The Issue The issues to be resolved in this proceeding concern whether the application submitted by the Petitioner for a new one-year license for Small Fries Day Care, Inc., should be granted, or denied based upon violations of specified statutes and rules referenced below as alleged by the Respondent. It must also be resolved whether the application to operate a new facility known as the Growing Tree Learning Center and Nursery should be denied because of the same alleged instances of non- compliance with the relevant statutes and rules.
Findings Of Fact The Petitioner operates a child care facility known as Small Fries Day Care, Inc. She also has applied for a license to open a new facility known as the Learning Tree. The Department notified the Petitioner, by letter of July 23, 2004, that the application submitted for a new one-year license for Small Fries was denied. The letter of denial was based on violations of statutes and rules enforceable by the Department, which were purportedly discovered during the inspections of the facility in April, May, and July of 2004. Thereafter by letter of August 3, 2004, the Petitioner was notified that her application for a license to operate a second child care facility known as the Growing Tree Learning Center and Nursery was also denied, based upon the history of alleged violations and non-compliance with statutes and rules during the operation of the Small Fries. The Petitioner requested a formal administrative proceeding to contest both decisions and the matter was referred to the Division of Administrative Hearings. The two cases were later consolidated into the instant proceeding. The Department received a complaint regarding transportation of children. It therefore dispatched an investigator, Judy Cooley, to conduct an inspection of the Petitioner's facility on April 6, 2004. The precise nature of the complaint was never substantiated. Ms. Cooley, however, upon conducting her inspection, discovered a violation of Florida Administrative Code Rule 65C-22.001(6)(f). This is a rule which mandates that children transported in a van must be counted and that both the driver of the van and one staff member must both count the children and sign a transportation log verifying that all children had exited the van. This is required to be done each time children leave or board the van. The failure to document an inspection of the van by both the driver and another staff member to ensure that all children are accounted for and out of the van is considered to be a major violation of the Department's rules and policy. The purpose of that requirement is to prevent children from being accidentally left in a van in the hot sun (or left at some location away from their home or the Petitioner's facility when the van departs a location.) If a child is left in a van in the hot sun a serious injury can result, rendering this infraction a serious one. Ms. Cooley also determined that a violation had occurred concerning the "background screening" requirements upon her inspection on April 6, 2004. That is, the Petitioner's records did not show that screening had been done for all personnel employed by the Petitioner's facility. On May 11, 2004, another investigation or inspection of the facility was conducted by the Department. This was because the Department had received an anonymous abuse report concerning the Petitioner's facility. Upon investigation it was determined that the report was unfounded. It had been alleged that a child had sustained an eye injury while in the custody and care of the Petitioner, but that was determined not to be the case; rather, the eye problem was determined to have been "Sty" infectious process and not a result of any injury sustained while a child was in the care of the Petitioner or her staff members. The Petitioner was also charged with a violation regarding this eye injury issue for failing to file an "incident report" concerning it and failing to give a copy of the report to the child's parent the same day of the incident. This violation has not been proven by the Department because, in fact, no injury occurred. The child had to have appeared on the premises of the Petitioner's facility that day already suffering from the eye condition. Therefore, there was no "incident" occurring on the premises of the Petitioner, or while the child was in the Petitioner's care. Therefore, there could be no incident requiring reporting to the Department and the parent under the Department's rules and policies. Apparently, the owner of the facility, Ms. Carter, later provided a copy of an incident report in the belief that the Department required it. In any event, this purported violation was not shown to have legally or factually amounted to an incident or a violation. As to that May 11, 2004, inspection or investigation, however, the Department's evidence derived from that May 11, 2004, inspection which was not refuted establishes that the Child Protective Investigator (CPI) who conducted the investigation observed other violations. The investigator noted that the staff was failing to adequately supervise children and that the staff had not had required training. The CPI found that after observing the day care facility on three different occasions in a two-week period, there were always children "running around," not in their classroom and without staff providing supervision of them. The CPI noted prior reports for inadequate supervision and noted that some of the staff had not been trained in all of the required hours for teachers required by the Department's rules. These findings by the CPI were supported by unrefuted evidence adduced by the Department at hearing, and accepted as credible. Ms. Cooley returned to the facility to conduct a follow-up inspection on July 23, 2004. This inspection was specifically related to the pending application filed by the Petitioner for a renewed one-year license for the facility. Ms. Cooley prepared a list of activities, conditions, or records as to the facility, its operations, the children, and the staff personnel, for purposes of indicating whether those checklist items, based upon Department rules, had been complied with or had not been complied with. There were a total of 63 specific requirements under the Department's statutes and rules for Ms. Cooley to employ in inspecting the facility. Ultimately, she found that the facility was in non-compliance on 11 out of the 63 items. Ms. Cooley thus determined on this visit that the required staff-to-child ratio was improper. The facility was out of compliance on this issue by having only one staff member supervising the "infant room" with one child less than a year old, and five children aged one year. The number of staff needed is controlled by the age of the youngest child in a group. Two staff members were required in this instance instead of one. Ms. Cooley also found, as a minor violation, that the facility had an open door with no screen, with only a curtain covering the opening and that children were sleeping on the floor on only towels instead of the required individual sleeping mats (minimum one inch thick.) The owner of the facility, Ms. Carter, however, testified that indeed the mats were in use but were covered with towels and therefore they were not readily visible. It is thus difficult to determine whether all the children slept on required sleeping mats or some of them, or none of them. The testimony in this regard at least roughly amounts to an equipoise, and it is determined that this violation has not been established. Another violation Ms. Cooley found to have occurred was that there were no records which would establish that the facility had conducted required fire drills for one and one-half months. Child care facilities such as this mandatorily must conduct at least once a month fire drills. They mandatorily must document each fire drill in a record for ready inspection. Ms. Cooley also found that there was no record proof of enrollment by staff members in the required 40-hour