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 the Department of Children and Family Services (DCF) may revoke Respondent's Family Day Care Home License for cause.
Findings Of Fact Since approximately September 3, 2001, Respondent has held a license from DCF to operate a Family Day Care Home for up to ten children in her residence Mondays through Fridays. DCF seeks to revoke her current license due to her allowing her ex-husband, Eddie Morand, to have access to her home and the children entrusted to her care there. Mr. Morand's name was submitted for background clearance as a resident in the home in connection with a different application to authorize Respondent to provide 24-hour per day care, which she submitted to DCF in 1997. DCF notified Mr. Morand by a notice dated January 16, 1998, that he was ineligible to have contact with children in a Family Day Care Home due to two prior felony convictions for crimes addressed in Section 435.04, Florida Statutes: aggravated battery and possession of crack cocaine. Respondent was sent a copy of this notice. On April 13, 1999, Mr. Morand pled guilty to two felony counts for the sale and possession of cocaine and was sentenced to 23.8 months of incarceration with the Department of Corrections. These crimes are also disqualifying under Section 435.04, Florida Statutes. Respondent was still married to Mr. Morand in November 1998, when these charges arose. Sometime in 1999, Respondent divorced Mr. Morand. Sometime thereafter, Respondent changed her residence and secured a permanent injunction against Mr. Morand for protection against domestic violence. After about a year, Respondent believed that Mr. Morand had changed, and she lifted the injunction. DCF's Abuse Hotline received a call alleging that on March 9, 2002, Mr. Morand had sexually molested a female day-care registrant in Respondent's Family Day Care Home. March 9, 2002, was a Saturday, a day not authorized for day-care by Respondent's current license. The child had reported to her foster mother that she had been fondled while at Respondent's Family Day Care Home. The Ocala Police Department was notified. After interviewing the child, the police went to Respondent's home. Mr. Morand was present, and he was arrested. Respondent told police officers that while she was outside watching the other children in care, Mr. Morand was alone in the house with the accusing child for about ten minutes, getting something to eat. Respondent confirmed this at the disputed-fact hearing, but also maintained that she could see inside the house from the porch and observed nothing amiss. She believes the child's accusations were untruthful. Child Protective Investigator Steve Davis was assigned to investigate the abuse report received by DCF. On the morning of March 10, 2002, Mr. Davis happened to be in court in connection with another case. Mr. Morand also was brought up for first appearance at that time and was allowed to bond out. In court, Mr. Morand gave his address of residence as that of Respondent's Family Day Care Home. At about 3:15 p.m., the afternoon of March 10, 2002, Mr. Davis went to Respondent's Family Day Care Home to investigate the abuse report. When he arrived, he saw Mr. Morand about to exit the front door of the home. Mr. Morand acknowledged that it was Respondent's home and held the door open for Mr. Davis to enter. Mr. Davis entered the home where he found Respondent caring for other children registered in her Family Day Care Home. This was Sunday, also a day not authorized for day-care by Respondent's current license. Respondent acknowledged that the man Mr. Davis had met at the door was Mr. Morand. Respondent told Mr. Davis that Mr. Morand got his mail at her home and stayed there occasionally. At the hearing, Respondent testified that she had no control over where Mr. Morand had his mail sent and that "he was not a man you say, 'no,' to." Respondent's DCF Day Care Licensing Counselor was Cathy White. On March 16, 2002, Ms. White, accompanied by a law enforcement officer, went to Respondent's home to deliver the Notice of Revocation of Respondent's license. Mr. Morand was the only person at the home when Ms. White and the officer arrived. Mr. Morand told the officer and Ms. White that Respondent had taken the children to the park. He first said that Respondent had told him she was going to the park and then said she left him a note to that effect. Later on March 16, 2002, Ms. White returned to the residence where she found Respondent and several day-care children. This was also a Saturday, not covered by Respondent's license. Ms. White explained why DCF was moving to close the day care home and that Ms. White could not leave until all the children had been picked up by their parents. On March 28, 2002, Respondent executed another sworn petition for protection from domestic violence, seeking an injunction against Mr. Morand. In this, her second petition, Respondent stated that Mr. Morand had threatened her and was very violent when he was drinking. On April 4, 2002, Mr. Morand was arrested for sexual battery, false imprisonment, battery on a person over the age of 65, and violation of a domestic violence injunction. The charges stemmed from an attack on Respondent. Respondent's testimony at the disputed-fact hearing and documentary evidence leaves the impression that Mr. Morand had overpowered, beaten, and raped Respondent on or about April 4, 2002. After the incident of April 4, 2002, Respondent moved to a new address in order to get away from Mr. Morand.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order ratifying the past immediate revocation of the Respondent's current license for a Family Day Care Home. DONE AND ENTERED this 7th day of August, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 7th day of August, 2002. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Dorothy Dempsey 1633 Northwest 14th Street Ocala, Florida 34475 Paul F. Flounlacker, Jr., 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 Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues are whether the alleged actions of the respondents demonstrate a lack of fitness or trustworthiness to engage in the business of insurance within the meaning of Subsection 626.611(7), Florida Statutes (2004), and, if so, what penalty should be imposed. (All statutory references are to Florida Statutes (2004) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating insurance agents in Florida. The respondents, Crain and Carll, are licensed as Life and Health insurance agents pursuant to respective license numbers A056967 and A040734. The respondents have known each other for approximately 13 years. During that time, the two engaged in the business of selling health insurance. Mr. Carll was an independent contractor, but Mr. Crain was Mr. Carll's only boss. Mr. Crain wholly owns two Florida corporations that he operates as insurance agencies. The two corporations are identified in the record as International Life and Health Services of Manatee County, Inc. (Manatee), and International Life and Health Services of Sarasota County, Inc. (Sarasota). Mr. Crain owns two other Florida corporations. They are identified in the record as Independent Living Home Care Agency, Inc. (Home Care Agency), and Independent Living Home Care Membership Association, Inc. (Home Care). Home Care promises in a plan written by Mr. Crain to provide plan purchasers with access to discounted in-home care (the plan). Approximately 44 Florida residents purchased the plan in 2005 and 2006 from insurance agents, including Mr. Carll, who, as agents for Mr. Crain, Manatee, or Sarasota, previously sold health insurance to some of the plan purchasers. Mr. Crain is personally and fully liable for the acts of the selling insurance agents within the meaning of Section 626.839. Mr. Crain is a health insurance agent who is the president and sole shareholder of a health insurance agency. Mr. Crain directly supervised and controlled the insurance agents who sold the plan in Florida. Mr. Crain wrote the plan and trained the insurance agents in the content of the plan, sales techniques, how to exclude impaired customers, and how to determine whether a customer was an appropriate candidate to purchase a plan. Mr. Crain did not obtain a legal opinion concerning his final version of the plan. The plan satisfies the statutory definition of insurance. However, the plan is not health insurance that the legislature has expressed its intent to regulate.1 The plan promises Home Care will provide a purchaser of a membership with access to in-home care from a third-party provider, denominated as a "caregiver," at a cost substantially less than the market rate caregivers normally charge for such services (discounted home care services). The plan promises to refund 120 percent of the membership fee if Home Care were unable to provide access to discounted home care services. The plan excludes medical care from the definition of home care services. Home care services include companion and homemaker services; housekeeping and laundry services; transportation services for doctor visits, groceries, and visits with friends; meal preparation; assistance with dressing and undressing; organizing files and bills; not burdening loved ones; protecting assets and heir's inheritance; gaining respect; and preserving one's legacy while gaining respect and dignity. The plan offers memberships for four, six, and eight years. Only four and six-year memberships are pertinent to this