local criminal background check on file for Carlos Granados, Petitioner's cousin who was temporarily living in Petitioner's household. In the area of swimming pools, Ms. Step noted two areas of non-compliance: (1) the swimming pool at Petitioner's home was not properly maintained; and (2) the "pool alarm" was inoperable. Although the Inspection Checklist noted that the "pool alarm" was inoperable, Ms. Step never told Petitioner that a "pool alarm" needed to be in the swimming pool. Rather, Ms. Step spoke to Petitioner only about the need to repair the alarm on the master bathroom door that led to the pool.7 Based on Ms. Step's statements to Petitioner about the "alarm" and her preliminary review notes, both Ms. Step and Petitioner understood the reference to "pool alarm" on the Inspection Checklist to mean the alarm on the master bathroom door. The Inspection Checklist completed on February 27, 2009, specified that the "due date" to correct the non-compliant areas was April 3, 2009. After completing the licensure inspection on February 27, 2009, Ms. Step intended to return to Petitioner's home to determine if the non-compliant areas had been brought into compliance. However, Ms. Step never returned to Petitioner's home. Instead, Vicki Richmond, a family safety counselor, followed up on Petitioner's progress in addressing the non-compliant areas8 while she was at Petitioner's home conducting a complaint investigation.9 On March 13, 2009, nine months after Petitioner submitted her licensure application, Ms. Richmond conducted a Central Abuse Hotline search on Petitioner and her husband as part of the application review process. The Department is required to search the records of the Central Abuse Hotline for reports of abuse, neglect, or abandonment. This search provides information as to whether Petitioner's name appears in those records, and, if so, whether there were "verified" indicators of maltreatment of children. Both Petitioner and her husband consented to this search. The Central Abuse Hotline search revealed a verified report for inadequate supervision by Petitioner and her husband and some indicators of maltreatment, asphyxiation. The report involved an incident that occurred on April 23, 2006, in which Petitioner and her husband's then three-year-old daughter almost drowned. On or about March 13, 2009, Ms. Richmond notified Ms. Step of the report and advised her that the verified findings needed to be addressed prior to proceeding with the license. On March 20, 2009, while driving across Highway 60 in the Bartow area, Ms. Richmond saw a sign with the name of Petitioner's prospective family day care home and her address and telephone number. Concerned that the sign did not include a license number, Ms. Richmond contacted the licensing office to verify whether Petitioner's home was a licensed family day care home. She was advised that Petitioner's licensure application was "pending" and had not been approved. Ms. Richmond then called Ms. Step to check the status of Petitioner's licensure application. During that conversation, Ms. Step reminded Ms. Richmond that this was the applicant for whom she (Richmond) had recently done the Central Abuse Hotline search. On March 23, 2009, as part of the complaint investigation about Petitioner's sign, Ms. Richmond made an unannounced visit to Petitioner's home. Ms. Richmond advised Petitioner that it was illegal for her to post a sign advertising her home as a family day care home before it was licensed. In response, Petitioner informed Ms. Richmond that after the February 27, 2009, licensure inspection, she (Petitioner) had been told that she could put a sign up and start a waiting list of people interested in day care services. After hearing Petitioner's explanation, Ms. Richmond then told Petitioner that "if" she put up a sign prior to licensure, the sign had to "at least" include in bold letters, "License Pending." On March 23, 2009, immediately after addressing the "sign" issue, Ms. Richmond conducted an unannounced or inspection walk-through of Petitioner's home and discussed issues with Petitioner that Ms. Richmond believed were of concern to the Department. During the walk-through, Petitioner advised Ms. Richmond that the "door alarm" had not yet been repaired. Among the issues Ms. Richmond raised and discussed with Petitioner were: (1) the need to install either a pool alarm or portable pool barriers; (2) the pool was not clean and was only partially filled with water; (3) the spa in the backyard needed a cover; (4) the local criminal background check for Petitioner's cousin had not been received. Ms. Richmond described to Petitioner and her husband two options related to the swimming pool--the "portable pool barriers" and a "pool alarm." In describing the "pool alarm," Ms. Richmond indicated that it was a device that was placed in the pool. She further explained that with this type of "pool alarm," if a child fell in the swimming pool, the alarm would sound. Although the alarm on the master bathroom door was not working on March 23, 2009, Petitioner's husband was making efforts to get the door alarm repaired. However, that day, Ms. Richmond told Petitioner and her husband that even if the alarm on the master bathroom door was repaired, they still needed to have an alarm in the pool. In response to this directive, Petitioner agreed that they would install a "pool alarm" in the swimming pool. After completing the March 23, 2009, walk-through, Ms. Richmond informed Petitioner that the items she had discussed needed to be corrected prior to a license being granted. However, no written documentation was provided to Petitioner regarding the areas of non-compliance discussed during the walk-through or inspection. Ms. Richmond returned to Petitioner's home on March 27, 2009, for her second unannounced visit, which was described as a follow-up to her "complaint investigation." Once there, Ms. Richmond observed that the sign advertising the family day care home was still displayed. However, Petitioner's husband came home while Ms. Richmond was there and immediately took down the sign. During the March 27, 2009, unannounced complaint investigation visit, Petitioner told Ms. Richmond that the alarm on the master bathroom door was not working. About that time, Petitioner's husband arrived and told Ms. Richmond that he had purchased a pool alarm and even showed her the alarm. The "pool alarm" was purchased in response to Ms. Richmond's directive during the March 23, 2009, walk-through but had not been put in the pool, because the pool had not yet been cleaned.10 At the end of the March 27, 2009, unannounced visit, Ms. Richmond talked to Petitioner and her husband about the verified abuse/neglect report regarding the April 23, 2006, incident in which their daughter almost drowned. The findings in the