The Issue Whether Petitioner owes child support and, if so, the amount of the indebtedness and whether Respondent should report that indebtedness to credit reporting agencies.
Findings Of Fact In 1983, the Florida Department of Health and Rehabilitative Services (DHRS) filed a paternity action against Petitioner in the Circuit Court for Broward County, Florida. This matter was assigned Case Number 83-1335 CH. The proceeding was filed to determine whether Petitioner was the father of a child born to Debra Bethea on November 17, 1979. This matter was voluntarily dismissed by the DHRS on December 29, 1983. Petitioner made a court appearance prior to the dismissal, and he received a copy of the notice of dismissal. In 1992, DHRS and Ms. Bethea filed a Complaint to Determine Paternity and Child Support in Broward Circuit Court, where it was assigned Case Number 92-4134(23). Like the 1983 proceeding, this pertained to the child born to Debra Bethea on November 17, 1979. In 1992, the Broward County Sheriff's Office used a Return of Service form which contained the following to reflect that a complaint had been served on a defendant by substitute service: At the defendant's usual place of abode on "any person residing therein" the age of fifteen years or older, to wit: in accordance with the provisions of F.S. 48.031(1), Florida Statutes. The Return of Service filed in Case 92-4134(23) reflected that a copy of the complaint had been served on Petitioner on February 28, 1992, by substitute service. The person with whom the complaint was left at Petitioner's "usual place of abode" was a Mr. Turner who was identified as being a "friend." The second paternity complaint was heard by a hearing officer who made findings and recommendations to the presiding judge. The "Report of the Hearing Officer on Paternity and Support" dated June 22, 1992, filed in Case 92-4134(23) (the Report) reflects that a clerical default was entered against Petitioner on April 14, 1992. The hearing officer recommended that the Court enter an order adjudicating Petitioner to be the father of the child and ordering that he pay child support in the amount of $221.00 per month until the child reached 18 years of age. 1/ These payments were to be made through the Court's Support Payment Unit. Petitioner did not appear at the proceeding before the hearing officer. The recommendation as to the child's paternity was based on the testimony of Ms. Bethea. On June 29, 1992, the presiding judge entered an order that ratified the Report, adopted its findings, and ordered the parties to comply with all items contained in the Report. This is a facially valid order from a court of competent jurisdiction. The sums of $28.36, $56.72, and $23.75 were paid in the years 1992, 1993, and 1994, respectively. No other payments or credits were made. As of September 30, 1999, Petitioner owed the sum of $28,604.17 in back child support. Petitioner had made no child support payments between that date and the date of the final hearing in this proceeding. Petitioner testified that he was homeless in February 1992 and that he did not know Mr. Turner. He also testified that he knew nothing of the second paternity proceeding, that he was not the father of the child, and that reporting this debt to credit reporting agencies will destroy his credit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner owes back child support in the amount of $28,604.17. It is further recommended that Respondent report that arrearage to appropriate credit reporting agencies pursuant to Section 61.1354(2), Florida Statutes. DONE AND ENTERED this 14th day of April, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of April, 2000.
