The Issue Whether Petitioner's license to operate a day care center should be suspended or revoked. Whether Petitioner's license to operate a day care center should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Parties Respondent is the state agency responsible for licensing and regulating child care facilities. Respondent routinely conducts inspections of licensed child care facilities to determine whether facilities are in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report, which is provided to the facility'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 child care facilities which have a provisional license rather than a standard license. Respondent also conducts inspections in response to complaints it receives, and it has the authority to inspect child care facilities at any time with or without notice. Petitioner is the owner and operator of a licensed child care facility located at 2625 North Hiawasee Road, Orlando, Florida, which is operated under the business name: Today's Kids Daycare Center (hereinafter "Petitioner's facility" or "the facility"). Petitioner has operated the child care facility at the above address for approximately five years and previously worked as director of another child care facility for five years. Petitioner has taken all required training in order to be licensed. As a result, she is, or should be, familiar with the rules regulating child care facilities. The Incident Following a complaint, Susan Wujastyk, former child protective investigator for Respondent, interviewed the mother of the child, W.P., at the child's school on March 5, 2004, in relation to an alleged incident which occurred at Petitioner's facility on March 3, 2004. She then prepared a preliminary report and went to Petitioner's facility to investigate further. Respondent's child care licensing division was also notified and an inspector came to the facility, as well. On or about March 3, 2004, the child, W.P., a pre- kindergarten student at Petitioner's facility, swallowed an unknown solid substance while in Tangela Muskin's classroom. Muskin believed the substance to be rat pellets and lead W.P. to Petitioner, who was in another room, and told her of her suspicions. Petitioner, who had taken some nursing courses at the local community college, put on a rubber glove and swabbed the child's mouth to dislodge any other substances that might still be in the child's mouth. She also gave him some milk, with the intent to make him throw up. Petitioner then inspected the vomit but found no foreign substances in it. Petitioner did not call "9-1-1" for emergency assistance, nor did she call the poison control center. Instead, she observed W.P. for a period of time and sent him back to his classroom. Muskin also testified that she found the child, W.P., with a bag labeled rat pellets and claimed that Petitioner, in the presence of another employee at the facility, threw the rat pellets in the trash and told Muskin and the other employee not to report this to anyone. This statement is not credible. Petitioner testified that she attempted to call the child's mother, but could not reach her by telephone. Thereafter, she waited for the child's father to come and pick him up and she told him that W.P. had swallowed something but that Petitioner believed that she got all of the material out of his mouth. She advised him to take the child to the emergency room, but the father declined to do so. This statement appears to be credible. Susan Wujastyk inspected the facility on March 5, 2004, as part of her investigation of this matter and found two pellets under a toy chest in Muskin's classroom. Wujastyk thought they were rat pellets; however, that fact was never verified. An examination of the child, W.P., on March 5, 2004, found no evidence of ingestion of a toxic substance, and his condition was found to be stable. Petitioner retains a pest control company that performs regular services at the facility, but does not use rat pellets or any form of rodent control devices. Three of Petitioner's employees testified that they perform regular inspections of the facility and none of them ever found rat pellets or other toxic substances on the premises. Following the joint investigation, a joint report was prepared and approved by Respondent's staff, and it was recommended that Petitioner's license be revoked. Thereafter, on March 23, 2004, the acting district director sent a letter to Petitioner informing her that her license was being revoked and advised Petitioner of her right to "appeal" that decision through the administrative process. Subsequently, on June 10, 2004, Petitioner was sent a letter informing her that her license would not be renewed. The basis for the denial was the same as the revocation letter. At the hearing, Patricia Richard testified that she was particularly concerned that Petitioner was aware the W.P. may have swallowed a toxic and other dangerous substance and did not take immediate action to report it to "9-1-1" or the poison control center; and did not take it upon herself to take the child to a health care professional for examination but waited for the parents to arrive to inform them of the incident. Richard also testified that it was improper for Petitioner to put her fingers down the child's throat in order to induce vomiting. She characterized these as serious child safety violations and failure to follow proper emergency procedures. These were the primary reasons she recommended that Petitioner's child care license be revoked and not renewed. Petitioner, in her testimony, did not deny giving the child milk and swabbing his mouth with her finger, but did deny that she stuck her fingers in his mouth in order to induce vomiting. The evidence is not clear and convincing that the child, W.P., swallowed a toxic or hazardous material; and it is not at all clear from the evidence what it was that the child swallowed. However, it is clear that the child swallowed something that was suspected to be toxic; and when this fact was reported to Petitioner, she did not follow proper emergency procedures and did not properly notify the child's parents promptly. Petitioner has demonstrated that her license for a child care facility should not be denied or revoked but that a lesser penalty should be imposed.
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 Rule 65C-22.004(2)(d)1. and 2. (one count each). Finding Petitioner not guilty of violating the provisions of Florida Administrative Code Rule 65C-20.010(1)(b) or similar provisions. Imposing a fine of $200, and a one-month suspension of Petitioner's license, followed by the issuance of a provisional license. DONE AND ENTERED this 5th day of October, 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 5th day of October, 2004.
The Issue The issue in this proceeding is whether Petitioner's application for licensure as a child care facility should be granted.
Findings Of Fact Petitioner, God's Little Blessings, applied for licensure as a child care facility on March 23, 2015. The application was completed and submitted by Leslie Fudge, the owner and proposed operator of the facility. The proposed director was Adrienne Wimas (spelling uncertain). After review of the application, the Department denied Petitioner a child care facility license on May 1, 2015. The sole reason for the denial was contained in the Department's denial letter dated May 1, 2015. The letter stated: This letter will serve to advise you that your Application . . . is hereby denied based on review of your background screening, including the Florida Central Abuse Hotline Record Search. No other reason for denial was stated in the Department's letter. While not stating the specific facts regarding the background screening and abuse record search, the evidence demonstrated that the denial was based on one confirmed report of neglect (Abuse Report 2003-031849-01) against Ms. Fudge for inadequate supervision of resident R.H., and medical neglect of residents R.G. and J.D. Both incidents occurred at about the same time on or about March 5, 2003, while Ms. Fudge was employed at Tallahassee Development Center (Center). The Center provided residential and direct care to developmentally disabled residents at its facility. At the time, Ms. Fudge was employed as care staff responsible for providing direct one-to-one care to R.H. She was not assigned to provide care to R.G. Other than Ms. Fudge, no witness with personal knowledge of these incidents testified at the hearing. Consequently, many of the statements contained in the 2003 abuse report remain hearsay which was not corroborated by any competent substantial evidence. Additionally, the age of the report, confusing allegations and lack of factual basis for its findings of inadequate supervision or medical neglect cause the abuse report to be unreliable and untrustworthy as evidence. As such, except as found