The Issue The issue in this proceeding is whether Petitioners committed the offenses described in the Administrative Complaints and if so, whether the Department of Children and Family Services should impose proposed fines.
Findings Of Fact Carmen Smith owned and operated Happy Days Day Care Center (Happy Days) located in Ocala, Florida. On June 17, 2001, the license to operate Happy Days expired and was not renewed.1/ Tia Howard is Carmen Smith's daughter. Ms. Howard was not employed by Happy Days but volunteered there. She also was never an employee of St. Paul's A.M.E. Church Preschool. Around the time that Happy Days' license was to expire, Ms. Howard contacted the Department inquiring as to transferring the license of Happy Days to Ocala Northwest Learning Center. Ms. Howard was informed there was no valid license to transfer.2/ Ms. Howard helped move equipment from Happy Days to St. Paul's on June 17, 2001. Ms. Howard was in Savannah, Georgia, for school and National Guard duty from June 18, 2001 until July 2, 2001. On a date near in time to the expiration of Happy Days' license, Ms. Smith and Ms. Howard wrote an undated letter to parents of children who attended Happy Days. The letter read as follows: HAPPY DAYS CHILD CARE CENTER 2345 N.W. 10th Street Ocala Florida Phone: 732-3848 or 732-8292 Happy Days Child Care Center is suggesting that all students (with the exception of Protective Service Students) transfer to St. Pauls Academy effective June 18, 2001. Parents must notify Childhood Development of their transfer before Monday June 18th. Parents on Protective Service Program we are recommending Oakcrest Early Education Center where transportation will be provided for those who need it. This is only a temporary placement of approximately 14 days or until Happy Days can complete the transaction of a name change, from Happy Days to Ocala N.W. Learning Center Childhood Development Services (CDS) contracts with the Department to administer the enrollment in and payment for subsidized daycare in the Ocala area. When the Department notified Ms. Smith that the license would not be renewed, CDS sent a letter dated April 11, 2001, to all parents with children enrolled in Happy Days advising them that they would have to make other arrangements for daycare because Happy Days would no longer be licensed or eligible to provide subsidized childcare. St. Paul's A.M.E. Church Preschool (St. Paul's) held child care facility license number 130852 effective October 20, 2000 through October 21, 2001. Reverend James Sykes is the Pastor of St. Paul's A.M.E. Church, where the preschool was located. Ms. Smith and her daughter, Ms. Howard, were and are members of St. Paul's A.M.E. Church. Sometime before June 17, 2001, Ms. Smith approached Reverend Sykes about St. Paul's taking the children who attended Happy Days. St. Paul's child care facility was vacant at the time despite the license to operate remaining current at all times material hereto. There was also a modular unit on St. Paul's property that had been leased to CDS but had been vacated by June 18, 2001. Reverend Sykes agreed to provide child care to the children whose parents wanted to transfer their children from Happy Days to his child care facility. Many of the children who attended Happy Days moved to St. Paul's which reopened on June 18, 2001. The Board of Trustees of his church was aware of this arrangement and either approved it or agreed to it. Reverend Sykes rented vans and other equipment for St. Paul's daycare center from Ms. Smith for a nominal sum. The vans and equipment had been used at Happy Days. Reverend Sykes explained that his motivation in providing child care to the children was to help out Ms. Smith because she was a member of his church, and to help out the parents by offering continuity of childcare for the children. The Happy Days name and telephone number remained on the vans for a week to ten days until the vans were spray painted to cover the Happy Days name. The record is unclear as to whether the telephone number and/or license number of Happy Days remained on the vans after the name was covered by spray paint. Except for the payment of nominal rent for the vans and the equipment, there is no evidence that Reverend Sykes or St. Paul's paid any money to Ms. Smith or her daughter, Ms. Howard. Neither Ms. Smith or Ms. Howard were employees of St. Paul's. Mr. Stan Blanchard is employed by the Marion County Health Department. One of his responsibilities is to conduct inspections of daycare centers. He received information that Happy Days or Ocala Northwest moved operations to St. Paul's and was operating illegally there. He went to St. Paul's on June 18, 2001, and found persons he described as staff from Happy Days and Ocala Northwest. He was familiar with Ms. Smith and Ms. Howard because of contact he had with them over time at Happy Days. He saw Ms. Smith bringing food into the building. He found children in the modular building that had been occupied by CDS. Additionally, he found what he determined to be violations of standards for child care facilities. At the time of his inspection of St. Paul's, Mr. Blanchard was not certain that St. Paul's had a valid license to operate a daycare facility, and did not know whether Ms. Smith was as employee of St. Paul's. He wrote two reports while at St. Paul's that day. One report identifies the facility as "St. Paul's AME Christian Daycare". At the top of the report, Mr. Blanchard wrote, "DCF to determine the legality of this arrangement." His report noted three violations: that St. Paul's allowed Ocala Northwest to use their facility; that infants were not allowed due to lack of hand-washing facilities and, therefore, the infants must be sent