report were "verified" for inadequate supervision by Petitioner and her husband. Given the implications of the abuse/neglect report, Ms. Richmond explained that although Petitioner needed to address the areas of non-compliance, the most pressing and immediate concern was the abuse/neglect report. Petitioner's husband testified credibly that during the conversation described in paragraph 23, Ms. Richmond told him and Petitioner that because of the abuse/neglect report, there was "no way" Petitioner would get a family day care home license. Based on that comment, Petitioner and her husband reasonably believed that Petitioner's application would be denied because of the abuse/neglect report. On March 27, 2009, after being told about the abuse/neglect report and the ramifications of that report, Petitioner and her husband "stopped moving forward" on the areas of non-compliance related to the swimming pool (i.e., cleaning the pool and installing the pool alarm).11 Believing the abuse/neglect report would result in denial of her licensure application, Petitioner and her husband began to focus on issues related to the report. They were also concerned and had questions about the Department's licensing process as it related to the abuse/neglect report. Ms. Richmond's third visit to Petitioner's home was on April 7, 2009. The sole purpose of that visit was to answer the "real" questions that Petitioner and her husband had about the abuse/neglect report and the licensing process. Ms. Richmond answered their questions as best she could, but recommended that they schedule an appointment with the licensing supervisor at the licensing office.12 That same day, Petitioner and her husband scheduled a meeting and met with Sheila Nobles, administrator and supervisor for child care licensing, to discuss, ask questions about, and review the abuse/neglect report. On April 8, 2009, Ms. Richmond finalized her "report" on the complaint investigation regarding the sign. Ms. Richmond's notes in the "comment" section of the pre-printed "Notice to Cease and Desist" form described the events of March 20, 23 and 27, 2009, as they related to the sign issue.13 Decision to Deny Application As the family safety counselor responsible for reviewing Petitioner's application and conducting the licensure inspections, Ms. Step recommended to Ms. Nobles that Petitioner's license be denied. Ms. Step's recommendation was based on the verbal reports provided to her by Ms. Richmond, which indicated that the areas of non-compliance on the Inspection Checklist had not been corrected. Prior to making a decision about Petitioner's application, Ms. Nobles reviewed the application file, the abuse/neglect report, the Inspection Checklist and the preliminary review notes. Ms. Nobles testified that she considered the "five different inspections"14 of Petitioner's home and property by the two licensing counselors, the areas of non-compliance that had not been corrected, and the abuse/neglect report with a "verified" finding of inadequate supervision. The Central Abuse Hotline Report Applicants seeking licensure to operate a family day care home are required to undergo a Level II screening. That screening included a check to determine if the applicant had a report in the Central Abuse Hotline. Due to concern for the safety of children, the Department is authorized to deny a family day care home license if the applicant has a verified abuse/neglect report. Because of its concern about the safety of children in Petitioner's care, the Department alleges that the abuse/neglect report revealed during a Central Abuse Hotline search is ground for denying Petitioner's license. As it relates to the abuse/neglect report, the denial letter states in relevant part: The Department has documented a verified abuse neglect report whereby your then 3-year-old daughter was not supervised correctly on June 21, 2006.[sic][15] These actions allowed your child to wonder [sic] outside the family swimming pool were [sic] she was found after an undetermined time under water and not breathing. During the investigation it was determined that the lock to get access [presumably to the pool] had been broken for a few days. The abuse/neglect report was initiated when a call was received by the Central Abuse Hotline on April 23, 2006. According to the intake-report, an incident occurred at Petitioner's and her husband's home in which their then three- year-old daughter ("child") almost drowned. Jermaine Turner, a child protective investigator ("CPI"), was assigned to investigate the incident. As the investigator, CPI Turner was responsible for making contact with the family of the child and other appropriate individuals. During the investigation, CPI Turner worked under the supervision and direction of Terry Lynn Reinhardt, a child protective supervisor. As CPI Turner's supervisor, Ms. Reinhardt had contact with CPI Turner and gave him directives related to follow-up activities on case-related matters. The abuse/neglect report includes a summary of notes which purport to summarize interviews CPI Turner conducted with Petitioner and her husband on May 18, 2006, about a month after the subject incident. Petitioner's husband recalled that this interview was conducted by telephone. Ms. Reinhardt testified that CPI Turner interviewed the child's parents and also made telephone contact with them to follow-up on an issue involving a "broken door." Ms. Reinhardt was not present at the interviews that CPI Turner conducted with Petitioner and her husband. Thus, she had no first-hand knowledge of what, if anything, they said to CPI Turner. Rather, Ms. Reinhardt relied on CPI Turner's verbal reports to her and the notes and summaries in the abuse/neglect report attributed to him. CPI Turner did not testify at this proceeding. Moreover, no competent evidence was presented regarding any entries (i.e., notes, comments, and/or interview summaries) in the abuse/neglect report attributed to CPI Turner. The case was closed on June 21, 2006, and the findings and conclusions in the matter were summarized in a two-page document titled, Investigative Summary. The Investigative Summary includes an "updated" note dated June 6, 2006, that provided: "The child . . . was left to watch cartoons; however, she was found face down in a swimming pool. The lock to get access from the pool to the house had been broke [sic] for approximately two day [sic]. They stated they planned to fix the lock but never got around to it." No evidence was presented as to who made the "updated" note or the source of the information in that note. After the investigation was complete, Ms. Reinhardt concluded that there were "some indicators" of maltreatment, asphyxiation, and verified findings of inadequate supervision as to both parents. In reaching that conclusion, Ms. Reinhardt relied