below, the report by itself cannot form a basis for denial of Petitioner's application. Ms. Fudge was the only person who testified at the hearing with personal knowledge about the events of March 5, 2003. She testified, and such testimony is accepted, that on or around March 5, 2003, she was not a shift supervisor, but was assigned as a direct care aide with "one-to-one" supervision of R.H. The testimonial evidence from Ms. Fudge and other employees of the Center during 2003 demonstrated that Tallahassee Developmental Center employees were trained that one-to-one supervision meant that "the person had always to be watched" and "you could never leave [the person] alone." There was no credible evidence that the person could not be alone in the restroom, that the staff assigned to watch the person had to be within arm's length of the resident, or that such observation was not varied according to the behavior plan for an individual resident. Further, the testimonial evidence showed that staff and Ms. Fudge knew R.H. would run away usually to hide in a particular office, but occasionally with the police being called if R.H. were to leave the building and could not be found. The evidence did not demonstrate that R.H. behaviorally was aggressive or dangerous to others, but only that he would run away and hide. Finally, the testimonial evidence showed that the facility was in the process of trying to wean R.H. off of one-to-one supervision by implementing a plan of moving away from him and permitting him times of less supervision. On March 5, 2003, the testimonial evidence demonstrated that Ms. Fudge, R.H., and other residents were gathered in the living room of the house where they lived. The phone in the adjoining office rang and Ms. Fudge answered it. While on the phone she could observe R.H. through the window between the rooms. At some point, R.H. was sent to go to the restroom. It was unclear who sent him. After finishing in the restroom, he did not return to the living room, but "left out of the bathroom" to another office, locked the door and hid behind the desk. Ms. Fudge could see him in the office and called a nurse to bring the key so that the office could be unlocked. At the time, R.H. was not in danger and there was no evidence that demonstrated he was in danger. There was some evidence that another staff person mistakenly may have believed that R.H. had left the building. However, the better evidence showed that Ms. Fudge knew where R.H. was, could see R.H. in the room in which he was locked, and that he was not in danger at the time. Given R.H.'s behavior plan, none of these facts establish neglect by Ms. Fudge in the supervision of R.H. There was no credible, non-hearsay evidence presented at hearing as to the abuse report's allegations regarding resident R.G. or J.D. As such, the Department's evidence consisted only of an old unreliable abuse report consisting of uncorroborated hearsay about an incident involving R.G. and perhaps J.D. and the testimony of the investigator who had no personal knowledge of the facts regarding the incident or the supervisory policies of the Center. Given these facts, Respondent has failed to demonstrate that Ms. Fudge neglected, either in supervision or medically, residents who were in her care. In fact, the evidence showed that Petitioner has been caring for and/or supervising people for many years and has the character and capacity to continue to do so. Since the unproven abuse report was the only basis on which the Department based its decision to deny Petitioner's application, there was nothing in the record to support its determination that Petitioner lacked moral character or the ability to safely operate a child care facility. Therefore, Petitioner's application for such licensure should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner's application for licensure as a child care facility is granted. DONE AND ENTERED this 2nd day of November, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2015. COPIES FURNISHED: Paul Sexton, Agency Clerk Department of Children and Families 1317 Winewood Boulevard, Building 2, Suite 204 Tallahassee, Florida 32399-0700 (eServed) Camille Larson, Esquire Department of Children and Families 2383 Phillips Road Tallahassee, Florida 32308 (eServed) Leslie Fudge God's Little Blessings Apartment F-8 216 Dixie Drive Tallahassee, Florida 32304 Michael Andrew Lee, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308-5333 (eServed) Rebecca Kapusta, General Counsel Department of Children and Families 1317 Winewood Boulevard, Building 2, Room 204 Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families 1317 Winewood Boulevard, Building 1, Room 202 Tallahassee, Florida 32399-0700 (eServed)
The Issue The issue in this case is whether Petitioner should have her application to renew her childcare facility license denied by Respondent, Department of Children and Families (“Department”), for the reasons set forth in the Amended Denial of Application to Renew Child Care Facility License.
Findings Of Fact Petitioner, Roslyn Smith, holds license No. C07V00140, by which she is licensed to operate the Rising Stars childcare facility pursuant to chapter 402, Florida Statutes, and Florida Administrative Code Chapter 65C-22. Petitioner has operated the Rising Stars childcare facility for 12 years. She serves very low-income children in the Daytona Beach area. There is no question but that Petitioner offers superior service to the children under her care. Petitioner maintains a clothing bank to ensure that the children in her care are adequately clothed. Petitioner prepares wholesome, homemade, nutritious meals for the children, eschewing the more common chicken nuggets and corn dogs offered up at other facilities. The children are encouraged in their classrooms, with appropriate and well-kept educational materials. The facility is clean and well maintained. Petitioner’s husband frequents the facility to perform maintenance and upkeep. The children in her care love Petitioner, a feeling that she returns in kind. On September 20, 2010, Petitioner and the Department entered into a Settlement Agreement to resolve several background screening and training violations. The agreement resulted in Petitioner’s license being placed on probationary status for a period of six months. The Department’s denial of Petitioner’s license renewal was based solely on alleged violations discovered during an inspection conducted on November 3, 2010, and on an alleged violation discovered on February 2, 2011. The November 3, 2011 inspection was conducted by Patricia Medico. Ms. Medico began working for the Department on May 18, 2010. The November 3, 2010 inspection was her first at Rising Stars. Despite having been trained since her hire, and having had a small caseload in DeLand, Ms. Medico considered herself to be “a very new counselor starting at [Petitioner’s] place in November.” Ms. Medico made it a practice to inspect facilities without first reviewing any information or previous Department inspection reports, a common practice with other inspectors. She believed that by going out “cold,” it allowed her to be more objective, and to have no preconceived notions or prejudices. On November 18, 2010, a re-inspection of the facility was performed by Ms. Medico. All deficiencies identified during the November 3, 2010 inspection had been resolved, and no further violations were discovered. Since the November 3, 2010 inspection, Rising Stars has been in substantial -- if not almost perfect -- compliance with all childcare facility standards. From November 3, 2010 through the August 26, 2011 inspection, the only violations discovered were Quinetta Edwards’ missing affidavit of good moral character discussed below, one classroom without a posted lesson plan in March 2011, a minor attendance roster discrepancy in March 2011 that was corrected during the inspection, and one time when the posted lunch menu was not dated. The evidence demonstrates that Petitioner made substantial, effective, and sufficient progress toward compliance since the entry of the settlement agreement on September 20, 2010, and it is so found. The specific violations that form the basis for the denial of Petitioner’s license renewal are as follows: Training Violations Veronica Dickson The Department listed, as a basis for the denial of Petitioner’s license renewal, that Petitioner did not have documentation in the employment file of Veronica Dickson showing that she had started her 40-clock-hour training within 90 days of commencement of her employment at Rising Stars. The evidence suggests that the documentation of Ms. Dickson’s training was in her file since at least October 8, 2010, and another copy was printed from the Daytona State College website and provided to Ms. Medico during the inspection. Ms. Medico stated that she had no recollection of having seen Ms. Dickson’s