The Issue Whether the Department of Children and Family Services, properly denied Gaye Brina Vestal's license application to operate a commercial day care facility, pursuant to Section 402.3055, Florida Statutes.
Findings Of Fact Respondent's legal name is "Gaye Brina Vestal." Respondent is married to "Tony L. Vestal" a/k/a "Tony L. Mitchell." The name on Tony's birth certificate is "Tony Mitchell." When he was eight years old, his mother married a man named "Vestal." Thereafter, Tony went by the last name "Vestal." He attended school, obtained a driver's license and a Social Security account number, married, and had children under the name "Vestal." When he divorced, he began using the name "Mitchell" and obtained a different Social Security account number and driver's license under the name "Mitchell." At some point, Tony married Gaye Brina (Respondent) under the name "Vestal." They then remarried under the name "Mitchell." Respondent tried using the name, "Mitchell" with Tony, but due to hostility from Tony's mother, Respondent elected to return to using the name "Vestal." She was unable to persuade Tony to return to using the name "Vestal." 1/ By a September 16, 1997, application for registration of a family day care home in her home on Sisco Street in Pamona Park, Respondent and Tony listed "Tony Vestal" as Respondent's husband with his "Vestal" Social Security Number. "Shirley Vestal," is listed as a character witness for each of them. The forms clearly show "Shirley Vestal" as Tony's "ex-wife" and as Respondent's "friend." Among her own past employments, Respondent claimed to have been the manager of a pizza parlor; she listed her supervisor there as "Tony Mitchell." She also listed another previous employment as being the "owner" of a different pizza parlor which closed in 1996. Both pizza parlors were named "Tony-O's Pizza." The Sisco Street property was shown as belonging to "Tony Mitchell." Either at this point, or later, while Respondent was operating under provisional day care home licenses, Dede Sharples, a Department employee with responsibility to oversee home day care licensing, became concerned as to the true identity of Respondent's husband. She asked Respondent whether "Tony-O's Pizza" had been named for Respondent's supervisor or Respondent's husband. While there is considerable disagreement between the two witnesses as to exactly what was said, and while Ms. Sharples' questioning may have been tenuous and Respondent's response may have been intended to be humorous, Respondent still left the Department representative with the impression that there were two different "Tony's." On October 16, 1997, the Department did a home inspection. Respondent thereafter corrected the Sisco Street location for fire inspection purposes. By a December 18, 1997, application for a family day care home license at her Sisco Street home, Respondent listed "Tony Lee Vestal" as a household member and listed the owner of the property as "Tony Mitchell." In reviewing the December 18, 1997, application, Ms. Sharples told Respondent that Respondent would need to have Mr. Mitchell sign a letter saying that Respondent had his permission to run a day care facility on his property. 2/ Respondent told Ms. Sharples that "Tony Mitchell" was a good friend that had gone to Indiana and then elsewhere and that he did not want his address given out. She further stated that her home was in Mitchell's name because she had damaged credit and had an oral agreement with Mitchell to pay on the house until it was paid for and then Mitchell would sign the house over to Respondent and Respondent's husband. Ms. Sharples cautioned Respondent that this was a dangerous practice which could leave Respondent with no house and no recourse to her money expenditure for the house. Respondent was granted two six-month provisional family day care home licenses while awaiting Florida Department of Law Enforcement screening and abuse registry screening of herself and "Tony Vestal." On January 12, 1998, the Department received a clear background check/screening on Respondent but no information concerning "Tony Vestal." On February 12, 1998, Ms. Sharples inspected the home on Sisco Street for a compliance check. Respondent was notified of items to correct. On March 9, 1998, the Department sent a certified letter to Respondent because it had not received any communication from her that the noncompliance items had been corrected in anticipation of a second compliance visit. On April 8, 1998, Ms. Sharples secured a copy of the deed to the Sisco Street address. It showed the property to be owned by "Tony Mitchell and Gaye Brina Mitchell, his wife." Respondent admitted to Ms. Sharples that Respondent once was married to "Tony Mitchell," but Respondent did not volunteer that "Tony Mitchell" and "Tony Vestal" were one and the same person. By a November 25, 1998, application for a commercial day care facility license on Grove Avenue in Crescent City, Respondent listed her name as "Gaye Brina Vestal," her address as a post office box, and the owners of the Grove Avenue real property as "Tony L. Mitchell" and herself as "Gaye Brina Mitchell." Respondent signed the application as "Gaye Brina Vestal." Also on November 25, 1998, Respondent submitted an application fee of $25.00 by a check drawn on the account of "L & M Falling Tree Service" signed by "Tony Mitchell." Ken Barnett processes commercial family day care facility license applications for the Department. He is Ms. Sharples' supervisor. On November 18, 1998, the Department sent Respondent a letter verifying that she had not renewed her family day care home license because she was applying for a commercial family day care facility license and informing her that her family day care home must close on December 31, 1998. Respondent asked Mr. Barnett when she would be licensed for a commercial family day care facility license. He replied that if the final inspection went all right, Respondent would be licensed within two weeks of December 31, 1998. As a result of her conversation with Mr. Barnett, Respondent did not timely renew her family day care home license. Her day care home license has since expired. 