The Issue The issue in this proceeding is whether Respondents should use Petitioner's entire lottery prize of $2,008.00 to pay a delinquent child support obligation of $2,371.68, pursuant to Section 24.115(4), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner has failed to comply with a previous court order compelling her to pay child support. On February 1, 1999, the Circuit Court, Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, in Case No. 93-12473, denied a motion to hold Petitioner in contempt of court. The Court did not hold Petitioner in contempt due to a claimed disability. The Court could not find that she had the ability to pay the child support obligation. The Court gave Petitioner thirty days to provide verification of disability and an inability to work. However, the court did not waive or extinguish the arrearage for child support. The Court ordered that any and all other terms and provisions which were previously ordered and not specifically addressed in the Order Denying a Motion for Contempt remained in full force and effect until further order of the Court. The previous order establishing the arrearage for child support was not nullified by the court. Petitioner still owes an arrearage for child support of $2,371.68 as of June 9, 1998. Petitioner failed to show in this proceeding that she had satisfied the arrearage. At previous circuit court hearings on August 12, 1998, and January 20, 1999, Petitioner failed to persuade the court that she had satisfied her obligation for delinquent child support. The August 12, 1998, hearing resulted in an Order on August 27, 1998, requiring Petitioner to pay $150.00 per month toward delinquent child support totaling $2,371.68 as of June 9, 1998. The January 20, 1999, hearing resulted in the Court's withholding a citation of contempt but requiring Petitioner to provide verification of disability and verification of inability to work, within 30 days from the date of the Order. The undersigned allowed Petitioner additional time to submit a late-filed exhibit consisting of an Order of the Circuit Court extinquishing Petitioner's obligation for delinquent child support. Petitioner has failed to timely file the late-filed exhibit and has not requested an extension of time in which to file the late-filed exhibit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That DOR enter a final order withholding all of Petitioner's lottery prize. DONE AND ENTERED this 4th day of May, 1999, in Tallahassee, Leon County, Florida. 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 4th day of May, 1999. COPIES FURNISHED: Delores M. Terrell 4810 Clewis Avenue, Apartment B Tampa, Florida 33063 Chriss Walker, Esquire Department of Revenue Child Support Enforcement Post Office Box 8030 Tallahassee, Florida 32314-8030 Louisa Warren, Esquire Department of Lottery 250 Marriott Drive Tallahassee, Florida 32399 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Sue M. Cobb, Interim Secretary Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 Ken Hart, General Counsel Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301
The Issue Should Petitioner have $8,812.78 deducted from his lottery prize of $19,091.96 to meet his child support obligation? See Section 24.115(4), Florida Statutes (1996 Supp.).
Findings Of Fact In the case of Glenda Carey vs. James P. Carey, in the Circuit Court in and for Gadsden County, Florida, Case No. 91-24, related to the dissolution of their marriage, a final judgment was entered which obligated Petitioner to pay child support to his minor son. Over time Petitioner failed to faithfully meet the child support obligation. By April 23, 1997, the amount of arrearage for child support was $8,485.13. Petitioner had owed a similar amount on September 9, 1996. On September 9, 1996, Petitioner made a claim for a lottery prize with the Lottery in the amount of $19,091.96, which he had won through participation in a lottery game. Being mindful of the existence of the overdue child support payments that have been referred to, the Lottery transmitted $8,812.78 of that lottery prize of $19,091.96, to the DOR, Child Support Enforcement Section, and notified Petitioner of that decision by correspondence dated October 2, 1996. Petitioner contested that decision by requesting a formal hearing on October 18, 1996. The proper amount of child support for which Petitioner is obligated effective September 9, 1996, when he claimed his lottery prize and April 23, 1997, the concluding hearing date, was $8,485.13. Consequently, Petitioner is entitled to an additional $327.65 in prize money over and above the prize money already received.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered which upholds payment of $8,485.13 in past due child support and remits to the Petitioner $327.65 in additional lottery prize winnings. DONE AND ENTERED this 20th day of May, 1997, at Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1997. COPIES FURNISHED: James P. Carey 2528 Centerville Road Tallahassee, Florida 32308 James P. Carey 720 Thomas Street Key West, Florida 33040 Chriss Walker, Esquire Department of Revenue Child Support Enforcement Post Office Box 8030 Tallahassee, Florida 32314-8030 Louisa Warren, Esquire Department of Lottery 250 Marriott Drive Tallahassee, Florida 32399 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue in this case is whether Petitioner has an outstanding arrearage for child support and, if so, whether the Department of Revenue is authorized to retain and apply the Petitioner’s $1,471.00 lottery prize to reduce an outstanding arrearage for child support.