training course which all employees must undergo within 90 days after they are hired. The facility also had been cited for this violation on the April 6, 2004, visit. It remained uncorrected during the interim and on the day of Ms. Cooley's second visit. Another violation was found on this occasion in that, for the number of children present in the facility, there must be at least two staff members who have the necessary child development associate credentials. There was only one staff member who had those necessary credentials. There are also no records to establish that the required in-service training for staff members had been conducted. The additional three violations found by Ms. Cooley involve the failure to maintain required records concerning child immunizations, staff personnel records, and background screening records establishing that background screening had been properly done. If that required information is not appropriately filed and available at the facility, that in itself is a violation. If the file record was required to document compliance with some requirements, such as staff training, the absence of the documentation results in a presumption that there was no compliance. The lack of adequate staff in the infant room necessary to meet the statutorily required staff-to-child ratio, as noted on the July 23, 2004, inspection, is a major violation under Department rules and policies. Direct supervision is mandated for children of that age at all times. The maintenance of this staff-to-child ratio is considered to be so important by the Department that its staff are not allowed to leave a facility if an improper staff-to-child ratio (inadequate) is found to exist until the problem is corrected. The failure to keep records establishing timely compliance with background screening requirements for staff of the facility, provided for in Chapter 435, Florida Statutes, was found on the April 6, 2004, inspection and found to still exist at the time of the July 23, 2004, visit. The same factor was true with regard to the requirement that new staff be enrolled in the mandatory 40 hours training program within 90 days of being hired. The failure to correct these problems concerning background screening and training and the documenting of it, between April 6, and July 23, 2004, becomes even more critical when one considers that Ms. Carter, the owner of the Petitioner, had been provided with technical assistance by Ms. Cooley designed to help her bring her facility into compliance in all respects at the April 6, 2004, inspection visits. These violations concerning the background screening, training requirements and then documentation are considered to be serious infractions by the Department in its interpretation of its rules, and in the carrying out of its policies. In summary, although one or two of the violations were not proven and at least one, such as the failure to have a screen on a door, was not established to be a serious violation, the established violations do show an overall pattern of disregard of statutes and rules adopted for the safety, health, and welfare of children entrusted to the care of such a child care facility owner and operator. That this was so, even the Petitioner was informed of and counseled regarding the violations. Some of them remained in non-compliance or at least again in non-compliance, upon the second inspection visit. It is not enough that the operator or owner of the facility provided the required documentation later after its absence is discovered or that she corrected the training, background screening, and other violations after they were discovered. The statutes and rules which apply require that such operations be done correctly at all times, and that performance be timely documented at all times. The keeping of documentation in the facility's records concerning the violative items referenced above is not required for mere hollow bureaucratic convenience, but rather, because the Department has a very high standard of public trust in ensuring that children in such facilities are maintained in a safe fashion. It must have available, for ready inspection, at all reasonable times, the documents which support that the duties imposed by the various relevant statutes and rules are being properly carried out, so that it can know, before severe harm occurs to a child or children, that they might be at risk. These established violations contribute to the overall pattern, shown by the Department, of an habitual disregard of the statutes and rules adopted and enforced for purposes of the safety of the children entrusted to the care of the Petitioner (or at least timely compliance). Indeed, prior to the denial of a new one-year license for Small Fries and the denial of initial licensure for the proposed Growing Tree Facility, the licensing supervisor, Ms. McKenzie, conducted a review of the licensing file of the Petitioner. Ms. McKenzie thus established in the evidence in this record, that the file reflected repeated past violations involving failing to adequately supervise children and concerning the background screening and training and timely training of employees. Upon completion of each inspection involved in this proceeding Ms. Carter, the operator, was given a copy of the report or checklist prepared by Ms. Cooley. She was given an opportunity at that point to respond to it or to write any comments thereon. On neither occasion, April 6, 2004, nor July 23, 2004, were there any written comments made by Ms. Carter that disputed the fact of the violations found by Ms. Cooley. There were some notes by way of explanation or of justification concerning the hiring of a teacher "for my toddlers" etc., but the notes or explanations provided by Ms. Carter in writing and in her testimony at hearing, do not refute the fact of the occurrence of the violations delineated in the above Findings of Fact. In summary, Ms. Carter's explanations in her testimony to justify or explain the failures or the violations found above are not credible, in terms of showing that the violations did not occur.
Recommendation That having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services granting a provisional license to Small Fries Day Care, Inc., conditioned on the holder of that license undergoing additional training at the direction of the Department, designed to educate the operator under the license regarding the proper, safe care, and protection of children in her custody, operation of a child care facility, including the proper screening and training of staff, record keeping, and the other items of concern shown by the violations found in this case. Such provisional licensure shall be in effect for a period of one year when such training shall be completed, and shall be conditioned on monthly inspections being performed by relevant Department personnel to ensure compliance with the relevant statutes and rules. It is, further, RECOMMENDED that the application for licensure by the Growing Tree Learning Center and Nursery, Inc., be denied. DONE AND ENTERED this 12th day of September, 2005, in Tallahassee, Leon County, Florida. S COPIES FURNISHED: P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 12th day of September, 2005. Gregory Venz, 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 Robyn A. Hudson, Esquire 3900 Lake Center Drive, Suite A-2 Mount Dora, Florida 32757 T. Shane DeBoard, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785
The Issue The issue to be resolved in this proceeding concerns whether the Department should deny the Petitioner's pending application for a new one-year license effective June 8, 2005, because of an alleged violation that occurred on June 7, 2005, where a three-year-old child was left in a van, suffering purportedly life-threatening injuries (heat stroke). See § 402.305(10), Fla. Stat. and Fla. Admin. Code R. 65C-22.001(5). If the violation occurred, it must also be determined whether denial of license renewal or some other authorized penalty should be imposed.
