The Issue The issues in this case are whether Petitioner has demonstrated by clear and convincing evidence that she is rehabilitated from disqualifying offenses, and whether Respondent’s intended agency action to deny her request for an exemption from disqualification is an abuse of discretion.
Findings Of Fact Parties Respondent is the state agency responsible for regulating employment of persons who provide direct service to APD clients. APD clients are a vulnerable population of individuals whose developmental disabilities include intellectual disability, autism, spina bifida, cerebral palsy, Prader-Willi syndrome, and Down syndrome. Respondent’s clients are often incapable of adequately communicating their needs or whether they have been harmed. Therefore, employment as a direct service provider to Respondent’s clients is considered a position of trust. A person seeking employment in a position of trust must undergo a pre-employment Level 2 background screening to ensure the person has not been convicted of crimes that may pose a threat to vulnerable persons. Petitioner is a 35-year-old female who seeks to qualify for employment with a direct service provider (Right Direction Christian Center, Inc.) in a position of trust. The position for which she applied required that she undergo Level 2 background screening. The Level 2 background screening revealed that Petitioner committed five disqualifying offenses between July 1, 2004, and August 4, 2005, which were described as follows: Count I: Aggravated Child Abuse with a Deadly Weapon (first degree felony); Count II: Aggravated Child Abuse by Great Bodily Harm (first degree felony); Count III: Child Neglect (third degree felony); Count IV: Child Neglect (third degree felony); and Count V: Child Neglect (third degree felony). Disqualifying Offenses The events leading to the disqualifying offenses occurred 11 years ago, when Petitioner was 24 years old. She had two biological children, a son (age 6) and a daughter (age 3), at the time of the events. Each of the disqualifying events involved Petitioner’s children. On August 4, 2005, the paternal aunt of Petitioner’s son observed injuries to the son’s foot and contacted the Leon County Sherriff’s Office to report suspected child abuse. The responding officer recorded his observations in a police report.2/ Petitioner’s son indicated that Petitioner struck him with a metal mop handle on his feet, legs, and arms as punishment. The deputy observed a three-quarters inch, circular-shaped laceration, with two smaller lacerations beside it on the inside of the son’s left heel. On August 16, 2005, a detective continued the investigation. During an interview with the detective, Petitioner’s son indicated that Petitioner struck him with a hanger causing “marks” on his back, which the detective photographed. The detective observed the “marks.” Petitioner’s son also complained of a toothache. He indicated Petitioner placed a heated hairpin in his tooth to resolve the tooth decay. The detective noted in his report that the tooth appeared to be decayed to the root. Petitioner also left her son and daughter at home without supervision, while Petitioner was at work. At the conclusion of the investigation, Petitioner was arrested and charged with child abuse and neglect. On October 26, 2005, Petitioner entered a plea of nolo contendere to all five disqualifying offenses described above. The court withheld adjudication of guilt, sentenced Petitioner to imprisonment of 70 days (with 62 days credited for time served), imposed 42 months of probation with special conditions that she: 1) follow orders of the Department of Children and Families; 2) complete parenting and anger management classes within one year; and 3) pay court costs and fees. Petitioner completed all terms and was released from probation on July 30, 2009. On May 10, 2016, Petitioner paid the civil judgment related to costs and fees imposed for her 2005 offenses and the court issued a Satisfaction of Judgment. Non-Disqualifying Offense In addition to disqualifying offenses, agencies may also consider criminal events that occur after the disqualifying offense. The background screening revealed one non- disqualifying offense. On June 13, 2006, Petitioner was charged with Violation of Probation (“VOP”) for driving without a valid driver’s license. As a result of the VOP charge, on November 16, 2006, the court issued an Order modifying the probation. The Order of modification added 30 days in jail with credit for time served and prohibited Petitioner from early termination of probation. Exemption Request/Agency Review By letter, Respondent notified Petitioner that she was disqualified from employment because of her criminal offenses. She requested an exemption from disqualification. Petitioner filed her Request for Exemption with the Department of Children and Families (“DCF”). DCF conducts the background screening and prepares an exemption investigation file on Respondent’s behalf. A DCF background screener compiled the investigation materials and forwarded the exemption review file to Respondent. Petitioner’s file was assigned to Lynne Daw for a recommendation regarding the exemption request. Ms. Daw is the regional operations manager for the Northwest region. She has been employed in that position since April 2012. Her job responsibilities include overseeing operations of the region, background screening, and eligibility for