3/ At some point that is unclear from the record, the Department discovered that "Tony Vestal" and "Tony Mitchell" were one and the same person with two different driver's licenses and two different Social Security account numbers. As a result, on February 4, 1999, the Department denied Respondent's pending application for a commercial day care facility license. At some date that is unclear from the record, the Florida Department of Law Enforcement background screening and the abuse registry screening came back clear on Respondent, "Tony Vestal," and "Tony Mitchell," e.g. "Tony" under both Social Security numbers. Tony testified that he originally had used the name "Mitchell" to hide his children by his first wife so that his first wife would not take their children to Mexico. Tony testified that he never used his Social Security card for a job; he only used it "privately," to keep his ex-wife from finding him. As of the date of the disputed fact hearing, Tony had not notified the Federal Social Security Administration that he had two Social Security identities/accounts. Since the Department's denial, but prior to the disputed fact hearing, Tony's driver's license in the name "Vestal" had been turned-in to the Florida Department of Highway Safety and Motor Vehicles (DHSMV) and his driver's license in the name of "Mitchell" had been revoked by that agency. 4/ Respondent asserted that DHSMV compromised what could have been harsher civil and/or criminal penalties upon its determination that Tony had no intent to defraud. However, Respondent introduced no corroborative evidence of this assertion. At all times material, Respondent knew about Tony's two Social Security cards and two driver's licenses in different names. Respondent and Tony signed all the departmental forms referred-to above pursuant to the penalty of perjury for not telling the truth thereon. Incredibly, Respondent testified that it did not occur to her that the use of different names on the documentation supporting her several applications would create confusion within the Department. Equally incredibly, Respondent testified that she had assumed that the preliminary background screenings and fingerprint checks would disclose all identities so that full disclosure would be made and all discrepancies explained.
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 denying Respondent's application for a commercial day care facility license. DONE AND ENTERED this 2nd day of November, 1999, 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 2nd day of November, 1999.
The Issue The issue is whether Respondent should approve Petitioner's family day care license application.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made pursuant to Chapter 120.57, Florida Statutes, and the entire record compiled herein, the following relevant and material facts are found: Before December 15, 2000, Petitioner, Freddie Mae Law (Ms. Law) submitted an application for a family foster care license to Respondent, the Department of Children and Family Services (Department). Gloria Mathews (Ms. Mathews), who was at that time assigned to the Department's family foster care license unit, conducted the requisite pre-license investigation and found that Ms. Law met the mandatory requirements and that Ms. Law was qualified for a family foster care license. Based solely upon the results of Ms. Mathews' investigation of Ms. Law's background and qualifications, the Department issued Ms. Law a family foster care license on December 15, 2000. Thereafter, Ms. Law provided family foster childcare service out of her home in Mulberry, Florida. At some undetermined time after December 15, 2000, Ms. Mathews transferred from the Department's family foster care license unit to the Department's family day care license unit where she is currently working. Ms. Law's family foster care license was valid from December 15, 2000 to December 15, 2001, and was renewable on or before its anniversary date. On December 15, 2001, the Department took no action regarding the renewal of Ms. Law's foster home license. With the Department's consent and approval, Ms. Law operated her family foster care out of her home until February 21, 2002, at which time she voluntarily surrendered her foster care license to the Department. For more than eight years before she acquired her "foster care license" Ms. Law worked at the Cornerstone Youth Shelter. This residential shelter home, through contract with the Department, and the Department of Juvenile Justice, accepted referrals of children in need of housing and foster care services. On September 11, 2001, four months before the expiration date of Ms. Law's family foster care license on December 15, 2001, the required renewal investigation was conducted by Cheryl Dishong (Ms. Dishong), who was then a foster care license unit caseworker. Prior to the initial renewal visit by a foster care license unit caseworker, the Department requires the assigned caseworker to secure a copy of a foster care visit report form that contains the names and ages of the foster children in the foster home to be visited by the caseworker. Additionally, caseworkers are required to record the results of their foster care home visit on the foster care visit report form. Uncertain of the time of her prearranged visit with Ms. Law and of