The Issue The issue in this matter is whether the Department of Children and Families should deny Respondent’s application for registration as a family day care home.
Findings Of Fact The Department is the state agency charged with regulating providers that are licensed or registered as family day care homes. Family day care homes must register annually with the Department. See § 402.313(1)(a), Fla. Stat. Respondent is owned and operated by Cherrie Scally. Ms. Scally has registered Respondent as a family day care home since 1997. In or about August 2015, Ms. Scally filed an application with the Department to renew Respondent’s registration as a family day care home for 2016. Respondent's registration for 2015 expired on October 30, 2015. Upon receiving Ms. Scally’s application, the Department reviewed whether to renew Respondent’s registration as a family day care home. As part of its determination, the Department examined the Florida Central Abuse Hotline Records Search (“CAHRS”). In CAHRS, the Department identified an Investigative Summary involving Respondent that verified a finding of “inadequate supervision” in March 2015. Based on the CAHRS Investigative Summary, the Department issued an Administrative Complaint in November 2015, revoking Respondent’s registration as a family day care home.2/ The Department determined that it could no longer approve Respondent’s registration “based on the verified finding of inadequate supervision.” The CAHRS resulted from an incident that allegedly occurred on March 5, 2015. On March 6, 2015, the Central Abuse Hotline received an anonymous phone call reporting an injury to a child at Respondent’s family day care home. A four-year-old girl who attended Respondent’s family day care home reported to her mother that another child had hurt her.3/ Jessica Baloy, a child protective investigator with the Department, was assigned to investigate the incident. Her duties include investigating facilities regarding complaints of child abuse and neglect. Ms. Baloy prepared the CAHRS Investigative Summary. Ms. Baloy visited Respondent's family day care home on March 9, 2015, to investigate the allegation. Ms. Scally informed Ms. Baloy that she had no knowledge of how or when the child was injured. Ms. Scally did not learn of the incident until the child’s mother called her the evening after the child was picked up. Ms. Scally thought that the incident may have occurred in her “playroom” while she was in her kitchen either cleaning up another child or preparing snacks.4/ During her visit, Ms. Baloy found that the part of Ms. Scally’s home used for childcare consists of two rooms, a “playroom” and a kitchen. The rooms are located next to each other, but a wall separates them. Ms. Baloy observed that the wall obstructs the view between the playroom (where the injury allegedly occurred) and the kitchen where Ms. Scally believes she was located at the time of the incident. Ms. Scally admitted to Ms. Baloy that, while she is able to hear the children in the playroom from the kitchen, she is unable to see directly from the kitchen into the playroom. In her investigation, Ms. Baloy reported that the child had “no indicator” of physical injury. In other words, Ms. Baloy did not find evidence to suggest the child had sustained an injury. Ms. Baloy personally interviewed the child and did not observe any discomfort or physical injuries. Ms. Baloy also received information from the child’s mother that a doctor had examined the child and determined that she had not suffered any trauma, just “some irritation.” The child’s mother decided that no further medical treatment or examination was needed. In her Investigative Summary, Ms. Baloy reported that “[o]bservations of the home daycare were positive that it was not hazardous for the children.” Ms. Baloy also declared that Ms. Scally “once notified by a parent completed the proper notifications needed in regards to this incident.” However, Ms. Baloy did have “some concerns in regards to supervision.” She found that when Ms. Scally was working/standing in her kitchen, she could not view the children in the playroom. Consequently, if something bad happened, she would not be able to see it. Also during her visit to Respondent, Ms. Baloy observed 11 children in Respondent’s facility. Consequently, Respondent was over capacity by one child. (As discussed below, family day care homes are restricted to a maximum of ten children at one time.) After her visit, Ms. Baloy closed her investigation with “verified findings for inadequate supervision.” Ms. Baloy was not aware of any prior investigations involving Respondent. Dinah Davis is the policy supervisor for the Department’s Office of Childcare Regulation. Her responsibilities include approving applications for family day care home registrations with Samantha Wass de Czege, the Department’s Director for the Office of Childcare Regulation. Ms. Davis expressed that the Department was concerned with Ms. Baloy’s Investigative Summary because the finding of “inadequate supervision” indicated that Ms. Scally left the children unattended outside of her direct supervision. The Department’s “rule of thumb” regarding supervision is that a caregiver must be within “sight and sound of the children and [be] able to respond to emergency situations.” Ms. Davis expressed that a constant sightline is crucial to allow the caregiver to respond to and prevent an emergency or potentially harmful situation. Adequate “sight” supervision means that children should be at least within the caregiver’s peripheral vision. In addition, Ms. Davis explained that, by statute, no family day care home is allowed to care for more than ten children at one given time. Ms. Davis referred to section 402.310 as the Department’s authority to deny Ms. Scally’s application. Although section 402.310 allows the Department to place a family day care home registration on probation status, Ms. Davis stated that the Department did not consider the option to place Respondent on probation. Ms. Wass de