Findings Of Fact The Petitioner is a single male, 39 years of age. He has been a resident of Broward County for the past six years and is self-employed in real- estate management and maintenance. He holds a master's degree from Ohio State University and is in apparent good health. In addition to about twelve traffic violations, Petitioner has been arrested for wrongful influence of a minor in 1976, and soliciting a lewd and lascivious act in 1977. The 1977 charge was dropped, but the 1976 charge resulted in a $25 fine. Petitioner's experience as a parent is limited. He did, however, provide a home to a son (born out of wedlock) for the child's final two years of high school. Petitioner met the dependent child, Richard Price, on the beach in August, 1980. Richard was then 14 years and ten months of age. After determining that Richard was "living on the street," Petitioner offered to share his condominium apartment with him. Richard accepted and remained with Petitioner until February, 1982, when he was removed by Respondent. Petitioner did not notify Respondent, who had custody of Richard, when he brought the child to his home in August, 1980. However, Respondent did not actively attempt to locate Richard and was not aware of his situation until over a year later, despite Richard's dependent child status. During his first year with Petitioner, Richard's adjustment and behavior were satisfactory. He attended high school and travelled with Petitioner on a family visit to Ohio and a group education tour to England. He gained weight and received medical attention as needed during this period. In the summer of 1981, Richard formed a relationship with another dependent child who had moved into Petitioner's condominium building. His behavior deteriorated thereafter, at least partly as a result of this relationship. On September 28, 1981, the police were called to Petitioner's residence regarding an argument between Petitioner and Richard. As a result of the police report, Respondent became aware of Richard's unapproved status. However, Respondent issued Petitioner a provisional license as a foster parent and Richard was allowed to remain in petitioner's custody. On November 6, 1981, Richard threatened Petitioner with a knife. The police were again summoned and Richard was temporarily placed in the South Florida State Hospital. On this occasion, Richard was returned to Petitioner's custody by court action. On February 6, 1982, Petitioner and Richard had an argument which culminated in a physical fight. In the struggle, Petitioner bit Richard rather severely, in what he contends was self-defense. Petitioner concedes that he bit Richard during an earlier altercation, also in claimed self-defense. As a result of the February 6 incident, Respondent removed Richard from Petitioner's custody and subsequently denied his application for licensure as a foster parent. Both Richard and Petitioner seek to resume the previous custody arrangement. Although Petitioner did not achieve a father-son relationship with Richard, he did provide a home-type setting in which Richard, for the most part, prospered. Richard is known to Respondent as having a "hot temper" and is at least partly responsible for the above described incidents.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a final order denying the petition. DONE and ENTERED this 28th day of July, 1982 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1982. COPIES FURNISHED: William F. Zamer, Esquire Suite 200 1421 East Oakland Park Boulevard Oakland Park, Florida 33334 Harold Braynon, Esquire District X Legal Counsel Department of HRS 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue is whether to deny Respondent's application to renew its child care facility license and impose an administrative fine for the reasons stated in the Department's letter dated September 16, 2016.