her arrival time at Ms. Law's residence, Ms. Dishong recalled arriving at the Law's residence at approximately 3:00 p.m. or 3:30 p.m. in the afternoon. According to Ms. Dishong, Ms. Law was not home upon her arrival, but arrived within five to ten minutes thereafter. During the short five to ten-minute interval before Ms. Law arrived, Ms. Dishong saw several teenaged children walking home from school. Ms. Dishong observed the two teenaged children approach Ms. Law's home, and she spoke with them outside Ms. Law's home. Neither Ms. Dishong nor the children entered Ms. Law's home at that time. Upon Ms. Law's arrival, she and Ms. Dishong entered the home while the two teenaged children stayed outside on the porch. During this visit, Ms. Dishong discussed with Ms. Law her one concern; the five-minute interval between the arrival of the two teenagers home and Ms. Law's arrival home. Ms. Law explained to Ms. Dishong that the one teenage foster child along with her biological daughter attended school within walking distance from their home. The normal family school day routine was for the teenagers to walk to and from school each day. The entire family would leave home together in the mornings and would normally arrive home in the evenings at about the same time Ms. Law arrived home from work. Ms. Law further explained to Ms. Dishong that her family's school day routine consisted of her transporting the younger foster children to school each morning on her way to work and picking them up from school on her way home each afternoon. This routine of a mother transporting young children to and from school each day is a routine of many mothers with young school children. The routine of teenaged children walking home from school and arriving a reasonably short time before their parents arrive home from work is also that of normal families. The Department proffered no rule or known and accepted standard that was violated by the hereinabove Law foster family school day routine. Ms. Law's determination of personally transporting the younger foster children to and from school and her determination that the teenaged foster child and her biological child should walk to and from school do not reflect a lack of supervision nor do they demonstrate faulty decision- making. Ms. Dishong, the Department's chief witness and a foster care license unit relicensure caseworker for three and one-half years, testified exclusively from memory. Her testimony, with exception of her face-to-face conversations with Ms. Law and her several telephone conversations with Ms. Law, consisted primarily of conclusions and generalizations. Ms. Dishong was unable to accurately recall names of specific foster children with whom she allegedly had conversations, and she could not recall specific dates, times, or places. Her recollection of statements allegedly made to her by foster children and other children lacks support and, therefore, lacks credibility. Ms. Dishong's recollection and testimony of statements allegedly made by the several children, foster, biological and others, is unobjected to as hearsay not supported by any other evidence of record and, in itself, cannot support a finding of fact.1 Accordingly, that testimony is disregarded in the preparation of this Recommended Order. On September 21, 2001, Nacara Daniels (Ms. Daniels), the Department's investigator of abuse report 2001-051113, visited Ms. Law's foster care home for an investigation of allegations contained in abuse report 2001-051113. Before her visit to Ms. Law's home, Ms. Dishong told Ms. Daniels of allegations of a lack of supervision and faulty decision-making purportedly contained in three other unidentified abuse reports. On October 9, 2001, and as the direct result of Ms. Daniels' investigation, interview, and discussion with Ms. Law regarding her foster care supervision, the Department entered into a Partnership Development Plan (PDP) agreement with Ms. Law. This partnership agreement and its cooperative working relationship between Ms. Law and the Department's caseworkers are designed to provide foster care that is in the best interest of the foster children. The PDP agreement reduced to writing the Department's agreed acceptance to continue its foster care partnership with Ms. Law and Ms. Law's agreed acceptance to continue working with the Department. Ms. Law complied with the terms and conditions contained in the PDP agreement from the date she signed the agreement on October 9, 2001, to the date Ms. Law voluntarily surrendered her foster care license to the Department on February 21, 2002. On or after October 9, 2001, and after completing her investigation and discussions with Ms. Law, Ms. Daniels closed abuse report 2001-051113 with a finding that allegations contained in abuse report 2001-051113 were uncorroborated. Ms. Daniels recalled, at some unspecified time subsequent to October 9, 2001, sharing her abuse report findings of uncorroborated allegations, the conditions and terms of the PDP, and her abuse report closure status with Ms. Dishong. Before the two-week Christmas break of December 2001, Ms. Law telephoned the Department and spoke to each foster child's caseworker. By mutual agreement between Ms. Law and each caseworker with whom she spoke, a Christmas vacation plan was developed for sharing the daily care and responsibilities for Ms. Law's foster children over the two-week Christmas holiday period. It was agreed that during the two-week 2001 Christmas break, Ms. Law would leave her foster children at the Department's office each morning on her way to work, and she would pick them up from the Department's office each evening on her way home after she finished work. During this two-week Christmas holiday period, Ms. Law continued to