on information provided by Mr. Turner and then applied the Department's CFOP 175-28 in reaching those conclusions. Florida Administrative Code Rule 65C-30.001(6) incorporates by reference the "Allegation Matrix" set forth in the Department's CFOP 175-28. Pursuant to that rule, the "Allegation Matrix" is a document that defines specific types of abuse, neglect or abandonment; guides staff in determining whether abuse, neglect or abandonment has occurred; and assists in ensuring that all factors are considered when assessing each type of maltreatment. The Department's CFOP 175-28 was not offered into evidence during this proceeding. Based on the conclusion reached by Ms. Reinhardt, the abuse/neglect report was closed on June 21, 2006, with the finding of some indicators of maltreatment, asphyxiation, and verified findings of inadequate supervision. Notwithstanding those findings, the Investigative Summary reflects that there was no prior history of abuse or neglect and no criminal history. Moreover, the Investigative Summary indicated that no intervention services were needed, no placement outside the home was required, and no judicial action was required. Finally, Petitioner and her husband were not given any safety plan to implement. The April 23, 2006, incident was also investigated by the Polk County Sheriff's Office ("Sheriff's Office"). That investigation included at least two or three detectives and/or officers taking and tape recording sworn statements from Petitioner, her husband, and her father-in-law. All of these sworn statements were "in-person" interviews taken within 24 hours of the incident. Petitioner's husband testified credibly that the written summaries of the sworn statements taken by the Sheriff's Office detectives, particularly that of Detective Wharton, accurately reflect not only the substance of the interviews, but also what actually occurred on April 23, 2006. Petitioner's husband testified credibly about the facts related to the April 23, 2006, incident and the accuracy of written summaries of the tape-recorded sworn statements taken by detectives as set forth below in paragraphs 51 through 60. On April 23, 2006, Petitioner was in the family pool with her then three-year-old daughter. While Petitioner and her daughter were in the pool, Petitioner's husband and his father arrived at the house. Petitioner then went into the house to prepare dinner and her husband stayed at the pool with the child. Shortly thereafter, Petitioner's husband removed the child from the pool, took off the floatation device the child was wearing while in the pool, took her into the house, and then closed and locked the bottom lock of the door. Once in the house, Mr. Best put on a movie for his daughter in her bedroom and then told his wife that the child was in the room watching a movie. The child left the bedroom and went to the kitchen where her mother was preparing dinner. For some time, the child went back and forth between the kitchen, playing near her mother and/or "helping" her mother, and the living room where she (the child) was sitting on the floor watching cartoons on television. The kitchen and living room were adjacent rooms with a large opening between them which allowed a person in one room to see into the other room. When Mr. Best and his daughter went into the house, his father (the child's grandfather) was taking a shower. A few minutes later, after taking his shower and getting dressed, the child's paternal grandfather got out his new video camera and went to the kitchen/living room area to videotape his granddaughter while she was playing. He videotaped her playing for several minutes and then went to the bedroom to put away the video camera. It took the child's grandfather about two or three minutes to put away his video camera and return to the kitchen area. When the grandfather returned to the kitchen/living room area, he asked Petitioner where the child was. Believing the child was in the living room, Petitioner told her father-in-law that the child was in the living room looking at television. Petitioner then went into the living room to look for the child and discovered she was not there. Petitioner then immediately went outside to the patio and saw the child laying face down in the pool. Petitioner screamed for help, jumped in the pool and lifted the child from the water. Petitioner's husband was close enough to the kitchen/living room area that he heard the exchange between his father and Petitioner about the child's whereabouts and Petitioner's subsequent scream. Within a few seconds, Petitioner's husband ran from the house, jumped in the pool, removed his daughter from the pool, and placed her on the pool deck. Once the child was on the pool deck, the child's father and her grandfather immediately began administering CPR while Petitioner called 911. They continued performing CPR on the child until the emergency medical services and the fire department arrived on the scene. Both parents reported to detectives investigating the incident that the child knew how to open and unlock doors. Based on the facts established at or near the time of the incident, it was concluded that the child slipped out of the house and went undetected for about two or three minutes. Petitioner and her husband described the child's "slipping out of the house" as unusual and something she had never done prior to April 23, 2006. Until that day, the child had never gone off on her own and had been fearful of and never gotten into the swimming pool at that house. (Petitioner and her family had moved to this house only two or three months before the incident.) Based on its investigation, which included sworn statements by Petitioner, her husband, and her father-in-law, the Sheriff's Office concluded that the April 23, 2006, incident was an accident. The Department does not disagree with the conclusion reached by the Sheriff's Office (i.e., the April 23, 2006, incident was an accident). Nevertheless, according to Ms. Reinhardt, irrespective of whether the incident was an accident or done on purpose, the Department still found "verified" indicators of inadequate supervision, because the child got out of the house and into the pool and almost drowned. The factual allegations in the report upon which the Department relied were not established by competent and substantial evidence. In absence of such evidence, the Department's verified finding of inadequate supervision has not been proven. The record in this case is devoid of any evidence to establish the Department's finding of any indicators of maltreatment. Therefore, the Department's findings that there were "some" indicators of maltreatment has not been proven. Alarm on the Master Bathroom Door The Department alleges that during the applicable time period, the swimming pool at Petitioner's home