home; and that food comes in from Ocala Learning Center which "has lost its license" and that food must come from St. Paul's kitchen. Ms. Smith arrived during his inspection and signed this report, according to Mr. Blanchard, because she was bringing food into the facility at the time of his inspection. Mr. Blanchard presumed the food came from Ocala Northwest. The second report of Mr. Blanchard's identifies the facility as "Ocala NW Learning Center". At the top of the report, Mr. Blanchard wrote, "Immediate Closure Required." The report stated that Ocala Northwest was illegally occupying the former CDS St. Paul's Headstart Center, which had been housed in the modular unit on St. Paul's property, and cannot reopen until licensed by the Department. The report noted that the children had been moved from the former CDS center to the St. Paul's daycare next door "which may still have an active license." This report was signed by Diana Jones. Diana Jones was an employee of Happy Days for 10 years. When Happy Days ceased operations, she was offered employment by Reverend Sykes and became employed as his assistant director of the facility. She was not an owner of either Happy Days or St. Paul's but was employed by each. She gave Mr. Blanchard's report which she had signed to Reverend Sykes. She continued to work at St. Paul's until it ceased operations on July 2, 2001. Upon receiving a complaint that Happy Days was operating illegally at St. Paul's, Mary Carpenter, a Department counselor, went to St. Paul's to investigate. Her report indicates that she went to St. Paul's on June 18, 2001, and that no one would answer the locked door. Ms. Carpenter did not testify and it is unclear from her report and from the record why she received no answer at the door of St. Paul's when Mr. Blanchard was able to go inside on the same day and write two reports while there. A second report of Ms. Carpenter's was written on June 29, 2001, and referenced the same problems brought up by Mr. Blanchard regarding infants being at the facility and food preparation.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order dismissing the Administrative Complaints against Petitioners Carmen Smith, Diana Jones, and Tia Howard. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 15th day of February, 2002.
The Issue Whether Petitioner, Palm Beach County School Board (Petitioner or School Board), has just cause to discipline the employment of Rebecca Sorensen (Respondent or Ms. Sorensen) based on the conduct alleged in the “Petition.” Also at issue is the appropriate penalty, if any.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Palm Beach County, Florida. Respondent has been an employee of the Petitioner since 1987. At all times relevant to this proceeding, Respondent was an assistant principal employed by Petitioner at Hagen Road, which is a public elementary school in Palm Beach County, Florida. Petitioner’s Policy No. 5.30 requires that, “(a) District employees who know or have reasonable cause to suspect, that a child is an abused, abandoned, or neglected child shall immediately report such knowledge or suspicion to the Department of Children and Families’ [sic] Florida Abuse Hotline (1-800- 96ABUSE, 24 hours a day)." Section 39.201(1)(a), Florida Statutes, provides, as follows: (1)(a) Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child's welfare,[1] as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2). (b) Reporters in the following occupation categories are required to provide their name to the hotline staff: * * * School teacher or other school official or personnel; Respondent’s position as an Assistant Principal at Hagen Road is included within the definitions of school personnel for purposes of Section 39.201(1)(a), Florida Statutes. The requirement to report suspected child abuse was reiterated in the Faculty Handbook for Hagen Road for the 2008- 09 school year. Cheri Rosen is the assistant director of Hagen Road’s after school care program. Ms. Rosen’s son and Student J. were in the fifth grade during the 2008-09 school year and have been friends since their first grade year. Labor Day fell on September 1 in 2008. On August 28, 2008, the Thursday prior to Labor Day, Student J. spent the night at Ms. Rosen’s house because his grandfather was hospitalized for medical tests. Student J. told Ms. Rosen’s daughter of an incident that occurred in December 2007, while Student J. was being baby-sat at his grandfather’s house, by the male counselor from the Hagen Road after school care program. Ms. Rosen’s daughter immediately told her father (Mr. Rosen) who instructed his daughter to tell her mother (Mrs. Rosen). Immediately after her daughter talked to her, Ms. Rosen asked that Student J. come tell her firsthand what had happened. Student J. told Ms. Rosen that while he was being baby- sat by the male counselor at his grandfather’s house in December 2007, just before winter break, the male counselor had taken a live snake and wrapped it around his (the male counselor’s) penis and told Student J. to look. Student J. told Ms. Rosen that he looked and then looked away. Student J. related that the male counselor told Student J. “now its your turn.” Student J. told Ms. Rosen that he said no and walked out of the room. Ms. Rosen told Student J. that she was going to have to tell his grandfather about the incident, and that she was also going to report this to Ms. Lamb, who was Ms. Rosen’s supervisor at the after school care program. Ms. Rosen spoke to Ms. Lamb shortly after her conversation with Student J. Ms. Lamb advised Ms. Rosen that she should tell the Student J.’s grandfather that he should contact the police. She further told Ms. Rosen, incorrectly, that she did