training records during the inspection. At various times, Ms. Medico admitted that due to her large caseload, she was unclear as to the specifics of any given inspection. However, she indicated that the inspection report is her contemporaneous statement of the facts. She further indicated that it was her practice to print out a copy of the report and go over it with the licensee before having the licensee sign it. When Ms. Medico left a facility, the inspection report provided to the licensee “isn’t necessarily the written in stone inspection.” Rather, it is subject to review, occasionally with items that were found to be non-compliant changed to being compliant, and items that were found to be compliant changed to being non-compliant. If items were changed, Ms. Medico would call the licensee to advise them of the change. Contrary to Ms. Medico’s description of the process, Petitioner testified that, as the normal practice, Ms. Medico did not go over the inspection reports point-by-point. Rather, she indicated that she would receive an unsigned report from Ms. Medico after having accompanied her during the inspection and having discussed -- and oftentimes resolved -- problems at the time. She would sign the computerized signature block without reviewing the report, relying on the earlier discussions. If necessary, she would review the report after the inspection. Having personally provided Ms. Dickson’s training records to Ms. Medico, Petitioner did not realize that the training records were identified as a violation on November 3, 2010. Petitioner would have disputed the violation had she known at the time that she was being cited. The evidence as to whether the training documentation was in Ms. Dickson’s file is contradictory. However, the more persuasive evidence supports a finding of fact that the documentation was provided at the time of the inspection, but was either overlooked or forgotten by Ms. Medico. Therefore, there was no violation of any childcare standard associated with Ms. Dickson’s training records. Alicia Thomas The Department listed, as a basis for the denial of Petitioner’s license renewal, that Alicia Thomas had not started her 40-hour training within 90 days of having started employment in the childcare industry. According to the Department’s personnel records, Ms. Thomas was first employed in the childcare industry on April 5, 2010. There is no evidence to indicate by whom she was employed on that date. The Department provided no information as to how a licensee is to know when a person is employed “in the industry.” However, it is clear that a candidate for employment at a child care facility is to commence training within 90 days of employment at any licensed childcare facility, and that the employing childcare facility is responsible for obtaining documentation from childcare personnel. The evidence is undisputed that Ms. Thomas’s background screening was complete and clear. Furthermore, Ms. Thomas had completed her required in-service training by June 30, 2010. The Department personnel summary sheet indicates that Ms. Thomas started her employment at Rising Stars on May 5, 2010. However, the greater weight of the evidence indicates that Ms. Thomas was hired by Petitioner in July, 2010. From July through November, 2010, which was the period of Ms. Thomas’s employment at Rising Stars, she worked fewer than 30 days due to various medical issues. The evidence indicates that Ms. Thomas’s failure to commence her 40-hour training was not cited by the Department as a violation on November 3, 2010. The unsigned inspection report provided by Ms. Medico for Petitioner’s review did not list a violation related to Ms. Thomas’s training. Ms. Medico testified that she did not cite Petitioner for a violation related to Ms. Thomas on November 3, 2010. Rather, she indicated that “all I did was tell her in notes that Alisca needed to get this,” and that “the next time I went out, she would be cited if she did not correct that.” (emphasis added). Ms. Adams testified that “technically, [Petitioner] should have been cited additionally for Alisca Thomas not starting her training on time,” but that “I overlooked it, and I don’t know what [Ms. Medico’s] rationale was [for not citing], but I overlooked it.” Petitioner testified that Alisca Thomas never appeared on any inspection report that she received. The greater weight of the evidence demonstrates that Petitioner was not cited for a violation related to Ms. Thomas’s training status, and that the deficiency would be considered to be a violation only if it was not corrected by the November 18, 2010 re-inspection. By the time of the November 18, 2010 re-inspection, Ms. Thomas had commenced her training, documentation of which was in her file. Thus, Petitioner made sufficient progress toward compliance, and in fact completely resolved the issue, by the time Ms. Medico went back to the facility. Despite having come into compliance with her training requirements, Ms. Thomas was let go shortly after November 18, 2010 due to her ongoing health issues. Based on the foregoing, Ms. Thomas’s training status, having been completely resolved prior to it being cited as a violation, and its having had no proven effect on the health, safety, or child development needs of the children in Petitioner’s care, is not a sufficient basis for denial of the renewal license. Record-Keeping Course Violation The Department listed, as a basis for the denial of Petitioner’s license renewal, that Petitioner did not complete the Guide to Record Keeping online course or the CEU assessment as required by the September 20, 2010 settlement agreement. As part of the settlement agreement, Petitioner was required by the Department to take and pass the course, and get credit for the Continuing Education Units (CEUs). Petitioner had taken the course in 2009, and had received a certificate of completion. The certificate had not expired. Petitioner attempted to take the Guide to Record Keeping online course as required by the settlement agreement. When Petitioner tried to enroll for the course, the course provider refused to allow her to pay the fee or enroll. Such refusal is consistent with the warning on the course registration home page, which states that “[y]ou can only earn one certificate for each course, and you may not earn CEUs for a course you have previously taken.” Petitioner testified that she advised Ms. Medico and Ms. Adams of the problem with taking the online course. Ms. Adams had a recollection of meeting Petitioner in the lobby of the DCF building, and discussing Ms. Dickson’s and Ms. Thomas’s training issues with her, but did not mention discussing Petitioner’s difficulty in taking the record keeping class. Whether Ms. Adams was told of the problem or not is immaterial. The evidence is sufficient to demonstrate, at the very least, that Petitioner advised Ms. Medico, a representative of the Department, of the problem in taking the course. The Department should have known of the restriction on retaking the course at the time it imposed that requirement on Petitioner. Petitioner had no reason to expect that the Department’s required settlement condition could not be performed, and did not know of the restriction until she attempted to comply. Petitioner made a good faith effort to comply with the condition but, since the course provider prohibited Petitioner from retaking the course and receiving CEU credit, performance of that element of the settlement agreement was impossible. Based on the foregoing, Petitioner’s failure to take, complete, and receive CEU credit for the Guide to Record Keeping course, in light of the impossibility of doing so, is not a sufficient basis for denial of the renewal license. Untimely Meeting Violation The Department listed, as a basis for the denial of Petitioner’s license renewal, that Petitioner failed to meet with Susan Liebee, a coordinator at the Daytona State College, within 10 days of the date of the settlement agreement to discuss staff training requirements. The meeting was to have been held by September 30, 2010, but did not take place until October 8, 2010. Petitioner testified that she went to Ms. Liebee’s office to meet with her, but that she was not there. She subsequently called and made an appointment with Ms. Liebee to meet on October 8, 2010, and met as scheduled. Petitioner made every reasonable effort to meet the time frame for the meeting established in the settlement agreement, but due to reasons outside of her control was not able to meet until Ms. Liebee was available on October 8, 2010. Petitioner’s testimony on that point was credible, and there was no evidence to the contrary. Based on the foregoing, Petitioner’s failure to meet with Ms. Liebee due to circumstances involving Ms. Liebee’s schedule that were out of Petitioner’s control, is not a sufficient basis for denial of the renewal license. Affidavit