The Issue At issue in this proceeding is whether Petitioner's request for exemption from employment disqualification should be approved.
Findings Of Fact In or about December 1998, the Department of Children and Family Services (Department) initiated an employment screening pursuant to Chapter 435, Florida Statutes, incident to Petitioner's application for employment at a child day care center in Delray Beach, Florida. That screening revealed that on September 28, 1998, Petitioner was arrested for exposure of sexual organs, a violation of Section 800.03, Florida Statutes, and unnatural and lascivious acts, a violation of Section 800.02, Florida Statutes. The screening further revealed that on October 20, 1998, Respondent entered a plea of guilty to the charges; adjudication was withheld; and Respondent was placed on probation for a term of 6 months. Given the screening results, the Department notified Respondent by letter of December 14, 1998, that he was ineligible for continued employment in a position of special trust (working with children or the developmentally disabled), and accorded him an opportunity to request an exemption under the provisions of Section 435.07, Florida Statutes. Petitioner requested such an exemption, and the Department duly-convened a hearing to consider Petitioner's request. Subsequently, the Department advised Petitioner by letter of January 29, 1999, that his request for exemption was denied, and these proceedings ensued at Petitioner's request to challenge the Department's decision. As observed in the preliminary statement, neither Petitioner nor anyone on his behalf appeared at hearing, and no proof was offered to support his claim for exemption. Such failing is dispositive of the case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for exemption from employment disqualification. DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 30th day of July, 1999. COPIES FURNISHED: Henry C. Cornelius 2315 Southwest 22nd Avenue Boynton Beach, Florida 33445 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401 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
The Issue The issue in this proceeding is whether Respondent committed the violations as alleged in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact The Department of Children and Families is the agency charged with the responsibility of licensing child care facilities in the State of Florida. § 402.305, Fla. Stat. Respondent was licensed by the Department to operate a child care facility located in Callahan, Florida. Tausha Howard is the co-owner/director of Agape, and has been since it opened approximately 10 years ago. Tracey Flanders is a family services counselor. As a family services counselor, Ms. Flanders is responsible for inspecting child care facilities and family child care homes. Agape was one of the child care facilities that she inspected. She has been a family services counselor for three years and prior to that was a child protective investigator for DCF. Prior to her employment with DCF, she was a preschool teacher for eight years, which included some supervisory responsibilities and knowledge of compliance with DCF rules. Out of Ratio/Improper Supervision The Administrative Complaint charged Respondent with being out-of-ratio regarding the number of children per staff member in violation of Florida Administrative Code Rule 65C- 22.001(4)(b)2. Specifically, the Administrative Complaint alleges as follows: During a routine inspection conducted on March 6, 2013, DCF licensing counselor Tracey Flanders observed that: There was one (1) staff member supervising seven (7) children between the ages of one (1) and two (2) years old. A ratio of one staff for (6) children is required. This violation is based on Ms. Flanders’ observations during a March 6, 2013 routine inspection of Agape. She did a walk-through of the facility and examined the children’s records. As part of her walkthrough, she went to all of the classrooms. In each classroom, she counted the children and inspected for cleanliness. While in the toddler room, Ms. Flanders observed the children playing on the floor around the teacher. She counted seven children between the ages of one to two years old being supervised by one teacher. There was one two-year-old and six one-year-old children. Ms. Flanders explained at hearing that in mixed age groups, the required ratio of the youngest child applies. For mixed aged groups of children between one and two years of age, the minimum staff to child ratio is one staff member to six children. Agape has a classroom for preschool children, as well as one for the toddler children. Ms. Howard, however, disagrees that there were seven children in the toddler room and insisted that there were only six. She believes there was some kind of “miscommunication or oversight” because the seventh child (W.) had recently “aged out” of the toddler room and had been moved to the preschool class. The toddler class was where W. was assigned prior to his second birthday and reassignment to the preschool class. At the time of the inspection, the preschool children were out on the playground and came in while Ms. Flanders was present. Ms. Howard recalls she was standing in the baby room window. According to Ms. Howard, W. was being redirected from “bothering the blocks” to go rejoin the preschool group who was having story time. Therefore, she contends that the child was not in the toddler room, but was being redirected