did not comply with the requirements in Florida Administrative Code Rule 65C-20.010(1)(i). That rule requires that swimming pools at least one-foot-deep have either a barrier at least four-feet- high around the pool, separating the pool from the house, or a pool alarm that is operable at all times when children are in their care. There was conflicting and inconsistent information provided to Petitioner as to whether a "pool alarm" that floats in the swimming pool was required instead of a door alarm, which is also apparently referred to as a pool alarm. Despite any confusion that may have been caused by the different representations made to Petitioner, it is undisputed that the preliminary review notes and the Inspection Checklist clearly indicate that Petitioner was required to repair the alarm on the master bathroom door which led to the pool. It appears that Florida Administrative Code Rule 65C-20.010(1)(i) refers to door alarms as pool alarms. Petitioner's husband testified credibly that he attempted to have the door repaired by service personnel of the alarm company that installed the alarm system, but has been unsuccessful in doing so. In light of these futile attempts, Petitioner's husband purchased a battery-operated door. However, it is unknown when the battery-operated door was purchased, whether it has been installed, and, if so, how it works. The alarm on the door of the master bathroom had not been repaired by the April 3, 2009, "due date" or any time thereafter, nor had any acceptable alternatives been installed. Maintenance of the Swimming Pool The Department alleges that the swimming pool at Petitioner's home was not clean and maintained as required by Florida Administrative Code Rule 65C-20.010(1)(j). That Rule requires that if a family day care home uses a swimming pool, it shall be maintained by using chlorine and other suitable chemicals. Petitioner acknowledges that, at all times relevant hereto, the swimming pool at her home was not clean and properly maintained. Some time after the denial letter was issued, Petitioner's swimming pool was emptied, a full-processed cleaning was completed, and the pool was filled with water. However, a leak in a light in the pool was discovered. In order to repair that leak, the pool had to be emptied. At the time of this proceeding, the leak was being repaired. Once the leak is fixed, the pool can be filled with water and the "pool alarm" that floats in the pool can be installed. Local Law Enforcement Background Check The application process requires that each person living in the home that will serve as the family day care home have a background screening. Such background screening includes a check by the Federal Bureau of Investigation ("FBI"), the Florida Department of Law Enforcement (FDLE"), and a local criminal history check. In February 2009, Petitioner's cousin, Carlos Granados, was living with Petitioner and her husband. Accordingly, Mr. Granados was required to have a local criminal history check, and a copy of that criminal history check was to be provided to the Department. Petitioner testified credibly that she submitted all the documents for completion of Mr. Granados' background checks and could not explain why the Department did not receive the local criminal history check for Mr. Granados.16 The evidence established that Mr. Granados no longer lives in Petitioner's home. Therefore, the Department does not need, and is not required to have, a local criminal history check for him.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Children and Family Services, enter a final order: (1) finding that Petitioner, Best Family Day Care Home, failed to meet the standards in Florida Administrative Code Rule 65C-20.010(1)(i) and (j); and (2) denying Petitioner's application for a family day care home on those grounds. DONE AND ENTERED this 9th day of February, 2010, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2010.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's license to operate a family daycare home should be suspended based upon the Petitioner's husband's plea of nolo contendere to a disqualifying second degree felony.
Findings Of Fact The Petitioner, Sislyn Gonsalves, has operated a family daycare home at times pertinent hereto, including in 2005 up through the time of the hearing, pursuant to license number F12V00010. The family daycare home is located at 2820 Lake Helen Osteen Road, Deltona, Volusia County, Florida. The Petitioner and her husband Clayton A. Gonsalves have had repeated disciplinary problems with their 13 year old son, K. G. K. G. had been repeatedly in trouble at school and may have been involved in an incident involving a theft, of which his parents became aware. On or about April 16, 2005, an incident occurred in the Petitioner's home. The Petitioner's husband Clayton Gonsalves and the Petitioner were trying to leave for church that morning and to persuade their son K. G. to attend church with them. An argument between the son and Mr. Gonsalves ensued. During the incident Mr. Gonsalves picked- up a short piece of light weight PVC pipe, approximately three feet by three quarter's of an inch, and struck his son several times on the left shoulder and the right hand. The persuasive evidence in this case is that the blows with the light weight PVC pipe did not leave marks. The son, K. G., being angry and upset at the time, abruptly left the family premises. The Petitioner and her husband and other child thereupon preceded to attend church. Later that day, after the incident had apparently been reported to the police, the police arrested Mr. Gonsalves and charged him as having committed child abuse. On or about May 11, 2005, Mr. Gonsalves entered a plea of nolo contendere on a charge of aggravated child abuse, which is a second degree felony. This resulted from the incident described above. As a result of that plea Mr. Gonsalves was sentenced to a term of three years of probation, and adjucation was withheld. As a condition of his probation he was ordered to have "no violent contact" with the victim, K. G., and to "comply with the Department of Children and Family's conditions and case plans." Mr. Gonsalves works in the State of New York as a plumber. He returns to his family residence, to be with his family, whenever possible, between jobs. He resides there with the Petitioner and their children at such times. He is often present in the family residence while the Petitioner is providing daycare for other children and often assists her in providing care for the children. The unrefuted, persuasive evidence adduced by the Petitioner through her testimony and that of her witnesses establishes that she and her husband are loving parents who do not maintain an abusive home. They treat their own children and the children they provide daycare for, as