of Good Moral Character Violation The Department listed, as a basis for the denial of Petitioner’s license renewal, that an Affidavit of Good Moral Character was not in the file of new hire Quinetta Edwards. Ms. Edwards was hired effective February 1, 2010. The inspection during which Ms. Edward’s employment file was reviewed was conducted on February 2, 2010. As stated by Ms. Medico, a new employee’s background investigation consists of the level 2 background screening required in Chapter 435, the Affidavit of Good Moral Character signed by the employee, the signed and notarized Child Abuse Reporting Form, the employee’s employment history, checked references for two years, and a supplemental statement that the employee has not had a child care license denied or revoked in the past. All of the screening requirements listed by Ms. Medico, and established in rule 65C-22.006(4), had been met but for the affidavit. Due to a simple oversight, Ms. Edwards failed to execute the Affidavit of Good Moral Character prior to her employment with Petitioner. Upon learning of the oversight, Ms. Edwards executed the Affidavit on February 8, 2010. Petitioner thereupon submitted the affidavit to the Department by facsimile on that date. There was no attempt to backdate the form, or to do anything other than honestly correct the oversight. Ms. Edwards has cleared all screening, meets all employee standards, and remains on the staff of Rising Stars without any problems to this day. The simple and unintentional oversight in having Ms. Edwards execute her affidavit one week after commencement of employment, given that all other background screening was completed without incident, had no effect on the health or safety of the children attending Rising Stars. That oversight was not a material violation of the Department’s licensing standards or of the settlement agreement, and is not a sufficient factual basis for the denial of Petitioner’s license renewal. Other Violations Not Pled In addition to the issues pled as reasons for denial in the Department’s Amended Denial of Application to Renew Child Care Facility License, the parties introduced testimony and documentary evidence regarding a number of alleged minor deficiencies at the Rising Stars facility discovered during the November 3, 2010 inspection. Both Ms. Medico and Ms. Adams admitted that the deficiencies did not form the basis for the Department’s proposed action. As to the facility violations -- which included among other minor deficiencies, a missing lesson plan; exposed “S” hooks on the swing set; worn electrical outlet covers; an exposed, but generally inaccessible screw point underneath a bench; uneven boards on a deck; and two forks in a drawer accessible but off-limits to children -- the evidence demonstrates conclusively that those deficiencies are “common problems” and that “those things, they happen everywhere.” The evidence further demonstrates that Petitioner’s husband keeps the facility well kept and maintained, and that Petitioner does a “wonderful job” with the Rising Stars facility. The evidence is undisputed that each of the alleged violations identified in the November 3, 2010 inspection report were either corrected on the spot during the inspection, or were corrected by the November 18, 2010 re-inspection. They have not recurred. To the extent that those alleged deficiencies are considered in the final decision regarding renewal of Petitioner’s license, despite having not been pled by the Department, it is found that the alleged deficiencies, have had no adverse effect on the health, sanitation, safety, and adequate physical surroundings for the children in Petitioner’s care, have had no adverse effect on the health and nutrition of the children in Petitioner’s care, and have had no adverse effect on the child development needs of the children in Petitioner’s care. Therefore, those alleged deficiencies do not form a sufficient basis for denial of Petitioner’s license renewal. Finally, evidence was received regarding the employment of Jennifer Geier by Petitioner during a period that she was disqualified from employment. Petitioner was not aware that Ms. Geier was subject to disqualification, especially since she had received a letter from the Department of Corrections dated September 9, 2009, stating that “there are no stipulations in her order that prevents her from employment in a child care facility.”1/ Upon discovering that the offense was, in fact, disqualifying, Ms. Geier was terminated. It is clear that at the time the Department issued its Amended Denial of Application to Renew Child Care Facility License on August 2, 2011, the Department was well aware of Ms. Geier and her relationship with Petitioner, with all aspects of her employment at Rising Stars having been resolved in the September 20, 2010 Settlement Agreement, and with her having received a Final Order from the Department granting an exemption from disqualification on January 3, 2011. Since all aspects of Ms. Geier’s employment were resolved by the settlement agreement, and since Ms. Geier’s employment by Petitioner was not pled by the Department, her previous employment does not form a sufficient basis for denial of Petitioner’s license renewal.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order granting the renewal of license, No. C07V00140, to Petitioner Roslyn Smith for the operation the Rising Stars childcare facility. DONE AND ENTERED this 4th day of November, 2011, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 4th day of November, 2011.
The Issue The issue for determination is whether Petitioner, M.Z., violated Section 402.305(12)(a)3., Florida Statutes (2003), by hitting A.P., an almost two-year-old male, and, if so, whether her family day care home license should be revoked.
Findings Of Fact Petitioner has been licensed to operate a family day care home since October 24, 1996. At all times pertinent to this proceeding, Petitioner, M.Z., had a valid family day care home license, which was effective from October 24, 2002, through October 23, 2003. On August 5, 2003, Petitioner was caring for ten children in her home, even though she should have been caring for only six children, in order to comply with the rules on proper staff-to-child ratios. Moreover, Petitioner did not have enrollment forms for all the children in her care, as required by law. One of the children Petitioner was caring for on August 5, 2003, was A.P., an almost two-year-old male. During or around lunch time, A.P. was sitting in a booster seat that was strapped onto an adult-size chair. Rather than eat his food, A.P. was having a temper tantrum and began pushing his plate of food around and knocked over his glass of milk, resulting in spillage of both. While A.P. was having the temper tantrum, Petitioner hit the child on his upper back as he sat in the booster chair, leaving the print of her hand on the child's upper back. This action by Petitioner had the potential to cause serious harm to A.P. Petitioner self-reported the incident to the Department and to A.P.'s father. The incident was also reported to the Florida Abuse Hotline. Petitioner testified that she intended to hit the back of the chair to focus A.P., but instead hit his upper back. Petitioner acknowledged that at the time of the incident, she felt angry and let the child get the best of her. She also indicted that she "lost it" and that she had "screwed up." Twenty-four hours after Petitioner struck A.P., her handprint mark was clearly visible on the child's back, indicating that significant force was used on the child. Petitioner's testimony that she intended to hit the chair in which the booster chair was strapped in order to "refocus" A.P., while he was having a temper tantrum is not credible. The incident was also investigated by the Pasco County Sheriff's Child Abuse Unit (Child Abuse Unit). As part of that investigation, the day after the incident, A.P. was examined and a reddish colored mark was on his upper back. The mark on the child’s back was "very consistent with that of a handprint." Based on the findings of the Child Abuse Unit, the case was closed with a "verified" findings of "bruises/welts, other physical injury."
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 revoking Petitioner's license to operate a family day care home. DONE AND ENTERED this 16th day of February, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2004. COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Children and Family Services Regional Headquarters, Suite 902 9393 North Florida Avenue Tampa, Florida 33612 Peter Wansboro, Esquire Wansboro Law Firm, P.A. 5943 Florida Avenue New Port Richey, Florida 34652 Paul F. Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Respondent committed the child care licensing violations alleged in the Administrative Complaints; and, if so, what penalty should be imposed.