into the preschool classroom. Ms. Flanders insists that Ms. Howard was not with her when this incident happened, that the children were playing on the floor, and that the two-year-old in question (W.) was not moved from the toddler room to the preschool room when she was there. Accordingly, she cited Respondent for an out-of-ratio violation. Prior to the March 6, 2013 routine inspection, Agape had previous instances of being in violation of the ratio requirements. As a result of prior Administrative Complaints which included ratio violations, DCF and Respondent entered into a settlement agreement in March 2013, in which Respondent acknowledged that there have been five Class II ratio violations within a two-year period. Additionally, Respondent agreed that if future ratio violations occurred, the license “will again be subject to suspension or revocation.” The settlement agreement also stated that Respondent would finish out its then current probationary status through March 11, 2013, at which time Agape would be returned to an annual license. It is assumed that since the instant Administrative Complaint was dated April 11, 2013, that the license is currently on regular license status. Immunization Form Violation The Administrative Complaint charged Respondent with not having required immunization forms for children in its care, in violation of Florida Administrative Code Rule 65C- 22.006(2)(c). Specifically, the Administrative Complaint alleged that during the routine inspection by Ms. Flanders on March 6, 2013, she observed that a current form 680, Florida Certification of Immunization, was missing for two children. This allegation was based upon a file review made by Ms. Flanders which revealed that immunization records for two of the children, H.A. and M.C., had expired. The same violation was cited three previous times within a two-year period. On a reinspection, the center’s immunization records were current. According to Ms. Howard, the child, H.A., was out of the center for a medical reason and was not enrolled in the center at that time. However, his file was still there. Further, she discussed this with Ms. Flanders and afterwards wrote a statement that H.A. was not currently enrolled in the school and placed it in his file. As for child M.C., the child was enrolled but was no longer attending the center until M.C. obtained a current immunization record. Ms. Flanders explained that the child care facility must inform her if a child is enrolled but not attending. In that event, she skips that child’s record during her review. Level 2 Screening Documentation The Administrative Complaint charged Respondent with a violation of Florida Administrative Code Rule 65C-22.006(4)(d) and alleged the following: Documentation of Level 2 screening was missing for one (1) staff member. The Preschool Teacher’s adult son, D.W., was observed in the classroom with children on more than one occasion. Director stated D.W. is at the facility one (1) to two (2) hours a day, every other day. Licensing Counselor previously advised provider D.W. could not be present without passing a Level 2 screening. These charges were based on Ms. Flanders observing the adult son (D.W.) of one of the preschool teachers sitting at the desk in the preschool room with the children present, and the content of a conversation she had with Ms. Howard regarding this issue. There is an exception to the background screening requirement for volunteers who work there less than 10 hours a month. Accordingly, Ms. Flanders spoke to Ms. Howard to determine how often D.W. was at the school. According to Ms. Flanders, Ms. Howard told her that he would come to the daycare and wait before work every other day for an hour or two before walking to Winn-Dixie. Ms. Flanders calculated that every other day would be 15 days a month, for one or two hours each time. Therefore, she determined that he was there more than 10 hours a month. D.W. does not have background screening on file. The Administrative Complaint states that the same violation was previously cited on May 14, 2011, resulting in Technical Assistance, making this the second Class II violation within two years about persons caring for children without background screening. Ms. Howard, however, denies that D.W. was ever in her child care center that frequently. According to Ms. Howard, D.W.’s family temporarily (for about a month to a month and a half) had only one car. During that time, D.W. would come to the center, but was only there a total of 2 hours in a month. “Again, D.W. is not in my center. He’s not ever been in my center every other day. He’s not ever been in my center more than 30 minutes to an hour.” Moreover, Ms. Howard asserts that when D.W. was in her center, he was not with the children but was in a classroom where there were no children. Both Ms. Flanders and Ms. Howard were credible witnesses.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order placing Respondent’s license on probation until the related cases involving Respondent have been heard and final orders entered; and imposing a fine of $100 per day for one day, and $30 per day for eight days, for a total of $340. DONE AND ENTERED this 8th day of May, 2014, in Tallahassee, Leon County, Florida. S 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 8th day of May, 2014
The Issue The issue addressed in this proceeding is whether Petitioner is entitled to attorney's fees pursuant to Section 120.57(1)(b)5, Florida Statutes.