Czege also testified regarding the Department’s decision to revoke (deny) Respondent’s application for registration. Ms. Wass de Czege stated that the Department’s action was based on the child protective investigator’s findings of “inadequate supervision” and overcapacity. Ms. Wass de Czege agreed with Ms. Davis that supervision in a family day care home requires “direct sight and hearing of the children at all times” so that the caregiver is “able to respond to meet the needs of the children.” Ms. Wass de Czege explained that based on the floor design of Ms. Scally’s home, “she could not have the children in her sight. So, she was not meeting that parameter of the definition of supervision.” Ms. Wass de Czege explained that the Department’s definition of “inadequate supervision” for family day care homes is found in Florida Administrative Code Chapters 65C-22 and 65C-20.5/ Ms. Wass de Czege also remarked that having more than ten children in care at a family day care home is considered overcapacity. Therefore, having 11 children present in the home at the time of Ms. Baloy’s visit caused Respondent to be out of compliance with the governing regulation. Ms. Wass de Czege also conveyed that registration of a family day care home is basically a paper process. The applicant submits the paperwork. The Department checks off the information listed in section 402.313(1)(a). If approved, the applicant can care for children. Ms. Wass de Czege commented that, because of a lack of manpower and resources, a registered family day care home is not subject to routine inspections by the Department. Consequently, the Department has little regulatory oversight of Ms. Scally’s home. Based on its review of the CAHRS, the Department determined that Respondent failed the background check necessary to register as a family day care home for 2016. Ms. Scally testified on behalf of Respondent at the final hearing. Ms. Scally has operated her family day care home since 1997. She has successfully registered with the state every year since then. She cares greatly for the children entrusted to her. This current matter is the first issue she has encountered regarding her registration. Regarding the incident on March 5, 2015, Ms. Scally did not learn that a child may have been harmed at her home until the child’s parent called her that evening to report an injury. The parent relayed that her daughter told her that another child had poked her in a sensitive area, drawing blood. Upon learning of the injury, Ms. Scally immediately took action. That evening, she spoke with the parents of both children involved to make sure all parties were aware of the situation. The next morning, Ms. Scally called the injured child’s parent back to inquire of her well-being. Ms. Scally also contacted her own pediatrician seeking advice on the situation. Ms. Scally offered to arrange for her pediatrician to examine the child. Ms. Scally herself was the anonymous caller reporting the incident to the Central Abuse Hotline.6/ She called the abuse hotline on the next morning. (The CAHRS Investigative Summary notes that the call was received on March 6, 2015, at 10:38 a.m.) Ms. Scally called the abuse hotline because she knew reporting the injury was the proper and legally required step to take. Ms. Scally commented that the Department would not have learned of the incident but for her phone call. Ms. Scally conceded that, when she is standing in her kitchen, she does not have a direct line of sight with the children in her playroom. Consequently, Ms. Scally admitted that if the child was injured in the playroom while she was in the kitchen, the child was out of her sight for a short period of time. On the other hand, Ms. Scally asserts that she can always hear her children from the kitchen. Furthermore, no child is ever out of her eyesight for more than a couple of moments. Ms. Scally also represented that she has taken steps to ensure that she can maintain “sight and sound” supervision over her children in the future. She has purchased a mirror to place in the hallway between the playroom and the kitchen. This mirror allows her to see into either room from the other. Ms. Scally stated that in her 19 years of childcare, she has never had any incidents in her family day care home. Ms. Scally acknowledged that she might have had 11 children in her care on the occasion of Ms. Baloy’s visit to her home on March 9, 2015. Ms. Scally explained that it was likely during a “transition” period as her children were being picked up and dropped off and was not a regular occurrence or for an extended period of time. Based on this incident, Ms. Scally asserts that she will be extra cautious about the interactions between the children in her care. Ms. Scally presented testimony from several parents whom she serves. They each asserted that Respondent provides a valuable service, and they trust her with their children in her home. Mia Carla Hagins placed her daughter with Respondent from 2009 through 2014. Ms. Hagins testified that Ms. Scally ensures safety, nurturing, and care for the children she supervises. Thomas Breck placed two children with Ms. Scally from 1996 through 2000. Mr. Breck testified that Ms. Scally provided excellent care and demonstrated complete professionalism. Mizanne Brown placed her child with Ms. Scally for ten years. Ms. Brown testified that Ms. Scally was fabulous, nice, and wonderful. Ms. Scally also produced 26 letters of recommendation from parents and teachers of children for whom she has cared. Ms. Scally asserted that these letters show how positively her community views her, her home, and her childcare services. Based on the competent substantial evidence presented at the final hearing, the Department failed to establish, by a preponderance of the evidence, sufficient grounds to deny Respondent’s application for registration as a family day care home under the provisions of section 402.310. Accordingly, the Department should approve Respondent’s application to register as a family day care home.