Findings Of Fact The Department is responsible for licensing and monitoring “child care facilities,” as that term is defined in section 402.302(2), Florida Statutes. Reid’s Educational Child Care Centre, LLC, d/b/a Reid’s Educational Child Care Center (“Reid’s” or “the facility”) is a child care facility licensed by the Department. Reid’s is owned and operated by Nickesha Reid and is located at 10658 Biscayne Boulevard in Jacksonville, Florida. License Violation History Reid’s has a dizzying history of violating Department child care licensing standards. At final hearing, Department investigators testified that they had to rely upon the Department’s matrix, which documents a facility’s history of violations by date and class, as well as the penalties imposed, and whether monetary penalties have been paid. The matrix allows Department staff to cross-reference prior cases to identify repeated violations of the same standard. For purposes of this Recommended Order, the undersigned has included only the violations documented within the two-year period preceding the consolidated administrative complaints at issue in this case. On December 14, 2017, Reid’s was cited for lack of a Level II background screening (“background screening”) for Ms. Reid.2/ During a renewal inspection on July 11, 2018, Petitioner cited Reid’s for the following violations of child care licensing standards: (1) the child-to-teacher ratio for mixed age ranges including a child under the age of one, direct supervision of children in its care, and background screening for Ms. Reid. Each of these violations is a Class II violation of child care licensing standards. One of the most egregious violations cited during the July 11, 2018 inspection was a 10-year-old child in charge of the infant classroom. Moreover, the infant classroom was out of ratio, with the 10-year-old “teacher” in charge of five infants, rather than the required ratio of 1:4. While Department staff was on-site at the facility, Ms. Reid responded to the Department’s calls, appeared at the facility, and attempted to address the ratio violation by personally covering the infant room. However, Ms. Reid still had no background screening documentation, which led to the citation for violation of the background screening requirement. The Department filed an Administrative Complaint against Reid’s on July 25, 2018, solely on the background screening violation. In the complaint, the Department imposed a fine of $50 for this Class II violation, the second violation of the same child care licensing standard within a two-year period. On July 23, 2018, during a complaint investigation,3/ Petitioner cited Reid’s for the following violations of child care licensing standards: (1) teacher-to-child ratios, (2) inadequate supervision, (3) potentially harmful items accessible to children in care, and (4) background screening for child care personnel, all of which are Class II violations. In addition, the Department cited Reid’s with a Class I violation for serious health hazard conditions. Pursuant to the administrative complaint issued August 20, 2018 (based on the July 23, 2018 complaint inspection), Reid’s was placed on a probationary status for six months. The terms of the probation were as follows: The facility shall incur no Class I violations during the probationary period. The facility shall incur no Ratio, Background Screening or Supervision violations during the probationary period. The facility shall incur no Facility Environment violations during the probationary period. The facility must always maintain a safe and clean environment. Non-active individuals listed in the Corporation cannot be involved in the day- to-day operation or present around children at any time. The administrative complaint provided, “Failure to comply with these conditions may result in revocation of Respondent’s license.” The Department’s findings in the administrative complaint became final on October 24, 2018, when Reid’s request for hearing on the administrative complaint was dismissed as untimely. The Department’s final order was not appealed. Reid’s probationary status was effective October 24, 2018, through April 22, 2019, and required monthly Department inspections. In addition, on August 20, 2018, Petitioner issued Reid’s a provisional license, effective August 21, 2018, through February 16, 2019, because Reid’s then-director, Delaria Blake, did not have the director credentials required by section 402.305(2)(f). Failure to maintain a credentialed director is a Class II violation of the Department’s child care licensing standards. The provisional license was resolved shortly after issuance when Reid’s hired Tracee Creighton, a properly credentialed director, who served as Reid’s interim director through September 2018. November 16, 2018 Administrative Complaint The November 16, 2018 Administrative Complaint was initiated pursuant to another complaint investigation,4/ conducted by Child Care Supervisor, Hannah McGlothlin, on September 13, 2018. Background Screening When Ms. McGlothlin arrived at Reid’s, she was greeted by Grady Dixon, the staff member in charge. Mr. Dixon is also Ms. Reid’s husband and Respondent’s registered agent. Ms. McGlothlin observed that Mr. Dixon was supervising two employees on-site. Upon review of the employee files, Ms. McGlothlin determined that Mr. Dixon became employed at Reid’s on August 2, 2018, but that his required background screening was not completed until August 3, 2018. When asked by Ms. McGlothlin, Mr. Dixon verified August 2, 2018, as his date of employment. At final hearing, Mr. Dixon maintained there was an error in his personnel file, and that he did not become employed at Reid’s until August 3, 2018. Mr. Dixon said he made a mistake in writing August 2, 2018, on his personnel form. Mr. Dixon’s testimony was not persuasive. Mr. Dixon became employed by Reid’s as “other personnel” on August 2, 2018. Mr. Dixon’s required background screening was not complete and on file at the facility until August 3, 2018. On July 25, 2018, Ms. Reid completed a Non-Active Member Affidavit for the Department, in which she swore that she had “a non-active role” at Reid’s, meaning she is an “individual who does not interact with the children, does not go on-site of the program operation during operating hours, and whose role does not involve the day-to-day operation of the child care program.” Further, the affidavit provided that Ms. Reid understood she must immediately notify the Department at any time in the future her role changed to an active role and “complete a background screening” as provided by statute. During Ms. McGlothlin’s field visit on September 13, 2018, she determined that Ms. Reid’s role had become that of an active member because she was going on-site during operating hours, had contact with children at Reid’s, and was involved in day-to-day business of Reid’s. As part of her investigation, Ms. McGlothlin spoke with a parent who stated “it is always [Ms. Reid] and [Mr. Dixon] at the facility” when she picks up her child in the afternoons. Virginia Ritter is the parent of a child formerly enrolled at Reid’s. Ms. Ritter testified that she met Ms. Reid at the facility in June 2018 when she first enrolled her son at Reid’s. Ms. Ritter further testified that, although she paid her monthly tuition online, she met with Ms. Reid at the facility at least twice between June 2018 and December 2018 to address billing issues--once when she changed the number of days her son was attending, and once when she withdrew him. Ms. Reid denied meeting with Ms. Ritter at the facility. The Department alleged that Ms. Reid was further involved in the day-to-day activities of the facility by corresponding with parents and the Department via electronic mail. Respondent introduced an undated email from reidseducationalchildcare@gmail.com to Ms. Ritter and John Kennedy5/ which reads, as follows: Good morning, We are contacted Emmett parents because he has not been at school for the last week and no one has advised us of what is going on. [sic] to his mother and no responded. Can we please have an update. Although the email was not signed by Ms. Reid, or any employee of Reid’s, Ms. Ritter testified, credibly, that she knew the email was from Ms. Reid because it reads consistently with Ms. Reid’s speech patterns. The email reads consistently with Ms. Reid’s speech patterns exhibited at final hearing. On Monday, December 31, 2018, Ms. Ritter replied to reidseducationalchildcare@gmail.com, informing Reid’s that her son would not be returning to the facility and the reasons therefor. Ms. Ritter further testified that Ms. Reid was often on-site when she picked up her son from the center on Fridays prior to her withdrawal of him in December 2018. Ms. Reid prepares meals at home and delivers them to the facility to be served to the children. She testified that she does not enter the facility to deliver the meals, but rather leaves them at the door outside the facility. Ms. Reid’s testimony was contradicted by Carrie Gaouette, a former employee, who testified, credibly, that Ms. Reid delivered meals to the front desk at the facility on a daily basis. In addition to the foregoing evidence of Ms. Reid’s involvement in the day-to-day business of the facility, Ms. Reid has entered the facility during operating hours, at times since executing her Non-Active Member Affidavit, to check mail and collect payments. During field visits by Department staff on September 13 and October 17, 2018, Ms. Reid contacted and spoke to Department staff to address the pending citations. Subsequent to signing the Non-Active Owner Affidavit, Ms. Reid has been on-site at the facility during operating hours, and has been actively involved in the day-to-day operation of the center, including meal preparation, interacting with parents for enrollment and changes thereto, addressing billing issues, and intervening in licensing issues. As an active owner, Ms. Reid is required to undergo background screening. During the complaint investigation on September 13, 2019, Ms. McGlothlin placed Reid’s on notice of the background screening violation and set a due date for compliance by November 7, 2018. At a subsequent inspection on December 27, 2018, Ms. McGlothlin determined that the background screening violation for Ms. Reid had not been corrected. The Department proved the August 20, 2018 Administrative Complaint allegations of background screening violations with regard to both Mr. Dixon and Ms. Reid. Penalties The background screening requirement is a Class II child care licensing standard. Reid’s was previously cited for