not have to go through the school because the alleged incident occurred at the residence of Student J.’s grandfather, and because Student J. reported the incident at her home. Two days after Ms. Rosen’s conversation with Student J., his grandfather returned home from the hospital. Ms. Rosen and her husband visited with the grandfather and related to him the incident as Student J. had related it to them. The grandfather, who tried to remain calm because he has a heart condition, asked what he should do next. Ms. Rosen told him he had to go to the police. When Ms. Lamb returned to school on September 2, 2008, she had a voice mail from Student J.’s grandfather. She tried to return the call, but she could not reach him. On Thursday, September 4, 2008, Respondent was paged by a Ms. Ciavolino, the school treasurer and bookkeeper. Ms. Ciavolino related that Student J.’s grandfather had just called, told her about the incident, and said that he wanted advice from Respondent. Shortly thereafter on September 4, 2008, Student J.’s grandfather called Respondent to talk with her about the incident. The grandfather was hesitant, so Respondent told him what Ms. Ciavolino had told him, and Respondent also told him that she knew he wanted advice. After the grandfather confirmed what Ms. Ciavolino had related to her, Respondent advised the grandfather that the incident needed to be reported right away. She asked the grandfather where he lived in an attempt to determine whether the Delray Beach Police Department (DBPD) or the Palm Beach County Sheriff’s Office would have jurisdiction. She also told him that it would need to be reported to the Department of Children and Family Services (DCFS). Although he remained hesitant, the grandfather told Respondent that he would report the incident. On September 4, 2008, Respondent instructed Ms. Lamb to keep the male counselor away from Student J. and all other students. At that time, the male counselor was preparing to leave in a week or two to join the military. In the interim, he had been assigned to train new counselors, which did not require that he have direct contact with children. The male counselor remained on Hagen Road campus until he was removed as a result of the police investigation that ensued. Other than her instructions to Ms. Lamb, Respondent took no further action to ensure that the male counselor would have no contact with children. Respondent did not report the allegation of abuse to her principal (Mr. Hughes), to any law enforcement agency, or to the DCFS. Further, she did not instruct Ms. Rosen, Ms. Lamb, or Ms. Ciavolino to file any type of written report.2 Respondent testified that she did not feel she had to file a report because Student J.’s grandfather agreed to file a report. Respondent further testified that she did not feel she had to file a report because she heard of the allegations from the grandfather and not the student. On September 9, 2008, Student J.’s grandfather reported the incident to the DBPD which immediately began an investigation in conjunction with a DCFS investigator. As a result of the DBPD/DCFS investigation, Mr. Hughes learned of the allegations and immediately barred the male counselor from the school campus. Thereafter, Petitioner’s Police Department began its own investigation of Respondent based on her conduct and failure to act as described in this Recommended Order. All relevant procedural steps were taken by Petitioner in bringing these charges against Respondent. Part of the procedure requires a pre-disciplinary meeting at which the subject of an investigation is given the opportunity to give his or her version of the events. Respondent declined to attend the pre-disciplinary meeting on advice of counsel because at the time of the meeting a criminal investigation was being conducted.3 After the pre-disciplinary meeting, the matter was referred to Petitioner’s Employee Investigatory Committee (EIC),4 who recommended that the subject charges be brought against Respondent with the recommended disposition of a ten-day suspension of employment without pay. That recommendation was forwarded to Dr. Johnson in his capacity of Superintendent of Schools, who agreed with the recommendations of the EIC and submitted the recommendation to the School Board. On April 8, 2009, the School Board voted to accept the recommendation, subject to Respondent’s rights pursuant to the provisions of Chapter 120, Florida Statutes. The greater weight of the credible evidence established that Respondent had a reasonable basis to believe that Student J. had been subjected to sexual abuse and that she did not report that abuse to her principal, the FDCS hotline, or law enforcement. The greater weight of the credible evidence also established that Respondent took insufficient steps to protect Student J. from the male counselor after she learned of the allegations of abuse. In reaching this finding, the undersigned has considered that Principal Hughes barred the male counselor from school premises as soon as he learned of the allegations. Respondent did not bar the male counselor from the school premises, but merely instructed Ms. Lamb to make sure that the male counselor “. . . would not be with children until this was resolved.”5 Respondent’s employment has not previously been disciplined. Other than the facts set forth above, Respondent has been, in the words of Principal Hughes, a fantastic assistant principal who has performed above expectations.6
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order suspends Respondent’s employment without pay for a period of ten days. DONE AND ENTERED this 18th day of November, 2009, 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 18th day of November, 2009.