Findings Of Fact Ms. Garcia operated a child care facility at 5600 Old Cheney Highway, Orlando, for almost two years. A probationary license expired on September 21, 2016. This proceeding concerns Ms. Garcia's application for renewal of her license. The Department has regulatory authority over the licensing of child care facilities. To ensure compliance with regulations, the Department conducts periodic inspections of licensed facilities. Unless violations are observed during an inspection, the Department's Orlando office annually conducts two routine and one license renewal inspection of each of the 395 licensed facilities in Orange and Seminole Counties. If a license is placed on probation because of violations, inspections are made at least once a month during the probationary period to ensure the deficiencies are corrected. Violations by a licensee of Department rules or a statute are treated as Class 1, 2, or 3 violations. A Class 1 violation is the most serious, as it "pose[s] an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child." Fla. Admin. Code R. 65C-22.010(1)(d). For example, it is a Class 1 violation for a facility operator to allow unsupervised individuals who have no current background screening to be with children. This is because all child care personnel must have a current Level 2 background screening performed before they begin work in the facility. See Fla. Admin. Code R. 65C-22.006(4)(d)1. In 2015, Respondent's facility was inspected on at least four occasions: January 13, March 20, May 18, and August 11. On each occasion, violations of Department rules and relevant statutes were observed. Because the first three inspections were performed by a non-Spanish speaking counselor, Ms. Garcia requested that her facility be inspected by a counselor who spoke Spanish. In June 2015, the Department assigned Roy Garcia (no relation to Ms. Garcia) to perform future inspections, as he is bi-lingual. Later, Ms. Garcia expressed her dissatisfaction with Roy Garcia as well. On January 15, 2016, Roy Garcia conducted an inspection of Respondent's facility. Based on violations observed during the inspection, on February 19, 2016, the Department issued an Administrative Complaint seeking to impose a $270.00 fine. See Dep't Ex. 2. The Administrative Complaint cited the following violations observed during the inspection: Two violations of sections 402.302(3) and (15) and 402.305(2) and Florida Administrative Code Rule 62C-22.006(4)(d) by failing to perform required background screening for two employees. Two violations of rule 65C-22.006(d) and (e) by failing to have background screening documents in the staff files. Three violations of the staff/ratio rule, as required by section 402.305(3) and (4) and rule 65C-22.001(4). Two violations of section 402.302(3) and rule 65C-22.001(5) by allowing a volunteer to supervise children without a qualified employee being present. Four violations of rule 65C-22.006(2) by failing to have student health examinations on file. Four violations of rule 65C-22.006(2) by failing to have required student immunization records on file. At hearing, Ms. Garcia took the position that the charges were not warranted. However, in April 2016, she paid the $270.00 fine. Even though the Department informed her that she could request a hearing, a request was not filed. Therefore, the agency action became final. On April 29, 2016, Roy Garcia conducted another inspection of the facility. Based on violations observed during the inspection, on June 30, 2016, the Department issued an Administrative Complaint seeking to impose a $125.00 fine and to convert her annual license to probationary status, given the number of recurring violations during the preceding year. See Dep't Ex. 3. The Administrative Complaint cited the following violations observed during the inspection: Three violations of section 402.305(3) and (4) and rule 65C-22.001(4) by failing to maintain a ratio of two staff personnel for each five infants under one year of age. One violation of rules 65C-22.006 and 65C-22.010 for failing to have background screening documents and employment history checks in the facility files. At hearing, Ms. Garcia disagreed with the merits of these charges. However, in August 2016, she paid a $125.00 fine. Even though the Department informed her she could request a hearing to contest the charges, a request was not filed. Therefore, the agency action became final. A probation-status license was issued on July 31, 2016, with an expiration date of September 21, 2016, which coincided with the date on which her original annual license expired. See Dep't Ex. 4. A probation-status license is issued for a short period of time during which the licensee must come back into compliance. See § 402.310(1)(a)2., Fla. Stat. On August 4, 2016, Ms. Garcia filed an application for renewal of her license. Because the license was on probation, follow-up inspections of the facility were conducted by Roy Garcia on August 26, 29, 30, and 31, 2016. Multiple inspections were conducted because he believed the safety of the children was at risk. Although Ms. Garcia contends these inspections constituted an "abuse of authority," the Department routinely performs follow-up inspections if a facility's license is on probation. Multiple violations were observed during these inspections. See Dep't Ex. 1. They included the following: Four Class I violations of section 402.305(2)(a) by allowing unscreened individuals to be left alone to supervise children in the facility's care. These violations call for a fine of $400.00, or $100.00 per violation. Three Class 2 violations of rule 65C- 22.002(3)(a) by failing to maintain 20 or 35 square feet per child in areas occupied by children. These violations call for a fine of $180.00, or $60.00 per violation. Three Class 2 violations of section 402.305(4) and rule 65C-22.001(4)(a) and (b) by failing to maintain a sufficient staff to children ratio. These violations call for a fine of $300.00, or $100.