failure to meet background screening requirement on December 17, 2017, July 11, 2018, and July 23, 2018. The August 20, 2018 Administrative Complaint is Reid’s fourth citation for background screening violations within a two-year period. According to Department rule, the monetary penalty for the fourth violation of the same Class II child care licensing standard is $75 per day for each such violation. See Fla. Admin. Code R. 65C-22.010. The Department seeks to impose a fine of $2,925 against the facility for this violation, calculated at $75 per day for 39 days--from September 13, 2018 (the violation notice date), through November 7, 2018 (the corrective action date). The Department correctly calculated the monetary penalty to be imposed against Reid’s for the background screening violations. The Department also seeks revocation of Reid’s child care license based on the background screening violation. In the Administrative Complaint, the Department alleges, as follows: Provider is currently on Probation for Facility Environment of which the terms were not to incur any Background Screening and Non-Active Individuals listed in the Corporation cannot be involved in the day- to-day operation or present around children at any time. Provider has failed to comply with the terms of the Probation therefor their license is being Revoked. The Department’s allegation is unfounded. Reid’s probationary status was effective October 24, 2018, but the violation was cited on October 20, 2018. This violation of the background screening requirement was not a violation of the terms of the probation. January 11, 2019 Administrative Complaint Because Reid’s was placed on probation, it was required to undergo monthly inspections. Ms. McGlothlin conducted a routine inspection of the facility on December 27, 2018. Direct Supervision Upon her arrival at the facility, Ms. McGlothlin was greeted at the door by Carrie Gaouette, the only child care personnel on-site. When Ms. Gaouette opened the entry door, she closed the door leading to the classrooms, effectively blocking her view of the children and leaving them with no supervision. Ms. Gaouette explained that she shut the door to the classroom to prevent children from running out the front door while it was open to allow Ms. McGlothlin to enter. Florida Administrative Code Rule 65C-22.001(5)(b) provides, “[d]irect supervision means actively watching and directing children’s activities with the same room or outdoor play area . . . and responding to the needs of each child while in care.” The rule requires child care personnel to “be present with [their assigned] group of children at all times.” For the brief time Ms. Gaouette opened the door to greet and allow Ms. McGlothin entry to the facility, Ms. Gaouette was not in the same room with, and not directly supervising, the children in her care. The direct supervision requirement is a Class II standard. Reid’s was previously cited for violating the direct supervision standard on July 11 and 23, 2018. According to Department rule, the monetary penalty for the third violation of the same Class II child care licensing standard is $60 per day for each such violation. See Fla. Admin. Code R. 65C-22.010. In the Administrative Complaint, Department seeks to impose a monetary penalty of $60 for one day. The Department correctly calculated the fine to be imposed for this violation of the direct supervision standard. Child Health Examination Forms During her inspection, Ms. McGlothlin reviewed the records of all 11 children enrolled at the facility on that date. Ms. McGlothlin found that Reid’s did not have a current Student Health Examination form DH 3040 (“health examination form”) on file for child M.S. Pursuant to rule 65C-22.001(7)(q), Reid’s is responsible for obtaining a complete and properly executed health examination form for each child in its care. Reid’s violated the child care licensing standard when it failed to maintain a current health examination form for child M.S. The requirement to maintain child health examination forms is a Class III standard. Reid’s was previously cited for violation of this standard on July 11 and November 20, 2018. This violation is the third violation of the same Class III standard within a two- year period. According to Department rule, the monetary penalty for the third violation of the same Class III child care licensing standard is $25 per day for each such violation. See Fla. Admin. Code R. 65C-22.010. In the Administrative Complaint, the Department seeks to impose a monetary fine of $25 against Reid’s for this violation of child care licensing standards. The Department correctly calculated the fine to be imposed on Respondent for this violation of the child health examination form standard. False Statement/Information Pursuant to Department rule, Reid’s is required to have at least one staff member on-site at all hours of operation with First Aid/CPR training, verified by a current, valid First Aid/CPR card. See Fla. Admin. Code R. 65C-22.001(6). Ms. Gaouette was a new employee, and the only child care provider on-site, during Ms. McGlothlin’s inspection on December 27, 2018. When Ms. McGlothlin returned to the office on December 27, 2018, she reviewed her inspection report and realized that she had not checked the files to ensure that Ms. Gaouette had a valid First Aid/CPR card. Ms. McGlothlin both called and emailed Reid’s on the afternoon of December 27, 2018, to obtain a First Aid/CPR card for Ms. Gaouette; however, she was unable to reach anyone at the facility. No one from the facility either returned her calls or responded to her emails on December 27, 2018. On the morning of December 28, 2018, Mr. Dixon, who was the staff member in charge, read Ms. McGlothlin’s emails and reviewed her telephone messages requesting a First Aid/CPR certificate for Ms. Gaouette. Mr. Dixon reviewed Ms. Gaouette’s personnel file and found no First Aid/CPR certificate. Ms. McGlothlin returned to Reid’s on December 28, 2018, and requested Ms. Gaouette’s First Aid/CPR card from Mr. Dixon. Mr. Dixon provided Ms. McGlothlin with a First Aid/CPR card purporting to certify that Ms. Gaouette completed the required training on November 6, 2018, from instructor Palecia Crawford. The space on the card for the trainee’s name had been “whited out” and Ms. Gaouette’s name written in. The spaces for the date of the training and date of expiration were also “whited out” and the date “Nov/6/2018” written in for the date of training, and “Nov/6/2020” written in for the date of expiration. Ms. Crawford did not train Ms. Gauoette on November 6, 2018, or on any other date prior to December 28, 2018. Ms. Gaouette had not received First Aid/CPR training from any entity prior to December 28, 2018. Mr. Dixon, on behalf of Reid’s, presented Ms. McGlothlin with falsified documentation of Ms. Gauoette’s First Aid/CPR training. At final hearing, Mr. Dixon denied that the First Aid/CPR certificate provided to Ms. McGlothlin was Ms. Gaouette’s certification. Instead, he testified that, on December 28, 2018, he was unable to locate a certificate in Ms. Gaouette’s personnel file, so he provided Ms. McGlothlin with a First Aid/CPR card from the facility’s “demo file,” a file set up as an example of what a complete employee file should contain. Mr. Dixon’s testimony was not credible. Mr. Dixon did not represent to Ms. McGlothlin when he provided the certificate to her that it was just an example from a demo file. If it was just an example, there was no reason to change the name and date of the training on the original card. The original, or for that matter, a copy of, the trainee’s card would be sufficient for an example in a “demo file.” Mr. Dixon had both motive and opportunity to falsify a First Aid/CPR training card for Ms. Gaouette. Mr. Dixon admitted on cross-examination that it would have been easier to just tell Ms. McGlothlin that the facility did not have a valid First Aid/CPR certificate on file for Ms. Gaouette. Child care personnel providing fraudulent information related to the child care facility to a licensing authority, that could result in the death or serious harm to the health, safety, or well-being of a child is a violation of a Class I licensing standard. Penalties Class I violations of Department rules are described as “the most serious in nature, [which] pose an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child.” Fla. Admin. Code R. 65C-22.010(1)(d)1. Rule 65C-22.010(2)(e) provides appropriate disciplinary sanctions to be imposed for Class I violations, as follows: For the first and second violation of a Class I standard, the department shall, upon applying the factors in Section 402.310(1), F.S., issue an administrative complaint imposing a fine of not less than $100 nor more than $500 per day for each violation, and may impose other disciplinary sanctions in addition to the fine. Section 402.310(1)(b) provides: In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered: The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of ss. 401.301-402.319 have been violated. Actions taken by the licensee or registrant to correct the violation or remedy complaints. Any previous violations of the licensee or registrant. In the Administrative Complaint, the Department seeks to impose a fine of $250 and to revoke Reid’s child care license. This violation is severe. Significant harm could befall a child left under the care of personnel who have not had basic CPR training. This violation is the facility’s second Class I violation within a two-year period. This violation occurred during the facility’s probationary period, which commenced on October 24, 2018. The terms of probation prohibited the facility from incurring any Class I violations during the probationary period. The Department has authority to revoke Reid’s license based on this violation of its probationary terms. Ms. Gaouette received First Aid/CPR training on January 2, 2019. The facility has a lengthy and dizzying history of violations. Many of the monetary penalties imposed for past violations remain unpaid. Throughout the final hearing, Ms. Reid refused to accept responsibility for the violations documented in the subject, as well as previous, administrative complaints. She attacked the credibility of Department witnesses and demonstrated a complete lack of respect for the Department’s authority. Despite Ms. Reid’s unwillingness, or inability, to complete the required background screening, she has failed to comply with the non-active owner requirements and place competent, qualified, employees in charge of the day-to-day operations of the facility.