direct service providers. Ms. Daw reviewed Petitioner’s exemption request file, which included the exemption review summary, court documents, police reports and supporting affidavits, Petitioner’s exemption questionnaire, notice of termination of probation supervision, affidavit of good moral character, character reference letters, reference check verification form, high school diploma from Cornerstone Christian Correspondence School, and certificate of completion for a parenting class. Respondent considers the nature of the disqualifying offenses when evaluating a request for exemption. At hearing, Ms. Daw testified that the nature of the disqualifying criminal charges were concerning due to the vulnerability of the clients Respondent serves. In her review, Ms. Daw relied upon statements contained in the police report made by a physician who examined Petitioner’s son. Those statements are hearsay within hearsay. Because the statements do not meet any hearsay exception, they cannot be considered for a finding of fact. Respondent also considers the history of an applicant since the incident and other evidence or circumstances indicating whether the applicant would present a danger to Respondent’s clients if employment is permitted. Respondent considers counseling a factor, when the nature of the offense involves acts of anger. Ms. Daw testified that there was no evidence in the exemption packet to show Petitioner completed an anger management course. During the hearing, however, Petitioner refuted this contention and stated she completed an anger management course. The evidence in the record includes a notice of termination of supervision from Petitioner’s probation officer. Completion of an anger management course was a term of Petitioner’s probation. Therefore, a reasonable inference could be drawn that she completed the anger management course. Ms. Daw also expressed concern for safety of Respondent’s clients who could be transported by Petitioner. Of note, Petitioner’s background screening revealed several traffic violations. However, none of the violations involved injuries to passengers or others. Subsequent to the disqualifying offenses, Petitioner has furthered her education by earning a general education diploma (also known as GED) on December 1, 2011, and a certified nursing assistance (CNA) certification on November 16, 2015. She is not eligible to take the certification exam due to the Level 2 screening results. Petitioner also maintained employment after her convictions until June 4, 2015. From April 3, 2006, to June 4, 2015, Petitioner worked at Big Lots as a recovery associate. From April 8, 2012, to May 6, 2014, Petitioner worked at Vector Connect (Cutco) as a sales representative. She described her duties as selling cutlery. Petitioner provided favorable reference letters in support of her request for exemption. The first letter described Petitioner as patient, dependable, and trustworthy. The author indicated that Petitioner served as the primary caregiver for her physically disabled mother. It is not clear, however, the length of time Petitioner provided the care to the author’s mother or whether Petitioner was paid for her work. The second letter indicated Petitioner is kind and professional. The author of that letter is described as a friend. Overall, the letters indicated Petitioner may be a good employee but were not helpful on the issue of rehabilitation. Ms. Daw concluded that, considering the totality of the circumstances, there was no clear and convincing evidence that Petitioner could work in a position of trust without posing a safety risk to Respondent’s clients. As a result, Ms. Daw recommended the request for exemption be denied and submitted the exemption file to the agency director, Barbara Palmer, for final determination. The agency director issued the notice of denial on May 27, 2016, notifying Petitioner of Respondent’s determination to deny her request for exemption. Given the nature of harm due to physical abuse and the potential of harm due to neglect, Petitioner’s actions raise concern about her ability to work with vulnerable persons. Absent compelling evidence that such serious behavior will not be repeated, Petitioner has not met her burden. Ultimate Findings of Fact The evidence in this case did not clearly and convincingly establish that Petitioner has been rehabilitated from her disqualifying offenses. Despite Petitioner’s statements that she accepts full responsibility for her actions, she continues to shift blame to her son’s aunt for her arrest and continues to deny that she left her young children at home alone. To her credit, Petitioner has taken steps to improve her life by earning a GED and CNA certificate and by volunteering with the elderly in the community. However, such evidence is not sufficient clear and convincing evidence of rehabilitation. Respondent did not abuse its discretion in denying Petitioner’s request for exemption from the disqualifying offenses because, on these facts, a reasonable person would reach the same conclusion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying Petitioner, Shimika King’s, request for an exemption from disqualification. DONE AND ENTERED this 12th day of October, 2016, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 12th day of October, 2016.
The Issue The issue is whether the provisional license issued to Kiddie Kampus Day Care (Respondent), should be renewed.