The Issue Whether Respondent, a licensed childcare facility, committed a Class I violation related to inadequate supervision of a child as alleged in the Petitioner's Amended Complaint; and, if so, what is the appropriate penalty.
Findings Of Fact Based upon the evidence presented and the record as a whole, the following Findings of Fact are made: The parties stipulated to the following facts in their Joint Pre-Hearing Stipulation (paragraphs 1 through 10 below): DCF is an administrative agency of the state of Florida, charged with the duty to enforce and administer the provisions of chapter 402, Florida Statutes, and Florida Administrative Code Rules 65C-22.010 and 65C-20.012. Global Learning operates a licensed childcare facility known as Global Learning of Port Saint Lucie, Inc., located at 4333 Southwest Darwin Boulevard, Port Saint Lucie, Florida 34953. The facility operates under license/ID No. C19SL0139 issued by DCF with a licensed capacity of 132. At all relevant times, Global Learning was regulated by DCF according to, inter alia, the following documents: (i) DCF Child Care Facility Handbook, incorporated by reference in rule 65C-22.001; (ii) CF-FSP Form 5316, Child Care Standards Classification Summary, October 2017, rule 65C22.010(1)(e)1.; (iii) Florida Department of Children and Families Desk Reference Guide, updated July 2018; (iv) section 402.281; (v) section 402.305; (vi) section 402.310; (vii) section 402.310; (viii) rules 65C-22.001 through 65C- 22.010. As referenced in the Complaint, DCF cited Respondent with a violation of standard 4.2, which states "Class 1 violation; [o]ne or more children were not adequately supervised in that a child was unsupervised, which posed an imminent threat to a child, and could or did result in death or serious harm to the health, safety or well-being of a child." As referenced in the Amended Complaint, DCF cited Respondent with a violation of standard 4.3, "Class I violation; [a] child was not adequately supervised and left the facility premises without child care personnel supervision." As referenced in the Complaints, DCF imposed a fine upon Global Learning in the amount of $500.00. As referenced in the Complaints, DCF seeks to revoke Global Learning's Gold Seal Quality Care designation. At all relevant times, Global Learning held a valid child care license to provide child care services. At all relevant times, Global Learning possessed a Gold Seal Quality Care designation. At no time prior to the violation referenced in this matter did Global Learning ever receive a Class I violation. Case History and Investigation The case began when DCF conducted an investigation into an alleged violation of the Child Care Licensing Standards, which occurred on April 26, 2019, at Global Learning Center in Port Saint Lucie, Florida. The investigation was prompted after DCF received a complaint that a young child had left his classroom at the Global Learning day care facility, wandered in the neighborhood without supervision for some period of time, and was eventually found by a passing motorist walking on a sidewalk alongside the road. The assigned DCF investigator visited and inspected the facility, reviewed documentation, and conducted interviews of staff members and other witnesses. Discovery by a Good Samaritan The evidence disclosed that a local resident, Jeanette Plesnick, was driving down Kester Street in Port Saint Lucie, Florida, on the afternoon of April 26, 2019. While driving she spotted a five-year-old child, B.K., walking alone on the sidewalk with his blanket. The sidewalk ran alongside a public road.2/ Out of concern, Plesnick stopped her car and questioned the child. He was unharmed and in good shape. Nonetheless, she secured the child and immediately reported the matter to local law enforcement. Plesnick waited with the boy for law enforcement to respond. A police officer arrived roughly 30 minutes later. Plesnick was familiar with the location of the Global Learning facility. She estimated that it was a block to a block-and-a-half away from the location where she found the young boy. Plesnick also estimated that it would take her about ten minutes to walk to the day care facility directly from the location where she found B.K. The boy's father, Kent Kummerfeldt, was notified by law enforcement that his son had left the day care facility. Kummerfeldt immediately left his job in Palm Beach County and drove to the day care facility in Port Saint Lucie. His son was safely back at the day care when he arrived. Naturally, Kummerfeldt had expected his son to be educated in a safe environment at Global Learning, and was surprised that his son was allowed to leave the facility unsupervised. Classroom Incident on April 26, 2019 The essential facts surrounding how, when, and why the boy departed from his classroom at Global Learning were largely undisputed. B.K. told his father that he left the classroom alone through an exit door, went outside to the children's playground, and then climbed over the playground fence. DCF's investigator, Deanna Trainor, interviewed several of Respondent's employees, including the classroom teacher, LaJane James ("James"). As the facts developed, it was revealed that James was the only adult teacher in the classroom when the boy left. It was clear that for some period of time, James was solely responsible for the supervision of B.K. and the other 21 children who were napping in the classroom. More specifically, another teacher assisting James in the supervision of the classroom had left to eat lunch. This left James alone to watch the napping students. There was also evidence, which the undersigned credited, that the number of children in the classroom exceeded the allowable one to 20 ratio of students-to-teacher, while James was alone in the classroom. James told the investigator that she started cleaning up the room after she laid the children down for naps. James admitted that it must have been during that period of time