Findings Of Fact The Petitioner is a large daycare center owned and operated by Joann Jones. It is located in Ocala, Florida and has been licensed since 1992. The Petitioner normally operates its daycare center caring for as many as 250 to 275 children with a staff of 45 to 50 people. The Petitioner and its owner Ms. Jones, has provided child care in Marion County for many years, operating as many as five daycare centers. Ms. Jones has an extensive history in training, education and experience in operating daycare centers and her experience includes working with the former Department of Health and Rehabilitative Services and the Department of Children and Family Services on various committees and licensing groups for the State of Florida. Prior to the incident on June 7, 2005, the Petitioner had had relatively minor infractions of the Agency's administered statutes and rules involving operation of a daycare center. These infractions primarily included compliance documentation errors and an instance in which a first aid kit did not have all of required the type of supplies, and an instance where a van driver failed to have in his possession and make proper use of a head count check-list on a field trip. In these instances when the Petitioner was found not to be in compliance, compliance was corrected normally by the close of the inspection day when the infraction was discovered. The van driver who failed to have his checklist with him was terminated for violating the Petitioner's policy that a roster including all childrens' names would go on the van at any time the van was being used to transport children. In addition to the above instances, the Petitioner was documented on an inspection checklist on May 13, 2003, for failure to properly maintain a transportation log; for enrollment form violations; for failing to document law enforcement background checks for staff; and for failing to maintain appropriate documentation of Level II screening for staff members. These were violations of Florida Administrative Code Rules 65C-22.006(4)(5) and 65C-22.001(6)(f). The Petitioner's exhibit thirty-five references a re- inspection from October 9, 2003, and is a checklist. At this time the facility was in violation of Florida Administrative Rule 65C-22.003(2)(a), for failure to have staff appropriately trained and the training certificates documented; for violating Florida Administrative Code Rule 65C-22.004(2)(a), and for failure to maintain first aid kit in the facility's vans and buses (the violation referenced above involving not having all required items in one first aid kit on this occasion). The Petitioner was also in violation of Florida Administrative Code Rule 65C-22.006(2), for failure to properly maintain immunization records and Rule 65C-22.003(2)(a) for failure to properly maintain relevant documentation. An inspection was conducted April 22, 2004. At this time, the facility was in violation of Florida Administrative Code Rule 65C-22.003(2)(a), for failing to document that all staff had completed a 40-hour training course and for failure to properly document the training course. An inspection made April 26, 2005, revealed that the facility was in violation of the proper staff to child ratio established in Section 402.805, Florida Statutes. The proper staff to child ratio on that occasion was 17 to 5 and the Petitioner, when observed, had a 17 to 4 staff to child ratio. The problem was corrected on the spot that same day. On April 27, 2005, an inspection was conducted and the facility was found to be out of compliance with Florida Administrative Code Rules 65C-22.004(2) and 65C-22.006(5)(d), and Section 435.04, Florida Statutes, for, respectively, failing to properly maintain first aid kits; and failing to properly provide finger prints to the Florida Department of Law Enforcement for the purpose of obtaining required background screening for staff. These prior infractions mostly involved documentation errors rather than actual deficiencies in the operation of the Petitioner's facility and daycare services. The Petitioner has not had a proceeding actually filed against her facility and license by the Department prior to this one, with the possible exception of an occurrence some seven years ago when the Petitioner received a $100.00 fine related to a documentation error. These prior infractions were not shown to have been serious ones involving an immediate threat to the health or safety of the children in Petitioner's care. Most of these infractions were shown to have been corrected on the same day they were noted on the relevant inspection reports. A three-year-old child was inadvertently left in a van when it was returned and parked at Petitioner's daycare center, on June 7, 2005. this incident caused the instant proceeding to deny the Petitioner's re-licensure. On that day two vans from the Petitioner's facility left to take a group of three-year- olds on an outing for lunch for pizza party. On that date the Petitioner had in operation, policies that required all teachers to keep rolls of their children, to count their children every hour and to complete a log which was to be turned into the directors of the daycare center at the end of the day. The Petitioner was responsible for providing these logs to the Respondent Agency upon routine inspections. There was also a policy in effect regarding operation of vans and buses for transportation of children. The teachers and bus drivers were required to keep a log of the children riding on the vans. The teachers were required to take a "head count" when the children left the classroom and when they entered and exited the vans or buses. The teachers were required to carry a roll with all the children's names with them at all times. They were required to carry this roll on a clip board and this policy even if the teachers took the children out on the playground, where they were still required to do head counts. The Petitioner held meetings periodically with its employees and informed them regarding the policy concerning head counts and the log for using the vans, which involved head counts. Ladonna Cunningham was a van driver for the Petitioner on the date in question, June 7, 2005. She established that she was aware of the policy of counting children before they got on the van, after they got on the van, and when they got off the van again, as well as the fact that the vans were to be checked ("van sweeps") after all the children were off the van to make sure that no one was still on the van. On June 7, 2005, she and the teacher going on the field trip with her van, Katrice Robinson, counted their children and Katrice did a van sweep when they returned to the daycare center after the trip. Ladonna Cunningham did a second van sweep to make sure that there were no children on her van and was aware that this was in accordance with the Petitioner's policy. On June 7, 2005, a three-year-old child (N.B.) was taken on the field trip to the pizza party. The van returned to the daycare center sometime after 1:40 p.m. There were two vans used on this field trip. One van was driven by Ladonna Cunningham, accompanied by the teacher Katrice Robinson. The second van, with N.B. aboard, was operated and supervised by two other employees, Amina Francious and Regina Brown. Neither Francious nor Brown made a head count of the children or a van sweep after returning to the daycare center. Regina Brown told investigators that she knew they were supposed to make a head count when they returned to the daycare center that day but neither she nor Amina Francios had done so. The evidence also shows that Katrice Robinson, who was N.B.'s teacher, "checked him off" as being in the classroom at 2:00 p.m., that day for a snack when he was in fact outside in the closed van. This erroneous fact was entered by Katrice Robinson on the head count sheet provided by the Petitioner. All teachers are required to make a head count every 30 minutes and to note the time a meal, snack, or lunch is served to a child. Later that afternoon the child N.B. was discovered either asleep or unconscious in the closed van which had been parked in the hot sun. The child was difficult to arouse or unresponsive and had an external Fahrenheit temperature of 104 degrees. At 4:02 p.m., he was taken by EMS personnel to the hospital where he was ultimately diagnosed with hyperthermia or heat stroke. He was unresponsive, having seizures, actively vomiting, and had to be intubated since his left lung had