Recommendation Upon consideration of the evidence presented at final hearing, and based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Children and Families, finding Reid’s Educational Child Care Centre, LLC, d/b/a Reids, Educational Child Care Center, committed Class I, II, and III violations of child care facility licensing standards, imposing a monetary penalty in the amount of $3,260, and revoking Reid’s child care facility license. DONE AND ENTERED this 5th day of June, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 5th day of June, 2019.
The Issue The issue in this case is whether Respondent should approve Petitioner's registration to operate a family day care home.
Findings Of Fact The Parties Petitioner is a 25-year-old female who admittedly has been providing unlicensed child day care in her home for the past several years. While she has no formal training in child care, she has been employed in the child care field for many years and obtained her GED in 1995. Petitioner has been married to her husband, A.P., for six years, and they live together. Respondent is the state agency responsible for regulating child care facilities pursuant to Chapter 402. The Application On September 18, 2002, Petitioner submitted an application to Respondent seeking licensure to operate a registered family day care within her home located at 6351 Redwood Oaks Drive in Orlando, Florida. Respondent processed the application and effectuated the required background screening of the individuals living within the household, including Petitioner and A.P. The screening of Petitioner revealed that on October 3, 2000, a young girl, living within Petitioner's home and under her supervision, was removed following a report to the abuse hotline and the subsequent investigation by Donald Griffin, a protective services investigator employed by Respondent. The screening of A.P. revealed that he was arrested in October 2000 on charges of lewd, lascivious assault or act on a child; prostitution; lewd or lascivious molestation; renting space to be used for prostitution; and lewd or lascivious conduct. The screening further revealed that on May 15, 2002, the State Attorney's Office determined that the case was not suitable for prosecution and filed a "No Information Notice." Upon receipt and consideration of the screening results, Respondent denied Petitioner's application on January 23, 2003, advising her that: . . . the Department is unable to approve your application to operate a family day care due to safety concerns for children that may be placed under your care for the following reasons: Background screening revealed that a child was removed from your care following an allegation of abuse or neglect. Background screening revealed that a member of your household lacks moral character due to their arrest record involving minors which would place the children at risk of harm. With respect to Petitioner's screening results, Petitioner admits that a child was removed from her home, but alleges that the removal was at her request. Petitioner denies any allegation of abuse and insists that the removed child, her friend's daughter, was "extremely unruly and too difficult to handle." As a result, Petitioner claims that she requested that Respondent remove the child and Respondent complied. Respondent's investigator, Mr. Griffin, testified otherwise. Investigator Griffin stated that he personally investigated Petitioner following a report to Florida's child abuse hotline. He separately interviewed both Petitioner and the child and noticed clear bruises and welts on the child. Investigator Griffin determined that Petitioner's home was not suitable for the young girl and removed her from the residence. Mr. Griffin's testimony was more credible. No evidence was offered to support Petitioner's assertion. With respect to the screening results of A.P., Respondent presented compelling evidence that A.P. lacks the requisite good moral character. First, Respondent demonstrated and Petitioner admits that A.P. occasionally gets angry and lacks self-control. In fact, the local police department has responded to domestic disturbance calls from the family home on at-least two occasions. In addition, the evidence surrounding A.P.'s arrest demonstrates that A.P. lacks good moral character. Specifically, A.B., the alleged victim of A.P., credibly testified at hearing that in October 2000, at age 12, she and her minor female friend, L.M. were walking near their school during the early evening when an unknown black male, later identified as A.P., driving a green sports utility vehicle, offered them a ride. The female minors entered his S.U.V. and were taken to a convenience store and then to a hotel. A.B. testified that while in the hotel room, the male inappropriately touched her butt, pushed her on the bed and solicited her to have sex with him for money. A.B. said "no" to his offer and asked him to stop. Shortly thereafter, the male departed the hotel and abandoned the girls in the hotel room with the room key. The police were contacted and investigator Rick Salcido conducted an investigation. After interviewing the girls, Mr. Salcido acquired physical evidence at the hotel linking A.P. to the room and supporting A.B.'s allegations. He retrieved a copy of A.P.'s driver's license and hotel credit card used at check-in from the hotel manager. In addition to the physical evidence linking A.P. to the hotel, A.B. positively identified A.P.'s photo as the perpetrator. Moreover, the investigator determined, and Petitioner admits that A.P. owned and drove a green sports utility vehicle at the time of the alleged incident. While Petitioner asserts that she and A.P. were out of town and on vacation on the date of the incident, she admits that they returned home at approximately 7:00 p.m. that evening. Although A.P. was subsequently arrested, the State Attorney's Office later declined to prosecute and filed a "No Information Notice." At hearing, counsel for A.P. indicated that the statute of limitations had not expired and A.P. invoked his Fifth Amendment privilege to remain silent. A.P. declined to testify and answer questions related to his moral character and the circumstances of his arrest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for a registration to operate a child care facility. DONE AND ENTERED this 29th day of August, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 29th day of August, 2003. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Jeremy K. Markman, Esquire 800 North Ferncreek Avenue Orlando, Florida 32803 Paul Flounlacker, 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 Jerry Regier, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the application filed by CaSarah Henderson to obtain a license to operate a child care facility through an entity known as Parramore Christian Center should be granted or denied.