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 approving Respondent’s application for registration as a family day care home. DONE AND ENTERED this 2nd day of August, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 2nd day of August, 2016.
The Issue The issue is whether Respondent should have granted Petitioner a license to operate a family day care home.
Findings Of Fact In January 1992, Petitioner operated a foster home for dependent children. The foster home was licensed by Respondent's predecessor, the Department of Health and Rehabilitative Services (hereinafter referred to as Respondent). In January 1992, Respondent received a report that Petitioner and her husband, Jim Shell, had meted out bizarre and excessive punishments to the children in their foster home. The report also alleged that Petitioner tied the younger foster children into their cribs at night. This report resulted in an investigation by Respondent. In the year prior to the initiation of the investigation, the following children stayed in Petitioner's foster home: H.S. (d.o.b. 4-6-89); S.S. (d.o.b. 10-1-86); T.H. (d.o.b. 5-3-89); S.A.C. (d.o.b. 9-18-88); B.Y. (d.o.b. 11-2-80) and G.Y. (d.o.b. 12-2-82. H.S. and S.S. were sisters. S.A.C., B.Y. and G.Y. were siblings. T.H. was mentally retarded. Petitioner gave B.Y. more household duties in the home than would be expected as chores for a child of her age. These responsibilities included housecleaning, laundry and child care. Additionally, Petitioner often kept B.Y. home from school to do housework. To excuse B.Y.'s absence, Petitioner would write notes to the school, falsely stating that B.Y. had a doctor's note and stayed home sick. B.Y. and G.Y. were forced to do push-ups as punishment for minor infractions. Petitioner's testimony that the children were required to do these push-ups as a joke or game is not persuasive. Mr. Shell spanked G.Y. for mis-reciting spelling words. This occurred once a week. On one occasion, B.Y. observed Mr. Shell hit G.Y. on the buttocks with a two by four. On another occasion, Mr. Shell jerked S.A.C. off a trampoline in the backyard, spanked her and threw her onto the ground. As a result of this rough treatment, S.A.C.'s head struck a tree. Petitioner regularly tied H.S.; S.S.; T.H.; and S.A.C. into their cribs at night because they would get up after being put down for the night. When B.Y. untied the children, Petitioner told her that when the children are tied up, they are supposed to remain that way. There was great strife in the Shell household. Petitioner and her husband often argued. For example, on B.Y's first night in the home, Petitioner hit Mr. Shell on the head with a frying pan. It is contrary to Department policy to physically restrain or punish children in foster care. Foster parents learn this in the training they receive before receiving their foster care licenses. Notwithstanding Petitioner's claim that she is separated from her husband, they continue to live under one roof. The house they live in is on the same property where Petitioner intends to operate a family day care home. The foregoing facts, among others, were set forth in the Respondent's final investigative report, Florida Protective Services System Abuse Report Number 92-007405. On April 22, 1992, the Respondent sent a certified letter to Petitioner informing her that the investigative report had been classified as proposed confirmed, that she had the right to request that Respondent amend or expunge the report, and that any such request would be considered only if received by Respondent within sixty days of her receipt of the April 22, 1992 letter. The letter contained the following language: If you do nothing, your right to appeal the classification of the report will be completely barred. By not choosing [to ask for amendment or expungement], this report will automatically be classified as CONFIRMED. This means that you do not contest the department's right to maintain the report findings as stated, including your identification as a perpetrator. A perpetrator in a confirmed report of abuse, neglect or exploitation may be disqualified from working in certain positions of trust, including working with children, disabled adults or aged persons. (Emphasis supplied). Petitioner signed the acknowledgment of receipt for the April 22, 1992, letter on April 27, 1992. She never requested amendment or expungement of the investigative report. Because neither amendment nor expungement of the report was sought, the confirmed classification became final agency action sixty days after Petitioner's receipt of the letter on April 27, 1992. In other words, the agency action became final on June 26, 1992. No appeal was taken from this action.1 In 1994, the Agency for Health Care Administration granted Petitioner an exemption from disqualification from employment in positions covered by Section 400.512, Florida Statutes. That section discusses the requirement for employment screening, using level 1 standards, for home health agency personnel, persons referred for employment by nurse registries, and persons employed by sitter, companion, or homemaker services registered under Section 400.509, Florida Statutes. The record does not indicate whether the Agency for Health Care Administration conducted an evidentiary hearing before making its decision to grant Petitioner the exemption.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying the application of Petitioner Patricia Shell to operate a registered family day care home. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998.
