The Issue Whether Respondent committed the child care licensing violations alleged in the Administrative Complaints; and, if so, what penalty should be imposed.
Findings Of Fact The Department is responsible for licensing and monitoring “child care facilities,” as that term is defined in section 402.302(2), Florida Statutes. Reid’s Educational Child Care Centre, LLC, d/b/a Reid’s Educational Child Care Center (“Reid’s” or “the facility”) is a child care facility licensed by the Department. Reid’s is owned and operated by Nickesha Reid and is located at 10658 Biscayne Boulevard in Jacksonville, Florida. License Violation History Reid’s has a dizzying history of violating Department child care licensing standards. At final hearing, Department investigators testified that they had to rely upon the Department’s matrix, which documents a facility’s history of violations by date and class, as well as the penalties imposed, and whether monetary penalties have been paid. The matrix allows Department staff to cross-reference prior cases to identify repeated violations of the same standard. For purposes of this Recommended Order, the undersigned has included only the violations documented within the two-year period preceding the consolidated administrative complaints at issue in this case. On December 14, 2017, Reid’s was cited for lack of a Level II background screening (“background screening”) for Ms. Reid.2/ During a renewal inspection on July 11, 2018, Petitioner cited Reid’s for the following violations of child care licensing standards: (1) the child-to-teacher ratio for mixed age ranges including a child under the age of one, direct supervision of children in its care, and background screening for Ms. Reid. Each of these violations is a Class II violation of child care licensing standards. One of the most egregious violations cited during the July 11, 2018 inspection was a 10-year-old child in charge of the infant classroom. Moreover, the infant classroom was out of ratio, with the 10-year-old “teacher” in charge of five infants, rather than the required ratio of 1:4. While Department staff was on-site at the facility, Ms. Reid responded to the Department’s calls, appeared at the facility, and attempted to address the ratio violation by personally covering the infant room. However, Ms. Reid still had no background screening documentation, which led to the citation for violation of the background screening requirement. The Department filed an Administrative Complaint against Reid’s on July 25, 2018, solely on the background screening violation. In the complaint, the Department imposed a fine of $50 for this Class II violation, the second violation of the same child care licensing standard within a two-year period. On July 23, 2018, during a complaint investigation,3/ Petitioner cited Reid’s for the following violations of child care licensing standards: (1) teacher-to-child ratios, (2) inadequate supervision, (3) potentially harmful items accessible to children in care, and (4) background screening for child care personnel, all of which are Class II violations. In addition, the Department cited Reid’s with a Class I violation for serious health hazard conditions. Pursuant to the administrative complaint issued August 20, 2018 (based on the July 23, 2018 complaint inspection), Reid’s was placed on a probationary status for six months. The terms of the probation were as follows: The facility shall incur no Class I violations during the probationary period. The facility shall incur no Ratio, Background Screening or Supervision violations during the probationary period. The facility shall incur no Facility Environment violations during the probationary period. The facility must always maintain a safe and clean environment. Non-active individuals listed in the Corporation cannot be involved in the day- to-day operation or present around children at any time. The administrative complaint provided, “Failure to comply with these conditions may result in revocation of Respondent’s license.” The Department’s findings in the administrative complaint became final on October 24, 2018, when Reid’s request for hearing on the administrative complaint was dismissed as untimely. The Department’s final order was not appealed. Reid’s probationary status was effective October 24, 2018, through April 22, 2019, and required monthly Department inspections. In addition, on August 20, 2018, Petitioner issued Reid’s a provisional license, effective August 21, 2018, through February 16, 2019, because Reid’s then-director, Delaria Blake, did not have the director credentials required by section 402.305(2)(f). Failure to maintain a credentialed director is a Class II violation of the Department’s child care licensing standards. The