proceeding. The respective cost for each four and six-year membership is $2,475 and $3,475. Home Care promises each member will have access to discounted home care services for respective benefit periods of 1.5 and 2.5 years. The cost of membership does not apply toward the cost of discounted home care services. Services are not available at the discounted rate for the first 90 days after the date a purchaser requests services (the elimination period).2 The elimination period is 180 days "for pre-existing conditions".3 An additional payment of $1,395 reduces the normal elimination period from 90 to 60 days, extends the membership period an additional two years, and extends the respective benefit periods by one year. The plan charges an additional 25 percent if a purchaser elects installment payments. The plan promises home care services at substantial discounts below the market rate. The discounted plan rates are $94 for 24 hours of service; $72 for eight hours of service; and $36 for four hours of service. Market rates in the community range from $204 to $480 for 24 hours of service and from $16 to $18 an hour for shorter periods.4 The 44 plans sold in Florida generated approximately $192,000 in membership fees for Home Care. Mr. Crain deposited the fees into a bank account he created for Home Care and for which Mr. Crain is the sole authorized signatory. Home Care paid commissions to insurance agents ranging from 50 and 60 percent of the sale proceeds. The allegations in this proceeding pertain to four of the 44 plan purchasers. Ms. Janet McClurkin purchased the plan in April 2005 in two installments totaling $2,112. Ms. Ruth Frakes purchased the plan in February 2005 in two installments totaling $4,870. Ms. Carin Clareus purchased the plan in February 2005 for one payment of $1,953. Ms. Eva Muller purchased the plan in March 2005 for one payment of $3,475.5 A finding of guilt requires proof of one or more of five essential allegations, the first of which alleges the four plan purchasers are elderly women who, at the time of purchase, were "disabled" and suffered from "diminished mental capacity." The four sales allegedly violated the plan prohibition against sales to anyone "not of sound mind or body." The four plan purchasers are clearly elderly women. At the time of the hearing, Ms. McClurkin was 94 years old.6 Ms. McClurkin is Canadian, has been widowed for approximately 35 years, has no children or nearby family, and lives alone. Her nephew had power of attorney at the time of the hearing. Ms. McClurkin suffered from hearing and memory loss. She had worn two hearing aids for about a year, was recovering from surgery for breast cancer two years earlier, and had functioned for over 15 years with two artificial hips. Ms. Frakes was 90 years old at the time of the hearing.7 Ms. Frakes had been widowed for approximately 26 years and had no children and no surviving relatives. Ms. Frakes wore a Life Alert alarm, had been wearing two hearing aids for approximately seven years, had been reading through a magnifying glass for approximately five years, was taking medication for high blood pressure, and suffered from arthritis. Ms. Clareus was 97 years old at the time of the hearing and resided in a community of about 200 senior citizens.8 She immigrated to the United States in 1928, had been widowed for approximately four years at the time of the hearing, and had no children and no nearby relatives. Ms. Clareus had been legally blind for approximately eight years but was able to read through an assistive device in her residence. Ms. Muller was approximately 85 years old at the time of the hearing. She immigrated from Germany and then became a U.S. citizen, all in a time frame not disclosed in the record. Ms. Muller had been divorced early in her life and lived alone in a mobile home community. She had no nearby relatives and experienced memory problems. Ms. Muller owns an automobile but does not drive. Friends drive for her. After purchasing the plan, Ms. Muller executed a power of attorney naming Ms. Ingrid Eglsaer as her general power of attorney. At the time of the hearing, the four witnesses demonstrated confusion and difficulty in recalling specific facts. However, their confusion and impaired memory at the hearing was not clear and convincing evidence that the witnesses were incompetent when they purchased the plan. The allegation of incompetence at the time of purchase may be supported by inference or surmise, but inference and surmise do not satisfy the requirement for clear and convincing evidence.9 Petitioner submitted no expert testimony concerning the mental capacity of a purchaser at the time of the purchase. Petitioner next alleges the respondents misrepresented that Home Care would provide home care services and home medical care without further charge. Each Administrative Complaint admits the alleged misrepresentation conflicts with the terms of the plan.10 The plan promises access to discounted home care services and states that the membership fee does not apply toward charges for discounted home care services.11 The evidence is less than clear and convincing that the respondents misrepresented the contents of the plan in a manner that led purchasers to believe they would receive home care services or home medical care without additional charge. Testimony of the four purchasers concerning verbal representations by insurance agents during sales transactions is confused, is not precise and explicit, and is less than clear and convincing. Each purchaser may have inferred that she was purchasing insurance for either home care services or home medical care without an additional charge. Some purchasers had previously purchased such insurance from the same insurance agent. Each sale included a consultation in which the insurance agent reviewed other insurance held by the purchaser. The plan included terms that sounded to elderly women like familiar insurance terms. For example, the plan requires the purchaser to apply for coverage and employs terms such as "Eligible Persons," "Effective Date," "Elimination Period," "Limitations and Exclusions," and "Benefit Discount Period." The plan extends the elimination period when "pre- existing conditions" exist, describes home care providers as "caregivers," and discusses "co-payments." The plan includes a disclosure form and a medical release form. The evidence is less than clear and convincing that the respondents made promises or representations, other than those in the plan, to induce a purchaser to infer that the plan entitled her to discounted home care or medical care at no additional charge. Rather, the terms of the plan were purposefully confusing and induced the four elderly women to draw the desired inference. Petitioner also alleges the respondents made false and worthless promises that defrauded the purchasers. However, it is unnecessary to resolve the allegations of fraud in this case.12 This case can be resolved if the evidence supports one of two remaining allegations. First, the respondents allegedly misrepresented the access to discounted caregiver services that a purchaser acquired upon payment of a membership fee. Second, the promises of access to discounted caregiver services that the respondents made to each of the four plan purchasers were false and worthless.13 The plan misrepresented the access to caregivers that a purchaser acquired upon payment of a membership fee. The plan provides, in relevant part: If a member joins the association they are guaranteed the homecare discounts provided for in the contractual agreement. Respondent Crain, Exhibit 1, at 4. The plan does not name or otherwise identify a caregiver responsible for supplying the discounted caregiver services "guaranteed" in the plan. In that regard, the plan is factually distinguishable from a home care plan that passed judicial scrutiny in an unrelated proceeding.14 Neither Mr. Crain nor Home Care possessed a legal right to require a caregiver to provide discounted services in accordance with the terms of the plan. Neither Mr. Crain nor Home Care possessed the practical ability to ensure that a caregiver would provide home care services at any price, much less the discounted prices promised in the plan.15 The absence of either a legally enforceable right or practical ability to ensure that a caregiver would provide the discounted home care services promised in the plan were material facts that Mr. Crain did not disclose to purchasers. The failure to disclose material facts was willful and misrepresented the access to discounted caregiver services that a purchaser acquired upon payment of a membership fee. Testimony from Mr. Crain concerning his practical ability to ensure delivery of discounted caregiver services was neither credible nor persuasive to the fact-finder. Mr. Crain discussed home care services with a number of caregivers. Based on those conversations, Mr. Crain developed a list of caregivers he said he could call in the future to request discounted caregiver services promised in the plan if and when one of the 44 purchasers requested services (the list).16 The list evolved between January 2005 and September 2006. Mr. Crain advertised for caregivers in local newspapers. The collective responses numbered between 100 and 200. Mr. Crain or a staff-member collected the contact information for each responder and questioned each responder concerning, among other things, their qualifications and experience. The final list identified 15 caregivers. Mr. Crain