The Issue The issue in this case is whether Petitioner, Sabra Portwood, is entitled to register her home as a family day care home under the provisions of Chapters 402 and 435, Florida Statutes.
Findings Of Fact On August 10, 2000, Petitioner was married to Randy Shoaff. She had two children, twins, by him and is currently pregnant with another of his children. Although estranged at present, they remain married. Petitioner is in the preliminary stages of dissolving the marriage and intends to complete the dissolution process. Petitioner and Mr. Shoaff have had a rocky relationship. On October 4, 2000, less than two months into their marriage, Mr. Shoaff struck Petitioner several times in the head from behind. She was pregnant at the time of the attack. The incident was reported to law enforcement. On March 12, 2001, Petitioner swore out a Petition for Injunction for Protection Against Domestic Violence, naming her husband as Respondent. The essential facts to which she swore and testified to at hearing were as follows: On February 23, 2001, at 705 W. Wilcox the Respondent Randolph Shoaff told me that the only reason I was still alive was because I was pregnant and that I have 3 other children. He said that he wanted to shoot me & then kill himself. Because of his actions before I have been afraid of him on 3 or 4 different occasions, and I would just be quiet & not say anything & wait for him to go to work. On Oct. 4th (there should be a police report) there was a dispute between us & he started hitting me in the head repeatedly when I was 3 months pregnant & had only been home for 3 hrs from the doctor because I was bleeding during pregnancy. I am afraid because I asked his coworker if his (Randy's) gun was under the counter & he said it wasn't there. As a direct result of Petitioner's request for a domestic violence injunction, the Third Circuit Court issued a Temporary Injunction. Subsequently, the injunction was conditionally dissolved. However, Mr. Shoaff was ordered to have no personal contact with Sabra Portwood at her home. A third Order was subsequently entered in order to facilitate visitation with his children, allowing non-hostile contact between the parties. Mr. Shoaff does not live with Petitioner. However, Petitioner and Mr. Shoaf are presently married. Therefore, Mr. Shoaf is currently a member of Petitioner's family and is required to undergo background screening for Petitioner's registration. Mr. Shoaff did not pass the background screening because of the injunction based on domestic violence entered against him. No exemption from disqualification was sought. Because of the failed background screening, Petitioner, who was the victim of domestic violence and took steps to protect herself from that violence, was denied registration based on the actions of her estranged husband.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services denying Petitioner's request to register her home as a family day care home. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 24th day of May, 2002. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Building A, Suite 104 Tallahassee, Florida 32399-2949 Sabra Portwood 140 Regina Road Perry, Florida 32348 John Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether the registration of Thorpe Lindsay's family day care home should be revoked.
Findings Of Fact The Department is responsible for the registration and supervision of family day care homes, pursuant to Section 402.313, Florida Statutes (2007). Respondent, Thorpe Lindsey, has been registered to operate a family day care home at 2306 Savoy Drive, Orlando, Florida, since December 18, 2006. 3. On June 27, 2007; July 13, 2007; and July 26, 2007, Respondent allowed an unscreened and unapproved substitute, Sheneka Henderson, to be alone with and supervise children in the family day care home. Respondent was not present in the home on at least two of these occasions. On all three occasions, Respondent appeared after the Department's protective investigator or child care licensing supervisor noted his absence and the presence of Ms. Henderson as the caregiver.2 On July 13, 2007, Respondent was cautioned in person about the repercussions of allowing unscreened personnel to supervise children. On September 14, 2007, the Department issued an Administrative Complaint against Respondent, seeking to impose a civil penalty in the amount of $500.00 for the three instances of using an unscreened and unapproved substitute caregiver. Respondent refused to accept service of the Department's certified letter. The copy of the Administrative Complaint sent by regular U.S. Mail was not returned to the Department, and Respondent never sought a hearing or otherwise contested the allegations of the Administrative Complaint. Aside from the problem of unscreened personnel, Respondent also had a recurring problem of caring for a number of children greatly in excess of the ratios allowed by statute in his family day care home. Under any circumstances, a family day care home may provide care for no more than ten children. See § 402.302(7), Florida Statutes (2007). On June 27, 2007, the Department sent a certified letter to Respondent noting that on the previous day, the Department had received a report that Respondent was caring for between 30 and 40 children. The letter cautioned Respondent that he must immediately reduce enrollment and submit a written plan to the Department by July 10, 2007, identifying the names and birth dates of the children for whom Respondent would continue to provide care, as well as the names and birth dates of the children whom Respondent eliminated from his roster. Respondent never provided the required documentation to the Department. The Early Learning Coalition of Orange County is a public/private partnership established to ensure that children enter school ready to learn. In coordination with the Department, the Early Learning Coalition provides health and safety inspections for anyone receiving school