clients, in a loving, responsible and positive way. The Petitioner is in the process of earning her college degree in Early Childhood Education and desires to continue in the business of providing daycare. The lack of an abusive climate in the home is borne out by the fact that the Petitioner's and Mr. Gonsalves's children are in the gifted program in school, and by the fact that K. G.'s grades and scholastic standing at school have marketedly improved since the incident in question. The Petitioner's witnesses, particularly her mother, described Mr. Gonsalves as a loving husband and father who does not commit abuse, who does not drink, smoke or abuse his wife or children. Witness Ayallo, the agency's Licensing Inspector, established that the Petitioner's family daycare home is always in compliance with relevant regulatory rules and statutes, and he corroborated the Petitioner's testimony concerning the history of disciplinary problems caused by her son. Witness Surgine, the Agency's Licensing Specialist established that the Agency only wanted to suspend the licensure because of the fact that the husband, Mr. Gonsalves, would, on occasion, be present in the home when child clients are present. The Agency did not feel that the incident justified a revocation of license. This is an unfortunate, isolated incident. The persuasive evidence of record shows that Mr. Gonsalves is not an abuser of his children, the children of others or his wife, the Petitioner. The Petitioner is operating her facility as an exemplary family daycare home and desires to continue to do so. Even though she and her family are enduring rather straitened financial circumstances, she is successfully pursuing a college degree in Early Childhood Education. The testimony of Ms. Corchado, whose son has been cared for by the Petitioner in excess of three and one-half years, corroborates the exemplary record and caring atmosphere maintained by the Petitioner in operation of her family daycare home. Ms. Corchado has tried many daycare facilities and believes that the Petitioner's is the best one she found in terms of providing a loving, positive, environment for her son. Her son "adores the Petitioner and her family" and has become very close to them, even attending church with them on occasion. The Petitioner helps her son with his school work and Ms. Corchado has never observed or learned of any abuse occurring in the home. The incident which occurred with Mr. Gonsalves and his son is clearly an isolated unfortunate occurrence. It was deeply regretted by all concerned even before the Agency Respondent became aware of it. It is ironic that the Petitioner, who has conducted an exemplary child care facility operation, has been placed at risk for losing her licensure status while other child care facilities licensed by the Respondent with more violations of record which can impinge on the adequate care of children can remain licensed under corrective plans and procedures. The Agency, commendably, has recognized the unjust, automatic operation of the statute at issue herein, in terms of the Petitioner's particular circumstances and incident, by declining to seek revocation of licensure but merely suspension until the issue of Mr. Gonsalves's residence in the daycare facility is resolved. In any event, this was unfortunate effort at child discipline which became a little too heated and went awry. As the Petitioner pithily and eloquently put it, "If you don't discipline your children, they will grow up and the police will do it for you."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services suspending the license of the Petitioner for the above found and concluded reasons but that the suspension be stayed while, under appropriate Department supervision, the Petitioner and Mr. Gonsalves resolve the issue of his residence within the family daycare home location possibility of the licensed daycare home being re-located to another premises or while Mr. Gonsalves acts to secure an exemption (if successful) from the above-referenced disqualifying offense. DONE AND ENTERED this 4th day of January, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 4th day of January, 2006. COPIES FURNISHED: Gregory Venz, 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 Sislyn Gonsalves 2820 Lake Helen Osteen Road Deltona, Florida 32738 George P. Beckwith, Jr., Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 440 Daytona Beach, Florida 32114-3269
The Issue The issue in this case is whether Petitioner's application for a license to operate a family day care center should be granted.
Findings Of Fact DCF is the state agency responsible for, inter alia, the approval and monitoring of family day care homes. Petitioner Karen G. Flanders ("Flanders") has been working in the child care field for several years. On or about April 21, 2006, Flanders submitted a Family Day Care Home Registration form, which is an application seeking approval to operate a small day care home. As part of the application process, Flanders agreed to allow DCF to conduct a Central Abuse Hotline Record search to determine the existence of any complaints or actions against her. The consent form Flanders signed allowing the search included a provision that the department would see any investigation resulting in "verified indicators." During its processing of the application, DCF determined the existence of an investigative report concerning Flanders. The incident in the report allegedly occurred on September 1, 2005. Flanders was alleged to have grabbed, slapped, and punched a child, C.S., while working as a day care worker for Kids Together day care facility. Flanders was immediately terminated from employment by her employer. The Central Abuse Hotline was contacted immediately. By her own admission, Flanders was the caller. Pursuant to its duty, DCF conducted an investigation the day after the alleged incident. The investigation found there were "some indicators" of excessive corporal punishment. The term "some indicators" advises DCF that some adverse incident has happened, but it could have been a one-time issue that may never happen again. In this case, the primary concern of DCF was that the alleged incident occurred in a child care facility. Flanders had an excessive history of prior reported incidents, which was taken into consideration by the investigators. Based on those findings, the safety of the child victim became a concern. DCF found, however, that Flanders' termination from employment was sufficient to alleviate further concern for the child. Flanders has been involved in child care for many years and considers it her occupation. Her pending application to operate a small child care facility is consistent with her work history. However, she has had an adverse incident resulting in some indicators of abusive behavior.