provisional license was resolved shortly after issuance when Reid’s hired Tracee Creighton, a properly credentialed director, who served as Reid’s interim director through September 2018. November 16, 2018 Administrative Complaint The November 16, 2018 Administrative Complaint was initiated pursuant to another complaint investigation,4/ conducted by Child Care Supervisor, Hannah McGlothlin, on September 13, 2018. Background Screening When Ms. McGlothlin arrived at Reid’s, she was greeted by Grady Dixon, the staff member in charge. Mr. Dixon is also Ms. Reid’s husband and Respondent’s registered agent. Ms. McGlothlin observed that Mr. Dixon was supervising two employees on-site. Upon review of the employee files, Ms. McGlothlin determined that Mr. Dixon became employed at Reid’s on August 2, 2018, but that his required background screening was not completed until August 3, 2018. When asked by Ms. McGlothlin, Mr. Dixon verified August 2, 2018, as his date of employment. At final hearing, Mr. Dixon maintained there was an error in his personnel file, and that he did not become employed at Reid’s until August 3, 2018. Mr. Dixon said he made a mistake in writing August 2, 2018, on his personnel form. Mr. Dixon’s testimony was not persuasive. Mr. Dixon became employed by Reid’s as “other personnel” on August 2, 2018. Mr. Dixon’s required background screening was not complete and on file at the facility until August 3, 2018. On July 25, 2018, Ms. Reid completed a Non-Active Member Affidavit for the Department, in which she swore that she had “a non-active role” at Reid’s, meaning she is an “individual who does not interact with the children, does not go on-site of the program operation during operating hours, and whose role does not involve the day-to-day operation of the child care program.” Further, the affidavit provided that Ms. Reid understood she must immediately notify the Department at any time in the future her role changed to an active role and “complete a background screening” as provided by statute. During Ms. McGlothlin’s field visit on September 13, 2018, she determined that Ms. Reid’s role had become that of an active member because she was going on-site during operating hours, had contact with children at Reid’s, and was involved in day-to-day business of Reid’s. As part of her investigation, Ms. McGlothlin spoke with a parent who stated “it is always [Ms. Reid] and [Mr. Dixon] at the facility” when she picks up her child in the afternoons. Virginia Ritter is the parent of a child formerly enrolled at Reid’s. Ms. Ritter testified that she met Ms. Reid at the facility in June 2018 when she first enrolled her son at Reid’s. Ms. Ritter further testified that, although she paid her monthly tuition online, she met with Ms. Reid at the facility at least twice between June 2018 and December 2018 to address billing issues--once when she changed the number of days her son was attending, and once when she withdrew him. Ms. Reid denied meeting with Ms. Ritter at the facility. The Department alleged that Ms. Reid was further involved in the day-to-day activities of the facility by corresponding with parents and the Department via electronic mail. Respondent introduced an undated email from reidseducationalchildcare@gmail.com to Ms. Ritter and John Kennedy5/ which reads, as follows: Good morning, We are contacted Emmett parents because he has not been at school for the last week and no one has advised us of what is going on. [sic] to his mother and no responded. Can we please have an update. Although the email was not signed by Ms. Reid, or any employee of Reid’s, Ms. Ritter testified, credibly, that she knew the email was from Ms. Reid because it reads consistently with Ms. Reid’s speech patterns. The email reads consistently with Ms. Reid’s speech patterns exhibited at final hearing. On Monday, December 31, 2018, Ms. Ritter replied to reidseducationalchildcare@gmail.com, informing Reid’s that her son would not be returning to the facility and the reasons therefor. Ms. Ritter further testified that Ms. Reid was often on-site when she picked up her son from the center on Fridays prior to her withdrawal of him in December 2018. Ms. Reid prepares meals at home and delivers them to the facility to be served to the children. She testified that she does not enter the facility to deliver the meals, but rather leaves them at the door outside the facility. Ms. Reid’s testimony was contradicted by Carrie Gaouette, a former employee, who testified, credibly, that Ms. Reid delivered meals to the front desk at the facility on a daily basis. In addition to the foregoing evidence of Ms. Reid’s involvement in the day-to-day business of the facility, Ms. Reid has entered the facility during operating hours, at times since