readiness funding. Because Respondent received such funding, Eric Allen, an inspector for the Early Learning Coalition, made regular visits to the family day care home. On July 6, 2007, Mr. Allen made a routine visit to Respondent's home and found several violations, including a ratio violation, the presence of unscreened volunteers caring for children, chemicals under kitchen and bathroom sinks without door locks on the cabinets, and uncapped electrical outlets. On July 9, 2007, the Early Learning Coalition sent a letter to Respondent outlining the violations and requiring their correction pending a re-inspection of the family day care home. On July 20, 2007, Mr. Allen conducted a routine visit to Respondent's home and again found the home to be out of ratio. On July 26, 2007, the Early Learning Coalition sent a letter, signed by Donna J. Williams, director of quality services, to Respondent that stated the following, in relevant part: This letter will clear up any confusion as to the number of children you are legally allowed to care for. As a family home provider, six (6) is the maximum number of children under the age of five you are allowed to have in care at one time. If an infant is present, the maximum number of children allowable at one time is five (5). I am enclosing the state ratio chart so you may be clear on the number and age of children you are legally allowed to have in your care at one time. Since this falls under our Non-compliance Policy, you are hereby on notice that if there is any other incident where you are found in non-compliance with any Level I violation, the parents of school readiness funded children will be contacted and given the opportunity to transfer as you will be ineligible to receive school readiness funds for a period of one year. On September 7, 2007, at approximately 3:45 p.m., Mr. Allen again visited Respondent's registered family day care home. Mr. Allen found a note on the front door stating, "We are on a field trip," with contact information for parents at the bottom. Mr. Allen noted that the contact numbers on the note did not match the contact information on file at the Early Learning Coalition. He also noted that all of the windows of the house were covered with blinds or cardboard. Mr. Allen testified that he had made several prior attempts to visit the home in recent days, but that on each occasion was met with a note claiming the children were out on a "field trip." He was about to walk away from the house when he heard a baby crying inside. He rang the doorbell and knocked on the door but received no response. He called out to whomever was inside the house, "This is Eric from the Early Learning Coalition. I can hear a baby crying. You need to open the door or you are violating your provider agreement and you are in danger of being de-funded." There was still no response from inside the house. Mr. Allen walked around to the back door. He knocked on the window of the rear childcare area and repeated his warning. After several minutes, a car pulled up to the home. A woman got out of the car and approached the front door. Mr. Allen asked if she was there to pick up a child, and she answered affirmatively. She rang the doorbell but no one answered. Mr. Allen offered to call the contact number, but the woman just turned and drove away. Mr. Allen called the Early Learning Coalition's office and asked the administrative assistant to verify and call the contact number for Respondent's home. When the assistant called the number, a woman who identified herself as Respondent's sister answered and stated that the children were out on a field trip. Mr. Allen then called the contact number and asked Respondent's sister where the children were. She stated they were on a field trip to Pizza Hut. Mr. Allen told her he could hear a baby crying inside and that if the door was not opened he would call the police. Respondent's sister hung up the phone. Just as Mr. Allen's phone conversation concluded, approximately 25 minutes after he first arrived at the house, the woman in the car returned. As the woman walked up to the front door, the door was opened by Toshiba Lindsey, another of Respondent's sisters, who was holding a baby she said was her son. Mr. Allen showed Ms. Lindsey his identification and asked her why he had been left outside trying to get someone to open the door for nearly a half hour. Ms. Lindsey claimed to have been sleeping and not to have heard the knocking. Mr. Allen entered the home and started down the hallway, but Ms. Lindsey forbade him from entering one of the rooms. Mr. Allen could hear a child crying inside the room. He demanded to know whose child was behind the door. Ms. Lindsey denied there was anyone in the room. For several minutes, Mr. Allen attempted to convince Ms. Lindsey to open the door, but she continued to say that she could not open it. Mr. Allen told her to call Respondent, who was not in the house. Mr. Allen spoke to Respondent and told him that he would call the police if Ms. Lindsey did not open the door. Respondent hung up on him. Mr. Allen called 911 and requested an officer to come to the house and open the door. A moment later, the door to the room opened and another woman, Sheneka Henderson, emerged with 13 children. Neither Ms. Lindsey nor Ms. Henderson had been background screened or trained to act as caregivers. Mr. Allen recorded the names and ages of the children, then left the home. Respondent never showed up at the house while Mr. Allen was there. On September 10, 2007, the Early Learning Coalition sent Respondent a letter notifying him that he would be ineligible to receive school readiness funds for a period of one year, based on Respondent's repeated violations of mandatory state ratio requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order revoking the registration of Thorpe Lindsey to operate a family day care home. DONE AND ENTERED this 10th day of April, 2008, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2008.