provide the foster children breakfast before leaving home each morning, and the Department's caseworkers provided each child with their midday lunch meals. On January 4, 2002, Jayme Sprouse (Ms. Sprouse), a Department investigator, received abuse report 2002-001260. Before her initial visit to the Law family foster care home, Ms. Sprouse reviewed all the information contained in the Department's foster care unit licensing renewal case file. On February 4, 2002, one month after receiving abuse report 2002-001260, Ms. Sprouse spoke with Ms. Law concerning the general allegations to have occurred during an unspecified time span before December 2001 regarding her use of unscreened foster care sitters. This inexplicable month delay is significant in that it evidences the fact that allegations contained in abuse report 2002-001260 did not constitute an immediate danger to the health, safety, and welfare of the foster children in Ms. Law's foster care home. Had abuse report 2002-001260's allegations been sufficient to create an immediate danger or threat to the safety and well-being of the foster children, Ms. Sprouse was required to conduct an investigation on January 5, 2002, within 24 hours after receiving the abuse report on January 4, 2002. Ms. Sprouse inquired of Ms. Law's use of an unapproved foster child sitter. Ms. Law explained to Ms. Sprouse that she had a Department-approved foster child sitter, Chastity Griffin, who sat her foster children and who transported both biological and foster children to outings and entertainment activities. During this period, Ms. Law had also submitted an application to the Department for another approved sitter named Jocelyn (whose last name was not provided in the record) for approval. Not knowing that approval by the Department was required before a sitter could be used to sit foster children, Ms. Law permitted Jocelyn to sit with the foster children during the pendency approval of her foster care sitter application. After February 4, 2002, Ms. Sprouse advised Ms. Law that that the Department had denied Jocelyn's pending sitter screening application. Responding to this information, Ms. Law immediately discontinued the use of Jocelyn as a foster care sitter, evidencing her willing readiness to comply with the Department's requirements once they were made known to her by the Department's staff. After Ms. Law satisfied Ms. Sprouse's concern regarding the use of an unapproved sitter, Ms. Sprouse closed her investigation of abuse report 2002-001260 with a finding of no indicators of inadequate supervision based on the Florida Statute definition of inadequate supervision for abuse purposes. Ms. Sprouse voiced no other concerns regarding Ms. Law's foster care supervision to Ms. Law. After the February 4, 2002, meeting with Ms. Sprouse, the record contains no credible evidence that Ms. Law continued to use unscreened sitters at the foster home or used unscreened persons for any other purposes. Ms. Sprouse shared her abuse report findings of fact and her closure of the abuse report with Ms. Dishong, the case worker assigned the task of the renewal investigation of Ms. Law's foster care licensure process. At no time during the period of September 11, 2001, throughout January 28, 2003, did Ms. Dishong inform Ms. Law that the Department's foster relicensing unit had received, in addition to abuse report 2001-051113 and abuse report 2002- 001260, three additional abuse reports alleging that she inadequately supervised the foster children in her home. Petitioner's Family Day Care Application On or about November 6, 2002, Ms. Law made application to the Department for a family day care license. The November 6, 2002, application is the subject of this de novo proceeding. In December 2000, Ms. Mathews was assigned to the Department's foster care license unit. While there, it was she who approved Ms. Law's foster care license application. In November of 2002, Ms. Mathews was assigned to the Department's family day care license unit. Ms. Mathews again conducted the requisite pre-licensure investigation of Ms. Law's minimum qualifications and criminal background check. For the second time within less than two years, Ms. Mathews again found Ms. Law to have met all statutory requirements and was, therefore, qualified to have a family day care license issued to her. Specifically, Ms. Mathews confirmed that Ms. Law met mandatory minimum standards as required by statute. She visited and otherwise assured herself that Ms. Law's home met minimum standards. She ascertained that Ms. Law had completed 30 hours of childcare training at Polk Community College upon receiving Ms. Law's certificate of completion from Polk Community College. Ms. Mathews was satisfied the Ms. Law's criminal background check found Ms. Law free from any criminal convictions. Ms. Mathews satisfied herself the Ms. Law's substitute family day person was qualified and had completed a minimum of three hours of childcare training as required. Having completed and approved Ms. Law's foster care license application, Ms. Mathews was aware that Ms. Law's long- time employment at Cornerstone Youth Shelter was her sole source of income. Ms. Mathews advised Ms. Law that at the time her family day care license was issued, she would be prohibited from all other employment. To assist Ms. Law in determining the appropriate time to submit her two-week notice of resignation to Cornerstone Youth Shelter, Ms. Mathews was the person to whom Ms. Law would inquire regarding the status of her forthcoming family day care license. Ms. Mathews informed Ms. Law of her successful compliance with minimum requirements and told her the Department was in the process of signing her family day care license. On January 17, 2002, in reliance