executing her Non-Active Member Affidavit, to check mail and collect payments. During field visits by Department staff on September 13 and October 17, 2018, Ms. Reid contacted and spoke to Department staff to address the pending citations. Subsequent to signing the Non-Active Owner Affidavit, Ms. Reid has been on-site at the facility during operating hours, and has been actively involved in the day-to-day operation of the center, including meal preparation, interacting with parents for enrollment and changes thereto, addressing billing issues, and intervening in licensing issues. As an active owner, Ms. Reid is required to undergo background screening. During the complaint investigation on September 13, 2019, Ms. McGlothlin placed Reid’s on notice of the background screening violation and set a due date for compliance by November 7, 2018. At a subsequent inspection on December 27, 2018, Ms. McGlothlin determined that the background screening violation for Ms. Reid had not been corrected. The Department proved the August 20, 2018 Administrative Complaint allegations of background screening violations with regard to both Mr. Dixon and Ms. Reid. Penalties The background screening requirement is a Class II child care licensing standard. Reid’s was previously cited for failure to meet background screening requirement on December 17, 2017, July 11, 2018, and July 23, 2018. The August 20, 2018 Administrative Complaint is Reid’s fourth citation for background screening violations within a two-year period. According to Department rule, the monetary penalty for the fourth violation of the same Class II child care licensing standard is $75 per day for each such violation. See Fla. Admin. Code R. 65C-22.010. The Department seeks to impose a fine of $2,925 against the facility for this violation, calculated at $75 per day for 39 days--from September 13, 2018 (the violation notice date), through November 7, 2018 (the corrective action date). The Department correctly calculated the monetary penalty to be imposed against Reid’s for the background screening violations. The Department also seeks revocation of Reid’s child care license based on the background screening violation. In the Administrative Complaint, the Department alleges, as follows: Provider is currently on Probation for Facility Environment of which the terms were not to incur any Background Screening and Non-Active Individuals listed in the Corporation cannot be involved in the day- to-day operation or present around children at any time. Provider has failed to comply with the terms of the Probation therefor their license is being Revoked. The Department’s allegation is unfounded. Reid’s probationary status was effective October 24, 2018, but the violation was cited on October 20, 2018. This violation of the background screening requirement was not a violation of the terms of the probation. January 11, 2019 Administrative Complaint Because Reid’s was placed on probation, it was required to undergo monthly inspections. Ms. McGlothlin conducted a routine inspection of the facility on December 27, 2018. Direct Supervision Upon her arrival at the facility, Ms. McGlothlin was greeted at the door by Carrie Gaouette, the only child care personnel on-site. When Ms. Gaouette opened the entry door, she closed the door leading to the classrooms, effectively blocking her view of the children and leaving them with no supervision. Ms. Gaouette explained that she shut the door to the classroom to prevent children from running out the front door while it was open to allow Ms. McGlothlin to enter. Florida Administrative Code Rule 65C-22.001(5)(b) provides, “[d]irect supervision means actively watching and directing children’s activities with the same room or outdoor play area . . . and responding to the needs of each child while in care.” The rule requires child care personnel to “be present with [their assigned] group of children at all times.” For the brief time Ms. Gaouette opened the door to greet and allow Ms. McGlothin entry to the facility, Ms. Gaouette was not in the same room with, and not directly supervising, the children in her care. The direct supervision requirement is a Class II standard. Reid’s was previously cited for violating the direct supervision standard on July 11 and 23, 2018. According to Department rule, the monetary penalty for the third violation of the same Class II child care licensing standard is $60 per day for each such violation. See Fla. Admin. Code R. 65C-22.010. In the Administrative Complaint, Department seeks to impose a monetary penalty of $60 for one day. The Department correctly calculated the fine to be imposed for this violation of the direct supervision standard. Child Health Examination Forms During her inspection, Ms. McGlothlin