described the list of 15 in answers to questions from the fact-finder: [Q] Well, I want to make sure I understand clearly. So, you ran an ad. People called in, you took down their contact information, and did you run [abuse registry] screens on these people? [A] Yes, I did. [Q] Okay. You mentioned earlier 200 responded. Did all 200 make the list? [A] The list? . . . [Q] . . . The list I'm referring to is the list referred to in testimony of . . . [insurance] agents of yours that said you maintained a list of contract individuals . . . Did you maintain a list? [A] I had a list of potential caregivers from the original ad, yes. * * * [Q] So you ran two ads. You had some responses to the first ad, and overwhelming responses to the second ad, and when you talked to the person, what did [you] do . . . ? [A] They call in -- I briefly qualify them. * * * [Q] And what kind of information do you collect? [A] Name, address, phone number, work history, educational history ethical behavior . . . . [and abuse] screening . . . . [I]f the agency they work for currently or in the past could not fax me a copy of . . . screening . . . by AHCA [Agency for Health Care Administration], then I could then screen them myself. [Q] [H]ow many of these people did you actually either screen or get faxes of their screen? [A] About seven. [Q] Out of how many? [A] Altogether, I had spoken to no less than a hundred people. [Q] From both ads? [A] Correct. . . . [Q] How many of the seven did you screen yourself? [A] Three. . . . [Q] Okay. Now, you talked to a hundred. Did you compile a resource list? [A] Yes, I did. [Q] And how many . . . , of the hundred, made the resource list? [A] I had at least 15 potentially eligible people that could work for me, but I had seven that could go at any moment. Or not at any moment but that were available, already screened with experience and ready to go. Or around seven. Transcript (TR) at 581-585. Mr. Crain did not bond or insure any of the 15 potentially eligible caregivers. Mr. Crain explained the bonding procedure in the following testimony: [Q] [The plan] . . . talks about having people bonded, insured, and fully screened, correct? [A] Yes. [Q] Now, we've already talked about screening. How would you make arrangements to bond and insure someone? [A] If they were employed, to bond a person is a one-page form . . . [y]ou deliver to this insurance agency . . . down the road from my office . . . and putting a hundred dollars for every ten thousand dollars of bonding you want. . . . [Q] So, when in the process would you bond and insure someone? [A] The day or the day before they went out to the actual care. [Q] So actually, prior to having a request for services and actually arranging for somebody to go out, you wouldn't have gone through the trouble or expense of bonding or insuring, correct? [A] Correct. [Q] Who actually bears the expense of bonding and insuring? [A] The provider. [Q] You mean the worker? [A] Yeah. . . . TR at 585-586. The plan promised that access to discounted services included a guaranteed refund equal to 120 percent of membership if Home Care were unable to provide access to the discounted caregiver services promised in the plan. Mr. Crain wrote the refund language to state: 17. 120% money back guarantee. If [Home Care] cannot provide homemaker and companion services at the discounted rate as governed by this contract, the company shall pay the member all the fees paid plus an additional 20%. Due to severe, unprecedented, skyrocketing costs for caregivers, or an unforeseen increase in the demand for personnel, the company will make this refund. [Home Care] has a big responsibility to provide quality home care services to all of it's [sic] members. Even though management owners and outside professionals have thoroughly though [sic] out almost every variable in making this contract both beneficial to the customers and profitable for [Home Care], no one can predict the future. Therefore it is agreed by both parties that by entering into this contract that the legal remedy for [Home Care's] possible inability to provide the service at the discounted rate, is for [Home Care] to refund 120% of the member's fee after reviewing the case with legal counsel as provided for by [Home Care] regarding the unusual circumstances of the said member. Respondent Crain, Exhibit 1, at 7. The promise that access to discounted caregiver services includes a guaranteed refund of 120 percent of the membership fee is a false promise. The promise is not conditioned on any discernable legal standard or any other standard capable of objective measurement. Rather, the applicable standard is a subjective standard to be interpreted at the sole discretion of Mr. Crain. Mr. Crain willfully included the false refund promise in the plan. As Mr. Crain explained: The right to get a refund? After five days, they don't have a right to get a refund. [Q] Do you or have you, on behalf of the company, given refunds to persons beyond the five-day period? [A] Yes. [Q] Is that at your discretion? [A] Yes. [Q] Is there any particular policy or plan regarding when and how to give a refund and how much? [A] No. TR at 614. Mr. Crain is the sole arbiter of the entitlement to a refund and the amount of the refund to be paid. For example, Mr. Crain paid Ms. Muller 120 percent of her membership fee but paid only a prorated amount to Ms. Clareus.17 The promise to refund 120 percent of the membership fee is worthless. Mr. Crain willfully included the worthless promise in the plan. The refund obligation is owed solely by Home Care, and Home Care has not retained sufficient reserves to fund its contractual obligation.18 Mr. Crain withdrew virtually all of the $192,000 in membership fees to pay commissions, operating costs, and similar expenses. On June 19, 2006, Home Care had $946 in its bank account. The last refund obligation Home Care owes to the two unpaid purchasers in this proceeding will not expire until sometime in 2011. The corporate promise to refund 120 percent of the membership fee is worthless because it is an unfunded obligation to pay refunds from non-existent reserves. Mr. Carll did not exercise ordinary diligence, much less the reasonable skill and diligence required of an insurance agent, to examine the plan for misrepresentations and false promises. Mr. Carll willfully failed to independently examine the plan. As Mr. Carll explained during his testimony: Jim was constantly on the phone interviewing people, prospective caregivers, talking to -- even to home health care agencies that provide homemaker services, and it's my understanding that he had compiled a list of people who could be called in the event if someone requested for [sic] service. * * * [Q] When you had meetings with Mr. Crain, did you ask him questions? [A] Yes. [Q] What questions did you ask about the plan? [A] Oh, how does the elimination period work. You know, when do services begin? What do people have to do to get services? Questions of that nature. [Q] Anything else? [A] Just questions about, you know, well how to talk to these people and, you know, what to look for when you walk into a house. [Q] Did you ask Mr. Crain what ability he had to ensure that these third party contractors would provide their services for the fees he guaranteed in the plan? [A] Yes. [Q] Okay. What did you ask him? [A] I said, Well, how can we be sure that these people will get the services that they need when they ask for them? [Q] And? [A] He said that he had interviewed numerous people. He had a list of people that he could call . . . to provide [discounted services]. . . . [Q] Did you ask Mr. Crain what ability he had to . . . enforce that representation from them if, at some future time, he asked them to provide that service, and they said they no longer would? [A] I didn't ask him that question. [Q] So you didn't ask him if he had these people under legal contract for the term of the plan? [A] No. . . . I have a lot of faith in Jim Crain. TR at 358 and 422-424. Mr. Carll knew, or should have known, that the plan he sold included misrepresentations. Mr. Carll knew, or should have known, from the language of the plan that the refund promise is false. Each of the respondents is an insurance agent who enjoyed a fiduciary relationship which arose from previous sales of health insurance. Mr. Carll also enjoyed a fiduciary relationship that arose during the previously discussed consultative role he performed when he reviewed with plan purchasers their existing insurance. As Mr. Carll explained during his testimony: Well, a lot them, some of them were referrals, some of them were people we already knew. [Q] How did you know them? [A] That they had purchased insurance with us before. You know, a lot of them called the office. [Q] For what purpose did they call? [A] Well, they called the office looking for the agent that sold them insurance. TR at 360-361.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding the respondents guilty of violating Subsection 626.611(7), for the reasons stated herein, and suspending their licenses for 24 months from the date the proposed agency action becomes final. DONE AND ENTERED this 31st day of January, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 31st day of January, 2007.
The Issue The issue is whether Respondent should be subject to administrative penalties, up to and including revocation of its group home license, for non-compliance with the residential facility requirements of Chapter 393, Florida Statutes (2007).