on Ms. Mathews repeated assurances that her family day care license was forthcoming and to comply with the "no other work outside the home" requirement, Ms. Law gave her two-week notice of resignation to Cornerstone Youth Shelter. Notwithstanding the fact that Ms. Mathews was assigned to the Law application and was working in the Department's family day care licensing unit, the Department's foster care unit's relicensing investigator, Ms. Dishong, never informed Ms. Mathews that the Department's foster care relicensing unit had concerns of such magnitude that they could be the bases for the denial of her family day care license application. The Department's foster care license unit did not inform the family day care license unit that since November 6, 2002, the Department purportedly had received three additional abuse reports (bringing the total abuse reports to five) that would ultimately adversely impact Ms. Law's family day care license application. This is significant in that Ms. Mathews was the person who at that time had determined that Ms. Law met minimum standards for a family day care license. This inexplicable lack of information sharing between the Department's foster unit and its family day care unit continued from January 17, 2002 to January 2003. Ms. Dishong, Ms. Law's foster care unit investigator and the Department's primary witness, (1) could not identify from memory the three abuse reports allegedly filed against Ms. Law, (2) could not find the three abuse reports in her foster unit renewal investigation file, (3) could not proffer any evidence that allegations contained in those three reports were investigated and corroborated by Department investigators, and (4) did not inform Ms. Law that allegations supposedly contained in those three unidentified abuse reports would adversely impact her pending family day care application. This complete failure to identify, investigate, inform, and discuss with Ms. Law the three abuse reports is significant when the Department's processing of abuse reports 2001-051113 and 2002-001260 that were filed against Ms. Law is compared to its processing of the three unidentified abuse reports. In processing abuse reports 2001-051113 and 2002- 001260, the Department first investigated each report. Second, the Department discussed the allegations of each report with Ms. Law. Third, the Department closed each report with a written finding. Lastly, of the three unidentified three abuse reports testified to by Ms. Dishong, and that constituted the primary basis for denial of Ms. Law's family day care license application, the Department did not follow its previous procedure of identification, investigation, advising, and discussion with Mr. Law and the investigator's recorded finding regarding allegations contained in those three reports. According to Ms. Dishong, the Department's foster care license unit held a foster staff committee meeting during some unidentified time in 2002. Ms. Dishong did not provide the names of her foster care unit coworkers who attended the staffing committee nor did she provide the names of the Department's other employees who attended the staffing committee. It is clear that the Department, in part based upon the foster care staff committee results, determined that Ms. Law's family day care license application would be denied. It is also clear that Ms. Mathews did not attend the Department's foster licensing care unit's staffing committee meeting. Ms. Mathews first became aware of the Department's foster care unit's license renewal investigation file on Ms. Law when she reviewed that file in preparation for this final hearing. Upon completion of her review, Ms. Mathews did not change her prior approval and finding that Ms. Law met minimum standards. Based on her review of that file, she did however qualify her prior approval of granting Ms. Law a family day care license to a "but for" the content of the foster care unit's license renewal investigation file. The record contains no evidence from which to determine how the Department's foster care licensing unit's conclusions and decision to not renew Ms. Law's foster care license were conveyed to the Department's family care license unit. It is clear, however, that the Department's decision denying Ms. Law a family day care license was based on uninvestigated and uncorroborated allegations purportedly contained in three unidentified abuse reports. The Department's denial letter of January 29, 2003, unequivocally confirms the fact that the Department's decision to deny Ms. Law's family day care license application was based upon its consideration as fact, uninvestigated and uncorroborated allegations contained in three unidentified abuse reports. The Department's licensure staffing committee's consideration of Ms. Dishong's personal observations and conclusions contained in her foster care closure form, in its deliberations and its ultimate decision to deny Ms. Law's family day care application, were not based on fact and are, therefore, not justified. Ms. Law has, by a preponderance of the evidence, proven that she successfully met the Department's statutory minimum requirements for a family day care licensee.
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 granting Petitioner, Freddie Mae Law, a family day care license. DONE AND ENTERED this 23rd day of July, 2003, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 23rd day of July, 2003.
The Issue The issue to be resolved in this proceeding is whether Petitioner, a family day care center owner/operator, committed violations of the Florida Statutes and the Florida Administrative Code, as alleged by Respondent, sufficient to justify Respondent's imposition of civil penalties upon Petitioner's license.