that B.K. got up off his sleeping cot and went out the door without her seeing him.3/ In the investigator's opinion, the class room had loud acoustics and the exit door B.K. used to go out to the playground was also very loud. From the evidence and pictures submitted, the classroom was large, open, and the view to the exit door was unobstructed. In fact, the pictures revealed that the teachers' desk area was immediately next to the exit door used by B.K. Based on Trainor's investigation and inspection of the exit door and surrounding area, she concluded that it would have been "hard to miss" if a child opened the classroom door and went outside. This conclusion by Trainor is credited and accepted. Janet Higgins, was the general manager of Global Learning on the day of the incident. She offered a good deal of testimony regarding the operations, accreditation, training, licensing, and credentials of Global Learning.4/ Higgins acknowledged that B.K. was supposed to be supervised in the classroom at all times. Higgins was not present in the classroom when the incident occurred, but related that at approximately 12:30 p.m., as was the normal practice, the children would have been laid on their mats or cots for daily naptime. Higgins acknowledged that the child made his way outside the facility she managed and was eventually found by a Good Samaritan down the street. After the incident, Global Learning took remedial action and made some physical changes to the exit doors, installing bells and higher doorknobs. Not surprisingly, James was terminated by Higgins shortly after the incident. After concluding its investigation, DCF ultimately determined that the allegations were verified. This determination was followed up by the issuance of an administrative complaint seeking sanctions against Global Learning.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order: (1) Finding that Global Learning violated Handbook Rule 2.4.1(B) and, by reference, standard 4.3.; (2) Imposing a fine in the amount of $500.00; and (3) Revoking Global Learning's Gold Seal Quality Care Designation, as required by law. DONE AND ENTERED this 13th day of January, 2020, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2020.
The Issue Whether Amended School Board Policy 2262 is an invalid exercise of delegated legislative authority under section 120.52(8), Florida Statutes (2013)1/.
Findings Of Fact The School Board has the constitutional duty to operate, control and supervise the public schools within Collier County, Florida. Art. IX, § 4(b), Fla. Const. (2014); see also § 1001.32, Fla. Stat. Sports Club is a private, non-profit Florida corporation, whose principal business activity is providing before and after school child care. Sports Club is located in Collier County, and offers its child care services at its own private facilities, as well as at certain District elementary schools. Parents Rock is a private, non-profit Florida corporation formed on June 24, 2013, for the purpose of representing parents’ interests in education, and advocating for legislation, regulations, and government programs that improve parents’ rights and choices in local education. Parents Rock’s membership consists of approximately 700 individuals, mostly parents of children attending schools in the District. A substantial number of these parents use the child care programs located at the District facilities. Moreover, a substantial number of Parents Rock’s members routinely attend School Board meetings and advocate for parental involvement in their children’s education and issues of importance, like the District’s child care program. Amended School Board Policy 2262, which is part of the School Board’s Bylaws and Policies, is titled: Before and After School Child Care. The challenged policy contains paragraphs lettered “A through L” which provides for the following issues: Parents and the community being given an opportunity to make recommendations concerning the operation and funding of child care programs prior to the approval by the School District; Child care programs and services being available to students both prior to and after the school day; Child care programs having an emphasis on providing educational opportunities and “variety of activities that promote the social, intellectual, and physical development of children in the program[;]” Adequate attention being given to the child care programs having an environment that meets the needs and well-being of the children, ensuring the children’s safety, security, that the children are clothed, fed, and “hav[ing] an opportunity for a variety of social, intellectual, and physical activities[;]” Vendors or other organization contracted to provide the child care programs having adequate liability insurance, and “maintaining appropriate adult-child ratios, provide quality child care, and in general, complying with the procedures established by the State and the District[;]” Notifying parents and families about the child care programs and procedures for enrollment; Continuing program assessments by staff, participating parents, and other stakeholders during the course of the child care program; Fees for the child care services being applied only to those schools involved in vendor run or school based programs; Recognizing that a parent may notify the child care providers of the parent’s preference that a child receiving either additional physical or academic activities, and “every reasonable effort shall be made to accommodate the request[;]” Parents, whose children participate in the child care programs, giving “feedback concerning the program” and requiring that the District’s manager of after school child care consider the information; A procedure for surveying and collecting information from parents evaluating the child care programs; and Providing that “[a]ny terms, conditions, or issues enumerated in the District’s RFQ 115-4113 [sic], whether express or implied, related to this policy, are hereby