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)1. by failing to have Level 2 background screening documentation on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d) by failing to have employee CF- FSP Form 5131 on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)2. by failing to have employment history checks on file. These violations call for a fine of $150.00, or $75.00 per violation. One Class 2 violation of rule 65C- 22.003(2)(a) for a facility employee having not completed the 40-clock-hour Introductory Child Care Training. This violation calls for a fine of $75.00. One Class 3 violation of rule 65C- 22.006(2)(a) and (d) by failing to have on file student health examinations for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. One Class 3 violation of rule 65C- 22.006(2)(c) and (d) by failing to have on file immunization records for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. The Department's letter of September 16, 2016, proposes to impose an administrative fine in the amount of $1,565.00. See § 402.310(1)(a)1., Fla. Stat. Ms. Garcia did not challenge the amount or manner in which the fine was calculated. Rather, she contends the charges were not justified and therefore no fine should be imposed. However, by clear and convincing evidence, the Department has proven the allegations described in its letter. After each inspection, Roy Garcia explained the nature of each violation and how it must be corrected in order to comply with Department rules. Despite his efforts to help Ms. Garcia, repeat violations were observed. Unscreened individuals were supervising the children on two of the four days. Therefore, it was necessary for Roy Garcia to call the parents and ask that they come to the facility and pick up their children. After observing staff ratio violations on August 29, Roy Garcia returned the next day and observed the same violation. He also observed unsupervised volunteers alone with children three times (August 29, 30, and 31) during the same week.2/ When Roy Garcia asked Ms. Garcia why she was not following his instructions, she would argue with him, deny that any violation occurred, and contend he was out to shut her down and discriminate against her because she was an "entrepreneurial woman." While conceding that she made "mistakes," Ms. Garcia contended Roy Garcia was harassing her and simply trying to find violations when he inspected the facility. She also contends the violations were not serious, were technical in nature, and did not threaten the safety or welfare of the children. However, Class 1 violations were repeatedly observed. Ms. Garcia stressed the fact that her family is dependent on the income she derives from operating the facility, and she will not be able to support her family if the license is not renewed. She added that she is now in limbo on whether to prepay the rent on the building where her current facility is located. Had the facility been operated in compliance with Department rules, these concerns would not be present. Ms. Garcia also contended that Roy Garcia would not allow her husband, Elmer, to substitute for a missing teacher. However, Elmer works in the kitchen, drives a facility vehicle, and at that time did not have the minimum training necessary to qualify as a facility employee who supervises children. Ms. Garcia further contended she was never given appropriate training on how to determine if a prospective employee has current background screening, especially since she has very few computer skills. This assertion is contrary to the accepted evidence, as she could have simply called the Department's Orlando office to verify the eligibility of prospective employees or volunteers before they were hired. Notably, even after a series of administrative complaints were issued concerning unscreened employees/volunteers, as of January 5, 2017, four persons who had worked or volunteered at the facility still had no Level 2 background screening. Ms. Garcia presented the testimony of four mothers whose children used the facility when the license was active. All were pleased with the care of their children. They especially appreciate the fact that the facility is open until midnight, is located in an area convenient to where they live or work, and charges less than other child care facilities in the area.
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 denying the application to renew Respondent's license and imposing an administrative fine of $1,565.00. DONE AND ENTERED this 9th day of February, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 February, 2017.
The Issue The issue in this case is whether the Respondent’s certifications as a Correctional and Law Enforcement Officer should be disciplined and, if so what penalties should be imposed.