reviewed the records of all 11 children enrolled at the facility on that date. Ms. McGlothlin found that Reid’s did not have a current Student Health Examination form DH 3040 (“health examination form”) on file for child M.S. Pursuant to rule 65C-22.001(7)(q), Reid’s is responsible for obtaining a complete and properly executed health examination form for each child in its care. Reid’s violated the child care licensing standard when it failed to maintain a current health examination form for child M.S. The requirement to maintain child health examination forms is a Class III standard. Reid’s was previously cited for violation of this standard on July 11 and November 20, 2018. This violation is the third violation of the same Class III standard within a two- year period. According to Department rule, the monetary penalty for the third violation of the same Class III child care licensing standard is $25 per day for each such violation. See Fla. Admin. Code R. 65C-22.010. In the Administrative Complaint, the Department seeks to impose a monetary fine of $25 against Reid’s for this violation of child care licensing standards. The Department correctly calculated the fine to be imposed on Respondent for this violation of the child health examination form standard. False Statement/Information Pursuant to Department rule, Reid’s is required to have at least one staff member on-site at all hours of operation with First Aid/CPR training, verified by a current, valid First Aid/CPR card. See Fla. Admin. Code R. 65C-22.001(6). Ms. Gaouette was a new employee, and the only child care provider on-site, during Ms. McGlothlin’s inspection on December 27, 2018. When Ms. McGlothlin returned to the office on December 27, 2018, she reviewed her inspection report and realized that she had not checked the files to ensure that Ms. Gaouette had a valid First Aid/CPR card. Ms. McGlothlin both called and emailed Reid’s on the afternoon of December 27, 2018, to obtain a First Aid/CPR card for Ms. Gaouette; however, she was unable to reach anyone at the facility. No one from the facility either returned her calls or responded to her emails on December 27, 2018. On the morning of December 28, 2018, Mr. Dixon, who was the staff member in charge, read Ms. McGlothlin’s emails and reviewed her telephone messages requesting a First Aid/CPR certificate for Ms. Gaouette. Mr. Dixon reviewed Ms. Gaouette’s personnel file and found no First Aid/CPR certificate. Ms. McGlothlin returned to Reid’s on December 28, 2018, and requested Ms. Gaouette’s First Aid/CPR card from Mr. Dixon. Mr. Dixon provided Ms. McGlothlin with a First Aid/CPR card purporting to certify that Ms. Gaouette completed the required training on November 6, 2018, from instructor Palecia Crawford. The space on the card for the trainee’s name had been “whited out” and Ms. Gaouette’s name written in. The spaces for the date of the training and date of expiration were also “whited out” and the date “Nov/6/2018” written in for the date of training, and “Nov/6/2020” written in for the date of expiration. Ms. Crawford did not train Ms. Gauoette on November 6, 2018, or on any other date prior to December 28, 2018. Ms. Gaouette had not received First Aid/CPR training from any entity prior to December 28, 2018. Mr. Dixon, on behalf of Reid’s, presented Ms. McGlothlin with falsified documentation of Ms. Gauoette’s First Aid/CPR training. At final hearing, Mr. Dixon denied that the First Aid/CPR certificate provided to Ms. McGlothlin was Ms. Gaouette’s certification. Instead, he testified that, on December 28, 2018, he was unable to locate a certificate in Ms. Gaouette’s personnel file, so he provided Ms. McGlothlin with a First Aid/CPR card from the facility’s “demo file,” a file set up as an example of what a complete employee file should contain. Mr. Dixon’s testimony was not credible. Mr. Dixon did not represent to Ms. McGlothlin when he provided the certificate to her that it was just an example from a demo file. If it was just an example, there was no reason to change the name and date of the training on the original card. The original, or for that matter, a copy of, the trainee’s card would be sufficient for an example in a “demo file.” Mr. Dixon had both motive and opportunity to falsify a First Aid/CPR training card for Ms. Gaouette. Mr. Dixon admitted on cross-examination that it would have been easier to just tell Ms. McGlothlin that the facility did not have a valid First Aid/CPR certificate on file for Ms. Gaouette. Child care personnel providing fraudulent information related to the child care facility to a licensing authority, that could result in the death or serious harm to the health, safety, or well-being of a child is a violation of a Class I licensing standard. Penalties