Findings Of Fact On November 22, 1995, Petitioner, James Earl Pickett, was ordered to pay monthly ongoing child support of $175.00 per month, $5.25 clerk’s fee, $29.00 per month for retroactive support arrears of $7,395.00 and $5.25 clerk’s fee for a total monthly child support obligation of $179.00 per month. On or about February 8, 2002, Petitioner entered into a Stipulation for Increased Pay Back on Arrears (Stipulation) with the Department, acting on behalf of Delores Griffin-Pickett.1 The Stipulation provided in part the following: I, James E. Pickett, do swear that I am the Respondent in this cause, and recognize my obligation to provide support for the dependent(s) named. * * * I swear that I am the natural father of the above-child(ren) * * * I agree to payment of the following amounts: $145.00 per month as current support $50.00 toward arrears of $8357.25 as of 02/07/2002 * * * for a TOTAL PAYMENT OF $195.00 per month, commencing next charge date. All payments shall be made payable to the State of Florida Disbursement Unit . . . Tallahassee, Fl 32314-8500. * * * I agree that this Court shall reserve Jurisdiction over arrears due and owing, if any. I agree to entry of an Income Deduction Order effective immediately. I understand it is my obligation to pay child support when it is not being deducted from my pay check. . . . * * * I have executed this Stipulation FREELY AND VOLUNTARILY, and with full knowledge of its contents. By executing the Stipulation described and quoted in paragraph 3 above, Mr. Pickett agreed to the terms and conditions therein. The Stipulation was approved and adopted in an Order issued on March 11, 2002, by the Circuit Court of the Thirteenth Judicial Circuit of Florida in and for Hillsborough County, in State of Florida, in the case of Department of Revenue, on behalf of Delores Griffin-Pickett v. James E. Pickett, Civil Circuit Number 95-9901. In adopting the Stipulation, the Order provided that "Respondent shall pay $145.00 monthly as current support, plus $50.00 monthly towards arrears of $8,357.25 as of 2/7/02, for a total payment of $195.00 monthly, commencing the next charge date." On December 11, 2002, Mr. Pickett and the Department executed a Stipulation and Final Order Approving Stipulation on Suspension of Driver License and/or Motor Vehicle Registration (Stipulation on Suspension of Driver License). Pursuant to the Stipulation on Suspension of Driver License, Mr. Pickett: agreed that, as of December 11, 2002, there was a delinquency in the child support obligation of $1,255.00 and a total past due balance of $8,416.29; and (2) agreed to make lump sum payment of $300.00 toward the child support obligation on or before December 11, 2002. According to a notation next to this provision, Petitioner paid this $300.00 on December 11, 2002. The Stipulation on Suspension of Driver License also provides that Respondent agrees and understands that the periodic child support obligation is $145.00 per month, as on-going child support, plus $60.00 per month, toward the past due balance until paid in full, for a total periodic payment of $205.00 per month, with such payments to begin on January 1, 2003. In addition to the foregoing, Mr. Pickett agreed to pay administrative and court costs of $258.00 within 365 days.2 The Stipulation on Suspension of Driver License provides that "[t]he parties agree that this stipulation may be entered into evidence in a court of competent jurisdiction and shall be binding on the parties." Furthermore, pursuant to the terms of that stipulation, "[a]ll conditions and terms of the previous court orders not changed by this agreement remain in full effect." The Stipulation on Suspension of Driver License provides that Mr. Pickett "executes this Stipulation [on Suspension of Driver License] freely and voluntarily, and with full knowledge of its contents. At this proceeding, Mr. Pickett testified that he executed the Stipulation on Suspension of Driver License in order to retain his driver’s license.3 However, notwithstanding his reason for signing the Stipulation on Suspension of Driver License, Mr. Pickett never denied that he was obligated to pay child support, that he was delinquent in that child support obligation, and that there was a past due balance of the child support obligation. Moreover, at this proceeding, Mr. Pickett presented no evidence that he had paid the child support and the past due child support obligation as reflected in the Stipulation on Suspension of Driver License. By executing the Stipulation on Suspension of Driver License, Mr. Pickett agreed to the terms and conditions set forth therein. The Stipulation on Suspension of Driver License was approved and adopted in an Order Approving Stipulation [Order] entered on December 29, 2002. See State of Florida, Department of Revenue, on behalf of Delores Griffin-Pickett, vs. James E. Pickett, Circuit Civil Number 95-9901, in the Thirteenth Judicial Circuit of the State of Florida in and for Hillsborough County. The Order specifically found that Mr. Pickett freely and voluntarily entered into the Stipulation on Suspension of Driver License. Additionally, the Order adopted and incorporated the Stipulation on Suspension of Driver License. In connection with the Order entered December 29, 2002, the court also entered an Income Deduction Order directing present and subsequent employer/payers. One provision of the Income Deduction Order