Findings Of Fact Petitioner is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential habilitation centers. Respondent holds a group home facility license. The group home is located in Lake City, Florida. Ms. Amanda Houston is the operator of the group home. Ms. Houston is responsible in that capacity for compliance with statutes and rules relating to residential facilities. At all times material here, A.D. was a vulnerable 17-year-old female who resided at the group home. A.D. is mentally retarded and has significant behavior issues. Ms. Nigeria Taiwan Wills was a trusted employee of the group home for four or five years. On October 8, 2008, Ms. Wills was responsible for the supervision and care of the group home's disabled residents. On October 8, 2008, Ms. Wills began her shift at 2:00 p.m. and worked until 8:00 p.m. During at least part of that time, Ms. Wills was the only staff member present in the home. On October 8, 2007, while under the supervision of Ms. Wills, A.D. suffered significant injury to her buttock area. The next morning, Ms. Houston arrived at the group home around 6:30 a.m. Ms. Houston woke A.D. who dressed herself. Ms. Houston gave A.D. her medications. Ms. Houston did not notice any difference in A.D.'s demeanor. A.D. seemed normal in every way. The group home had four residents. Three of the clients, including A.D., rode a bus to school. On October 9, 2009, the bus arrived to pick up the clients at 8:10 a.m. It left the facility at 8:20 a.m. Ms. Houston was not aware of A.D.'s injury before the bus picked her up. On October 9, 2008, Ms. Wills visited the group home around 11:00 a.m. to pick up a piece of paper that she had left there the night before. While at the group home, Ms. Wills casually mentioned to Ms. Houston that she had an incident with A.D. the night before, that it was no big deal, and that she would tell Ms. Houston about it when she returned to work her shift that evening. Ms. Wills then left the group home. Ms. Wills did not have a home phone. All supervisory employees of the group home are trained to keep notes during every shift to record chronologically all events occurring at the group home. If an injury of any kind occurs, an employee is supposed to immediately fill out an incident report and call Ms. Houston. Ms. Houston knew that Ms. Wills had not filled out an incident report the night before. Ms. Houston read Ms. Wills' notes from the night before and, finding no reference to an incident with A.D., mistakenly assumed that whatever had happened truly was no big deal. This was not an unreasonable conclusion given Ms. Wills' long-term employment with no complaints and A.D.'s history of stealing and other behavior problems. In the mean time, Ms. Lanitra Sapp, a child protective investigator for the Department of Children and Family Services, received a call from A.D.'s school. Ms. Sapp subsequently visited the school, interviewed A.D., and observed bruising to her buttocks and upper thigh. Ms. Sapp concluded that the bruising was consistent with physical abuse. Ms. Sapp then took A.D. to her office. When A.D. did not get off the bus after school, Ms. Houston called the school, A.D.'s mother, and A.D.'s waiver support coordinator. Ms. Houston was unable to locate A.D. until she received a call from Ms. Sapp, asking Ms. Houston to go to Ms. Sapp's office. At Ms. Sapp's office, Ms. Houston and her husband, Adam Houston, first learned about A.D.'s injury. Mr. and Mrs. Houston were shocked at the degree of A.D.'s injury as reflected in photographs. After a short meeting, A.D. voluntarily rode with the Houstons to the group home. Ms. Sapp followed in her car. When the Houstons and Ms. Sapp arrived at the group home, the police were already there. Ms. Wills was also there. Ms. Houston left A.D. in the car with Mr. Houston before going into the group home. Ms. Wills talked to the police and Ms. Sapp in separate interviews. At some point, Ms. Wills told the police that she had spoken to Ms. Houston about the incident that morning. Ms. Houston admitted to the police and Ms. Sapp that Ms. Wills had made a reference to an incident that morning. Ms. Wills never admitted that she spanked A.D. with a belt. Ms. Houston placed Ms. Wills on administrative leave just before the police handcuffed her and took her to jail. Immediately thereafter, Ms. Houston prepared and sent an official incident report to Petitioner and A.D.'s waiver support coordinator. A.D. wanted to remain at the group home. Her mother and waiver support coordinator agreed. A.D. remained in that environment until March 2008, when Respondent lost its status as a Medicaid waiver provider. Ms. Houston never let Ms. Wills return to the group home. Instead, Ms. Houston paid Ms. Wills for one week of earned wages and one week of vacation time. This was the final pay check for Ms. Wills. Within days, Ms. Houston took A.D. to see her pediatrician for a medical evaluation. A week or so later, Ms. Sapp took A.D. for an evaluation by the Department of Children and Family Services child protection team. The Department of Children and Family Services subsequently issued a report containing verified findings of failure to protect against Mr. and Ms. Houston and maltreatment/physical injury against Ms. Wills.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that Respondent's license is not subject to discipline for failure to protect. DONE AND ENTERED this 29th day of October, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2008. COPIES FURNISHED: Julie Waldman, Esquire Agency for Persons with Disabilities 1621 Northeast Waldo Road Gainesville, Florida 32609 Lloyd E. Peterson, Jr., Esquire 905 Southwest Baya Drive Lake City, Florida 32025 John Newton, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 James DeBeaugrine, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950
The Issue The issue is whether Respondent's license to operate a family day care home should be revoked.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties The Department is the state agency responsible for licensing and regulating child care facilities, including family day care homes. The Department 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 inspection 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. The Department 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 1218 Jordan Avenue in Orlando, Florida (hereafter "Respondent's facility" or "the facility"). Respondent and her husband reside at that address as well. Respondent has operated day care homes in Florida since 1992, and she has been involved in child care for approximately 21 years. As a result, she is or should be familiar with the rules regulating family day care homes. Respondent keeps children in the back portion of her home. The children also play in Respondent's backyard, which is enclosed by an approximately six-foot high wooden fence. A wooden gate in the fence connects Respondent's backyard to the backyard of the house immediately behind Respondent's home. That house has been rented by Annette Rodgers since November 2002. Respondent does not have a pool in her yard. Ms. Rodgers' yard does have a pool, which at the time of the Department's February 27, 2003 inspection (discussed below), was only partially filled with water. Ms. Rodgers' pool is not visible from Respondent's back yard because of the wooden fence and gate. The photographs and videotape received into evidence show that Ms. Rodgers' pool is now completely enclosed by a series of fences.4 The evidence does not clearly and convincingly establish that the fences were not in place on February 27, 2003. Indeed, the weeds and high grass which can be seen along the base of and around the posts of the chain-link fence and the discoloration on some of the fence posts indicate that at least that fence has been in place for quite some time.5 Previous Inspections of Respondent's Facility and Actions Taken by the Department Respondent's facility was inspected on May 28, June 14, and September 30, 2002. Several areas of noncompliance were identified during each of those inspections, including inadequate supervision of children, unsafe storage of chemicals, evidence of roaches in the home, and incomplete enrollment and health records for the children at the home. On each occasion, Respondent was given a period of time within which to correct the areas of noncompliance. The inadequate supervision for which Respondent was cited in June 14, 2002, involved several children playing unsupervised in Respondent's carport area, which has access to the street; several children playing in the backyard under the "supervision" of Respondent's mother, who was not an authorized caregiver; and several children playing unsupervised on the porch area in the vicinity of tools and small screws. The Department issued Respondent a provisional license on October 28, 2002, presumably as part of the license renewal process. The provisional license was based upon Respondent's history of noncompliance with the Department's minimum standards, and it was valid through April 2, 2003, unless Respondent applied for an received a change in license status (which she apparently did not) or "if the license is suspended or revoked by the Department." A provisional license is issued where the Department has continued concerns regarding the day care home's compliance with the applicable statutes and rules. A provisional license is issued in lieu of denying a license renewal or suspending or revoking the home's license. A provisional license gives the licensee an opportunity to correct the areas of noncompliance, and because such homes are inspected more frequently, the Department has an opportunity to monitor the licensee's progress. On October 29, 2002, Respondent was assessed an administrative fine of $100.00 based upon deficiencies