Findings Of Fact Respondent, Fedrick Williams, was certified as a Correctional and Law Enforcement Officer on June 26, 1992, holding Certificate Numbers 55153 Correctional and 55152 Law Enforcement. He was employed by the Leon County Sheriff’s Office in 1992 as a Deputy. From 1992 until 1996 he served without incident. In 1996, Respondent took a leave of absence for two years. In 1998 he returned to the Sheriff’s Office and served without incident until he was criminally charged with Aggravated Child Abuse by Malicious Punishment, a second degree felony, pursuant to Section 827.02(2), Florida Statutes. The alleged violation of the lesser included offense of child abuse under that statute forms the basis for the discipline sought by the Department in this proceeding. B.B. is the biological son of Lisa Williams and stepson of Respondent. B.B. suffers from a growth hormone deficiency. Because of the deficiency, B.B. is required to take hormones as well as adhere to a special diet to help with his condition. However, even with treatment, B.B. is unusually small for his age and, during the time of these events, B.B. was approximately four feet, four inches tall and weighed approximately 63 pounds. The B.B. and his mother had a history of physical confrontation that, at times, resulted in both Department of Children and Family Services and police intervention. Indeed, in 2001, B.B. received two permanent scars from his mother’s beating him. B.B. was arrested for hitting his mother with a pogo stick. When B.B. was released from the Department of Juvenile Justice (DJJ) his mother refused to pick him up. Respondent picked up B.B. from DJJ. B.B. also stole and forged checks from his mother on at least two occasions. Additionally, he threatened his cousin with a knife when he became angry at him. Things were so strained between B.B. and his mother that after the criminal actions involved with the incident related to this proceeding, B.B.’s mother voluntarily terminated her parental rights and gave up custody of B.B. to a relative. On the other hand, Respondent and B.B. had a good relationship. They did many things together and B.B. often came to Respondent for advice, help or just to talk. The termination of his wife’s parental rights and loss of his stepson greatly distressed Respondent and causes him heartache to this day. In fact, Respondent still communicates with B.B. and wishes he were home with him. Respondent’s disciplinary style was not generally physical. Witnesses described him as a gentle man. In fact, Respondent preferred to talk things out if there was a problem. He rarely utilized corporal punishment and always exercised restraint if he had to resort to such. Indeed, Respondent talked to B.B. and placed him on restrictions when B.B. forged his mother’s checks and threatened his cousin with a knife. On November 8, 2002 at about 6 p.m., B.B.’s mother discovered that B.B was sneaking and hiding candy and junk snack food in his bedroom. There were crumbs and packages from his food stash in his dresser drawers and around his room. As indicated above, the reason B.B.’s behavior was serious was that B.B.’s health required that he adhere to a diet that did not include junk food. B.B. had been warned on multiple occasions about eating candy and other junk foods. He had also been on restriction multiple times for such behavior. On November 8, 2002, B.B was either on or had just gotten off of restriction Respondent had placed him on for eating such junk foods. B.B.’s mother called Respondent into B.B.’s bedroom. Respondent first talked to B.B. and then got his service belt and swatted him at most four or five times across B.B.’s buttocks. There was no injury to B.B. at this time. He then talked to B.B. some more and left the room to take care of B.B.’s younger brother in the living room where the TV was on. Respondent has consistently denied injuring B.B. and has consistently reported the same facts as above. After Respondent left the room, B.B.’s mother entered the room. Respondent’s teenage daughter, who was doing her homework at the dining room table and could hear what was happening in B.B.’s room, heard B.B’s mother yelling and cursing at B.B., things falling off the furniture and loud banging noises around the room. Respondent was not in a position to hear what was occurring in B.B.’s room. B.B.’s mother testified that B.B. was not injured when she left B.B.’s room. Eventually, B.B. was sent to bathe and get ready for bed. Respondent’s daughter did not see any injuries to B.B.’s face when he left his room to bathe. While in the bathroom, B.B. went to the bathroom window and climbed out. The bathroom window was high as it relates to the B.B.’s height of four feet and four inches. The window was not large enough for B.B. to have crawled through in an upright manner so that he could land on his feet once outside. On the outside and under the window there was a three foot wide thorny rose bush and a brick ledge. It is highly likely that B.B. hit both the bush and the ledge on his way down from the window. Both obstacles could have caused long strap-like bruises to B.B.’s body as well as injury to his eye and other abrasions. Respondent’s home was surrounded by fairly thick forest. The forest appears to be thick enough to have also caused bruising or other injuries to B.B. B.B.’s foot prints were found leading away from the house towards the woods. B.B. traveled about six miles through thick forest to the James’ property. He climbed into Mr. James’ truck and went to sleep. At some point, B.B.’s absence was discovered. B.B.’s mother reported B.B. as a runaway on the evening of November 8, 2002. A lengthy search by Respondent and the police ensued which was not successful. B.B. was discovered the next morning by Mr. James when he was leaving for work. Mr. James brought B.B into his home and left him with his wife. Both neighbors observed that B.B. had several bruises on his arms and a very swollen black eye. According to Ms. James, B.B. had an eye that was swollen shut and had red marks above his eye extending to his hairline. One of the James’ called the police to report that they had found a child. When asked by Ms. James’ who had