collapsed. The Department received abuse report 2005-396658 as a result of this incident. Fortunately, the child recovered. On June 8, 2005, Ms. Littell, a Department representative interviewed the three employees, Regina Brown, Katrice Robinson, and Amina Francois. Both Ms. Francios and Ms. Brown admitted failing to conduct a van sweep after they returned to the Petitioner's facility on June 7, 2005. All three of these employees were arrested for felony child neglect. These interviews, as well as Petitioner's owner and operator Joann Jones, in her testimony, confirmed that on June 8, 2005, the Petitioner's assistant director Irma Ramjit, had asked Ms. Francois and Ms. Brown to sign for an employee handbook that they had never actually received. Thus Ms. Ramjit had asked these employees to falsify documentation after the child had been left in the van, in an apparent attempt to show that the facility had followed its own procedures when in fact it had not. This action by Ms. Ramjit was not at the behest or condoned of the Petitioner's owner, Ms. Jones, however. The abuse report referenced above was ultimately closed and finalized as "verified for neglect and inadequate supervision" as a result of the child being left in the van. Physical injury had occurred as a result of the physical injury suffered by the child from heat exposure. Obviously the Petitioner's policy of conducting head counts every 30 minutes was not done properly on June 7, 2005. Indeed, the last head count for the class of the child who was left on the van was conducted at 9:30 a.m., on June 7, 2005. Joann Jones the Petitioner's owner was shocked and devastated by the events of June 7, 2005. She had never had such an occurrence previously in the 20 years she had been engaged in the daycare business. After this incident happened and before the issue regarding her license arose she had already acted to ban any further field trips for three-year-old children and had elected to hire a person to perform nothing but head counts each day to make sure that the policy was carried out and such an event never again occurred. The evidence shows that the Petitioner's facility has otherwise been operated in a quality manner, as shown by the testimony of Kimberly Webb. Ms. Webb was an employee of the Petitioner for some 15 years and was well aware of the Petitioner's rules concerning conducting head counts of children, doing "van sweeps" and the general policies to ensure child safety in the day-to-day operations of the care center. Marjorie McGee is employed by Child Hood Development Services and testified for the Petitioner. Ms. McGee went to the daycare center on numerous occasions to monitor the Childhood Development Services Program and the Head Start Program. Ms. McGee observed that Ms. Jones and the daycare center staff provided quality child care. Any concerns she ever had were immediately addressed and corrected by Ms. Jones or one of the directors of the center. Ms. McGee, in fact, established that the Petitioner's facility in one of the highest-rated daycare centers in Marion County. This testimony is corroborated by several parents who testified concerning the operation of the daycare center and by Juanita Thompson, who works as a childhood curriculum specialist and over the years had done consulting for the Petitioner in preparing curriculums. She attested to the high quality care provided by the Petitioner.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services denying licensure to the Petitioner, Oakcrest Early Education Center, Inc., effective with the application of April 11, 2005, without prejudice to the Petitioner re-applying for licensure in June 2006, in conjunction with an appropriate monitoring program by the Respondent Agency designed to ensure that all operational and documentation provisions of the applicable statutes and rules are complied with upon an ongoing basis. DONE AND ENTERED this 14th day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 14th day of March, 2006. COPIES FURNISHED: John J. Copeland, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Edward L. Scott, Esquire Edward L. Scott, P.A. 409 Southeast Fort King Street Ocala, Florida 34471 T. Shane DeBoard, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785
The Issue Whether Respondent, Tender Loving Care Christian Learning Academy, violated section 402.305(4), Florida Statutes (2012),1/ and Florida Administrative Code Rule 65C-22.001(4)(a), regarding proper staff-to-child for a child care facility; and, if so, the appropriate penalty. Whether Respondent violated section 435.04(1), Florida Statutes, and Florida Administrative Code Rule 65C-22.006, by not having proper documentation of Level II background screening for a staff member; and, if so, the appropriate penalty.
Findings Of Fact The Department is statutorily charged with the licensing and regulation of child care facilities. See § 402.301, et seq., Fla. Stat.; and Fla. Admin. Code R. ch. 65C-20 and 65C-22. Respondent operates a child care facility located at 1234 North Martin Luther King, Jr., Avenue, Lakeland, Florida, and holds state license number C-10PO0380. On August 27, 2012, Ms. Richmond, an investigator for the Department inspected Respondent's child care facility. The inspection was the result of a complaint made against Respondent that stemmed from a child custody dispute. Ms. Richmond arrived at Respondent's facility at approximately 2:40 p.m., where she saw six children being cared for by one staff member. Ms. Richmond saw two children asleep in bouncy-seats. One of the children sleeping in a bouncy-seat appeared to Ms. Richmond to be less than one year of age. Ms. Richmond asked the staff member the age of the child, and the staff member told her that the child was six months old. Ms. Richmond informed the staff member that the room was out of compliance for staff-to-child ratio for supervising an infant. The staff member then removed the sleeping child from the bouncy-seat and took the child to the infant room, placing the sleeping child in a crib. The Department did not bring forward any other evidence showing the age of the child that Ms. Richmond believed was less than one year of age. Ms. Ross-Waring credibly testified that the child in question was her grandchild, and that the child's age was over one year of age. Ms. Ross-Waring explained that the child was small for her age because the child had been born prematurely. During the inspection, Ms. Richmond recognized one of Respondent's staff members as a former employee with a different child care facility. Moreover, Ms. Richmond knew that the staff member had a prior disciplinary history with the other facility. Ms. Richmond testified that staff members with a disciplinary history are required to disclose the prior discipline to the current employer. In order to determine if the staff member had disclosed the prior discipline, Ms. Richmond reviewed Respondent's employment file for the staff member. In reviewing the employment file, Ms. Richmond found that the staff member's records contained Level II background screening from the Agency of Health Care Administration (AHCA), but not one from the Department. Ms. Richmond informed Ms. Ross-Waring, the owner and operator of the child care facility, and Ms. Poe, the director of the child care facility, that the staff member did not have the proper documentation. As a result, the staff member immediately left the premises, and did not return until she secured the Level II background screening from the Department. The staff member obtained the required background screening and returned to work on August 30, 2012, two days after the inspection. Ms. Ross-Waring explained that she believed that the background check provided by the AHCA addressed the same information required by the Department. Therefore, she relied upon the AHCA background check. A past inspection of Respondent's child care facility dated October 7, 2011, resulted in the finding that Respondent did not have background screening documentation for a staff member, D.S., despite D.S. being hired on August 15, 2011. Respondent did not dispute the finding of the lack of proper documentation. As a means of correcting the error, the Department provided Respondent with technical support concerning the required proper background screening documentation. Respondent's failure to have the proper background screening documentation at the August 28, 2012, inspection was Respondent's second violation within two years.