Class I violations of Department rules are described as “the most serious in nature, [which] pose an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child.” Fla. Admin. Code R. 65C-22.010(1)(d)1. Rule 65C-22.010(2)(e) provides appropriate disciplinary sanctions to be imposed for Class I violations, as follows: For the first and second violation of a Class I standard, the department shall, upon applying the factors in Section 402.310(1), F.S., issue an administrative complaint imposing a fine of not less than $100 nor more than $500 per day for each violation, and may impose other disciplinary sanctions in addition to the fine. Section 402.310(1)(b) provides: In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered: The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of ss. 401.301-402.319 have been violated. Actions taken by the licensee or registrant to correct the violation or remedy complaints. Any previous violations of the licensee or registrant. In the Administrative Complaint, the Department seeks to impose a fine of $250 and to revoke Reid’s child care license. This violation is severe. Significant harm could befall a child left under the care of personnel who have not had basic CPR training. This violation is the facility’s second Class I violation within a two-year period. This violation occurred during the facility’s probationary period, which commenced on October 24, 2018. The terms of probation prohibited the facility from incurring any Class I violations during the probationary period. The Department has authority to revoke Reid’s license based on this violation of its probationary terms. Ms. Gaouette received First Aid/CPR training on January 2, 2019. The facility has a lengthy and dizzying history of violations. Many of the monetary penalties imposed for past violations remain unpaid. Throughout the final hearing, Ms. Reid refused to accept responsibility for the violations documented in the subject, as well as previous, administrative complaints. She attacked the credibility of Department witnesses and demonstrated a complete lack of respect for the Department’s authority. Despite Ms. Reid’s unwillingness, or inability, to complete the required background screening, she has failed to comply with the non-active owner requirements and place competent, qualified, employees in charge of the day-to-day operations of the facility.
Recommendation Upon consideration of the evidence presented at final hearing, and based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Children and Families, finding Reid’s Educational Child Care Centre, LLC, d/b/a Reids, Educational Child Care Center, committed Class I, II, and III violations of child care facility licensing standards, imposing a monetary penalty in the amount of $3,260, and revoking Reid’s child care facility license. DONE AND ENTERED this 5th day of June, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2019.
The Issue Did Respondent, Department of Children and Families (Department), correctly deny the application of Petitioner, Laura's Learning and Enrichment Center (Laura's Learning), for licensure renewal for failure to meet the minimum licensing standards for child care facilities?
Findings Of Fact The Legislature has charged the Department with regulating and licensing child care facilities. Laura Smith owns and operates Laura's Learning in Lake Wales, Florida. Since 2009, the Department has licensed Laura's Learning as a child care facility. The charges involved in this proceeding are the first time that the Department has acted against Laura's Learning's license. Ms. Smith submitted an amended application to renew her license on November 21, 2019. The Department proposes to deny renewal of the license because Ms. Smith failed, the Department asserts, to protect her adopted son, B.S., from bizarre punishment and resulting physical and emotional harm. It also alleges that Ms. Smith failed to provide a required update to her renewal application. In its case number 2019-197752-01, the Department made a verified finding of abuse by Ms. Smith of B.S., her adopted son, by failing to protect him from bizarre punishment and physical injury. Because of this, the Department revoked Ms. Smith's license to operate a family foster home. However, Ms. Smith did not oppose revocation and wished to surrender her license. Ms. Smith did not amend her application to advise the Department that it had revoked her foster home license. Ms. Nancy Ebrahimi learned of the verified finding and license revocation during her routine review of Department registries during the license renewal process. August 7, 2019, after a shelter hearing in which Ms. Smith said that she did not want B.S. in her home any longer, the court ordered that B.S. be