requires employers/payers "to deduct 100% of any income paid in the form of a bonus other similar one-time payment, up to the amount of arrearage reported in the income deduction notice or the remaining balance thereof and forward to the court depository." On October 23, 2006, the Clerk of the Circuit Court of Hillsborough County prepared and issued an Arrearage Affidavit (Affidavit) in Case No. 95-9901. The Affidavit noted that as of the date of the Affidavit, Mr. Picket had remaining established arrears for child support of $7,416.54. As of the date of the final hearing, Petitioner's outstanding arrearage for child support was $7,416.54. Mr. Pickett appeared at this proceeding. However, he did not present any evidence to establish that he does not owe the outstanding arrearage, as alleged by the Department, or that he has paid the outstanding arrearage for child support. Instead, Mr. Pickett argued that he was unaware of the Order issued on March 11, 2002, and the Order issued on December 29, 2002, requiring him to make the payments discussed in the above findings. At the time of this proceeding, and at all times relevant to this proceeding, Mr. Pickett has resided at 2721 North 46th Street in Tampa, Florida.4 This is the address that is listed on the Stipulation, the Stipulation on the Suspension of Driver license, and the Orders related thereto, and discussed above. Moreover, both the Order issued March 11. 2002, and the Order Approving Stipulation entered December 29, 2002, show that copies of those orders were furnished to Mr. Pickett at 2721 North 46th Street in Tampa, Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order that authorizes it to retain Petitioner's lottery prize of $1,471.00 and apply that total amount to reduce Petitioner's accrued child support arrearage of $7,416.54 . DONE AND ENTERED this 3rd day of Januuary, 2007, 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2007.
The Issue The issue in the case is whether, under the provisions of Section 409.25656, Florida Statutes, the Department of Revenue may apply bank account funds identified as belonging to Kim Sheldon towards an unpaid child support obligation.
Findings Of Fact By Final Judgment of Dissolution of Marriage dated August 9, 1995 (Case No. 95-742-CA-01, Fifth Judicial Circuit, Hernando County, Florida), Kim C. Meccariello was divorced from Dale W. Meccariello. Kim C. Meccariello subsequently remarried and is known as Kim C. Sheldon. As part of the settlement agreement in the 1995 divorce, Kim C. Sheldon (Petitioner) became obligated to pay monthly child support in the amount of $472.82. On November 1, 1999, the Department of Revenue (Department) became involved in this matter when the Petitioner's former husband apparently filed a "Request for Participation in Central Depository Program Pursuant to Florida Statute 61.13" seeking to have the Department collect unpaid child support on his behalf. By form letter dated December 1, 1999, the Department notified the supervisor of the Support Division, Hernando County that payments in the case should be redirected to the Department. The Petitioner asserts that she did not get a copy of this notice. The certificate of service indicates a copy was mailed to her. The Petitioner asserts that because she did not get the notice, the child support debt accounting fails to include payments made directly to her former husband, but has no documentation of the form or amount of such payments. There is no documentation that any direct payments were made. The evidence fails to establish that such direct payments occurred. Although the exact amount of unpaid child support owed by the Petitioner is disputed, the evidence clearly establishes that her unpaid child support debt clearly exceeds the amount of funds at issue in this proceeding. By Notice of Freeze dated July 7, 2000, the Department directed the MacDill Federal Credit Union to freeze the Petitioner's funds in the institution based on an unpaid child support obligation in the amount of $6,619.48. The Department subsequently received a letter on MacDill Federal Credit Union letterhead, dated July 11, 2000, and indicating that the Petitioner had two accounts at the institution: a savings account (#126552-01) containing $495.65; and a checking account (#126552-15) containing $1,123.42. By Notice of Intent to Levy dated July 14, 2000, the Department notified the Petitioner that the funds had been frozen and advised her of her right to challenge the action. The Petitioner requested a formal hearing. A letter from Strategic Outsourcing, Inc., dated July 18, 2000, states that the Petitioner's husband is an employee of Nicon, Inc., and that his wages are direct deposited into MacDill Federal Credit Union account #126522 on a weekly basis. Strategic Outsourcing, Inc., apparently handles payroll processing for Nicon, Inc. By Notice of Special Account release dated July 26, 2000, the Department notified the MacDill Federal Credit Union that all but $550.00 in the checking account (#126552-15) was released. The $495.65 in the savings account remained frozen. The total amount of currently frozen funds is $1,045.65. By Notice of Extension of Freeze dated July 27, 2000, the Department notified the MacDill Federal Credit Union that the Petitioner was challenging the Department's freeze and that the funds should remain frozen until the matter is resolved. The Petitioner and her current spouse