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: Respondent did not violate section 402.305(4) and rule 65C-22.001(4) concerning the staff-to-child ratios; and Respondent violated rule 65C-22.010, failure to keep proper records, and that Respondent be fined $50.00 for non- compliance pursuant to rule 65C-22.010(1)(e)2.b. DONE AND ENTERED this 30th day of April, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 April, 2013.
The Issue At issue is whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalties should be imposed.
Findings Of Fact The Department is authorized to regulate child care facilities pursuant to sections 402.301-402.319, Florida Statutes. Section 402.311 authorizes the Department to inspect licensed child care facilities. Section 402.310 authorizes the Department to take disciplinary action against child care facilities for violations of sections 402.301-402.319. True Hope is a child care facility operating pursuant to License Number C04DU0339. The facility is located at 3109 West Beaver Street, Jacksonville, Florida. Pastor Allen Givens is the director of True Hope. Crystal Tyler is a child protective investigator for the Department. On Friday, October 22, 2010, Ms. Tyler was assigned to investigate possible abuse of T.H., a four-year-old girl who attended True Hope. Pastor Givens had phoned the abuse hotline at approximately 4:00 p.m., after True Hope employees had discovered an injury that appeared to be a burn on one of T.H.'s legs. At approximately 8:35 p.m. on October 22, Ms. Tyler met T.H.'s mother, Ashley Cunningham, at the home of Kenya Harris. Ms. Harris regularly cared for T.H. from the time the child was dropped off by the daycare in the afternoon until Ms. Cunningham got off work and picked up T.H. in the evening. Ms. Tyler observed burns on the backs of both of T.H.'s thighs. Based upon her training and experience, Ms. Tyler characterized the wounds as second-degree burns. Ms. Tyler believed the wounds were fresh because they were weeping. Ms. Harris had applied burn cream and bandages to the burns, but the child had otherwise received no medical attention. Ms. Tyler investigated Ms. Cunningham's home and found it an appropriate home for the child. She found Ms. Cunningham to be "protective" of T.H. and that she showed no signs of being an inappropriate parent. Ms. Tyler testified that during her interview, Ms. Cunningham was very upset about the injury to T.H. Ms. Cunningham told Ms. Tyler that T.H. had been fine at home that morning. Ms. Cunningham told Ms. Tyler that she had bathed T.H. the previous evening and there were no burns on her legs.1/ Ms. Tyler testified that T.H. told her that another child at True Hope had burned her with a hot glue gun. T.H. did not testify at the hearing. Ms. Tyler notified the local Child Protection Team and the Jacksonville Sheriff's Office ("JSO"). The JSO sent out a detective and a technician to photograph T.H.'s wounds. According to Ms. Tyler, the photo technician did not arrive until very late on the evening of October 22, which caused Ms. Cunningham to wait until the next morning to take T.H. to the emergency room at Memorial Hospital for treatment. The physician at Memorial Hospital confirmed that T.H. has second-degree burns on each thigh. The physician prescribed silvadene cream as a topical treatment for the burns, to be applied twice daily until the burns were healed. No restrictions were placed on T.H.'s activity. Because her initial investigation did not conclude until late on October 22, Ms. Tyler was unable to visit True Hope on that day. On the following Monday, October 25, 2010, Ms. Tyler, child care licensing counselor Meike Rice, and a JSO detective conducted an onsite investigation at True Hope that included interviews with several employees. Ms. Tyler and Ms. Rice prepared written reports that were introduced into evidence at the hearing. Ms. Tyler's report stated that Pastor Givens told her that he picked up T.H. at her home at 9:00 a.m. on October 22.2/ Ms. Cunningham placed the child in the car. T.H. seemed fine and was not crying. Ms. Cunningham said nothing about an injury. Pastor Givens told Ms. Tyler that upon arrival at the school, T.H. was helped out of the car by Katrina McGriff, the lead teacher at True Hope. At the hearing, Ms. McGriff confirmed that she helped T.H. out of the car. She testified that T.H. was crying because she was hungry, but that she seemed to be fine otherwise. T.H. was wearing skin-tight pants and boots, and gave no appearance of physical distress. Ms. McGriff testified that staff members at True Hope always perform a wellness check on the children as they arrive in the morning, but that this inspection does not include removing the children's clothes. Ms. McGriff stated that she directed T.H. to wash her hands before eating breakfast. At about 9:30 a.m., after she finished breakfast, T.H. went with her class of eight children to their classroom. Her teacher was Georgia Brown, who was assisted by Lillie Gardner. Ms. Brown told Ms. Tyler that T.H. showed no signs of distress upon entering the classroom. Ms. Brown told Ms. Tyler that on the morning of October 22, she was the True Hope staff person who performed the wellness check on T.H., and she found nothing amiss with the child's condition. Ms. Gardner testified that she was with T.H. the entire time the child was at True Hope. She confirmed that T.H. appeared to be fine on the morning of October 22. Ms. McGriff testified that nothing unusual was apparent with T.H. until about 3:00 p.m. T.H. had played outside with the other children for over an hour. T.H. was very active, going down the slide and playing on the swings. The children were then brought inside to wash their hands before receiving a snack. Ms. McGriff noticed that T.H. was walking on her tiptoes and asked the child if her shoes were bothering her. Ms. McGriff took off T.H.'s boots, but T.H. told her that her feet didn't hurt. Ms. McGriff put the boot back on T.H. She noticed that T.H. was still tiptoeing. At this point, Ms. McGriff noticed that the material on T.H.'s pants was wet on one side. When Ms. McGriff tried to pull the pants down, she saw "a little red sore. It wasn't bleeding or anything." Ms. McGriff was unable to get the pants all the way down because they were stuck to the wound. Ms. Gardner testified that T.H. had shown no discomfort until she wanted to go to the bathroom and found that her pants were stuck to the wound. Ms. Gardner assisted Ms. McGriff in trying to remove the pants. Ms. Gardner testified that they put some water on the wound, which loosened the pants and enabled them to pull the pants down. Ms. Gardner described T.H.'s wound as "a scar . . . like a burn." It reminded Ms. Gardner of a burn on her own arm caused by a hot curling iron. Ms. McGriff