identified during the May 28 and June 14, 2002, inspections. The fine was based primarily upon the incident described above involving inadequate supervision of the children at the home. Respondent apparently did not contest the administrative fine or the issuance of the provisional license rather than a standard license. Despite the provisional license and the administrative fine, the Department's inspections continued to identify areas of noncompliance at Respondent's facility. For example, the November 14, 2002, inspection identified "evidence of rodents/vermin in the home" as well as incomplete enrollment and immunization records for the children in the home. The December 18, 2002, inspection identified these same deficiencies, including "live roaches in the children's area and the kitchen," as well as the storage of plastic shopping bags and chemicals which can pose dangers to children in an unlocked cabinet accessible to the children. These violations were the same as or similar to those for which Respondent had been previously cited and which led to the imposition of the administrative fine and issuance of the provisional license. The Department did not take immediate action to suspend or revoke Respondent's license based upon the results of the November 14 and December 18, 2002, inspections. Instead, the Department continued to give Respondent an opportunity to bring her home into compliance with the minimum standards in the Department's licensing rules and statutes. Inspection of Respondent's Facility on February 27, 2003 The Department next inspected Respondent's facility on February 27, 2003. That inspection was conducted by Department employee Brandi Blanchard. Ms. Blanchard had been responsible for inspecting Respondent's facility since at least September 2002, so she was familiar with the layout of the facility and its history of noncompliance. Respondent testified that Ms. Blanchard, unlike the prior inspector, had been "very good to her." Ms. Blanchard arrived at Respondent's facility by car between 8:30 a.m. and 8:45 a.m. As she arrived, Respondent was pulling her car into the driveway/carport at the facility. Ms. Blanchard parked her car directly behind Respondent's car. Ms. Blanchard got out of her car as Respondent was getting out of hers, and she said, "Hello, Ms. Alli," to Respondent. Upon seeing Ms. Blanchard, Respondent quickly went into the house through the carport door. Ms. Blanchard followed Respondent into the facility. Ms. Blanchard lost sight of Respondent as she went down a hallway towards the back of the house where the children were located. The backdoor of the house was open, and by the time that Ms. Blanchard caught up with Respondent, Respondent was directing the children through the facility's backyard towards the back gate connecting Respondent's yard to Ms. Rodgers' yard. Several of the children, led by Ms. Rodgers' 14-year-old son carrying an infant in a car seat and Ms. Rodgers' 13-year-old son carrying a toddler had already reached Ms. Rodgers' yard. Ms. Blanchard told Respondent to stop and return to the facility with the children, which she did. Ms. Blanchard went through the open gate onto Ms. Rodgers' property and directed Ms. Rodgers' sons to return to Respondent's facility with the children, which they did. While on Ms. Rodgers' property, Ms. Blanchard saw a partially-filled swimming pool and other ongoing construction. Ms. Blanchard did not notice any fencing around the pool and saw one of the children, which she estimated to be three or four years old, walking in the construction area close to the edge of the pool. After the children had been returned, Ms. Blanchard assessed the situation and commenced her inspection of the remainder of Respondent's facility. Ms. Blanchard found roach droppings in the bathtub and in other locations in the facility. Respondent acknowledged a roach problem, but claimed that she had an exterminator working on the problem and that he was due to come out and treat the facility. Respondent did not present any documentation to Ms. Blanchard to corroborate her claims regarding the exterminator, nor did she introduce such documentation at the hearing. Ms. Blanchard found plastic bags in an unlocked cabinet accessible to the children. Respondent acknowledged at the hearing that the bags were in the cabinet and further acknowledged the suffocation danger that they posed to young children. Ms. Blanchard's review of the facility's records identified missing enrollment and immunization records for the children in the home. However, Ms. Blanchard did not document the children whose records were missing and she did not determine whether, as Respondent claimed at the time and in her testimony at the hearing, any of the missing records were for students who had enrolled in Respondent's facility within the prior two weeks. Ms. Blanchard documented the results of her inspection, including the events surrounding the movement of the children to Ms. Rodgers' yard on her inspection report. The inspection report identified each of the violations that she observed, including inadequate supervision based upon Respondent's absence from the facility, unsafe storage of materials dangerous to children (i.e., plastic bags) in a location accessible to the children, evidence of roaches, incomplete enrollment and immunization records, and more than the allowed number of children in the home. Ms. Blanchard also cited Respondent's facility for the dangers posed by Ms. Rodgers' pool since the children were being taken onto Ms. Rodgers' property. With respect to the citation for having too many children, Ms. Blanchard's inspection report did not include any detailed information about the children such as their names (or initials), ages, or descriptions. The report simply stated that Ms. Blanchard counted seven children at the facility -- i.e., "3 infants, 3 preschool and 1 school age child." Ms. Blanchard's testimony at the hearing referred to only two infants, which was consistent with Respondent's testimony on that issue. As a result, the evidence is not clear and convincing that there were seven children in Respondent's care at the facility rather than the authorized six children. During the course of her inspection, Ms. Blanchard did not see any adults (other than Respondent, who arrived as Ms. Blanchard was arriving) at the facility. It is undisputed that Respondent's husband, who is the designated substitute caregiver, was not at the facility that morning. There is no credible evidence that Respondent's 22- year-old son, Abdel, was at the facility that morning. He did not testify at the hearing, and, if as Respondent claims, Abdel was at the facility that morning, Ms. Blanchard would have seen him at some point during the commotion surrounding Respondent's rushing the children out the back door or during her subsequent inspection of the facility. In any event, Abdel was not the substitute caregiver designated by Respondent. He was not even authorized to watch the children because, although he had been background screened by the Department, he had not taken the Department's mandatory child care training program and was not certified in cardiopulmonary resuscitation (CPR). It is more likely than not that Ms. Rodgers' teenage sons were actually left to supervise the children at Respondent's facility during the time that Respondent was gone on the morning of February 27, 2003. Indeed, that is the most likely explanation of their presence at the facility and their involvement in the movement of the children to Ms. Rodgers' yard. However, the evidence on this issue is not clear and convincing. Respondent's explanation of her actions on the morning of the inspection -- i.e., that she hurried into the house upon her arrival and directed all of the children to Ms. Rodgers' yard so she could convey an important message to Ms. Rodgers -- is not credible. Her explanation of the roach droppings that Ms. Blanchard found in the bathtub -- i.e., that it was actually dirt from washing one of the children's feet -- is also not credible. By contrast, Respondent's explanation of the incomplete records -- i.e., that the missing records were for those children who had enrolled in the facility within the prior two weeks -- is reasonable. Because Ms. Blanchard's inspection report did not identify the children whose records were missing and did not document the date of their enrollment, the evidence is insufficient to prove this violation. Respondent admitted at the hearing that she "was taking a chance" by leaving the children at the facility without her husband, the designated substitute caregiver, being present. Respondent testified that she was gone only 15 minutes to drop one of her children off at school, and that she follows that same routine every day although her husband is usually at the facility while she is gone. After Ms. Blanchard completed her inspection, she discussed the results with Respondent and provided Respondent a copy of the inspection report. Ms. Blanchard then went back to her office and discussed the results of the inspection with her supervisor, Patricia Richardson. Based upon the results of the February 27, 2003, inspection and the history of noncompliance at Respondent's facility (both before and after the provisional license), Ms. Richardson determined that Respondent's license should be revoked. Thereafter, on February 28, 2003, Ms. Richardson 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.
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 revoking Respondent's license to operate a family day care home. DONE AND ENTERED this 12th day of June, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 12th day of June, 2003.
The Issue The issue is whether Respondent is entitled to the renewal of his license to operate an adult family-care home.