Findings Of Fact On October 26, 2000, Petitioner was notified by Respondent's representative that she was in violation of Section 402.302(7)(d), Florida Statutes, by "being over ratio" by having more than ten children in her care. Petitioner signed an acknowledgement of the notification. On October 30, 2000, Petitioner was formally notified by mail that she was over ratio. In the letter, Petitioner was notified that another violation would result in the imposition of an administrative fine. On July 16, 2002, Clark Henning, a day care licensing counselor for Respondent, made a routine inspection of Petitioner’s facility and determined that 13 children were present. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that she continued to be over ratio and that any future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and observed that 14 children were in the facility. In accordance with requirements of Section 402.302(7), Petitioner is licensed to provide care to children solely in her home. During the course of his July 16, 2002 inspection, Henning observed that Petitioner was providing day care services in an out-building unattached to her home. At that time, Petitioner signed an acknowledgement of notification that Petitioner was prohibited from rendering care in an out- building. On July 18, 2002, Henning made an unannounced inspection of Petitioner's facility and noted that day care services continued to be provided in the out-building. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that if she continued to render day care services in the out-building, future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and saw that the out-building was continuing to be used for day care. Section 402.302(3), Florida Statutes, requires that any person providing child care must first be properly background screened. On July 16, 2002, during his routine inspection of Petitioner’s facility, Henning observed an adult female, Molly Hilbert, providing care for the children. On July 16, 2002, Petitioner signed an acknowledgement of notification that Molly Hilbert had not been background screened. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that having Molly Hilbert in her employ without a background screening would, in the event of any future violations, result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. In the course of his August 22, 2002 unannounced inspection of Petitioner’s facility, Henning observed Hilbert working with three children.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a final order be entered imposing an administrative penalty of $100 upon Petitioner's license for each of the three violations alleged in the Administrative Complaint for a total of $300. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. DON W. 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 21st day of January, 2003. COPIES FURNISHED: Edward T. Cox, Jr., Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Lillie Shells Shell's Family Day Care Home 9340 County Road 231 Wildwood, Florida 34785 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 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact In July, 1988, the Petitioner applied for renewal of dual annual licenses to operate both an alcoholism prevention and treatment program (APT) and a drug abuse treatment and prevention program (DATAP). On July 26, 1988, a representative of the Department, Aixa Reyes-Wajsman, made a site visit to Petitioner's facility to determine whether Petitioner was complying with the provisions of the Florida Administrative Code for the operation of an alcoholism prevention and treatment program (APT) and a drug abuse treatment and prevention program. The Department's representative found that the Petitioner was in violation of several administrative regulations, but the Petitioner took steps to comply with the regulations, and the Department renewed the Petitioner's regular annual DATAP license and regular annual APT license, authorizing the Petitioner to operate those programs through July 30, 1989. On June 27, 1989, a Department representative, Lorenzo Thomas, made a site visit to the Petitioner's facility to determine whether or not Petitioner was complying with regulations for the operation of an APT program. (The Petitioner requested renewal of the APT license only, not the DATAP license.) At the time, the Petitioner, primarily a small human development counseling service, had only two APT clients. By the time Mr. Thomas returned with his supervisor, Gail Potter, for a second site visit on July 27, 1989, the Petitioner had one additional APT client, who had just been accepted as a client. Although the Petitioner's client files included forms which would have allowed for the inclusion of initial and individualized treatment plans which identified target dates for completion of goals identified in the client's plan, the Petitioner did not utilize the forms so as to adequately describe the treatment plan or identify target dates. The Petitioner's client files did include progress notes. But the progress notes were incomplete and disorganized, some consisting of cryptic notes on pieces of scrap paper loose in the files, and did not adequately relate the progress of each client in accordance with the individual treatment plan. The Petitioner took the position that the notes were sketchy so as not to reveal client confidences in the event the records were required to be disclosed pursuant to a subpoena. One of the Petitioner's client files--the file on the new, third client--did not include a psychosocial assessment. The other two client files did include a partially completed psychosocial assessment, but neither was signed, credentialed and dated by the treating counselor. Since there had been no request for the release of client information on the Petitioner's three APT clients, there was no reason for the Petitioner's client files to include a client consent form for the release of confidential information. (The blank forms that the Petitioner had available for use in the event of a request for client information did not include a time limit for the release of such information.) The Petitioner's client files did not include evidence of the development and utilization of admission and discharge criteria or standards. The Petitioner distributed to its APT clients an information sheet upon admission, but the information sheet did not include admission criteria. The Petitioner also had available a questionnaire for new clients to complete. But the questionnaire was not used for the clients the Petitioner had at that time and, besides, did not indicate how the Petitioner would score, or evaluate, the client's answers. Based on the June 27 and July 27, 1989, site visits, HRS issued to the Petitioner an interim APT license from August 1, 1989, to October 29, 1989, instead of a regular annual APT license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Health and Rehabilitative Services, enter a final order affirming the Department's action in issuing to the Petitioner an interim alcoholism prevention and treatment program license instead of a regular license. DONE and ENTERED this 3rd day of April, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 3rd day of April, 1990.
The Issue The issue in this case is whether the Petitioners' foster home license should be revoked for one or more of the reasons set forth in the notice of intent to revoke issued by the Department of Children and Family Services (Department) on February 3, 2003.