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 denying the application by Karen Flanders to operate a day care facility. DONE AND ENTERED this 22nd day of September, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 September, 2006. COPIES FURNISHED: Karen Flanders 14924 Lady Victoria Boulevard Orlando, Florida 32826 Stacy N. Robinson Pierce, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1114 Orlando, Florida 32801 Gregory 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 The issue in this proceeding is whether Respondent properly revoked Petitioner's license to operate a family day care home.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the owner and operator of a family day care home and, until the revocation which is the subject of this action, held license number 07C696L. In response to a parent's complaint that she had arrived at the family day care home to find her child crying in a room in which an unidentified man was sleeping, the Department's investigator, Brandi Blanchard, made an unscheduled visit to Petitioner's family day care home immediately following receipt of the complaint. The only evidence that this event occurred as portrayed by the complaining parent is contained in the Department reports and testimony by Department employees who were not present when the event occurred. When questioned regarding the parent's complaint, Petitioner advised that she had left the children for about 15 to 20 minutes in the care of Sibyl Dexter, an authorized substitute caregiver. In addition, there was some discussion about the identity of an adult male sleeping in the family day care home who had been reported by the complaining parent. Other than the hearsay report of the complaining parent, no corroborative evidence was received regarding the identify of this adult male, nor did any witness testify as to having seen this adult male. It was suggested that the "adult male" was Petitioner's husband; this was denied by Petitioner. In her investigative report, Ms. Blanchard indicates that the substitute caregiver stated that she had not been at the family day care home on the particular day in question; however, Mrs. Dexter, the substitute caregiver, did not testify, and, therefore, this hearsay statement by Ms. Blanchard is not being considered. In her testimony, as in her letter contesting the license revocation and requesting this hearing, Petitioner maintained that the substitute caregiver, Mrs. Dexter, was present. In the absence of testimony by the complaining parent or the substitute caregiver, Petitioner's testimony is credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered reinstating Petitioner's license to operate a family day care home. DONE AND ENTERED this 1st day of April, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2005. COPIES FURNISHED: Kozette King 3914 Travati Street Orlando, Florida 32839 Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, S-1106 Orlando, Florida 32801 Gregory D. Venz, 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 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner, the holder of a family day care home registration, has violated Respondent's minimum standards for child care providers by failing to directly supervise an infant in her care on March 22, 2006, and whether her registration should be revoked, pursuant to Section 402.310(1), Florida Statutes.1
Findings Of Fact Petitioner, Jacqueline Bizzell, has been operating a child care facility in her home, at the same location, since 1992. She has been a registered family day care home with Respondent since January 30, 2001. As a part of her application to be a registered family day care home provider, Petitioner sent Respondent verification that she completed the required training for child care providers, which includes knowledge of Respondent's rules and regulations in the area governing child care. On January 26, 2006, Petitioner was informed that her family day care home was again registered for one year, effective January 30, 2006. In the letter, Petitioner was informed that she must maintain her registration in accordance with Section 402.313, Florida Statutes (2005). On March 24, 2006, Respondent received an allegation of neglect or abuse that took place at Petitioner's family day care home on March 22, 2006. Rivers Lewis (Lewis) was a child protective investigator for Respondent on the date of the allegation. He conducted an investigation of the allegation and completed a report. As a part of the investigation, Lewis spoke directly with Petitioner who stated that on March 22, 2006, the child was the only child in her care the day of the incident, and that she left him sleeping on her bed and went into the hallway in front of another room to do laundry or to do something else. Petitioner told Lewis that as soon as she heard the child cry, she stepped back into the room to find that he had fallen from the bed. Petitioner said, first, that the child had fallen off the bed, but later stated that the child had been on the side of the bed and was hanging onto the covers. Lewis submitted his investigative report on April 27, 2006, concluding that the case could be closed with verified indicators of "inadequate supervision" by Petitioner. Shortly after Lewis submitted his report, Ivette Garcia, Child Care Licensing Administrator, received a copy and reviewed it with another worker. She sent Petitioner a letter, dated May 10, 2006, stating that: "The purpose of this letter is to advise you that effective immediately, your family day care home is closed and that your registration is no longer valid." The closure was based upon the incident that occurred on March 22, 2006, wherein the investigative report, submitted by Lewis, confirmed indicators of inadequate supervision. No further investigation or other action was conducted by the child care licensing section in DCF's District 7 before the letter was sent. Although Garcia testified at the hearing that inadequate supervision of a child is a Class I violation, the highest violation, Petitioner was not specifically advised of such classification in the May 10, 2006, letter, nor was a finding made of an immediate serious danger to the health, safety, or welfare of the children who are enrolled in Petitioner's home. Respondent's District 7 Child Care Licensing office did not go to Petitioner's home to inspect or verify the report. It had no further communication with Petitioner after said date. Petitioner was not charged with causing injury to a child under her supervision. Garcia testified that due to the limitations of the registration statute (§ 402.313, Fla. Stat.), Respondent had only one option to deal with a Class I violation: immediately close the home and invalidate the registration. Petitioner's family day care home operated under the name: Hi Granny Day Care. She had only one child in her home on March 22, 2006, the eight-month-old boy, Markel. The child had been fussy and throwing up all day. At about 4:00 p.m., she put the child in the middle of her bed when he finally went to sleep. The bed was by the door. She stepped across the hall to do some chores and while standing at the door, in front of the playroom for about 14 or 15 minutes. When she heard a noise, she immediately stepped back into the room. She admits that she said to the investigator that he fell out of the bed, but that he really did not fall to the floor, but slid off of the bed and was dangling from the bed when she came back into the room; and a blanket broke his fall. She provided a handwritten diagram of her home as it appeared on the date of the incident. Petitioner had been taking care of Sherina Clemons' eight-month-old son, Markel, for over two months when the incident occurred. On March 22, 2006, Petitioner called her between 4:45 p.m. and 5:00 p.m. asking Clemons to not be mad at her. Petitioner told her that the child had been asleep when she placed him on her bed, but that when she walked out of the room, he must have awakened and fallen off of the bed landing on a pallet of covers. According to Latoya Marion, Children's Home Society, the Petitioner's reputation in the community was very good as a child care provider. Latisha Rashawn Bell has known Petitioner for about three years and Petitioner cared for her daughter in 2006. She came to Petitioner's home on March 22, 2006, later in the evening, and knocked on the door. Petitioner came to the door, holding the child, who was whining or crying. Petitioner told her that the child had fallen out of the bed, but had not landed on the floor. Chakera Angelette Faniel is a child care provider, who is not employed by Petitioner. Petitioner cared for Ms. Faniel's daughter for the first three years of her daughter's life, but no longer does. She has known Petitioner for about five years and knows her to be a caring and loving person. Petitioner has a very good reputation in the community as a child care provider. The clear and convincing evidence demonstrates that late in the afternoon of March 22, 2006, Petitioner placed a sleeping eight-month-old boy in the middle of her king-size bed, which was located in her bedroom near the door. Petitioner stepped across the hall and did some chores, while standing in front of the playroom for about 14 or 15 minutes. Although she was only three or four feet from the child, Petitioner could not see the child from where she was standing. When she heard the child cry, she immediately stepped back into the room and found the child lying on some covers on the floor. She picked the child up, who did not appear to be injured. Shortly thereafter, Petitioner contacted the child's parents and reported the incident to them. The child's mother arrived later and took the child home. The evidence is clear and convincing that Petitioner failed to provide direct supervision of the child while he was napping, in the late afternoon, on March 22, 2006. The evidence is clear and convincing that Petitioner is a long-term child care provider, who obviously gives compassionate care to the children in her care. There have been no prior reported incidents of neglect or abuse filed against Petitioner, nor were prior deficiencies listed. Petitioner enjoys a good reputation as a child care provider in her community. Except for the incident on March 22, 2006, no evidence was presented that Petitioner presented an immediate serious danger to the public health, safety, or welfare to the children who are enrolled in her family day care home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Secretary of the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of a single violation of the provisions of Florida Administration Code Rule 65C-22.001(5)(a) and (b) on March 22, 2006; Imposing an administrative fine of $100; and Immediately reinstating Petitioner's family day care home registration for a period of 264 days and permitting Petitioner the opportunity to submit an application for renewal of her family day care home registration at the appropriate time. DONE AND ENTERED this 13th day of April, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 April, 2007.