The Issue Whether Respondent, Mildred Jones, doing business as Jones Family Day Care (Jones or Respondent), committed the violations alleged in the Administrative Complaint dated May 29, 2012, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent operated a licensed day care facility located in Orange County, Florida. On the date of the attempted inspection in this case, Respondent had six children enrolled in her day care program. Petitioner is the state agency charged with the responsibility of licensing and inspecting day care facilities throughout the State of Florida. As part of that responsibility, Petitioner routinely inspects day care facilities to assure compliance with rules and regulations that govern day care programs. On May 4, 2012, Petitioner’s agent, Luz Torres, inspected Respondent’s home. This was not Ms. Torres’ first visit to the home and, like all other visits, she approached the front door during regular business hours and knocked. Upon knocking, Ms. Torres was greeted by a female voice behind the door who advised that she could not let Ms. Torres into the home. The female, later identified as Christine Randall, refused Ms. Torres admission even after the inspector advised that it was required by law. Despite her efforts to enter the home, Ms. Torres was denied access. Ms. Torres could hear the sounds of children within the home but could not from outside the front door determine the identity or number of the voices. Ms. Randall did not advise Ms. Torres that Ms. Jones was in the rear of the property. Ms. Randall did not direct Ms. Torres to go to the rear of the property. Ms. Torres could not view the rear of the property from the front entrance. Ms. Torres’ efforts to reach Ms. Jones by telephone proved fruitless. Ms. Randall has not been screened or had a background check in years. Ms. Randall was not listed as a substitute caregiver for Respondent’s facility. Ms. Jones’ claim that only Ms. Randall’s two children were present on the date Ms. Torres attempted entrance has not been deemed credible. Ms. Jones also claimed Ms. Randall was present helping her prepare for her inspection. Had only two children been present, Ms. Randall could have easily admitted Ms. Torres, had her observe that the home was being prepared for inspection without other children present, and addressed her role as helper to Ms. Jones with only her own children present in the home. Instead, Ms. Randall denied access to the home and failed to direct Ms. Torres to the rear of the property (presuming Ms. Jones was, in fact, there). Ms. Wright’s suggestion that only Ms. Randall’s children were present on the date in question has not been deemed persuasive as Ms. Wright did not enter the home on that date, did not view the home for the entire time, and does not routinely know who is or is not in the home from her vantage as Respondent’s neighbor and friend.
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 Respondent committed a Class I violation and imposing an administrative fine in the amount of $250.00. DONE AND ENTERED this 1st day of October, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 1st day of October, 2012. COPIES FURNISHED: Stefanie C. Beach, Esquire Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801-1782 Mildred Jones Jones Family Day Care Home 5027 Caserta Street Orlando, Florida 32819 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's license to operate a family day care home should be disciplined, and, if so, what penalty should be imposed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Parties Petitioner is the state agency responsible for licensing and regulating child care facilities, including family day care homes. Petitioner routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report which is provided to the home's operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on family day care homes which have a provisional license rather than a standard license. Petitioner also conducts inspections in response to complaints it receives, and it has the authority to inspect family day care homes at any time with or without notice. Respondent is the owner and operator of a licensed family day care home located at 2406 Winter Ridge Drive, Auburndale, Florida (hereinafter "Respondent's facility" or "the facility"). Respondent resides at that address as well. Respondent has operated a day care home at the above address for approximately five years, and she has been involved in child care for approximately ten years. Respondent has taken all required training in order to be licensed. As a result, she is, or should be, familiar with the rules regulating family day care homes. Respondent keeps children in her home, and children also play in Respondent's backyard. This area is enclosed by an approximately three and a half foot high chain-link fence. Respondent also owns a one-acre parcel behind her house and yard, which is apparently not fenced. Inspections and Resulting Actions by Petitioner Respondent's facility was inspected on April 16, 2003, and several areas of non-compliance were identified during this inspection. Noted as violations included Petitioner's son and husband who were in the home without a completed background screening on each of them; a fence surrounding the property had protruding chicken wire and was less than four feet in height; children's floor mats were torn and not properly covered; a bathroom sink was missing and needed replacement; no paper towels were in the bathroom for the children; one child's immunization records had expired and one child's required physical examination was out of date; and there were eight preschool children over the age of one year old in the home, where the maximum allowed was six. A re-inspection was conducted on April 23, 2003. On January 22, 2004, Petitioner's inspector Mr. Pickett went to Respondent's family day care home to carry out a routine inspection. Several areas of non-compliance were identified. Ms. Gainey's husband, Jerry Gainey, was staying in the home, but he had no letter on