Findings Of Fact At all material times, Petitioner has operated an adult family-care home at 7128 North 50th Street in Tampa. Petitioner owns this home with his cousin. In anticipation of the expiration of his license on September 29, 2006, Petitioner filed with Respondent an application for renewal on May 23, 2006. Renewal applications prompt annual survey inspections, so, after the receipt of Petitioner's renewal application, one of Respondent's surveyors visited the home and performed an annual survey inspection. She noted items that required a follow-up inspection, so, on August 3, 2006, one of Respondent's surveyors returned for the follow-up inspection. Respondent's surveyor was met at the door by Sherille Guider, who stated that she was the caregiver. The surveyor asked to see Petitioner, but she told her that Petitioner did not live at the house, although she showed the surveyor the locked room that belonged to Petitioner. When asked to produce certain routine documents, the caregiver replied that she did not have access to such documents, as they were in the locked room of Petitioner and the caregiver did not have a key. Petitioner appeared a short time after the surveyor's arrival and produced the requested documents. There is some dispute as to whether he offered to show his room to the inspector, but his testimony is unrebutted that he kept a room, with clothes and toiletries, for his exclusive use at the home. He claimed that he resided at the home, although he admitted that did not spend every night there. Subsequent investigation revealed that Petitioner and his wife, from whom he has been separated for two years, claim a different residence within Hillsborough County as their homestead property. Also, Petitioner's driver license currently bears the address of the home, but, at the time of the incident, bore the address of his homestead property. The same appears to be true of the certificate of title to his motor vehicle. Petitioner testified that he originally planned to operate the home as his fulltime job, but was unable to generate enough money doing so. He has since found employment as a certified nursing assistant and often works the 11:00 p.m. to 7:00 a.m. shift. Four or five months prior to the follow-up inspection, Petitioner had hired Ms. Guider to serve as a caregiver at the home. In return for her services as a caregiver, Petitioner rented a room in the home to her at reduced rent. Petitioner allowed her boyfriend also to move into a room, but required a background screening on him, as well as on Ms. Guider. After several delays, the boyfriend completed his form, and, after submitting it, Petitioner learned that the boyfriend had a criminal record. Petitioner demanded that the boyfriend move out. Eventually, Petitioner had to summon law enforcement officers to eject the man. This episode preceded the follow-up inspection. Ms. Guider's hearsay statement to Respondent's surveyor appears to be the strongest evidence on which Respondent is relying in this case. However, for the reason noted above, Ms. Guider was unhappy with Petitioner. Even before her boyfriend had been ejected from the home, Ms. Guider had approached Petitioner's two residents with a plan for her to start her own adult family-care home and for them to move into it. Ms. Guider's short period of employment with Petitioner terminated one day when, without notice, she asked a friend of Petitioner to drive her to the airport so she could fly home to Chicago. She did and never returned. For all these reasons, Ms. Guider does not appear to be a reliable source of information as to Petitioner's place of residence. Petitioner testified that he resides at the home. A friend of 20 years, who also operates an adult family-care home, testified that she visits Petitioner's home regularly and knows that he resides there. Petitioner's claiming of homestead exemption at another address is less evidence of his primary residence and more evidence of his carelessness or fraud in maintaining current information with the Hillsborough County property appraiser's office. The old addresses shown on the driver license and certificate of title are of little importance in determining Petitioner's residence, given the other evidence establishing the home as his residence and his subsequent updating of the addresses in these official records.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order granting Petitioner's application to renew his adult family-care home license. DONE AND ENTERED this 16th day of April, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 April, 2007. COPIES FURNISHED: Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Craig H. Smith, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Dr. Andrew C. Agwunobi, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Kenneth A. Donaldson 7128 North 50th Street Tampa, Florida 33617 Gerald L. Pickett Agency for Health Care Administration 525 Mirror Lake Drive Sebring Building, 330K St. Petersburg, Florida 33701
Findings Of Fact In April, 1993, Respondent took over operation of a residential facility known as the Linton Group Home. From that date until May 31, 1995, Respondent and her staff cared for developmentally disabled children in that facility on a permanent basis. The facility was located in Marion County, Florida. The facility operated in accordance with Chapter 393, Florida Statutes and in Chapter 10F-6, Florida Administrative Code. Historically, Respondent had assisted her mother in running the group home in the years 1987 and 1988 on a part-time basis. Respondent's involvement with the group home became permanent in 1989. The group home was opened by Respondent's mother in 1985. Respondent began operating the group home when her mother died. Respondent and two or three employees routinely worked at the group home. Respondent's principle income in the time period at issue was derived from the operation of the group home facility. Following a facility inspection by Petitioner's employee conducted on May 8, 1995, to consider license renewal, the group home was granted a conditional license for the period June 1, 1995 through June 30, 1995. The license was not renewed beyond June 30 based upon the allegations previously described. The decision not to renew the facility license for the annual period was made on June 29, 1995 and notice was provided to Respondent. As of June 30, 1995, seven boys were in residence in the group home ages 13 to 18, with varying levels of disability concerning their level of function both physically and mentally. The clients residing in the facility required and had been given constant supervision. However, they were not a threat to run away from the home. At relevant times, in the event that a client was home from school someone was available to supervise the client. At relevant times Respondent's personal residence was one and a half miles from the group home. Respondent lived there with her children and husband, Willie Smith. The children were not those of Respondent and Mr. Smith. When Respondent took over ownership and operation of the group home she and other existing employees at the facility had been qualified to provide direct services to the clients through a background screening process. To successfully complete the background screening a prospective direct service provider must submit a fingerprint card, and affidavit on good moral character, undergo screening by local law enforcement, the Florida Department of Law Enforcement, and the FBI through use of the fingerprint card and prior to October 1, 1995 scrutiny by the Petitioner concerning the State child abuse registry. At relevant times Respondent understood that she was responsible for securing all the necessary information to do a background screening. She further understood that she had seven days from the time at which a person was employed at the group home to submit the background screening information for assessment. For a time she did not realize that the operator was responsible for paying a fee for processing the fingerprint card. When the May 8, 1995 inspection was made Respondent became aware that a fee was assessed for that process. At relevant times Respondent was aware that appropriate background screening was necessary to maintain the group home license to operate the facility in Florida. Respondent understood that if background screening information was not submitted that an existing license to operate the facility could be revoked or the license could be denied upon the annual request for renewal. In relevant times to the proceeding Hilda Spotts worked in the Petitioner's Developmental Services Program Office. That office serves developmentally disabled children ages 3 to adult and is involved with group homes in which those children reside. Ms. Spotts was involved with the licensure of group homes in District 13, to include Respondent's group home. In June, 1994, Respondent called Ms. Spotts to inform Ms. Spotts that Respondent had married Mr. Smith. In that conversation Ms. Spotts asked Respondent for information to perform a background assessment on the husband to include a fingerprint card and a completed HRS Form 1651 which is associated with the screening process. Ms. Spotts did not receive the information to perform the background screening in 1994. Instead, there was a second conversation in which Respondent told Ms. Spotts that the husband would not be involved in the daily activities of the group home as an employee of the home. On that occasion Ms. Spotts gave a packet to the Respondent that would be needed to perform the background assessment. However, Ms. Spotts told the Respondent that Ms. Spotts would check with another employee of Petitioner to see if the husband needed to complete those forms. The conversation was concluded on the basis that Ms. Spotts would inform the Respondent concerning the necessity for Mr. Smith to undergo background screening. Within the first six months of the marriage between Respondent and Mr. Smith, the husband did not work at the group home. His employment began before the May 8, 1995 survey at which the Respondent stated that the husband was doing lawn work and maintenance at the group home. At that time Respondent held to the opinion that the situation with her husband was no different than other maintenance people who worked at the group home and who were not required to have background screening conducted. Later Ms. Spotts called the Respondent to tell her that the husband did not need screening but Ms. Spotts reminded the Respondent that the husband needed to be listed for purposes of the annual license review. The next annual review beyond that point in time was performed on May 8, 1995. Ms. Spotts had made the determination that the husband did not need screening at that time based upon her analysis and conversations with personnel at Petitioner's District 3 office in Gainesville, Florida. Ms. Spotts had further stated that if the husband began working in the home he would need to be screened. Respondent added Mr. Smith to the list of employee names on Form 1651 in the annual renewal application dated April 20, 1995 and signed by Respondent. This was consistent with the request by Ms. Spotts that Respondent report Mr. Smith's name on the annual renewal request. Beyond those persons who were working at the group home