asked T.H. what happened. T.H. said, "My sister burned me." Ms. McGriff said, "Well, T.H., you don't have a sister. What happened to you?" Ms. McGriff testified that T.H. "locked up" and would not answer any more questions. T.H. put her head down and started crying. Ms. McGriff testified that about ten minutes later, Pastor Givens walked in. After he saw T.H., he called the state abuse hotline. The hotline phone registry indicated that the call came in at 4:01 p.m. Ms. McGriff could hear the conversation on Pastor Givens' speakerphone. The person from the hotline told Pastor Givens to take the child home and someone would be there within 15 minutes. Ms. McGriff buckled T.H. into the car seat, and Pastor Givens drove T.H. to Ms. Harris' house. Ms. McGriff testified that she phoned Ms. Cunningham when she saw the injury to T.H., but that Ms. Cunningham did not answer. Ms. McGriff did not leave a voicemail message. Ms. Cunningham had provided no other emergency number to True Hope. In her interview with Ms. Rice, Ms. Harris stated that Pastor Givens parked his car across the street from her home, put T.H. out of the car, and then sped away. Pastor Givens gave Ms. Harris no indication that anything was wrong with T.H. In his interview with Ms. Rice, Pastor Givens confirmed that he did not speak with Ms. Harris when he dropped off T.H. on the evening of October 22. The evidence established that no one at True Hope provided first aid to T.H. Ms. McGriff testified that she had some training in first aid, and that her training called for her to clean the wound, but that she did not because she was unable to remove T.H.'s pants. This statement conflicts with Ms. Gardner's testimony that they were able to pull down the pants after putting water on the spot where the pants were stuck to the wound. Ms. Gardner's testimony is credited. Ms. Gardner testified that no one at True Hope thought the injury serious enough to require immediate medical treatment. Ms. Gardner and Ms. McGriff both testified that T.H. did not appear to be in pain at any point during the day. The problem did not become apparent until the child needed to remove her pants to go to the bathroom. T.H. provided varying accounts of how she was burned. She told Ms. Tyler that another child had burned her with a hot glue gun while playing at school. Every employee of True Hope who testified or provided statements to the Department credibly denied that there was a hot glue gun in use at True Hope. No one heard T.H. cry out in pain at any point on October 22. T.H.'s pants were not burned, meaning the perpetrator was somehow able to remove T.H.'s pants and burn her bare legs with a hot glue gun without being noticed by any adult in the facility. T.H. told Ms. McGriff that her sister burned her, then cried and refused to say more after Ms. McGriff stated that T.H. did not have a sister. Ms. McGriff and Ms. Gardner testified as to their suspicions about T.H.'s home life. The child had told Ms. McGriff that her mother did not always feed her, and Ms. McGriff noted that T.H. always appeared famished upon arriving at True Hope. T.H. also told Ms. McGriff about various men sleeping over at her house. Ms. Gardner testified that T.H. had mentioned that she had to sleep on the sofa because her "momma's homey" was in the bed. The evidence is insufficient to establish where, when and how T.H. came by the burns on her legs. It is entirely incredible that she was burned with a hot glue gun at True Hope. The True Hope facility is only a little more than 1,000 square feet, a setting that makes it highly unlikely that someone could have burned the child's bare legs without being seen or that T.H.'s cry of pain would not be heard. To its credit, the Department did not seriously contest True Hope's denial that there was a hot glue gun at the facility. The Department did attempt to persuade this tribunal that the burns must have occurred, somehow, at True Hope during the morning or afternoon of October 22. However, the evidence presented at the hearing, considered in its entirety, established that it is more likely that T.H. came to school with those injuries on the morning of October 22, and that her vigorous play outside aggravated the injuries. The issue, then, is the adequacy of True Hope's response once its personnel became aware of T.H.'s injury. There was some variance in the reports as to when the injury was first discovered. Ms. Rice's report indicates that Pastor Givens stated that he noticed the injury at about 2:00 p.m., though Ms. McGriff testified that it was she who brought it to Pastor Givens' attention sometime between 3:00 and 4:00 p.m. Pastor Givens reported the injuries to the child abuse hotline at 4:01 p.m. Even if True Hope is credited with promptly reporting the injury to the abuse hotline, personnel at the facility did not provide first aid of any kind to burns that were weeping so badly they caused T.H.'s pants to stick to her leg. Ms. McGriff's explanation for her failure to provide first aid was unconvincing and at variance with the testimony of Ms. Gardner. That T.H. was not displaying any pain or discomfort does not absolve the adults from the duty to administer first aid. True Hope made only a cursory attempt to reach T.H.'s mother and inform her of the situation. Ms. McGriff testified as to past difficulties with Ms. Cunningham. Ms. McGriff stated that Ms. Cunningham was "nasty and rude" every time she phoned her about T.H. She testified that she did not leave a voicemail message for Ms. Cunningham because she knew that someone from the Department would soon see T.H. at Ms. Harris' house and address the situation. This is a non sequitur; there was no good reason for failing to leave Ms. Cunningham a message. True Hope also failed to inform Ms. Harris that T.H. had injuries that required first aid. The evidence established that Pastor Givens simply dropped off the child outside of Ms. Harris' residence and drove away. It was left to Ms. Harris to discover T.H.'s burns and attend to them. It is noted that neither Ms. Tyler, nor Ms. Cunningham, nor the JSO detective or photo technician viewed T.H.'s injuries with such alarm that they rushed her to the emergency room on the night of October 22.
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 imposing a fine of $300.00 upon True Hope and Deliverance Ministries, Inc., d/b/a True Hope Developmental Academy. DONE AND ENTERED this 13th day of January, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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, 2012.
The Issue The issue addressed in this proceeding is whether Respondent's child care facility license should be disciplined for alleged violation of chapter 402, and if so the appropriate penalties. Neither party timely submitted Proposed Recommended Orders.