are joint holders of the accounts at the MacDill Federal Credit Union. Because her husband did not have time to open the accounts, the Petitioner opened the accounts by herself, and her husband was added about a week later. The Department's decision to release the checking account funds (except for $550.00) was apparently based on conversations with the couple and upon receipt of the letter from Strategic Outsourcing, Inc. The funds were released based on the Department's determination that, other than $550.00, the checking account funds were directly attributable to the Petitioner's husband's income. The Department asserts that the currently frozen funds should be used to satisfy, in part, the Petitioner's unpaid child support obligation. The Petitioner asserts that since February 2000, she has been unemployed, that none of the funds in the accounts are attributable to her earnings, and that the funds should not be used to satisfy her unpaid child support obligation. According to the bank statement for the period March 1, 2000, to March 31, 2000, the balance in the checking account on March 1, 2000, was $862.10. There is no evidence that the March 1 balance did not include funds earned by and attributable to the Petitioner. According to account statements, a total of $2,170.97 in unidentified deposits were made to the account between March 1, 2000, and July 15, 2000, including a $958.97 cash deposit on April 24, 2000, a $162.00 cash deposit on May 8, 2000, a $500.00 check deposit on June 8, 2000, and a $550 deposit of unidentified type on July 3, 2000. At the hearing, the Petitioner and her husband testified that deposits into the checking account not directly attributable to his income were made by grown children residing at home and contributing towards household expenses which were allegedly paid from the husband's income. Other deposits were claimed to be small loans or gifts from family members. There was no documentation offered at the hearing to support the testimony. None of the children or relatives testified at the hearing. The evidence fails to establish that the deposits in the joint account came from adult children or other relatives. According to the bank statement for the period April 1, 2000, to April 30, 2000, a deposit on April 21, 2000, of $627.00 described as "US TREASURY 220" was a tax refund. The Petitioner's husband asserted that based on income, the refund was "90 percent" attributable to him. There was no documentation offered at the hearing to support the testimony. The evidence fails to establish that the tax refund deposited into the joint account is not attributable to the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue issue a FINAL ORDER directing that $1,045.65 currently held at the MacDill Federal Credit Union be applied towards meeting the Petitioner's unpaid child support obligation. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 20th day of April, 2001. COPIES FURNISHED: Manuel V. Fajardo, Esquire 610 West Azeele Street Tampa, Florida 33606 Albert Thorburn, Esquire Florida Department of Revenue Post Office Box 8030 4070 Esplanade Way Tallahassee, Florida 32314-8030 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 James Zingale, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact At all times pertinent to the issues herein, the Department of Health and Rehabilitative Services was the state agency in Florida responsible for the licensing of family child day care centers in this state. Respondent, Elizabeth Horton, has, since before January 31, 1992, operated the Little Darling Horton-Cotton Family Day Care at 3710 11th Street East in Bradenton, Florida. The location is Mrs. Horton's home, and she resides there with Alfrader L. Cotton, her companion, Craig E. Horton and Sheldon G. Horton, her sons, and Tangela D. Horton, her daughter. In January, 1992, Mrs. Horton submitted an application for a license to operate a family day care center at the stated location and listed the others noted above as residents. Thereafter, on July 9, 1992, June 28, 1993, July 11, 1994, July 18, 1994 and December 21, 1995, Mrs. Horton submitted application forms for renewal of her license. On each of the renewal application forms, those same individuals were listed as residents of the home. Mrs. Horton's brother, L. H., was not listed as a resident or in any capacity on any of the application forms. On or about December 3, 1993, a report of abuse of a minor female, A. M., born on February 12, 1984, was received in the Department. The substance of the allegation was that A. M., along with her little brother, born on March 6, 1985, were placed by their mother at the Respondent's home from about 5:00 PM until early the next morning each week night, while their mother was at work. The report further alleged that Mrs. Horton's brother, L. H., had molested A. M. while she was staying in the Horton home. He was alleged to have awakened her in the middle of the night while she was asleep in the Horton daughter's bedroom on the pretext of taking her to the bathroom, but fondled her breasts and vaginal area. This report was investigated by personnel of the Department and was classified as verified. A report of neglect was entered against Mrs. Horton arising out of her failure to supervise the children and a Hearing Officer from the Division of Administrative Hearings, after a formal hearing pursuant to Section 120.57(1), Florida