when Respondent became the owner/operator, Respondent submitted three additional names for background screening. Among the persons who were screened was Brenda Wilson whose screening information was submitted to Pat Joyner an employee of Petitioner at District 3 who is responsible for background screening compliance in that district and District 13. Ms. Wilson was qualified and there exists no dispute concerning her background. Ms. Joyner performs background screens based upon the availability of the person's name, date of birth, social security number and fingerprints. Another employee for whom Respondent submitted background screening information was Sam Graham. This information was sent to Ms. Spotts. Mr. Graham worked for only one week at the facility. No response was received concerning his background screening. Before information was submitted for background screening on Mr. Graham Respondent was told by Ms. Spotts that the Petitioner's Districts had been separated. That referred to Districts 3 and 13. In fact in approximately the spring of 1994 five counties were separated from District 3 and placed within District 13. Marion County was among those counties. After the District separation, Ms. Spotts told Respondent that in the future that the Linton Group Home would not have any dealings with District 3 and that Respondent should deal with District 13. At that time Ms. Spotts did not tell the Respondent where to send screening requests. Respondent assumed that the screening requests should be forwarded through Ms. Spotts in that Ms. Spotts, had provided Respondent with forms needed to perform the background screening. Another employee for whom information on background screening was submitted was Michael Ivey. The information for Michael Ivey was sent to District 13. Before that information was sent Respondent did not call Ms. Spotts to ask where to send the information. Respondent again operated on the assumption that the Linton Group Home was no longer under the regulatory auspices of District 3 in Gainesville as Ms. Spotts had indicated. Therefore Respondent thought that the information for Mr. Ivey should be sent to Ms. Spotts in Belleview, Florida, where Ms. Spotts had her office. Ms. Spotts has no record of receiving the background screening information on Mr. Ivey, nor does the Petitioner. Prior to the submission in the Ivey case requests for background screening had been sent to the District 3 office in Gainesville, Florida, responsible for background screening. Mr. Ivey worked at the Linton Group Home as a direct service provider from late December, 1994 until mid May, 1995. The record of submission of materials to perform the background screening on Mr. Ivey are as reflected in the files maintained by the group home and examined by Ms. Spotts in the May 8, 1995 inspection for license renewal. In that file there is a copy of a document referred to as a law enforcement check which establishes that Mr. Ivey's record was cleared by the Alachua County Sheriff's Office. Mr. Ivey had also executed an affidavit contained in his personnel file at the group home related to his good moral character. In the group home the files is a copy of the Form 1651 shows that Michael Ivey signed as a applicant for the background screening check and included his name, date of birth and social security number together with his present address. The second part of Form 1651 that is "to be completed by employer, HRS representative or facility requesting background check" and characterizes the nature of the employment was not executed nor signed. Moreover, the requestors name, telephone number, street address, county in which the requester is located and the date upon which the applicant had been employed was not executed. There are occasions in which Petitioner's employees and counselors submit requests for background screens as opposed to that information being requested by the employer. However, it was necessary for Respondent to execute the Ivey documents as the requesting employer in that no prior arrangement had been made to have Ms. Spotts or some other employee for the Petitioner execute the form as a requesting entity. Although it may have been appropriate to assume that the proper place to transmit the request for background screening for Mr. Ivey was through Ms. Spotts, it would be inappropriate to assume that Ms. Spotts would understand or be expected to complete Form 1651 to include information as the requestor for background screening. The practice of not executing Part II to Form 1651 which calls for the employer or an HRS representative or the facility to request the background screening check and sign that request was a practice that Respondent had learned from her mother who formerly operated the Linton Group Home. That practice was carried forward in the submission of the Ivey request for background screening. Respondent did not believe that she needed to indicate that she was requesting the background screening for Mr. Ivey by indicating that Respondent was the employer. Notwithstanding the fact that Part II to Form 1651 was not routinely executed, it was the custom by the Linton Group Home to send other information with the request for background screening to indicate that the screening request related to employment with the Linton Group Home. Related to the request for background screening Respondent acknowledges that the expectation was that information would be returned from Petitioner indicating whether the employee had cleared screening. Within the group home files inspected on May 8, 1995, was found a copy of Mr. Ivey's fingerprints. The law enforcement check made by Alachua County bore an address for Petitioner in Wildwood, Florida. The fingerprint card bore an address for Petitioner in Gainesville, Florida. Both addresses were affixed to forms provided by Petitioner. Although information for Mr. Ivey's background screening had Petitioner's address at Wildwood, Florida, and Gainesville, Florida, on the forms provided by the Petitioner, Respondent recognized that the information for background screening on Mr. Ivey was to be sent to one location. She chose to send it to Ms. Spotts. Respondent was aware that compliance information concerning the background screening request was customarily received from the background agencies notifying the Respondent whether an employee had a "cleared" background. Nonetheless, Respondent did not receive information concerning clearance for Mr. Ivey beyond the clearance by the Alachua County Sheriff's Office which was received on December 7, 1994, the same date that the law enforcement check form provided to that department was signed by Mr. Ivey. In the May 8, 1995 inspection the information that was found concerning background screening for Mr. Ivey did not indicate that he had been cleared by appropriate authorities by placing a stamp on all pertinent requests with the word "clear". The exception being the return from Alachua County Sheriff's Office. When Ms. Spotts conducted the May 1995 inspection at the group home, she asked Respondent about the person or persons who was responsible for conducting repair work at the home. Respondent answered that her husband performed those duties. Respondent indicated that her husband worked both inside and outside the group home, to which Ms. Spotts responded that the husband needed to be screened during this relicensure. Respondent told Ms. Spotts that the husband cut grass at the group home. Respondent told Ms. Spotts that Respondent's husband was repairing walls and halls inside the house. In discussion concerning the need to do a background check for the husband the Respondent told Ms. Spotts that the husband did work at the home when the children were not there. In response Ms. Spotts told the Respondent that children might come back from school while the husband was there. Following this conversation about the need to have the husband checked for his background Ms. Spotts was persuaded that the Respondent had agreed to those arrangements. Those remarks were followed by correspondence dated May 16, 1995, in which Ms. Spotts informed Respondent that the Respondent needed to have a complete background screening check performed on the husband. With this correspondence Ms. Spotts enclosed a local law enforcement check form and advised the Respondent to sign the background check form and have her husband sign and return the executed information within ten days with an appropriate fee of $32.00 for processing the fingerprint card. The correspondence reminded the Respondent that the issue of background screening for the husband was important and needed prompt attention. Respondent received the correspondence. Respondent did not send Ms. Spotts the background screening information as requested. Ms. Spotts had in mind promptly processing the information on the husband to facilitate granting the Respondent a 90-day license pending the processing of information about the husband's background. When Ms. Spotts conducted her inspection Mr. Ivey was present on that day. After Ms. Spotts had examined the information in the personnel file for Mr. Ivey that has been described she asked the Respondent about Mr. Ivey's employment status. Respondent indicated that Mr. Ivey had been employed since January, 1995. Ms. Spotts noted that there was no abuse registry clearance information or local information other than Alachua County Sheriff's Office information or FBI information concerning clearance of Mr. Ivey available in the records at the group home. The group home is expected to maintain clearance information. Petitioner does not maintain clearance information concerning group home employees. In response to Ms. Spotts' questions about Mr. Ivey's status Respondent told Ms. Spotts that Respondent had sent the clearance request forms to Ms. Spotts. The information sent by Respondent to Ms. Spotts when seeking background screening for Mr. Ivey included an application form provided by HRS, an affidavit of good moral character, a Sheriff's statement, a fingerprint card, HRS Form 1651 and information concerning rules of the Linton Group Home. On May 8, 1995, when Ms. Spotts informed Respondent that the information related to Michael Ivey's background screening was incomplete this was the first time that Respondent realized the deficiency. Ms. Spotts' view is that information concerning background screening and clearance for employees in a group home is sent to Ms. Joyner in District 3, whereas information concerning the owner/operator clearance goes to Ms. Spotts at District 13. It is not clear that Respondent understood this distinction. It is not clear whether the Ms. Spotts eventual instruction to Respondent to send background information to screen employees to Ms. Joyner occurred before or after information was sent to Ms. Spotts related to screening for Mr. Ivey. Notwithstanding the special disposition of the background screening for the husband which was requested in May, 1995, to be processed through Ms. Spotts to accommodate the issuance of a 90-day license to the Respondent, earlier in 1995 Ms. Spotts had told the Respondent that the background screening for employees at the group home should be processed through Ms. Joyner. Ms. Spotts was not sure what the Respondent's understanding of the appropriate place to send background screening