Findings Of Fact Respondent Donna J. Downing owns and operates a child care facility known as the Downing House, located at 8508 Lorento Street, Panama City, Florida. The child care facility is also her family's residence. She lives with her husband, son, and daughter who help operate the facility and who have been successfully screened by HRS. Ms. Downing was licensed in 1985 and holds a currently valid license. Her license is endorsed to allow her to operate her facility during nighttime hours. In April 1988, HRS became concerned that the operation of the Downing House into the night was proving too much for the husband and wife team, since HRS regulations require an adult to be present and awake during the night. HRS, therefore, inquired of the Downings concerning their proposed arrangements to ensure the presence of an awake adult. In order to continue to operate into the night, Respondent assured HRS that either she or her husband would be awake during the night while children were present on the premises. However, the evidence established that Respondent and her husband did not always live up to Respondent's representation to HRS. A standard mode of operation by Respondent was for both she and her husband to retire in the evening, leaving the front door unlocked so that the children's parents could pick up their children without disturbing the Downings. However, occasionally one of the Downings would stay up with the children. On May 5, 1988 a two year old male child was left at the Downing House by his mother for nighttime caretaking. At approximately 11:00 - 11:15 pm., Mr. and Ms. Downing had gone to bed. There were three children present at the Downing House when the Downings retired, including the two year old male child. The three children were asleep when Ms. Downing left them in the living room. No other adults were present. Ms. Downing had made arrangements for her adult son to look after the children when he got home from work. He was expected home at about 11:30 p.m. The son arrived home at approximately 11:40 p.m. When he arrived there were two children present. No method had been established by Respondent to advise her son of the number of children who should be present when he arrived home. He therefore did not realize that one child was missing. The son laid down on the couch in the living room and went to sleep. Sometime between the Downings going to bed and the arrival of their son, the two year old male child awakened, opened the front door and left the house. The child then unlatched the front yard gate and headed down Lorento Street towards its intersection with Laurie Lane. He then proceeded down Laurie Lane. At approximately 11:15 p.m., Denise Albert was driving down Laurie Lane. About two tenths of a mile from the Downing House, at 2414 Laurie Lane, Ms. Albert saw the missing child walking down the unlit and unpaved road. He was barefoot and in his pajamas. Ms. Albert stopped and questioned the child for 15 or 20 minutes. She could not obtain any information. She therefore called the Sheriff's office. Officer Troy Johns was dispatched at 11:30 p.m. The officer picked the child up from Ms. Albert and drove him around the neighborhood, including Lorento Avenue. The child could not or would not identify where he had come from and would not give his name. The child was more interested in the officer's gun and vehicle than in his surroundings. The officer took the child to the Sheriff's station and called HRS. Debra Young an HRS protective services investigator took the call and picked the child up from the Sheriff's office. She also could not establish the child's identity or address. She placed the child in a foster home. At 4:11 a.m. the Sheriff's office received a phone call in reference to a missing male child from the Downing House. The missing child was the child the Sheriff's office had turned over to Ms. Young. The Sheriff's office contacted Ms. Young. Mother and child were reunited the next morning. The call to the Sheriff's office from the Downing House had been prompted when the child could not be found after a search. The search ensued when, at approximately 3:00 a.m., the mother arrived to pick up her son. She discovered his absence and woke Respondent's son who in turn woke Mr. and Ms. Downing. One child remained. A second child had been picked up at approximately 2:30 a.m. by that child's mother. The son did not awaken and was not aware that the second child had been taken from the room in which he was asleep. The Downings searched the neighborhood for the missing child, including checking the Lagoon which is within a few blocks of the Downing House. The call to the Sheriff's office located the child. From 1985 until May 1988, Respondent was cited for the following violations of chapter 402, F.S. and the rules related thereto: September 3, 1985 Two gates in the play yard were left unlocked making it possible for children to have access to the road, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code, in that this was an obvious hazard. Medicine was left on the kitchen cabinet within the children's reach, in violation of Rule 10M-12.003(1) and (d), Florida Administrative Code. April 22, 1986 Cleaners were on the washer and dryer within the children's reach and Lysol and Windex were on the kitchen cabinet with food within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. No fire drills, in violation of Rule 10M-12.003(8)(a), Florida Administrative Code. October 1, 1987 Clorox, detergent, charcoal, briquettes, pliers, plastic bags, cigarette and cough drops were out at several locations throughout the facility and within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. An iron was left with the cord hanging over the table within the children's reach making it possible for the iron to be reached and pulled down on top of a child, in violation of Rule 10M- 12.003(1)(a), Florida Administrative Code. March 23, 1988 A medicine bottle containing medicine and tanning accelerator within the children's reach were located inside the facility and rose dust, Progreen, Spectracide ant killer and touch up paint were at several locations on the porch at the main entrance within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. Suntan lotion and tanning accelerator and three sand filled milk cartons, all located on the patio at the back of the house leading to the play yard and all within the children's reach, in violation of Rule 10M-12.003 (1)(b) and (d), Florida Administrative Code. The gate to the play yard was unlocked allowing children access outside the play area, in violation of Rule 10M- 12.003(4)(b), Florida Administrative Code. The store room containing a lawn mower and other tools and hazardous materials was left unlocked, in violation of Rule 10M-12.003(4)(b) , Florida Administrative Code in that it was an obvious hazard, with the children having access to said store room. A throw rug was on the steps leading to the patio and was not secure making an obvious hazard, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code. To Respondent's credit, all of the above violations were corrected within the time frames established by HRS. No fines were ever levied on the Respondent for the above violations. Also, to Respondents credit, the evidence disclosed that Respondent is generally a good caretaker of children.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services revoke the nighttime operation endorsement on Respondent's license and impose an administrative fine of $1000. DONE and ENTERED this 14th day of March 1989, in Tallahassee, Lean County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1989. COPIES FURNISHED: John L. Pearce, Esquire 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32302 Donna J. Downing 8508 Lorento Street Panama City, Florida 32407 R. S. Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether a request for exemption by the above-named Petitioner, seeking exemption from disqualification in accordance with Section 435.07, Florida Statutes (2005), should be granted.