adopted and incorporated by reference in the policy during the duration of RFQ 115-4113 including any renewal period provided for in said RFQ.” Amended School Board Policy 2262 then states that to “implement this policy, the Superintendent will develop and/or revise administrative procedures consistent with the RFP/RFQ process relative to child care service.” The School Board wholly adopted School Age Child Care Services, RFQ #115-4/13 (RFQ), into its Policy. Consequently, a short explanation of the RFQ is required here. In the RFQ, the District sought to qualify child care providers to operate child care programs at the District’s elementary schools. The RFQ that was released by the District, on May 2, 2013, provided for: uniform fees for all program services;2/ no credit for fees paid, if a child was unable to use the child care program due to an absence;3/ a $10.00 surcharge on each registered student that a private vendor provided financial assistance to attend the after school program;4/ and standards and criteria for the child care programs that required the programs to be staffed by certified teachers.5/ Finally, and importantly, the RFQ allowed elementary school principals to decide whether or not to offer child care through private providers or for the school to operate its own “in-house” child care program.6/ Sports Club participated in the RFQ process, and was identified as a qualified provider. Based on its approval as a qualified provider, Sports Club was given an opportunity to present its services to the District’s elementary school principals in a webinar. Following the presentation, on May 29, 2013, five elementary school principals chose Sports Club as child care provider for their schools. However, Sports Club was not chosen as a provider for six other elementary schools that it had previously served under a contract with the District. In some instances, like Veterans Memorial Elementary School, the principal had decided to operate an “in-house” program, rather than selecting Sports Club. After the selection process, Sports Club informed parents about the impending changes, and asked the parents to contact the School Board if they wanted to keep Sports Club as a child care provider. The School Board was to ratify the elementary school principals’ decisions at a June 11, 2013, School Board meeting. Many parents, on learning about the RFQ’s terms and that Sports Club would no longer be providing child care at their child’s elementary school, became extremely upset. A particular concern was the District’s decision not to seek any parental involvement in the formulation of the RFQ and provisions setting the uniform fees, which increased the child care costs for the parents. On June 3, 2013, the RFQ became the subject of an unadopted rule challenge brought by a parent. Rather than proceeding to a final hearing, the School Board elected to initiate rulemaking concerning the unadopted rule challenge on September 13, 2013. In the initial Notice of rulemaking, the School Board specifically stated that although a proposed text of the rule was not available, the RFQ’s provisions regarding fees and program content would serve as a reference point. During the rulemaking workshops on October 16, 2013, and November 13, 2013, the District’s rule proposals amended certain provisions within the RFQ. Specifically, the proposals amended the RFQ’s terms concerning the amount of the uniform fees to be charged;7/ the granting of credits in the limited instance when a child has a medical excuse for not attending the after school child care;8/ setting out a parental survey for assessing the child care programs;9/ and reducing the fee paid by private providers for using the District’s facilities during the summer months.10/ The School Board at its December 10, 2013, meeting, enacted Amended School Board Policy 2262, which incorporated the RFQ completely into the policy in paragraph “L.” On its face, the School Board’s language in paragraph “L” is not clear as to which version of the RFQ was incorporated. However, the testimony and attachments to the Amended School Board Policy show that the School Board’s reference is referring to the RFQ, as the School Board had amended it during the rulemaking process. Amended School Board Policy 2262, with the RFQ’s terms setting out the uniform fees and program criteria, only applies to child care programs located at the District’s elementary schools. Amended School Board Policy 2262 has no application for child care services off-site. The facts here show that Sports Club owns its own facility, and provides transportation to the Sports Club’s private facility for students from some of the elementary schools that elected to provide “in-house” services. Parents sign a permission form, and Sports Club’s bus transports the child from the elementary school to Sports Club’s facility. At its private facility, Sports Club is free to offer child care programs at rates that it decides are appropriate, without any regard to the challenged rule. Sports Club’s claimed economic losses are the result of its decision to participate in the RFQ process, not the challenged rule. Sports Club was selected as a child care provider under the RFQ at the June 11, 2013, School Board meeting, and Sports Club subsequently entered into a contract with the District to provide child care services under the RFQ, on August 16, 2013. These events occurred months before the School Board adopted the challenged rule here at its December 10, 2013, meeting. Moreover, the undersigned found that Mr. Brettholtz credibly testified that the financial records provided by Sports Club did not follow accepted accounting practices, and could not be used to support Sports Club’s claimed economic losses.
The Issue Whether Petitioner is disqualified from employment in positions requiring him to work with children or the developmentally disabled and, if so, whether he is entitled to an exemption from such disqualification.