file showing he had been properly screened; there were too many children in the home (three children under 12 months old) when the maximum allowable is two; there were seven preschool children in the home when the maximum allowable is three; hazardous containers, a gas can and a paint can, had been left near the front door easily accessible to small children; a glass sliding door had a metal obstacle that could cause children to trip and fall; and three of the children in the home had no enrollment information on file--even their names and parents' names could not be found or names of anyone to call in case of an emergency. After Pickett completed his inspection, he discussed the results with Respondent and provided Respondent a copy of the inspection report. Pickett then went back to his office and discussed the results of the inspection with his supervisor, Ms. Hamilton. Based upon the results of the January 22, 2004, inspection and the prior incidence of non-compliance at Respondent's facility, Ms. Hamilton determined that Respondent's license should be revoked. Petitioner did not give Respondent an opportunity to bring her home into compliance with the minimum standards in Petitioner's licensing rules and standards. Thereafter, on January 26, 2004, Pickett sent a letter to Respondent informing her that her license was being revoked and advising Respondent of her right to "appeal" that decision through the administrative process. At the hearing, Ms. Hamilton testified that she was particularly concerned about Respondent's repeat violations, namely Respondent's husband not being screened for nearly nine months and the repeated ratio violations, that is, too many children in the home. She characterized these as serious child safety violations. These were the primary reasons she recommended that Respondent's child care license be revoked. Respondent, in her testimony, did not deny committing the violations noted in the inspections of April 16, 2003, and January 22, 2004. However, she did demonstrate that a re-inspection of her facility on April 23, 2003, listed her to be in compliance with all violations listed in the April 16, 2003, report, except for the background screening requirement for her husband. Respondent insisted that her son, Jerry L. Gainey, who is 28 years old, lives down the street from her and does not regularly watch the children in her home. Due to an emergency situation, she was required to leave her home in order to pick up some children from school, and she called upon her son to watch the children until her return. Respondent asserts that her son has not watched the children since that date. Respondent also asserts that her husband, who has had a stroke and is cognitively impaired and walks with the aide of a cane or scooter, does not reside with her full-time but, in fact, lives with his sister in Arkansas. The testimony in regard to her husband's permanent place of resident is not credible, since he was in the home on at least two occasions--April 16, 2003, and January 22, 2004--when it was inspected. It is undisputed that Respondent was not at the facility when Mr. McClary arrived in the early afternoon of April 16, 2003. Her husband and son were watching the children. Respondent's testimony indicated that her husband was physically impaired and not capable of supervising the children. Therefore, only her son was left in charge of the facility and the children that afternoon, and her son was not authorized to supervise the children. As a result, the children were effectively left unsupervised when Respondent left the facility that afternoon. Respondent's testimony is credible, especially when bolstered by her client's testimony, that she is a loving and caring person who goes out of her way to care for the children she keeps in her home. Respondent explained that at the time of the April 16, 2003, inspection, the sink was missing because the entire bathroom was being renovated, and the renovation has been complete for some time. Respondent also stated that she did not understand the need for Petitioner's insistence on strict compliance with the four-foot height requirement for the chain- link fence, especially since she owns the one-acre parcel in the back of her yard. Respondent also explained that the reason she had exceeded the maximum allowable number of children in her home on two occasions was concern for the custodial parents' inability to find suitable child care when they worked odd hours or the swing shift and that she was willing to inconvenience herself in order to provide this service. This testimony was corroborated by several parents and grandparents who testified in Petitioner's behalf. The evidence is clear and convincing that Respondent violated several code provisions, including failure to properly screen her husband, having too many children in the home, and failure to have current enrollment on file for each child. The evidence is not clear and convincing that Respondent violated the code provisions relating to minimum fence height requirements; improper floor mats; failure to have a functioning sink in the children's bathroom; no paper towels in the bathroom for the children; expiration of a child's shot records or that a child's physical examination was outdated. Respondent has shown mitigating evidence that she is a concerned and loving caregiver which demonstrates that her license as a family day care home license should not be revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of violating the provisions of Florida Administrative Code Rules 65C-20.009(3)(a) (one count), 65C-20.010(1)(b) (one count), and 65C-20.011(4); and Subsection 402.032(7), Florida Statutes (two counts). Finding Petitioner not guilty of violating the provisions of Florida Administrative Code Rules 65C-20.010(1)(o), 65C-20.010(1)(f), and 65C-20.011(1) and (2)(a). Issuing Respondent a provisional license and imposing an administrative fine of $250.00. DONE AND ENTERED this 8th day of June, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 June, 2004.