Findings Of Fact On August 30, 2002, the Petitioner was living in Orange County, Florida. She was working for the Conway Presbyterian Church. Prior to that she had worked for Magellan Academy, Child Care Centers, Inc. (Magellan), which operates licensed child care centers. Her mother owns the Magellan Academy's Child Care Centers. It is a quality operation which has won numerous awards. The Petitioner was employed in child care through her mother's business since she was twelve years of age. While she was away from her employment with Magellan, she was living in Orange County and was working for the Conway Presbyterian Church. She was working in a capacity with the church's office, which enabled her to have access to the check book and the bank account or accounts held by the church. The Petitioner apparently came to the Orange County Orlando Metropolitan area in association with her education at Stetson University. She earned a bachelor of arts in political science from Stetson in May of 2000 with a minor in business law and Spanish. She has an excellent academic record. She has been a candidate for an MBA at Jacksonville University since that time. During her college career she served as an intern for Congresswoman Tillie K. Fowler, was editor-in-chief of the Hatter, the Stetson University School yearbook, and a member of "Who's Who in American Colleges and universities." While still living in the Orlando, Florida, area after graduating from college, the Petitioner was employed by the Small Blessings Child Care Center in Orlando, Florida, as assistant director. This is apparently an enterprise conducted by the Conway Presbyterian Church. During the period between late 2000 and the first months of 2001, prior to May 2001, the Petitioner had signature authority on the Conway Presbyterian Church's checking account and was responsible for keeping the checking account balanced and reporting to the church's steward and finance committee. During that period of time she wrote checks and secured the cash from the checks for her own uses, without recording checks in the check book, she altered amounts of deposits made for the church, pocketing the difference between the amount of money she had in her possession and the lower amount that she actually deposited. She forged the name of a Mrs. Krick, another church employee who was one of two required signators for all checks for the church. This enabled the Petitioner to accomplish her theft of the church funds. In any event, the Petitioner stole in excess of $21,000.00 from the church. The discrepancies in the church's accounting and bank records were discovered during approximately May 2001, and the Petitioner was prosecuted. On August 30, 2002, the Petitioner was adjudicated guilty of a "scheme to defraud" of $20,000.00 or more and grand theft in the second degree of $20,000.00 or more. She was sentenced to six months in the Orange County Jail. She was also placed on supervised probation for 10 years. Under her court order she was authorized to terminate probation after five years, provided all conditions of the probation are met. The Petitioner was also ordered to pay $46,189.36 to the victim, the Conway Presbyterian Church, in installments of $1,000.00 per month. The Petitioner remained on probation at the time of this hearing. Her probation may end as soon as August 2007, or as late as August 2013, depending on whether there are violations of probation and whether she performs all conditions of the probation which authorize the probationary term to be reduced by half. The Petitioner has been faithfully paying the installments of restitution, as required by the court, but still has a substantial amount left to pay. Other than some restaurant meals and pleasure trips the Petitioner took she cannot specifically recall how she spent most of the stolen money or at least professes not to. She testified in a vague way that at the time the crime occurred she was engaged and her fiancée made specific demands for certain material things and to maintain a certain lifestyle that she felt obligated to help provide. The Petitioner testified that she feels that she is not a danger to children and does not appear to understand how the crime of grand theft, as serious as she believes it was, is still relevant to her ability to work in a child care facility. The Petitioner also acknowledged in her testimony that the Conway Presbyterian Church was unable to follow through and complete some of its planned projects because of the financial deficit caused by her theft of the money. The Petitioner became again employed by the Magellan Academy as a director in January 2004. She is working in the corporation's corporate office as an administrator which is separate from the child care facility, and she does not work directly with children. The Petitioner both before and after the crime in question has been faithful and trustworthy in handling funds belonging to others. She now works for the Magellan Academy and has access to the corporation charge accounts and bank accounts and no further misconduct has occurred. The Petitioner was adjudicated guilty of the above- referenced crime in August of 2002. Therefore, somewhat less than three and one-half years have elapsed since she was convicted of the felonies involved.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services denying the Petitioner's application for exemption from disqualifications from employment in a position of special trust or responsibility. DONE AND ENTERED this 3rd day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 3rd day of March, 2006. COPIES FURNISHED: Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copeland, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Laura Potts 2670 Myra Street Jacksonville, Florida 32204 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue Whether Respondent, a day-care center, committed the violations alleged in the Administrative Complaint, and if so, the penalties Petitioner should impose against Respondent.
Findings Of Fact Petitioner is the regulatory authority responsible for licensure and enforcement of day-care centers in Florida. Respondent is a day-care center in Miami, Florida, and currently holds child care license C11MD0340. Respondent has operated as a day-care center since April 19, 1990. At the time of the formal hearing, Kevin Lennon was the owner and operator of Respondent. S.B. and L.B. are young sisters who stayed at Respondent’s day-care center in July 2014. On July 9, 2014, one of Respondent’s employees gave S.B. and L.B. a small cup of Cheez-Its as a snack. Mr. Lennon was present when the two girls were sharing the cup of Cheez-Its. After S.B., who is the older and bigger child, finished her share of the Cheez-Its, S.B. began to hit her sister to take her sister’s share of the Cheez-Its. Mr. Lennon separated the two girls and permitted L.B. to eat her share of the Cheez-Its. Mr. Lennon testified, credibly, that he did not take the Cheez-Its from S.B. to punish S.B. Petitioner offered no competent, credible evidence to refute Mr. Lennon’s testimony. On March 25, 2014, Petitioner received from Respondent an “Application for a License to Operate a Child Care Facility” (the application). Mr. Lennon completed the application on behalf of Respondent. The application contained an attestation section that required Mr. Lennon’s signature to be notarized. On March 25, 2014, Petitioner received an attestation section (first attestation section) signed by Kevin Lennon on February 28, 2014. The first attestation section contains Ivanne Albarran’s notary seal and a signature dated February 28, 2014. Mr. Lennon testified, credibly, that he signed the first attestation section as Kevin Lennon. Mr. Albarran testified, credibly, that he signed the first attestation section as the notary public. Petitioner offered insufficient evidence to refute that testimony. The application package contains a second attestation section that was received by Petitioner on March 28, 2014. The second attestation section contains Mr. Lennon’s signature and a date of March 26, 2014. The second attestation section contains Mr. Albarran’s notary seal and a signature dated March 28, 2014. Mr. Lennon testified, credibly, that he signed the second attestation section as “Kevin Lennon.” Mr. Albarran testified, credibly, that he signed the second attestation section as the notary public. Petitioner offered no competent, credible evidence to refute that testimony.
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 dismissing the Administrative Complaint. DONE AND ENTERED this 9th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 9th day of January, 2015. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street, Suite 210 Miami, Florida 33156 (eServed) Karen A. Milia, Esquire Department of Children and Families 401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128 (eServed) Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399 (eServed) Rebecca Kapusta, Interim General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