placed in the shelter custody of the Department. An August 8, 2019, Shelter Order at Review continued this placement. On September 18, 2019, the court granted the Department's Petition for Termination of Parental Rights of B.S. This decision included consideration of the fact that Ms. Smith signed an Affidavit and Acknowledgment of Surrender, Consent to Termination of Parental Rights, and Waiver of Notice form before the Department filed its Termination of Parental Rights Petition. Ms. Smith's relationship with B.S. began when she served as his foster parent. She adopted him when he was about seven (born March 11, 2005). B.S. lived in Ms. Smith's home in Lake Wales, Florida. He occasionally helped with chores, such as yardwork, at Laura's Learning. He was also responsible for chores at home. Ms. Smith had other children, including an adult biological daughter, Jayda Miles, who, at the times involved here, lived in Cocoa Beach, Florida, and visited Ms. Smith's home regularly, often with her husband, Antonio Miles. Mr. and Ms. Miles lived on Patrick Air Force Base because of his service in the Air Force. Another adult sibling, Chaundi Parham, lived at Ms. Smith's home and worked sometimes at Laura's Learning. Young twins who were Ms. Smith's foster children lived in the home with a third foster child. On June 17, 2019, B.S. was doing yardwork at Laura's Learning. Ms. Parham was overseeing him. B.S. could not complete mowing because the mower was flooding. Ms. Parham directed him to sit on a bench and wait for Ms. Smith to arrive. B.S. removed a bag of Cheetos from the back pack of the twins, who were also at Laura's Learning. Ms. Parham caught him eating the Cheetos in the bathroom. She scolded him and called Ms. Smith. Ms. Parham was unable to reach Ms. Smith, so she called her older sister, Ms. Miles. Ms. Parham then told B.S. to sit on a bench to await Ms. Smith. B.S. jumped the fence surrounding the child care center and ran away. B.S. was 14 years old at the time. Ms. Parham reported B.S. as a runaway. During the preceding year, B.S. had started regularly having trouble at school. He frequently got in fights. Lake Wales police officer, Edgar Claros, responded to the report of B.S. running away. On June 18, 2019, Ms. Smith reported to the police that B.S. had returned home. She also reported that he said he wanted to live on the streets and left home again. B.S. had run away two or three times before. The Department assigned Ms. McConnell-Bailey to investigate. On June 18, 2021, Ms. McConnell-Bailey visited Ms. Smith to question her about the runaway report. She also questioned Ms. Smith about reports from an unidentified source, possibly a caller to the Department's abuse line, about maltreatment of B.S. including use of a "taser1", striking him with various 1 "Taser" is a brand name for a stun gun and likely not the brand involved here. The device was a stun gun that required contact of its electrode prongs with the subject's skin, called "drive tasing." There is no evidence that any of the tasing involved darts. "Taser" and "tase" are used in this Order because that is the description the witnesses used. objects including a wooden spoon, and making him sleep in the garage and laundry room. Ms. Smith was visibly angry. She denied the allegations and said B.S. was not going to ruin her business and take everything she had worked so hard for. She said B.S. was lying and that she had no idea where he was, except that some people told her he was somewhere in the neighborhood of a Publix. Ms. Smith did not express concern for B.S.'s well-being. She did tell Ms. McConnell-Bailey that she had removed all pictures of B.S. from displays of family photographs because they upset her. Ms. Smith began crying during the interview. She said the situation upset her and was causing her to get sick. She said she felt she was too old for the troubles B.S. caused and she did not want to deal with him anymore. On June 21, 2019, Ms. Smith called Detective James Lewis and advised him she had heard that B.S. was near the area of G. Street and Lincoln Avenue. Ms. Smith told Detective Lewis that she hoped the officers did not find B.S. and that he keeps running. Ms. Smith also said B.S. had been lying about her family, specifically her daughter, Jayda, falsely claiming abuse. And she said she wanted to file for an injunction against him. Ms. Smith did not express or display any concern for B.S. Ms. Smith, however, told Detective Lewis that she was going to the area where B.S. might be, but that he would run from her. Detective Lewis passed the information about B.S.'s location on to Officer Eric Ricks, who located B.S. in the area. Officer Ricks located B.S., picked him up, and spoke with him. Officer Ricks asked B.S. why