Findings Of Fact Petitioner's employer, Youthland Academy Child Care Facility, is a day care facility that works with children. The employer submitted Petitioner's name to Respondent for a background screening pursuant to Section 402.305(2)(a), Florida Statutes. The background screening reflected that Petitioner had an extensive arrest record between June 1983 and January 1999. The screening also reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on April 25, 1994. The underlying offense was an act of domestic violence against the person of April Cox (the mother of a child by Petitioner) on November 17, 1994. The screening further reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on November 6, 1997. The underlying offense was an act of domestic violence against the person of Tanya Anne Austin (also the mother of a child by Petitioner) on June 15, 1997. A charge of violating an injunction against domestic violence was nolle prossed as part of a plea agreement. On April 21, 2000, Respondent attempted to notify Petitioner in writing that he may be ineligible for continued employment in a position of special trust working with children or the developmentally disabled because of the acts of domestic violence on November 17, 1994, and June 15, 1997. That certified mailing was not picked up by Petitioner. Thereafter, on June 5, 2000, Respondent re-mailed the notification letter to Petitioner at his place of employment. The notification letter advised Petitioner of his rights to an exemption hearing, but required that he request such hearing within 30 days from his receipt of the letter. The notification letter also advised Petitioner that he could request a formal or informal hearing to challenge the accuracy of his criminal record. As of August 10, 2000, Petitioner had not responded to Respondent's letter of June 5, 2000. On that date, Ms. Barton advised the director of Youthland Academy that Petitioner had been disqualified from working with children or the developmentally disabled. On August 16, 2000, Petitioner responded to Ms. Barton's letter stating that he had misunderstood the notification letter, that he wanted to explain the circumstances of the two incidents of domestic violence, and that he wanted a hearing. Petitioner did not dispute the accuracy of his criminal record at the final hearing. Although Petitioner presented testimony as to the circumstances involved in each conviction at issue in this proceeding, that evidence merely confirmed that each incident constituted domestic violence. Petitioner failed to establish that he should not be disqualified from working with children or the developmentally disabled, that he has been rehabilitated since his last criminal conviction, and that he would not present a danger if continued employment is allowed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Petitioner is disqualified from working with children or the disabled. It is further RECOMMENDED that the final order find that Petitioner is not entitled to an exemption from that disqualification. DONE AND ENTERED this 12th day of February, 2001, 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 12th day of February, 2001. COPIES FURNISHED: Kalvin T. Davis 2100 Northeast Third Court Boynton Beach, Florida 33435 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Virgina A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner is exempt from licensure as a child care facility.
Findings Of Fact Petitioner, Project Esteem, operates a program that offers after-school tutoring and academic enrichment for children in kindergarten to fifth grade and ninth to twelfth grade in Tallahassee, Florida. It is funded by a 21st Century Grant as a program to provide activities and supervision to children in low-income neighborhoods. The 21st Century Grant program is facilitated through the Florida Department of Education. There are several academic and programmatic requirements for a program that receives this type of educational funding from the Department of Education. In July 2013, the Department granted Petitioner an exemption from licensure and recognized Petitioner’s program as a strictly instructional “after school program” pursuant to Florida Administrative Code Rule 65C-22.008(2)(c)2. At the time, meals were not served at the program site. The Department based its decision on a Child Care Licensure Survey completed by Project Esteem which indicated that activities in the program would be “exclusively academic/instructional activities” and that only “individually wrapped snacks would be provided.” Additionally, the survey indicated that the program would operate for less than four hours and that “[s]tudents could enter and leave the program without any supervision.” In December 2014 an updated questionnaire was used by the Department to make licensing determinations. For reasons not related to the Department and not relevant here, Petitioner completed the 2014 survey and submitted it to the Department for its review. Based on that survey, a review of Petitioner’s website and other information, the Department denied Petitioner an exemption from licensure. The Department concluded that Petitioner did not meet the exemption criteria for after school programs contained in Florida Administrative Code Rule 65C- 22.008(2)(c)2. and 3. for “strictly instructional or academic/tutorial,” non-meal programs, unsupervised entry and exit, and USDA Afterschool Meal Program (AMP) optional programs. At the time of the hearing, the program was located in space provided by the New Mount Zion AME Church. Other than providing space, the church was not affiliated with or an integral part of the operation of Petitioner’s program. As such, the program was not exempt as an integral part of a church under section 402.316, Florida Statutes (2015). Project Esteem operated three and one-half hours from 3:00 p.m. to 6:30 p.m., after school and for extended hours during school holidays and summer months. Ms. Stephanie McKoy was the director of the program, and Ms. Adrienne Hampton- Webster was the on-site coordinator for the program. The evidence demonstrated that the program at Project Esteem was “strictly instructional or academic/tutorial in nature” and operated very similar to a school