Findings Of Fact Reatha Simmons is the owner of the Respondent facility and is licensed by Petitioner to operate a Child Care Facility under License No. DC-1320-E. As a consequence of a pattern of problems and violations at the Kiddie Kampus Day Care, Respondent was placed on provisional license status from January 20, 2000 through April 1, 2000. An inspection of the Respondent facility on January 7, 2000, revealed that the facility was "out-of-ratio" with too many children and not enough supervising employees, as well as insufficient square footage. Additional citations were made for Respondent's employee screening violations and lack of tuberculosis (TB) testing of the employees. A supervisory conference was held with Reatha Simmons and Petitioner employees on January 13, 2000, to discuss the pattern of repeat violations and non-compliance by the Respondent facility. Consequently, the facility was placed on a three-month provisional license status and Reatha Simmons was warned that it was her last chance to correct repeated violations. Another inspection on February 16, 2000, by Petitioner's representative revealed continued personnel screening violations and various facility violations. Included within the violations were two children who did not have required physicals on January 27, 2000, and were still out of compliance. An attempted review of documents at the Respondent facility by Petitioner's representative on March 6, 2000, was not possible as the documents were locked in an office in the facility at that time. Problems occurred at the Respondent facility on March 4, 2000. An underage employee was alone for approximately nine hours with children at the facility. There was a ratio violation as to the number and ages of the children at the facility. A family member was called to come and pick up a child early and the facility closed earlier than its posted hours. These matters were reported to Petitioner's personnel on March 7, 2000. At an inspection by Petitioner personnel on March 9, 2000, Respondent acknowledged the veracity of the March 4, 2000 incident. On March 16, 2000, an inspection of the facility showed additional fill dirt or ground cover was needed under the monkey bars, a piece of recreational machinery. While employee fingerprint and background verification were eventually accomplished, along with required TB tests, these actions were tardy and not expediently accomplished. Likewise, physical examinations of two children were not timely accomplished.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be entered by Petitioner confirming the decision not to renew Respondent's license. DONE AND ENTERED this 19th day of December, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 December, 2000. COPIES FURNISHED: Reatha Simmons, Qualified Representative Kiddie Kampus Day Care 1216 Portland Street Pensacola, Florida 32534 Eric D. Schurger, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should be assessed a $150.00 civil penalty for violating Rule 65C-22.001, Florida Administrative Code, in three respects.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this case, Petitioner, Department of Children and Family Services (DCFS), has filed an Administrative Complaint against Respondent, Cool School, Inc., a licensed child care facility, seeking to impose a $150.00 civil penalty on Respondent for allegedly violating an agency rule in three respects. Respondent, which operates a facility at 57 College Drive, Orange Park, Florida, disputes the allegations and contends that the charges are either not true, or there are extenuating circumstances present which require dismissal of the charges or a reduction in the penalty. Rule 65C-22.001(5)(a), Florida Administrative Code, underpins this action and requires in relevant part that "[c]hild care personnel at the facility must be assigned to provide direct supervision to a specific group of children and be present with that group of children at all times." The Administrative Complaint alleges that in September 2000 Respondent violated this rule by (a) allowing a two-year-old child to exit the facility to the playground, without supervision, clad only in a shirt and shoes; (b) allowing two children under the age of thirteen to change the diaper of a seven-month-old infant in the bathroom, without supervision by the staff; and (c) allowing at least five school-aged children to leave the premises and get items from their book bags on the front porch, without supervision. The DCFS proposes to impose a $50.00 civil penalty for each violation, or a total of $150.00. DCFS has the responsibility of periodically inspecting licensed child care facilities to ensure that they are complying with agency rules and state law. To carry out this duty, DCFS typically assigns its licensing counselors a number of facilities to monitor. In this case, Susan Kipen, a licensing counselor stationed in Jacksonville, was assigned the task of monitoring more than 90 such facilities in the Jacksonville area, including Respondent. In response to a complaint filed by an unnamed parent on September 18, 2000, Kipen inspected Respondent's facility on the afternoon of September 20, 2000. The parent had reported that her two-year old child had wandered into the playground area without supervision, and that the diapers on her seven-month-old child had been changed by two school age children without appropriate supervision. During her visit, Kipen prepared a document entitled Complaint Investigation in which she recited the alleged violations for which Respondent was being charged. They included, among other things, the two complaints previously lodged by the parent, namely, that a "two year old did get outside by himself, he only had shirt and shoes," and that a "7 month [old] was changed by two schoolers." Although the licensing counselor did not actually observe the two incidents reported by the parent, she included them in her report because she says Respondent's owner, Antoinette Garrity, "confirmed" that they were true by reading and signing the report. However, Garrity understood that her signature merely confirmed that she had read the reported charges, not that she agreed with them. The only first-hand evidence on these two charges was that presented by Respondent. The complaining parent did not testify. In addition to the above two charges, the counselor also charged Respondent with allowing "at least five (5) school-aged children, one at a time, and unsupervised, [to leave] the center by the front door to get items from their book bags located on the front porch." This charge was based on a personal observation by the licensing counselor during her inspection. The first violation concerns a charge that a two- year-old left the facility unattended and was "discovered a few minutes later on the playground