he ran away and did not want to return home. B.S. told Officer Ricks that his sister, Ms. Miles, tased him and pepper sprayed him on June 16 in the presence of Ms. Smith, Mr. Miles, and Ms. Parham. B.S. indicated that it was because he had tried to steal something to eat. B.S. was apprehensive about returning to Ms. Smith's home. B.S. appeared to be on the verge of tears. B.S. did not say anything about being tased earlier in the year, around Memorial Day, on the patio. Officer Ricks transported B.S. to the police station where Detective Lewis assumed responsibility for the investigation. Detective Lewis interviewed B.S. with Child Protective Investigator Ruth McConnell-Bailey, for forty-five minutes to an hour, the night of June 21, 2019. B.S. told Detective Lewis that Ms. Miles had repeatedly tased him on his left chest area and on his upper left arm and sprayed him with pepper spray on June 16, 2019. He said this was because he had been caught preparing to steal a honeybun. This, he said, was the reason he ran away and did not want to return. B.S. did not say anything about being tased earlier in the year, around Memorial Day, on the patio. Detective Lewis inspected B.S.'s chest and left arm. He found injuries and scabs that he thought were consistent with the injuries made by a taser. The pain from tasing that B.S. described was consistent with the pain Detective Lewis experienced when he was tased during training. Detective Lewis did not measure the distance between scabs or other injuries to determine if they corresponded with the typical separation of the prongs of a taser. B.S. also told Detective Lewis that he was wearing snowman pajamas the night of June 16. After the interview, Detective Lewis and Ms. McConnell-Bailey transported B.S. to the home of Cheryl Jennings who had agreed to provide him lodging. B.S. was happy to be taken there instead of Ms. Smith's home. B.S. said that he felt unsafe at Ms. Smith's home. Detective Lewis and Ms. McConnell-Bailey then went to Ms. Smith's home to obtain clothes for B.S. and to obtain the snowman pajamas. The pajamas had been washed, dried, and folded. Detective Lewis examined the pajamas. He identified one small burn hole on the chest area of the pajamas. He thought the hole was consistent with use of a taser with its prongs placed directly on the person being tased. Although B.S. claimed he had been repeatedly tased on his left chest and left arm, the pajamas had only one possible burn hole. A few days later, Detective Lewis interviewed Ms. Miles. She denied the claims of B.S. She also allowed Detective Lewis to search her car. He did not find a taser or pepper spray. On June 25, 2019, Thia Lomax, Children's Home Society Children's Advocacy Center Case Coordinator, Child Protection Team, interviewed B.S. Ms. Lomax is a trained and experienced forensic interviewer. Ms. Lomax noticed marks on B.S.'s neck. He told her they were from a recent fight. Ms. Lomax interviewed B.S. for about an hour. The record contains a video recording of the interview. The interview is neutral and undirected. Ms. Lomax does not suggest or imply responses by her questions or body language. However, Ms. Lomax also does not test or challenge B.S.'s statements. B.S. basically made the same report about events the night of June 16 as he made earlier to Detective Lewis. He also made a new claim that Ms. Miles tased him on the patio earlier in the year, around Memorial Day, in the presence of Ms. Smith and Ms. Parham. His description did not identify a number of tasings or how long the experience lasted. B.S. also made claims about being struck by a broom and a spoon and made to "work like a slave." On August 6, 2020, the parties deposed B.S. A transcript of the deposition is also part of the record. B.S. did not testify at the hearing. B.S.'s deposition testimony differed from the interviews. B.S. demonstrated confusion and changed the details of his reports. The evidence about the initial events of the night of Sunday, June 16, 2019, is consistent. Mr. and Ms. Miles were spending that night at Ms. Smith's home. On June 16 Ms. Smith took B.S. to Walmart sometime after midnight to buy a Sprite. Antonio Miles was at the Walmart, having arrived separately. He observed B.S. preparing to steal a honey bun. When B.S. saw Mr. Miles watching him, he abandoned his plan to steal a honey bun. Afterwards B.S. returned home with Ms. Smith and went to bed, wearing pajamas with snowmen on them. When Mr. Miles returned to the home, he told Ms. Smith about the honey bun. Ms. Smith called B.S. into the family room. From this point forward, the evidence and the testimony of the witnesses differs significantly. According to Ms. Smith, Ms. Miles, and Mr. Miles, Ms. Smith called B.S. into the family