with class periods and field trips. In fact, the clear intent of the program’s owner and director was not to be a day care facility, but to function as an educational enrichment facility.1/ Attendance and student progress were required to be tracked for the 21st Century Grant program and sign in and out logs were used daily for that purpose. Staff met students at the bus and checked them in. The evidence was not clear that safety was the reason Petitioner used such logs, albeit the logs did provide a safety benefit. Older students, whose attendance was logged and of which there were only a few, were free to come and go. On the other hand, elementary students, which were the bulk of Petitioner’s students, were required to be signed out by an authorized adult as a safety measure for the children. Such children were prevented from leaving unless an authorized person signed them out and were clearly under the control and supervision of Project Esteem. Additionally, Petitioner, like a school, gathered health information and kept it on file for each student to ensure all health and safety needs were met for the children while at Project Esteem’s program. Indeed, the website for Project Esteem, indicated that the program was designed to “help working parents” by providing a safe environment for students during non-school hours or periods when school is not in session. As such, supervision was provided by Petitioner’s staff much like a school provides. Under the Department’s rule, a comparison of the various exemptions demonstrated that safety or supervisory services during the time a student was at Petitioner’s facility, was not the defining criteria for determining if a program was an after-school program exempt from licensure, since many such programs offer some supervision and control for programmatic and tort liability reasons. Under the Department’s rule, supervision and control over a child’s entry and leaving the facility was one of many criteria distinguishing certain types of after-school programs defined in subsections (2)(c)2. (supervised programs) and (2)(c)3. (unsupervised entry and exit programs) of rule 65C-22.008(2)(c). However, since supervision of the students’ entering and leaving the program was provided by Project Esteem, Petitioner did not meet the requirements of rule 65C-22.008(2)(c)3. for unsupervised programs. Therefore the Department’s denial of the exemption delineated in subsection (2)(c)3. of the rule should be upheld. In its program, Project Esteem provided a variety of academic programs for its students, including math, English and music. Further, it provided instruction in activities, such as computing, drumming, dance/fine arts, physical education and karate; tutoring in specific subject areas; personal enrichment/character development; outdoor recreation; homework assistance; summer field trips; and snacks and meals. The equipment list for the program listed flags for football, dodge balls, jump ropes, pogo sticks, and recorders (a musical instrument). Such equipment was used for instruction in those activities, but also sometimes incorporated academic instruction. These were not strictly music lessons or math lessons; instead, activities were layered so that instruction and academics were provided at the same time. For example, Petitioner’s lesson plan involving a drum circle was done for the purpose of teaching the children how to play the drum, but also to teach them the academic subjects of music (rhythms and beats) and math (counting). The evidence did not demonstrate that such equipment was used for free-time play. In fact, there was no evidence that demonstrated such equipment was used outside instructional or academic activities, irrespective of whether such activities were layered or not. Similarly, field trips for academic or instructional purposes are not prohibited by the rule. Meals were contracted to be provided to the students at Project Esteem by Juvenile Transition Team, the non-profit parent company of Project Esteem also directed by Ms. McKoy. The meals provided complied with USDA AMP. However, Project Esteem’s staff served the meals at its program and had several employee positions designated for such purpose. The evidence was not clear that such staff prepared the meals. However, the service of the meals by Petitioner disqualified it from exemption under rule 65C-22.008(2)(c)2. and, given these facts, the Department’s denial of the exemption should be upheld. There was some evidence that the Department narrowed the scope of rule 65C-22.008(2)(c) by “interpreting” rule 65C- 22.008(2)(c)2. to exempt only programs like a ballet or dance school where a child goes after school for instruction in ballet for 30 minutes to an hour and then leaves.2/ Further, the Department narrowed the meaning of an “academic/tutorial” program to a program that offered one-on-one instruction in a certain topic or subject area. The Department felt Petitioner’s manner of teaching or instructing in multiple areas at the same time was prohibited by subsection (2)(c)2. of its rule. However, the language of subsection (2)(c)2. of the rule does not prohibit layering or instructing in more than one subject at a time, but only requires that program “activities” be “strictly instructional or academic/tutorial” in “nature.” This narrowing of the language of the rule was not simple interpretation of the rule, but the implementation of policy not otherwise adopted by the agency. Unadopted policy cannot be enforced by an agency. As such, Petitioner’s method of teaching, tutoring or instructing in more than one subject area at a time is not prohibited by subsection (2)(c)2. of the rule. However, as indicated earlier, the serving of meals does disqualify Petitioner from exemption under subsection (2)(c)2. of the rule. Therefore, given these facts, the Department’s denial of the exemption should be upheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding that the decision to deny the exemption from licensure as a child care facility was proper and dismissing the request for hearing filed in this cause. DONE AND ENTERED this 30th day of October, 2015, in Tallahassee, Leon County, Florida. S Diane Cleavinger Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2015.