by the assistant director." On this issue, the evidence shows that the child was using the potty in the presence of a facility worker, Sharon Dunn, who was also changing a baby's diapers at the same time. The two-year-old suddenly jumped off the potty (without his pants), ran to the door, opened it, and went outside on the porch. Dunn, who had the child in her view at all times from the bathroom window, asked the facility's assistant director, Regina Harewood, who was nearby, "Can you get him?" Harewood acknowledged that she could and proceeded to grab the child and bring him back into into the classroom. The child was never in any danger since he was being observed at all times and was retrieved a few moments after he ran out the door. In addition, Harewood was close enough to be capable of responding to an emergency at all times. Under these circumstances, it is found that no violation of the rule occurred. The second charge concerns an allegation that "two (2) children under the age of 13 years changed the diaper of a 7-month-old infant in the bathroom and no staff was present to supervise [them]." The evidence shows that a new worker had a baby in the bathroom for the purpose of changing his diapers. Garrity acknowledged that when the worker left the room to go outside for a moment, the worker improperly allowed two schoolers who were in the same room to change the diapers. While the diapers were being changed, the baby's mother came into the room. She then complained to staff personnel and later filed a complaint with DCFS. Garrity admonished both the worker and children that this situation should never occur again. Although there was no evidence on how this set of events actually or potentially jeopardized the baby's safety or well-being, a technical violation of the rule has been established since there were no supervisory personnel in the bathroom for a few moments. Finally, during her inspection, the counselor observed at least five children, one at a time, walk outside the front door to retrieve items from their book bags, which were lying on the front porch of the facility, and then return inside. At that time, it was the practice of the children to leave their book bags on the front porch when they arrived at the facility each day. This evidence was not contradicted. Because the front porch was no more than 25 or 30 feet from the sidewalk, which was used by the general public, and there was an apartment complex nearby, the children had the opportunity to gain access to areas frequented by the public. This is true even though the assistant director says that while she was on duty, she was by the front door "the majority of the time." Therefore, the children were potentially at risk when they briefly left the premises to retrieve items from their book bags. Respondent's owner admitted that she "hadn't thought of this situation," and after the incident occurred, she instructed the children that all book bags must be brought into the dayroom. Notwithstanding this corrective action, a violation of the rule has been established. In mitigation, Respondent's owner suggested that the entire matter was caused by a vindictive parent who owed her facility money and filed the charges after a heated confrontation. She also worries that each time the facility receives a civil penalty, it "kills" her business. Finally, she described her facility as a "pretty good" day care facility, and insisted that she puts safety first for the children. Respondent has been the subject of one other disciplinary action in which she was found guilty of failing to submit background screening documents within ten days of employment of seven staff members. In that matter, which was concluded after the Administrative Complaint in this case was issued, she was given a $350.00 civil penalty. See Cool School, Inc. v. Dep't of Children and Family Services, DOAH Case No. 00-1421 (Final Order, Feb. 28, 2001).
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 finding that Respondent violated Rule 65C-22.001(5)(a), Florida Administrative Code, in two respects, and that it have a $100.00 civil penalty imposed. The remaining charge should be dismissed. DONE AND ENTERED this 23rd day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 23rd day of March, 2001. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Antoinette Garrity Cool School, Inc. 57 College Drive Orange Park, Florida 32065 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue The issues are whether Respondent, a child care facility, violated the minimum staffing ratio in one of its classes and, if so, what penalty should be imposed.
Findings Of Fact Respondent owns and operates the Children's Christian School House, which is a licensed child care facility. Ileana Echevarria is the director of Respondent. Each year, Petitioner's inspectors conduct three routine and one annual-renewal inspection of each licensed child care facility. On one such inspection, conducted on June 5, 2006, the inspector observed that the facility's two-year-old room had 12 children and only one adult. Pursuant to Petitioner's policy not to fine a facility for the first violation, the inspector directed Ms. Echevarria to telephone one of the parents and have her come and pick up her child. Ms. Echevarria did so, and the violation was corrected before the inspector left the facility. The same inspector returned to the facility on June 20, 2006, to perform a re-inspection. On this occasion, the facility was out of compliance in a different room. The room occupied by children five years old and older contained 39 children and one adult. On June 20, two of the teachers were on vacation and another teacher had called in sick. A new teacher had reported to work for her first day, but she was sitting in the cafeteria and was not supervising any children. Ms. Echevarria herself had been sick, had come to school earlier, and had returned home to retrieve her medicine, so she was not at the facility at the time of the re-inspection of the out-of-compliance classroom.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order imposing a civil penalty of $100 against Respondent for a violation of the staff-to-children ratio during the June 20, 2006, inspection. DONE AND ENTERED this 16th day of April, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 16th day of April, 2007. COPIES FURNISHED: Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert A. Butterworth, Secretary Department of Children and Family Services Building 1 Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Kimberly D. Coward, Esquire Department of Children and Family Services 401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128 Ileana Echevarria Qualified Representative Children's Christian School House, Inc. 380 West 21st Street Hialeah, Florida 33010