room and asked him about the honey bun incident. He told her he was just looking at the pastry. They further testified that Ms. Smith talked to B.S. about "making bad choices" and sent him back to bed. Ms. Smith, Ms. Miles, Ms. Parham, and Mr. Miles all testified that Ms. Parham was not present because she was with friends in Orlando. Mr. Miles, Ms. Miles, and Ms. Smith are adamant that Ms. Miles did not tase or pepper spray B.S. They also agree that Ms. Parham was not present during the conversation with B.S. about the honey bun because she was in Orlando. And they agree he was not made to sleep in the laundry room. According to B.S., when Ms. Smith called him from his room, all the adults, including Ms. Parham, were present in the family room. He says that when he denied preparing to steal the honey bun, Ms. Smith stated, "No you are lying." In his interviews, B.S. stated that Ms. Miles went to her car and returned with a pink can of pepper spray and a pink "taser" and began tasing him. He said that Ms. Miles tased him five or six times on his upper left arm and the left side of his chest. The taser got tangled in his pajamas he said. Then Ms. Miles began spraying him with pepper spray. According to B.S.'s statements, the adults sent him outside to wash the pepper spray from his face. He then went to bed in the laundry room. He said that Ms. Smith did not intervene. In deposition, subject to cross examination, B.S. amplified and expanded his claims to the point of incredulity. For instance, in his interviews he said Ms. Miles had tased him five or six times the night of June 16. In his deposition testimony, B.S. testified "they were tasing me all over the house." (R. Ex. K, p. 52). He also testified that the tasing went on for two or three hours. He volunteered that Ms. Miles tased him 50 times. He also said that it could have been 100 times. He said his pajamas had 50, maybe 100 holes from the tasing. (R. Ex. K, p. 52). These claims differ significantly from those made in his interviews. Detective Lewis found only one hole that he thought could have been caused by a taser. According to B.S., Ms. Smith did not attempt to intervene to stop Ms. Miles. She also did not report the alleged incident to law enforcement. Ms. Miles, Mr. Miles, and Ms. Smith all firmly denied the allegations of tasing and pepper spraying the night of June 16. During the videotaped interview, B.S. first claimed that Ms. Miles tased him three or four times when on the patio Memorial Day. He did not mention this in his earlier interviews. His deposition testimony about tasing on the patio was very different from his interview statements. He testified that Ms. Miles tased his entire chest and stomach up to his neck Memorial Day. He said Ms. Smith was on the patio and Ms. Parham was sitting on a couch inside looking out. At first, he said Ms. Miles tased him 20 times. He went on to say it was more than 20, maybe 50 or 100 times. He said the Memorial Day tasing lasted from about 6:00 p.m. to 11:00 p.m. He also testified that Ms. Smith and Ms. Miles stayed on the patio the entire time. Ms. Parham, he said, stayed sitting on the couch watching the entire time. Nobody took a break, went to the restroom, or got something to drink, according to B.S.'s testimony. Ms. Miles, Ms. Smith, and Ms. Parham all credibly deny this account. In addition, the claims are implausible because of the varying numbers of tasings claimed and the length of time B.S. said the tasings went on, as well as nobody leaving the patio for five hours. In the course of the interviews and his deposition, B.S. made claims of being hit by a broom, hit by a spoon, made to sleep in the garage, and made to sleep in the laundry room. Ms. Smith denied these allegations. They are not corroborated. The evidence to support these claims is not clear and convincing. B.S.'s shifting version of events, the firm, convincing denials of all other witnesses, and the inconsistency of only one burn on the pajamas from four to six tasings, let alone 50 to 100, keep the evidence of the tasing and pepper spraying from being clear and convincing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, Department of Children and Families, enter a Final Order granting the license renewal application of Petitioner, Laura's Learning and Enrichment Center. DONE AND ENTERED this 19th day of April, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2021. COPIES FURNISHED: Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Hannah George, Esquire Law Firm of Gil Colon, Jr. 325 East Davidson Street Bartow, Florida 33830 Raquel Ramos, Esquire Department of Children and Families 1055 U.S. Highway 17 North Bartow, Florida 33830 Javier A. Enriquez, Esquire Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