Findings Of Fact The Delissers have been licensed to operate a foster home for many years. The Delisser foster home was relicensed on June 15, 2002. During 2001, Janet Goodman worked for the Department and made a number of visits to the Delisser foster home during the second half of 2001. During the course of those visits, Bobette Delisser admitted to Janet Goodman that she needed some respite care for child K.D., because K.D. and Bobette Delisser had engaged in a physical altercation. On one occasion, the child K.D. was in respite care for three months. The child K.D. was also placed in respite care on other occasions.3 During the first half of 2002, Paula Wilson (Wilson) was employed by the Department as a Protective Investigator. In March of 2002, Wilson was assigned to finish an investigation involving the child K.D. During the course of finishing the investigation, Wilson spoke to Bobette Delisser. During one of their conversations, Bobette Delisser admitted to Wilson that she (Bobette Delisser) had hit the child K.D. over the head with a white sneaker shoe. Bobette Delisser sought to justify or to minimize the seriousness of striking the child K.D. by stating, about K.D., "Well, she's retarded." Wilson also investigated another backlogged case concerning a child named T.J. The child T.J. had a black eye and a couple of small bruises on the upper part of her buttocks. The black eye and the bruises on T.J. resulted from an accident when T.J. fell down. The circumstances of the fall did not involve any neglect or intentional act by the Delissers.4 During the course of her investigations at the Delisser foster home, on one visit to the Delisser home Wilson found the child J.W. in a port-a-crib, without adult supervision, face down in a bowl of noodles. During the same visit, when Bobette Delisser entered the room, she picked up the child J.W. by the child's arm, stating she did not think it would hurt the child. In October of 2002, Protective Investigator Amy Gregory (Gregory) investigated allegations of abuse to the child J.W. Gregory observed a cluster of oval shaped bruises on J.W.'s arm. The bruises appeared to be consistent with the child having been picked up by the arm. The child J.W. also had unexplained bruising on her head. During the course of her investigation, Gregory observed an adult granddaughter of the Delissers, who lived in the foster home at that time, pick up the child J.W. by an arm and swing the child to her hip. This conduct by the granddaughter, in conjunction with prior similar conduct by Bobette Delisser, and in conjunction with the cluster by bruises described above, indicates that the child was harmed by inadequate supervision and by neglect of the Delissers. In November of 2002, Kristine Krtausch wrote a review of the Delisser's performance as foster parents based on her observations at their home and on conversations with the Delissers. During the observations by Krtausch, the Delissers appeared to be overwhelmed in their attempts to care for the children in their home. She also observed that the Delissers sometimes failed to use positive discipline; she observed them locking children outside and belittling the children. Krtausch also observed that the child T.J. was always treated differently from the other children. The Delissers tended to be short with T.J., as well as to frequently "put her down," rather than be supportive of T.J. The Delisser's were aware of the Department's Discipline Policy and they agreed to abide by that policy. The Department's Discipline Policy prohibits corporal punishment and derogatory remarks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order in this case revoking Petitioners' license to operate a foster home. DONE AND ENTERED this 26th day of November, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 26th day of November, 2003.
The Issue The issue is whether Respondents' foster home license should be revoked because of inadequate supervision of foster children, as alleged in Petitioner's letter dated December 22, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Department of Children and Family Services (DCFS), seeks to revoke the foster home license of Respondents, Wendy and David Palmer. In a letter dated December 22, 1998, DCFS alleged that Respondents allowed "foster children to be taken overnight over one hundred miles from [their] home with no supervision from [Respondents] as the licensed foster parents." The charging document went on to allege that their "neglect materially affected the safety and welfare of the children because they were given alcoholic beverages and were allowed to sleep with men." Respondents denied the allegations and requested a formal hearing to contest the proposed action. Their license has remained inoperative pending the outcome of this proceeding. Respondents have operated a foster home around six miles north of Altoona, Florida, since May 1994, caring mainly for teenage females who had "a lot of behavior problems" and had failed in prior placements. The home is licensed by DCFS under Section 409.175, Florida Statutes. Children were placed in their home by the Lake County Boys Ranch, a private organization which had a contract with DCFS to provide that service. On an undisclosed date, but prior to August 1998, three females, M. G., G. M., and D. W., were placed in Respondents' home. At that time, each of the girls was around fifteen years of age. G. M. had almost fifty prior placements, while D. W. had failed in "several" other placements. M. G. had also been in a number of "non-relative" placements, but the exact number is unknown. All three had a reputation of being difficult to handle and were considered "high-risk." None testified at the final hearing and thus any comments they may have made to a DCFS investigator are hearsay in nature. Respondents' daughter, Jamie, who was 21 years old when the events herein occurred, had been approved to serve as a respite provider at the foster home. This meant she could assist her parents by transporting the children to medical or visitation appointments and provide supervision in the home for a limited period of time. Examples of her duties included transporting the three girls to doctor's appointments, to lunch, or to the beach for recreational purposes. She considered her relationship with the girls to be "like sisters." On August 3, 1998, Jamie decided to travel to Hampton in Bradford County, Florida, in an extended cab pick-up truck to retrieve the remainder of her personal belongings from the residence of her former boyfriend, Scott, a 22-year-old male. Hampton is approximately 83 miles from Altoona, but the