The Issue The issues in this case are: (a) Whether Petitioner's license as a family day care should be renewed; (b) Whether Petitioner was required to list Halvert Swanson as a household member on her annual application for a family day care license; and (c) Whether Halvert Swanson, a convicted sex offender, was a member of Petitioner's household at any time between 1997 and 2000.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant to this matter, Petitioner, Gennell Hardnett, d/b/a Nell's Day Care, was licensed by Respondent to operate a family day care out of her home located at 513 West 14th Street, Apopka, Florida. Petitioner had been licensed by Respondent in 1995 as a family day care facility, and her license has been renewed on an annual basis therefor. Petitioner's license permitted her to operate 24 hours a day, Monday through Saturday. However, Petitioner actually operated her day care from 6:30 a.m. until midnight, Monday through Friday. She was never open during the weekends. Petitioner's application for renewal of her license for the year 2000-2001 was denied. As part of her licensing requirements, Petitioner knew she was to list on her Application for Licensing all of her household members for possible background screening. This is to ensure that all members of her household were properly screened for disqualifying offenses. For each of the five years since 1995, Petitioner listed herself and her sons, Quantas Hardnett and Demetric Hardnett, as household members on her licensing application. She did not list another son, Halvert Swanson, as a household member. On her renewal application for the year 2000-2001, Petitioner listed as household members, herself and her son Quantas Swanson because Demetric, at the time, was residing with an aunt. Halvert Swanson was, again, not listed. Halvert Swanson, also the son of Petitioner, had been convicted of the felony of attempted lewd acts upon a child under the age of sixteen in approximately 1990. Swanson was in the custody of the Department of Corrections from approximately February 3, 1990 to June 1, 1993. He was released from custody in 1993. Following his release from prison, Swanson listed the address of his mother, Petitioner, as his residence address with the State of Florida, Department of Corrections. Petitioner was aware that her son Halvert had been convicted of this crime. She also knew that her son Halvert Swanson was not permitted to be a holdhold member, and was not to be permitted unsupervised contact with children under Petitioner's care. Petitioner has never listed on her applications, nor notified Respondent, that her son, Halvert Swanson, resided at her family day care facilities, located at 513 West 14th Street, Apopka, Florida On September 23, 1997, Barbara Osborne, a Department of Corrections probation specialist, visited with Halvert Swanson in the residence located at 513 West 14th Street, Apopka, Florida. The purpose of Osborne's visit with Swanson was to monitor his compliance with conditions of his release from prison. This visit with Swanson was unannounced. During the visit with Swanson, Osborne confirmed that Swanson resided at the address on 513 West 14th Street. During her visit with Swanson, Osborne also observed several children at the home. She was not aware if Petitioner was present or not. Osborne informed Swanson that if he intended to continue to reside at the house at 513 West 14th Street, Petitioner would need to complete an affidavit addressing whether Swanson had unsupervised contact with children. Osborne returned to the house at 513 West 14th Street on November 18, 1997, because Swanson had not reported to Osborne as required. During her visit to the house, Osborne spoke with Petitioner who confirmed that Swanson was still residing at the home at 513 West 14th Street. Osborne reminded Petitioner of the conditions on Swanson's release regarding no unsupervised contact with children, and let her know that she would have to complete an affidavit if he continued to reside at Petitioner's home. Early in the year 2000, a local television reporter for WKMG, Channel Six, Tony Pipitone, while investigating a news story, visited Petitioner's home. While there, Pipitone asked if Halvert Swanson was there. Petitioner replied "No," and Pipitone left. He later returned to Petitioner's home, this time with a cameraman. Pipitone asked Petitioner if Halvert Swanson lived there, and this time Petitioner replied "Yes," and that he stayed there on weekends. The story aired on local television, and Respondent was made aware of the allegation that a felon with a conviction of attempted lewd acts on a child under the age of sixteen was living at a family day care. In April 2000, Respondent learned from a local television reporter that Petitioner stated to the reporter that Halvert Swanson stays at her house on weekends. Some of Respondent's staff reviewed a video-tape of Petitioner's statement to the local reporter. By letter dated April 21, 2000, Respondent denied Petitioner's application for re-licensure of her facility for the year covering May 2000-2001. Petitioner offered testimony of several witnesses who were unable to recall accurate details about Halvert Swanson's whereabouts from 1990 through 2000. However, it appears that, since his release from prison, Swanson had no permanent place of residence, but moved about, living with various relatives and girlfriends at his convenience. In addition, he was incarcerated for parts of this time period. During the relevant time period, Halvert Swanson, on occasion, visited the home of Petitioner and stayed overnight with his mother and his brothers on weekends. Swanson was also asked to stay at and look after Petitioner's home on several weekends while Petitioner and her other sons were out of town. Swanson continued to visit with his mother and brothers at 513 West 14th Street, Apopka, Florida, and continued to use her home as his permanent address. In the five years that Petitioner operated her licensed family day care center, the children under the care of Petitioner have not been injured or hurt.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for re-licensure of her family day care home, for the year 2000-2001. DONE AND ENTERED this 19th day of October, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 19th day of October, 2000. COPIES FURNISHED: Paul V. Moyer, Esquire Moyer, Straus & Patel, P.A. 815 Orienta Avenue, Suite 6 Post office Box 151058 Altamonte Springs, Florida 32715-1058 Eric D. Dunlap, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