Findings Of Fact The Department is the state agency charged with regulating licensed child care providers in the State of Florida. CaSarah Henderson owns 80 percent of Parramore Christian Academy, an entity organized for the purpose of operating a child care facility. On October 29, 2019, Ms. Henderson filed an application with the Department to obtain a child care provider license for Parramore Christian Academy to enable her to operate a child care facility at 800 West Central Boulevard in Orlando, Florida.1 On March 9, 2020, the Department denied that application based upon Ms. Henderson’s history of multiple violations operating another child care facility at the same location known as Little Kings and Queens Learning Center (“Little Kings and Queens”). The Department also denied the Parramore Christian Academy license application based upon the assertion that Ms. Henderson had a history of violations in the operation of a second child care facility—also operated at the same location— known as Beautiful Angels Academy. The Department has proven that Ms. Henderson has a history of multiple violations while operating Little Kings and Queens. The Department did not prove, however, that Ms. Henderson owned or operated Beautiful Angels Academy, and the history of violations committed through the operation of Beautiful Angels Academy will not be considered a basis to deny the Parramore Christian Academy license filed by Ms. Henderson. Little Kings and Queens Ms. Henderson was the sole owner and operator of a licensed child care facility known as Little Kings and Queens located at 800 West Central Boulevard in Orlando, Florida. On May 5, 2017, the Department filed an Administrative Complaint against Little Kings and Queens, citing two supervision violations2 that occurred on November 2, 2015, and April 7, 2017, and five ratio violations3 1 Neither party offered the application that Ms. Henderson filed as the owner/operator of Parramore Christian Academy as an exhibit. The Department has not alleged that the application was incomplete or deficient in any way. Rather, the sole basis for the denial of the Parramore Christian Academy license application is Ms. Henderson’s history of multiple violations and fines incurred in the operation of child care centers she previously owned and operated on the same property. As such, the undersigned presumed for the purpose of this Recommended Order that the Parramore Christian Academy application was complete and otherwise comported with the applicable statutory and rule requirements necessary to obtain a child care license. 2 A supervision violation occurs when a child’s activities are not adequately supervised at the child care center. Fla. Admin. Code R. 65C-22.001(5)(a) (2016). 3 A ratio violation occurs when the prescribed ratio of staff to children has not been met. Fla. Admin. Code R. 65C-22.001(4) (2016). that occurred on March 21, 2017, April 4, 2017, April 7, 2017, April 11, 2017, and April 18, 2017. All of the violations charged in the Administrative Complaint were Class II violations, the second most severe violation category.4 The Administrative Complaint sought fines totaling $1,385 and a 30- day suspension of Little Kings and Queens’ child care provider license. That action was settled on August 1, 2017. In the settlement agreement that resolved that case (“Settlement Agreement”), Little Kings and Queens admitted to the violations of the supervision rule and ratio rule as charged in the Administrative Complaint, and agreed to pay a $500 fine. Little Kings and Queens also agreed to be placed on probation for three months in lieu of the 30-day license suspension sought in the Administrative Complaint. The Settlement Agreement also states: If the Department initiates an administrative action against Little Kings and Queens in the future, for any reason, the Department shall not be required to re-prove the [supervision and ratio violations admitted to in the settlement agreement]. On November 1, 2017, Little Kings and Queens filed an application to renew its child care provider license. On December 7, 2017, the Department 4 When the Administrative Complaint was filed, the Department categorized violations into four severity categories: Class I, Class II, Class III and Technical Support violations. See Fla. Admin. Code R. 65C-22.010(d) (2016). Class I violations are the most serious in nature, pose an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well-being of a child. Fla. Admin. Code R. 65C-22.010(d)1. Class II violations are less serious in nature than Class I violations, and could be anticipated to pose a threat to the health, safety or well-being of a child, although the threat is not imminent. Fla. Admin. Code R. 65C-22.010(d)2. Class III violations are less serious in nature than either Class I or Class II violations, and pose a low potential for harm to children. Fla. Admin. Code R. 65C-22.010(d)3. Technical Support Violations are the first or second occurrence of noncompliance of an individual Class III standard or the first occurrence of noncompliance of an individual Class II standard. Fla. Admin. Code R. 65C- 22.010(d)4. Rule 65C-22.010 was amended on October 25, 2017, to eliminate the Technical Support violation categories. The amendment also redefined Class I violations, but Class I remained the most serious violation category. issued a notice of intent to deny the renewal application (“Notice of Intent”) because it found more violations when the facility was on probation. Specifically, the Department found Class II ratio violations on August 1, 2017, and September 27, 2017. In addition, the Department charged three separate Class I violations because on October 26, 2017, a two-year-old boy left Little Kings and Queens, unsupervised, and was found at a bus station down the street by a good samaritan who reported the incident. Ms. Henderson was also accused of providing false information to law enforcement regarding this incident. Specifically, she was accused of falsely claiming that the two-year-old boy ran out the door when she opened the door to take out the trash, but returned to the center immediately. The Notice of Intent sought total fines of $1,700 for the new Class I and Class II violations in addition to the non-renewal of the license. The Notice of Intent also cites the history of Class II violations admitted to in the Settlement Agreement as a basis to non-renew. The Notice of Intent indicates it was hand-delivered to Ms. Henderson, and provides notice of her right to request a hearing to challenge the denial of the renewal application. Ms. Henderson denies having received the Notice of Intent. The Department did not offer any testimony from the individual who hand-delivered the Notice of Intent to Ms. Henderson, and did not offer any other proof of delivery. Nevertheless, Ms. Henderson admits to surrendering the Little Kings and Queens license in December of 2017 to avoid fighting over the renewal of the license, and admits that she knew there were unresolved violations and pending fines when she surrendered the license. It is reasonable to infer based upon Ms. Henderson’s surrender of the license with this knowledge that she received the Notice of Intent and therefore had actual knowledge of the charges pending as identified in the Notice of Intent when she surrendered the license. Ms. Henderson did not request a hearing to contest the non-renewal of the Little Kings and Queens license, or the fines sought therein, and the Notice of Intent became final. See § 402.310(2), Fla. Stat. (2017)(“If the applicant, registrant, or licensee makes no written request for a hearing to the local licensing agency within 15 days after receipt of the notice, the license shall be deemed denied, suspended, or revoked; the license or registration shall be converted to probation status; or an administrative fine shall be imposed.”). The fines assessed in the Notice of Intent totaling $1,700 have not been paid. As to the grounds for non-renewal identified in the Notice of Intent, Ms. Henderson admitted when she testified at the final hearing that the two- year-old wandered off the property without supervision on October 26, 2017. Although Ms. Henderson did not state that she agreed with the ratio violations cited during the inspections that occurred on August 1, 2017, and September 27, 2017, she acknowledged that she received notice of them and offered no evidence to contest these ratio violations at the final hearing. For all of these reasons, the undersigned finds that Ms. Henderson has a history of multiple violations during the operation of Little Kings and Queens child care center, as stipulated to in the Settlement Agreement, and as charged in the Notice of Intent. Beautiful Angels Academy The Department contends that Ms. Henderson owned and operated a child care facility under the name Beautiful Angels Academy, also located at 800 West Central Boulevard in Orlando, Florida, after she surrendered the child care facility license for Little Kings and Queens. The record owner of Beautiful Angels Academy was Kim Holman, Ms. Henderson’s mother. The Department contends that Ms. Holman was the owner in name only, and that Ms. Henderson was the real owner and operator of Beautiful Angels Academy. Ms. Henderson testified that she volunteered to work part-time at Beautiful Angels Academy and that Ms. Holman also paid her a consultant fee, but denies that she owned or operated Beautiful Angels Academy. The Department’s evidence to the contrary is based largely on hearsay, primarily statements made from unidentified employees of Beautiful Angels Academy to Department child protective investigators. The Department also relies on the fact that Ms. Henderson was found on site at Beautiful Angels Academy during a complaint inspection on February 13, 2019. Ms. Henderson testified that she was on the premises because her children received day care at Beautiful Angels Academy. This evidence falls short of establishing that Ms. Henderson was the real owner and operator of Beautiful Angels Academy, and the history of violations committed in the operation of Beautiful Angels Academy is not a proper additional reason to deny the license application Ms. Henderson submitted for Parramore Christian Academy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying the application for a child care facility license that Ms. Henderson filed for Parramore Christian Academy. DONE AND ENTERED this 16th day of July, 2020, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN 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 16th day of July, 2020. COPIES FURNISHED: Brian Christopher Meola, Esquire Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801 (eServed) CaSarah Henderson Little Kings and Queens Learning Center 800 West Central Boulevard Orlando, Florida 32805 Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