The Issue Whether Petitioner is entitled to an exemption from disqualification to work in a position of special trust.
Findings Of Fact On June 6, 1979, Petitioner went into a public restroom and attempted to use a urinal. To do so, he had to remove his sexual organ from his clothing. An adult male dressed in beach clothing called to him, "Come here," so Petitioner turned around and took half a step. The man asked, "What do you like?" Petitioner responded, "Women. Excuse me," and faced the urinal again. The other man, a plain-clothes law-enforcement officer, arrested Petitioner. Petitioner was charged with Section 800.03, Florida Statutes, "exposure of a sexual organ (by masturbation) -- misdemeanor." This was a misdemeanor charge at the time committed. Despite there having been no masturbation, in his opinion, Petitioner pled nolo contendere, and adjudication was withheld; he was assigned six months unsupervised probation and paid a fine. It is only on the basis of the foregoing 1979 plea that Petitioner has been disqualified from working in a position of special trust. He was notified by an April 18, 1996 letter that, pursuant to Sections 402.302(8) and 435.04(2), Florida Statutes [1995], he is disqualified as a household member in a family day care home. (Agency Exhibit 1) Petitioner also was arrested in 1982. The record is unclear as to what statute he was charged under at that time, but he did plead guilty and was fined. The circumstances surrounding the 1982 incident were established solely by Petitioner's testimony. He was in a department store restroom. There was a hole cut in the wall between two stalls "and apparently there was someone on the other side, the next stall that prompted me to put my sex organ through the hole in the wall." The person in the next stall was not a law enforcement officer. (TR 37-41, 43-45)1 Petitioner was arrested upon exiting the restroom. He has not been arrested since 1982. Petitioner has been happily married for 27 years. He and his wife have three children and five grandchildren. He and his wife are well-loved by their own children and grandchildren. They have a history of welcoming the troubled friends of their children into their home. The neighborhood children and Petitioner's grandchildren have always affectionately called Petitioner, "Grand-daddy" and have called Petitioner's wife, "Nanny." Their home is, and always has been, a gathering place for the neighborhood children. Petitioner's wife runs a licensed family day care home out of the family home from 6:00 a.m. to 6:00 p.m., Monday through Friday. Although she did not know about Petitioner's 1979 incident before it was disclosed through the agency screening process, she does not believe Petitioner presents a danger to children. She believes the 1979 incident constituted "entrapment". By a second letter dated April 18, 1996, Petitioner's wife was notified that, pursuant to Sections 402.302(8) and 435.04(2) Florida Statutes [1995] (Agency Exhibit 2), Petitioner was forbidden from having contact with any children in her family day care home and that if he is allowed to have contact with children in her care, she would be subject to an administrative fine and possible criminal penalties. The four children currently paying to attend Petitioner's wife's day care home are respectively aged one, two, three, and four years of age. For the last eight years, due to his trade as a self- employed leather worker, Petitioner has traveled a wide circuit from flea market to flea market throughout the week. He is only present in the family home from 10:30 p.m. Fridays to 3:00 a.m. Mondays. His wife's day care home does not operate during those periods that Petitioner is typically at home. Petitioner is a devout Seventh Day Adventist and an elder of his local church. He is the church's Sabbath School Superintendent. Petitioner's daughter and former daughter-in-law wrote letters entered in evidence and also testified that the family home is warm and loving and that Petitioner is a great "Grand- daddy." They rely on Petitioner and his wife for baby-sitting services. In their mutual opinion, Petitioner is not a danger to children, however some of their testimony minimized Petitioner's problems as only being "past mistakes." Neighbors' letters to the effect that Petitioner does not pose a threat to children, is active in his church, and travels except on weekends were admitted in evidence without objection, as was a statement by his pastor that Petitioner is a man of "impeccable character." However, none of these persons was available for cross-examination, and their letters do not clearly show that they had knowledge of Petitioner's past lewd acts or any reason or opportunity to know if he had committed any subsequent ones.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is , reluctantly, RECOMMENDED that the Department of Children and Families enter a Final Order removing Petitioner from the registry of disqualified persons.RECOMMENDED this 6th day of March, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1997.