hit him. B.B. reported that his mother had hit him and caused his injuries. B.B. was not present and did not testify at the hearing. The effort used by the Department to secure B.B.’s presence at the hearing was minimal given the importance of B.B.’s role in these events. The Department’s efforts consisted of four telephone calls on Friday, August 25, 2006 that resulted in a message being left. There was no response to these calls. On Monday, August 28th and on Tuesday, August 29th, the Department again unsuccessfully called and left messages. One such call seemed to be interrupted by the phone being picked up and then hung up. Other than that one interruption, the Department offered no proof that anyone actually received the messages left on the answering machine. No subpoena of B.B. was attempted by Petitioner. No certified letter was sent to secure the presence of B.B. by Petitioner. Counsel for the Respondent made Petitioner aware of B.B.’s whereabouts several weeks before the hearing. No one from the Department traveled to that location to try to find B.B. No continuance was requested in order to locate B.B. The Department’s efforts, or lack of effort, to secure B.B.’s presence at the hearing do not demonstrate that B.B. was unavailable for the hearing. Instead the Department offered into evidence the transcripts from B.B.’s deposition taken as part of Lisa Williams’ criminal case, case number 2202 CF 4227-B1. This deposition was taken Tuesday, October 14, 2003, and was offered as Petitioner’s Exhibit numbered three. The deposition indicates that Respondent was responsible for B.B.’s injuries. Although Respondent was criminally charged based on similar fact evidence, the deposition of B.B. was not part of Respondent’s case and Respondent was not a party to that criminal case. The motive for Respondent to fully and adequately develop the testimony of B.B. was not as vital as it would be had the deposition been conducted for Respondent’s own case. Moreover, B.B.’s accounts of the evening of November 8 vary widely as to which parent was responsible for his injuries. Little credit is given to any of B.B.’s statements regarding the events of November 8, 2002. Deputy Hunter picked B.B. up from the James’ residence. He took B.B. to Tallahassee Memorial Hospital’s emergency room where the child was interviewed and extensively photographed. The photographs showed a variety of bruises and abrasions over B.B.’s body and a very swollen eye. Some of the bruises were long strap-like marks. Crime Scene Detective Patrick Lyons met with B.B., Deputy Hunter, and a member of the Child Protection Team at the emergency room. There were dozens of photos taken by Detective Lyons. One of the interviewers was Cynthia Y. Burns, RN. She stated that B.B. stated that his step father hit him in the eye. B.B. was also interviewed by Elain Sofkis, RN. He made a similar statement to her. The lead investigator was Detective Derek Terry of the Leon County Sheriff’s Department. On November 9, 2002, B.B. variously told Detective Terry that his stepfather beat him with a belt and hit him in the face with the belt, after which his mother immediately jumped on him and punched him in the face 20 or more times. A short time later, B.B. stated that he was hit 20 times with the belt, after which his mother entered his room and punched him in the stomach and chest, but not the face. Detective Terry never went to the house where the alleged abuse occurred. Again, B.B.’s statements are not credible. On November 9, 2002, Respondent was criminally charged with Aggravated Child Abuse of B.B. Shortly thereafter, Respondent was terminated from his position with the Leon County Sheriff’s Office at the recommendation of the Career Services Board. The termination was conditioned upon the Respondent pleading to or being convicted of Aggravated Child Abuse or any lesser included offense in his criminal case. At the conclusion of the criminal case Respondent plead to two counts of disorderly conduct, which are misdemeanors of the second degree. Respondent entered his plea because he could not financially afford to continue the legal process and he wanted to return to work at the Sheriff’s Office. Since disorderly conduct was not a lesser included offense of aggravated child abuse, Respondent was reinstated to his former position without pay for the time missed from work in 2004. In the final analysis, the evidence presented at this hearing did not demonstrate that Respondent committed any acts of aggravated child abuse or child abuse. The more credible evidence demonstrated that Respondent did not cause any injury to B.B. and that the injuries that B.B. had on November 9, 2002, were either inflicted by his mother or B.B.’s encounter with the environment outside the house and his subsequent long trek through the woods in the dark. Moreover, the evidence did not demonstrate that Respondent’s moral character was impaired or diminished by these events. The only thing Respondent did was spank his stepson with a belt. He did not injure him or maliciously punish him. Therefore, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding Respondent not guilty of violating Section 943.1325(6) or (7), Florida Statutes, and dismissing the Administrative Complaint. DONE AND ENTERED this 6th day of February, 2007, in Tallahassee, Leon County, Florida. S 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 6th day of February, 2007. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Deveron L. Brown, Esquire Brown & Associates, LLC The Cambridge Center 223 East Virginia Street Tallahassee, Florida 32301 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