Statutes, entered a Recommended Order recommending that the Department enter a Final Order amending the proposed confirmed report to a classification of unfounded and expunging Mrs. Horton's name from the case record and all Department records. The Hearing Officer found, however, that L. H. had committed the abuse, and this determination was subsequently affirmed by the Secretary of the Department in the Final Order entered in this case. In 1989, L. H. was found guilty in the Circuit Court in Manatee County of lewd and lascivious acts in the presence of a child eleven years of age or younger, in violation of Section 800.04, Florida Statutes, a felony, and was sentenced, among other things, to community control for two years followed by seven years probation. After his arrest for the assault on A. M., on June 28, 1995, his prior sentence was increased to seven years in prison. He was also tried in Circuit Court for Manatee County for sexual battery, and was, on that same date, sentenced for the second offense to life imprisonment, with the provision he serve no less than twenty-five years. Whenever an individual is issued a license to operate a family day care center, that person is provided with a copy of a handbook containing the rules of the Department of Health and Rehabilitative Services relating to the licensing and operation of those facilities. Included within that pamphlet is a copy of Department rule 10M-10.002, dealing with personnel, which requires that all persons who are members of the operator's family or who reside in the day care home must be screened as must be persons providing substitute care in the absence of the operator. The evidence regarding the status of L. H. is contradictory. A. M. indicates that L. H. would be at the center from about 10:00 PM at night, after Mrs. Horton picked him up at work; would be there when she, A. M., went to bed at some time after 9:00 PM and before 11:00 PM; and, most of the time, would also be there then next morning, having spent the night in the bedroom of Mrs. Horton's son, Craig. A. M. cannot recall if L. H. ate his meals at the Horton home or took his showers there, but she recalls that he did cook there several times. She never saw him change or wash his clothes there and she never saw any of his clothes in the closet. Though she contends she was never left alone with L. H. by Mrs. Horton, she claims she was touched on her private parts by him on several occasions in the early hours of the morning, while the others in the house were sleeping. A. M.'s mother does not know if L. H. lived at the Horton child care center or not. He was there sometimes at night when she dropped the children off, and he was always there when she picked them up the next morning. To the best of her knowledge, the children were never left alone with him. Mrs. Horton, on the other hand, while admitting she knew that her brother had been convicted of a felony regarding a sexual offense against a minor child, categorically denies that L. H. lived at her home. She admits that he visited there from time to time and admitted to Ms. Winfrey, the child care supervisor from the Department, that he spent the night there from time to time as well. According to Mrs. Horton, L. H. lived with their parents in a home in the next block east on 11th Street East. Respondent admitted at hearing to picking him up from work around 9:00 PM at times, but not regularly. She contended at hearing he would come to the house to watch TV and to play games with her son, but rarely did he stay and never did he spend the night. The probation officers who visited L. H. would sometimes come to her house to see him but would never come in. None of the probation officers ever said anything to her about L. H.'s being at her home with children being present. At no time until the report of abuse was filed did she have any idea that L. H. was behaving improperly with any children in her charge. When she found out what he had done, she told him not to come back to that house. Mrs. Horton's daughter, age 17, claims that L. H. did not live at the care center at any time. He did not wash his clothes there or do anything which indicated he lived there. Since she was older, she stayed up later than A. M., going to bed around 10:00 PM or so. As she recalls, L. H. would usually leave the house about 10 or 11:00 PM and she would see him leave often. She did not often go to bed while he was still there. Taken together, the evidence establishes that while L. H. may not have resided at the house on a permanent basis, he was there frequently enough to be considered a member of the family as defined in the Department rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order denying Elizabeth Horton renewal of her license to operate a family day care center. DONE and ENTERED this 8th day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1996. COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Health and Rehabilitative services, Room 500 400 West Dr. M. L. King, Jr. Boulevard Tampa, Florida 33614 Elizabeth Horton 3710 11th Street East Bradenton, Florida 34208 Alfrader Cotton Qualified Representative 3710 11th Street East Bradenton, Florida 34208 Gregory D. Venz Agency Clerk Department of Health and Rehabilitative Services Building Number Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services Building Number Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