Findings Of Fact On or about April 7, 1989, a report of child abuse was received by the Florida Protective Services System alleging that E.S. had injured two children enrolled at the Gladys Morris Elementary School, Taylor County, Florida. On April 10, 1989, the HRS Protective Services Investigator, Linda Douglass, conducted an investigation of the circumstances. The investigation revealed that E.S. had removed C. from her third grade classroom. She held him by the scruff of his neck and his arm. During the process of removal, E.S. accidentally ran C. into a wall or door frame. No physical or mental injuries were sustained by C. as a result of E.S.'s actions. Likewise, no harm appeared to be threatened by E.S.'s method of removing C. from her classroom. No investigation was conducted to determine why C. was being removed or how much resistance C. had undertaken to avoid his removal. The second incident involved a student named D. When D. got up to sharpen her pencil without permission, E.S. shook D by the shoulder. During the shaking, D.'s nose began to bleed. D. was given some paper towels to put on her nose and was sent to the infirmary.No investigation was conducted to determine whether the nose bleed was caused by the shaking or how hard the shaking action had been. After the case had been forwarded for a formal hearing, it was discovered that the nose bleed was unrelated to D. being shaken. Other than the nose bleed, there was no physical or mental injury caused or threatened by E.S.'s actions. On April 20, 1989, the report of abuse was classified as "confirmed." In both instances, the actual abuse found was categorized under "other physical injury" and "excessive corporal punishment/beatings." The narrative in the child abuse report states: (E.S.) was observed dragging the C. child from the classroom by an arm and the back of his neck. She then ran the child's face into a brick wall. The child was crying. The teacher has shaked a child named D. until her nose bled. The children in her third grade room at Gladys Morse Elementary School are "out of control, they cut up each other's shoes," and (E.S.) -"can't control the class so she starts slapping them around and things". This has been going on for years and nobody does anything about it. Following an internal review, the data entry was completed on April 24, 1989 and the investigatory process was closed. Because of the unusual statutory process established in Chapter 415, Florida Statutes, E.S. was listed as an abuser of children on the Florida Child Abuse Registry upon confirmation of the abuse report. Her job as a teacher was thereby placed in jeopardy and she was suspended with pay. Her name would remain on the Abuse Registry for the next fifty years unless E.S. won an expunction of her record through the administrative process. On April 26, 1989, formal notification was provided to E.S. by letter notifying her that she had been "confirmed" as a child abuser and advising her that she had a right to request the amendment or expunction of the confirmed report by making a request for such within thirty days of the date of the notice. On May 18, 1989, E.S., through her counsel, requested that the record be amended and expunged since there was no evidence that any injury had occurred to the alleged victims and that the evidence was wholly insufficient to establish any wrongdoing on the part of E.S.. Although not specifically mentioned, this letter places HRS on notice that it may be facing charges of frivolousness should this matter not be resolved during the agency's review process. By letter dated May 18, 1989, the Department of Health and Rehabilitative Services confirmed receipt of Petitioner's request to expunge the confirmed report. On May 31, 1989, the Petitioner through her counsel, supplemented the request for expunction. Based upon a complete review of the HRS file, the supplement again pointed to the absence of any injury or "harm" to the children involved in the alleged abuse. Again, HRS was placed on notice of a potential claim of frivolousness should a formal proceeding be required. When more than the thirty days provided for review by the Secretary of an expunction request elapsed, the Petitioner on July 7, 1989, requested a formal administrative hearing to challenge the finding of "confirmed" abuse. This letter initiated the formal proceedings contemplated under Section 120.57(1), Florida Statutes. When an additional six week period passed without response to the first hearing request, the Petitioner made a second request for hearing on August 24, 1989. The August 24th letter to Secretary Gregory L. Coler pointed out that the Administrative Procedure Act requires a hearing request be granted or denied within fifteen days of the request's receipt. On September 12, 1989, a third request for hearing was made to the Department of Health and Rehabilitative Services. The September 12th letter outlined this proceeding's history of delay and the non-responsiveness of HRS. 1/ By letter dated September 18, 1989, counsel for the Petitioner received notification from the Department of Health and Rehabilitative Services that her request for expunction was, on that date, being denied and that if the Petitioner wished to have a hearing still another request for hearing was necessary. The letter was signed by a representative of HRS and was filed in the formal administrative proceeding by HRS. This letter constituted the action which should have been taken by HRS within 