The Issue Whether Petitioner's license to operate a family day care home should be disciplined, and, if so, what penalty should be imposed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Parties Petitioner is the state agency responsible for licensing and regulating child care facilities, including family day care homes. Petitioner routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report which is provided to the home's operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on family day care homes which have a provisional license rather than a standard license. Petitioner also conducts inspections in response to complaints it receives, and it has the authority to inspect family day care homes at any time with or without notice. Respondent is the owner and operator of a licensed family day care home located at 2406 Winter Ridge Drive, Auburndale, Florida (hereinafter "Respondent's facility" or "the facility"). Respondent resides at that address as well. Respondent has operated a day care home at the above address for approximately five years, and she has been involved in child care for approximately ten years. Respondent has taken all required training in order to be licensed. As a result, she is, or should be, familiar with the rules regulating family day care homes. Respondent keeps children in her home, and children also play in Respondent's backyard. This area is enclosed by an approximately three and a half foot high chain-link fence. Respondent also owns a one-acre parcel behind her house and yard, which is apparently not fenced. Inspections and Resulting Actions by Petitioner Respondent's facility was inspected on April 16, 2003, and several areas of non-compliance were identified during this inspection. Noted as violations included Petitioner's son and husband who were in the home without a completed background screening on each of them; a fence surrounding the property had protruding chicken wire and was less than four feet in height; children's floor mats were torn and not properly covered; a bathroom sink was missing and needed replacement; no paper towels were in the bathroom for the children; one child's immunization records had expired and one child's required physical examination was out of date; and there were eight preschool children over the age of one year old in the home, where the maximum allowed was six. A re-inspection was conducted on April 23, 2003. On January 22, 2004, Petitioner's inspector Mr. Pickett went to Respondent's family day care home to carry out a routine inspection. Several areas of non-compliance were identified. Ms. Gainey's husband, Jerry Gainey, was staying in the home, but he had no letter on file showing he had been properly screened; there were too many children in the home (three children under 12 months old) when the maximum allowable is two; there were seven preschool children in the home when the maximum allowable is three; hazardous containers, a gas can and a paint can, had been left near the front door easily accessible to small children; a glass sliding door had a metal obstacle that could cause children to trip and fall; and three of the children in the home had no enrollment information on file--even their names and parents' names could not be found or names of anyone to call in case of an emergency. After Pickett completed his inspection, he discussed the results with Respondent and provided Respondent a copy of the inspection report. Pickett then went back to his office and discussed the results of the inspection with his supervisor, Ms. Hamilton. Based upon the results of the January 22, 2004, inspection and the prior incidence of non-compliance at Respondent's facility, Ms. Hamilton determined that Respondent's license should be revoked. Petitioner did not give Respondent an opportunity to bring her home into compliance with the minimum standards in Petitioner's licensing rules and standards. Thereafter, on January 26, 2004, Pickett sent a letter to Respondent informing her that her license was being revoked and advising Respondent of her right to "appeal" that decision through the administrative process. At the hearing, Ms. Hamilton testified that she was particularly concerned about Respondent's repeat violations, namely Respondent's husband not being screened for nearly nine months and the repeated ratio violations, that is, too many children in the home. She characterized these as serious child safety violations. These were the primary reasons she recommended that Respondent's child care license be revoked. Respondent, in her testimony, did not deny committing the violations noted in the inspections of April 16, 2003, and January 22, 2004. However, she did demonstrate that a re-inspection of her facility on April 23, 2003, listed her to be in compliance with all violations listed in the April 16, 2003, report, except for the background screening requirement for her husband. Respondent insisted that her son, Jerry L. Gainey, who is 28 years old, lives down the street from her and does not regularly watch the children in her home. Due to an emergency situation, she was required to leave her home in order to pick up some children from school, and she called upon her son to watch the children until her return. Respondent asserts that her son has not watched the children since that date. Respondent also asserts that her husband, who has had a stroke and is cognitively impaired and walks with the aide of a cane or scooter, does not reside with her full-time but, in fact, lives with his sister in Arkansas. The testimony in regard to her husband's permanent place of resident is not credible, since he was in the home on at least two occasions--April 16, 2003, and January 22, 2004--when it was inspected. It is undisputed that Respondent was not at the facility when Mr. McClary arrived in the early afternoon of April 16, 2003. Her husband and son were watching the children. Respondent's testimony indicated that her husband was physically impaired and not capable of supervising the children. Therefore, only her son was left in charge of the facility and the children that afternoon, and her son was not authorized to supervise the children. As a result, the children were effectively left unsupervised when Respondent left the facility that afternoon. Respondent's testimony is credible, especially when bolstered by her client's testimony, that she is a loving and caring person who goes out of her way to care for the children she keeps in her home. Respondent explained that at the time of the April 16, 2003, inspection, the sink was missing because the entire bathroom was being renovated, and the renovation has been complete for some time. Respondent also stated that she did not understand the need for Petitioner's insistence on strict compliance with the four-foot height requirement for the chain- link fence, especially since she owns the one-acre parcel in the back of her yard. Respondent also explained that the reason she had exceeded the maximum allowable number of children in her home on two occasions was concern for the custodial parents' inability to find suitable child care when they worked odd hours or the swing shift and that she was willing to inconvenience herself in order to provide this service. This testimony was corroborated by several parents and grandparents who testified in Petitioner's behalf. The evidence is clear and convincing that Respondent violated several code provisions, including failure to properly screen her husband, having too many children in the home, and failure to have current enrollment on file for each child. The evidence is not clear and convincing that Respondent violated the code provisions relating to minimum fence height requirements; improper floor mats; failure to have a functioning sink in the children's bathroom; no paper towels in the bathroom for the children; expiration of a child's shot records or that a child's physical examination was outdated. Respondent has shown mitigating evidence that she is a concerned and loving caregiver which demonstrates that her license as a family day care home license should not be revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of violating the provisions of Florida Administrative Code Rules 65C-20.009(3)(a) (one count), 65C-20.010(1)(b) (one count), and 65C-20.011(4); and Subsection 402.032(7), Florida Statutes (two counts). Finding Petitioner not guilty of violating the provisions of Florida Administrative Code Rules 65C-20.010(1)(o), 65C-20.010(1)(f), and 65C-20.011(1) and (2)(a). Issuing Respondent a provisional license and imposing an administrative fine of $250.00. DONE AND ENTERED this 8th day of June, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 8th day of June, 2004.