information for employees prior to this 1995 conversation. Not finding sufficient information concerning Mr. Ivey, Ms. Spotts asked the Respondent to re-submit the request for clearance for that employee. As with the information pertaining to the husband, Respondent was instructed to send the information to Ms. Spotts to accommodate the issuance of a 90-day license pending the processing of information about Mr. Ivey's background. Respondent did not re-submit information for background screening for Mr. Ivey. Ms. Spotts provided Respondent with necessary forms to submit for background screening for employees. At the end of May, 1995, Ms. Spotts called Respondent to inquire concerning the submission of background screening information for the husband and Mr. Ivey. Respondent told Ms. Spotts that the husband had gone to Nevada around May 19, 1995, and that Mr. Ivey had quit on that date. During this conversation at the end of May, Respondent told Ms. Spotts that Respondent was not sure when the husband would return from Nevada. In fact, Respondent knew that her husband was in jail based upon the domestic violence complaint that Respondent had placed against her husband. In this conversation Respondent did not wish to talk with Ms. Spotts because Respondent had visitors in her home. She did not tell Ms. Spotts about the husband's incarceration in this conversation because she did not want the people who were visiting and standing in the room where she was on the phone to hear that her husband was in jail. In the conversation in late May, 1995, Ms. Spotts told Respondent that Respondent had 30 days to "rectify the problem" or loose the license for the group home. This is taken to mean obtaining background information for the husband and Mr. Ivey. In a subsequent conversation around June 7, 1995, the Respondent told Ms. Spotts that the husband had been in jail and was no longer living in the family home. Respondent also told Ms. Spotts that the Respondent was involved with paying for a motel in Ocala, Florida, for the husband's residence. In this conversation, Respondent informed Ms. Spotts that her husband had been in jail because of a domestic dispute. Respondent also told Ms. Spotts that she did not know when she could get the necessary information from the husband to process the background screening requested by Ms. Spotts. The problem which Respondent explained to Ms. Spotts concerning the background screening for the husband was the inability to get a copy of the husband's fingerprints. Respondent remarked in that conversation that the husband had been doing a little work around the house and working in the yard. Respondent also remarked that she did not think that it was necessary to have background screening but she would have it done when her husband was released from jail. Respondent made no mention concerning the possibility that her husband would return to work at the group home. The husband was released from incarceration on June 8, 1995 and returned to jail on June 13, 1995 and was released again on August 25, 1995. In the June 7, 1995 conversation, Respondent asked if Elsa Alvarez from the Petitioner agency had contacted Ms. Spotts about the pending investigation of Respondent and her children associated with the domestic violence case. In the conversation the Respondent told Ms. Spotts that the Respondent had a restraining order against her husband but that the restraining order did not pertain to the husband and his ability to access the group home. Ms. Spotts suggested that the restraining order be modified to place the additional prohibition on the husband. Respondent indicated that she would pursue this suggestion with her lawyer. The restraining order was never modified to prohibit the husband from having access to the group home. Once Ms. Spotts found out that the Respondent had acted to restrain or enjoin the husband from acts directed to the Respondent she asked that a copy of the injunction be posted at the group home. Respondent complied with that request. In addition to placing the May 31, 1995 restraining order on a bulletin board at the group home, Respondent told the staff members that her husband was not to "come around". Given the pendency of the background screening for the husband, a conditional license was issued to the group home effective June 1, 1995, with a 30-day license period. The basis for this decision was premised upon Ms. Spotts' belief that the husband would return from his trip to Nevada and be employed at the group home. On June 5, 1995, Ms. Spotts sent Respondent correspondence indicating that the license for the group had been renewed for the 30-day period pending completion of the background information on Respondent's husband. That correspondence indicated that a meeting would be held with the Respondent on June 13, 1995, to discuss the future licensing of the group home beyond the expiration of the conditional license. Respondent received this correspondence. The correspondence was sent before Ms. Spotts became aware that Respondent's husband had been placed in jail. Ms. Spotts continued to insist on a background check on Mr. Smith because she was persuaded by the June 7, 1995 conversation with the Respondent that the Respondent and the husband would reconcile their differences. Throughout the licensing process Ms. Spotts is without knowledge concerning the husband staying in the group home or serving or supervising the clients at that home. Ms. Spotts is not aware of any complaints about Mr. Ivey while he served as a provider at the group home. Respondent's husband never stayed at the group home or had any direct contact with the residents clients. In addition to the work previously described, the work that he did at the group home included changing air- conditioning vents, and light bulbs and one plumbing repair. The husband also moved a bed at the group home while the Respondent was in attendance. On June 13, 1995, Ms. Spotts was informed that the Respondent was getting a dissolution of the marriage to Mr. Smith. In that conversation Respondent told Ms. Spotts that the Respondent did not want the husband around her daughters in their family home. In that connection, the husband's background had been checked in association with the domestic violence situation in the Respondent's home, during which it was discovered that the husband was on the child abuse registry for sexual abuse. Before that time Respondent was unaware that her husband had been named in the abuse registry. That discovery contributed to the decision by the Respondent to seek dissolution of their marriage. Ms. Spotts in conjunction with Carole Perez, Program Administrator for Developmental Services at District 13, decided to not hold the June 13, 1995 meeting to discuss further licensure in view of problems perceived with the background screening related to Mr. Ivey and Respondent's husband, having in mind the high level of dependency by the clients that were served by the group home, some of whom were unable to communicate. In their opinion those circumstances demanded providers who met all necessary requirements to include background screening. In determining to deny license renewal Ms. Spotts and her supervisor Carol Perez were concerned about Respondent's honesty in cooperating with Petitioner in having a background screen performed on the husband, and whether the cooperation was not forthcoming as a means by Respondent to avoid the possibility that the husband would not be cleared and the possibility that Respondent's husband would have continuing contact with the group home. The Petitioner in the person of Ms. Spotts and Ms. Perez decided to cancel the June 13, 1995 meeting to consider license renewal after consultation with representatives of the children and families program who were conducting an investigation about the group home. Respondent was notified of the cancellation. The children were removed from the home and placed in other licensed facilities or returned to their respective homes on June 20, 1995. At hearing Respondent admitted that there was a possibility that the husband would have returned to her personal home following his incarceration. That possibility ended when the Respondent learned for the first time that her husband was a confirmed child abuser as recognized by the child abuse registry in Florida. This knowledge came about based upon an investigation into the domestic violence situation that has been described. Respondent's husband had been incarcerated based upon the alleged domestic violence against Respondent. That circumstances arose in May, 1995, before Respondent's husband was served with an injunction for protection. The service was made on May 22, 1995. On May 31, 1995, an injunction order for protection was entered in the Circuit Court, Fifth Judicial Circuit in and for Marion County, Florida. In operative terms the injunction enjoined and restrained the husband from threatening, assaulting, harassing or otherwise physically or mentally abusing the Petitioner. The order was not intended to enjoin the Respondent's husband from contact with her. The order describes that those parties (husband and wife) could have peaceful, non-threatening, nonviolent contact. The court had entered a preliminary injunction on May 20, 1995, as modified by the May 31, 1995 order. On June 19, 1995, Respondent petitioned for dissolution of marriage from Mr. Smith. On August 14, 1995, the final judgement of dissolution was entered. The final order dissolving the marriage kept in place the injunction entered on May 31, 1995, and awarded exclusive possession of the personal residence to Respondent and enjoined her former husband from coming to that premises. Respondent assumed that the necessity to obtain background information ended when the Respondent made the decision to seek dissolution of the marriage. At present Respondent does not have the Linton Group Home in her control.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which grants Respondent permission to renew the group home license upon the payment of a $750.00 fine. DONE and ENTERED this 14th day of February, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1996. APPENDIX CASE NO. 95-3741 The following discussion is given concerning the proposed findings of fact by the parties: Petitioner's Facts: Paragraph 1 is acknowledged in the preliminary statement to the recommend order. Paragraph 2 is subordinate to facts found. Paragraph 3 is subordinate to facts found with the exception of the sentence pertaining to the affidavit of good moral character. The affidavit was available. Paragraphs 4 through the first two sentences in Paragraph 16 are subordinate to facts found. The last sentence in Paragraph 16 is not necessary to the resolution of the dispute. Paragraphs 17 through 23 are subordinate to facts found. Respondent's Facts: Paragraphs 1 through 9 are subordinate to facts found. Paragraph 10 is not necessary to the resolution of the dispute. Paragraphs 11 through 25 are subordinate to facts found. COPIES FURNISHED: Ralph J. McMurphy, Esquire HRS District 13 Legal Office 1601 West Gulf-Atlantic Highway Wildwood, FL 34785 Frederick E. Landt, III, Esquire 445 NE 8th Avenue Post Office Box 2045 Ocala, FL 34478 Sandy Coulter, Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
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