30 days of Petitioner's first request for amendment or expunction of the report. The agency's action was three months late. A fourth demand for formal hearing was made by letter dated September 25, 1989. Referral of the expunction request was forwarded to the Division of Administrative Hearings and a hearing was scheduled to be held on November 15, 1989. Prior to hearing, the parties prepared and filed an undated prehearing stipulation outlining the issues which remained for resolution. The stipulation established the following issues for resolution at the hearing: 7. Issues of Fact to be Litigated - Whether the Respondent engaged in any activity which caused "harm" [as defined in Chapter 415] to any child over which she exercised control; Whether any child was injured as a result of the actions or inactions of the Respondent; The Respondent asserts whether information deemed confidential by Section 415.51, Florida Statutes (1988), was disclosed to unauthorized recipients is an issue; the Petitioner disagrees; and, Whether there is competent and substantial evidence to retain a confirmed abuse finding on the Florida Protective Services System. On November 6, 1989, the deposition of Linda Douglass was taken by Petitioner, E.S., in preparation for the November 15, 1989, hearing. The deposition was filed at the evidentiary hearing on Petitioner's Motion For Attorney's Fees. Since a Section 120.57(1)(b)5., Florida Statutes, motion is part of the original child abuse action, Ms. Douglass' deposition was filed in the initial proceeding for purposes of a motion for attorney's fees under this section. Ms. Douglass' deposition constitutes the primary evidence in this case and comprises the entire investigation of this matter by HRS. After a review of this deposition, there can be no question that this case was poorly investigated with very important and essential facts not looked into; facts made essential because they are required by the statute in order to make a "confirmed" finding of child abuse. Essential facts not investigated were the connection between any alleged injuries and Petitioner's actions, whether there was any significant emotional harm to the alleged victims resulting from the alleged abuse, or, in the case involving C., what C. was being disciplined for and whether such "punishment" was excessive. 2/ See B.B. v. Department of Health and Rehabilitative Services, 542 So.2d 1362 (Fla. 3d DCA 1989). Failure to investigate such essential facts constitutes a failure to conduct a reasonable inquiry. On the facts revealed in the deposition, which were not materially different from the investigative report, this case should never have been confirmed. The evidence necessary to support a case of confirmed child abuse was never developed or investigated. Of greater concern, however, is that this case was confirmed for reasons other than the criteria contained in Chapter 415, Florida Statutes. One such reason, apparent from the deposition, was that Ms. Douglass did not think Petitioner should be teaching and did not want to chance her daughter being taught by Petitioner. In other words, this case was confirmed in order to affect Petitioner's future employment with the school or any other school because there was a very real difference in philosophy between Ms. Douglass and Petitioner on how to handle the children in her class. Such a confirmation is completely improper. However, the evidence does not demonstrate that the agency was aware of its investigator's motives until her deposition testimony. What the agency should have been aware of was the obvious lack of any substantial evidence on the statutorily required areas noted above. Failing to adduce such evidence and rubber-stamping its investigator's confirmation, thereby forcing a formal hearing, when the statute affords an agency a second chance to review the merits of its case needlessly increases the cost of litigation and is a failure to conduct a reasonable into the matter at hand. The foregoing is especially true when the statute specifically provides HRS with an abuse classification which covers situations in which abuse is indicated but cannot be confirmed with substative evidence. The classification is known as an indicated abuse report. The report is maintained in the Abuse Registry for seven years. There is no right to a formal administrative hearing when a report is classified as "indicated." On November 8, 1989, counsel for the Department of Health and Rehabilitative Services notified counsel for the Petitioner that the Department had determined to reclassify the "confirmed" report as "indicated" and therefore moved to dismiss the pending proceedings. The main proceeding was dismissed with jurisdiction reserved on the issue of attorney's fees. On these facts, Petitioner would ordinarily be entitled to an award of attorney's fees pursuant to Section 120.57(1) (b)5. However, in addition to demonstrating that there was no reasonable inquiry, Petitioner has the burden to show that the Department's case was totally without merit, both legally and factually. In this case, there was some, although highly tenuous, evidence present that supported the Department's allegations under Chapter 415. Having some basis in fact for the continued maintenance of its case, the Department's pursuit of this matter to the point at which it reclassified the report cannot be said to be totally without merit and Petitioner is not entitled to an award of attorney's fees and costs.