distance between the foster home and Scott's residence was no more than 75 miles or so. The one-way trip less took less than an hour and a half. Jamie spoke with her mother around 10:30 or 11:00 a.m. that day and received permission for the three girls to accompany her on the trip. The trip was perceived by Wendy Palmer as a recreational trip, and one that would enable the girls to build trust in the family since it allowed them to take a short trip away from their home and to return later that same day. Contrary to the charging document, this was not an illegitimate purpose, and Respondents' authorization of the trip at that point in time could not reasonably be forseen as an act which would materially affect the girls' health or welfare. Jamie was told to go straight to Hampton, pack her belongings, and then return. Jamie eventually departed the foster home between 2:00 p.m. and 2:30 p.m. and arrived at Scott's residence shortly before 4:00 p.m. Although Scott was not at home when the group first arrived, he returned shortly thereafter with "two buddies," both adult males. A verbal argument between Scott and Jamie ensued, and Scott remained at the residence for several hours while the two discussed why their relationship had gone sour. Scott's two friends, however, remained outside the residence by his truck. Just before 6:00 p.m. Jamie telephoned her mother to advise that she had safely arrived in Hampton, that she was packing, that Scott was on the premises attempting to change her mind about leaving him, and that it looked like it was going to rain. Scott and his friends left a few minutes later, and even though Scott had a key to the residence, he and his friends did not return that evening. Before 9:00 p.m., Jamie again telephoned her mother to advise that it was storming, that she was upset after arguing with Scott, and that she was afraid to drive home in rainy weather at that hour with the girls. Accordingly, she asked permission to remain at Scott's residence that evening and drive home the first thing in the morning. Although Scott's residence was not a licensed, inspected, and approved foster home, Wendy Palmer agreed that under those extenuating circumstances, it was appropriate to remain in Hampton overnight. Wendy Palmer added that she would have driven to Hampton herself to retrieve the girls, but she did not wish to drive on two-lane roads in the rain at that late hour. Wendy Palmer's decision that evening technically violated her duty as a foster parent to provide round-the-clock supervision for the girls in a licensed foster home. Indeed, without the order of a court, foster children are not allowed to stay in an unlicensed home. After talking with her mother, Jamie drove to a local convenience store and purchased two Bud Lights in a can. She returned to the residence and consumed them herself. Contrary to the allegations in DCFS's letter dated December 22, 1998, the girls were not given alcoholic beverages. Also, Jamie did not allow adult males to enter the premises that evening. Further, they did not engage in sexual relations with other men. Indeed, except for the girls and Jamie, there was no one else present, and all four slept in the living room of the residence. Although Jamie allowed the three girls to smoke that evening, this conduct is not cited as a ground for revocation in the charging document. The next morning, Jamie telephoned her mother a third time and advised that they were getting ready to drive back to Altoona. The group returned a short time later. On October 9, 1998, or some two months later, the three girls ran away from the foster home and were eventually picked up by law enforcement authorities in Wildwood, Florida. At that time, D. W. made allegations for the first time that while in Hampton on the evening of August 3, 1998, the group had been given alcoholic beverages by Jamie, that they had engaged in sexual intercourse with friends of Scott, and that Jamie had become intoxicated. These allegations led to an investigation by DCFS and its decision to revoke Respondents' foster home license. They also resulted in a verified report of institutional neglect on November 2, 1998, which is found in abuse report 98-113392. DCFS takes the position that the trip had no legitimate purpose because the girls would receive no discernible benefit from the trip. This assertion has been rejected above. It further contends that the teenagers were placed at risk when Respondents allowed the girls to stay overnight with a respite worker in an unlicensed home. According to DCFS, the appropriate action would have been for the Palmers to advise Jamie to transport the girls to a "public shelter" in the area, or alternatively, for the Palmers to drive to Hampton that evening and pick them up. Because these latter steps were not followed, Respondents violated DCFS protocol, and they committed a negligent act within the meaning of the statute. During the four-year period in which Respondents served as foster parents, they provided outstanding care for foster children who were most at-risk, and all of whom had failed in prior placements. Other than this one incident, there are no blemishes on their record. Moreover, they have the continuing support and confidence of the private agency which makes local placements of foster children pursuant to a contract with DCFS. These considerations, as well as the extenuating circumstances which occurred on the evening of August 3, 1998, should be taken into account in determining whether Respondents' license should be disciplined.
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 determining that Respondents violated Section 409.175(8)(a)1., Florida Statutes, and that their foster home license be suspended for one year effective December 22, 1998. DONE AND ENTERED this 10th day of June, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 10th day of June, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John N. Spivey, Esquire 14550 U. S. Highway 441 Tavares, Florida 32778 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and comect gepy of this Final Order was served on the below-named persons by the method designated on this {30-day of Fora , 2014. Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Patricia R. Caufman, Field Office Manager Revenue Management Unit Areas 5 and 6 (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh II, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Tracy George, Chief Appellate Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Christina Mesa, Esquire MESA Law, P.A. P.O. Box 10207 Tampa, Florida 33679-0207 Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
