Findings Of Fact Respondent Pat McComb is the operator of a group home in Broward County, Florida. The home operated under a license issued to Happy People, Inc. Through some unspecified channel, a report of possible abuse was received and Gloria Taylor, a Human Services Counselor II with DHRS, investigated on May 18, 1984. The investigation consisted of interviews with both former and current clients of the group home. A summary of these interviews is found in Petitioner's Exhibits 2, 3, 5, 8 and 9. The former clients and clients are all mentally retarded with secondary disabilities. The interviews were conducted in a group setting with Taylor addressing leading type questions to the group and the group responding in the negative or affirmative. Two clients were interviewed separately, with one being interviewed away from the group home. At least two of the clients changed their statements regarding whether any abuse had ever occurred. No client stated when or where or how often or how severe the alleged abuse was. Taylor saw no bruises or other physical signs of abuse at the time she interviewed the clients. There had never been any other reports or any medical treatment required for these clients. Taylor's testimony was based solely on what she was told by the clients and former clients. Based upon the written reports prepared by Taylor, Rhonda Miklic prepared and signed a letter revoking the licenses of Pat McComb and Happy People, Inc. The clients were moved from the home. The acts of Miklic in revoking the license are not discretionary. Instead, Miklic is required to revoke the license if a finding of abuse is made by the investigator. Pat McComb denied any knowledge that any client was ever hit with a belt at the facility. Instead, discipline consisted of such things as loss of privileges or having a client stand in the corner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges against Respondent be DISMISSED and that the license of Respondent be reinstated. DONE and ENTERED this 11th day of January, 1985, in Tallahassee, Florida. DIANE K. KIESLING 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 11th day of January, 1985. COPIES FURNISHED: Harold Braynon, Attorney 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 Mark Perlman, Attorney 1820 E. Hallandale Beach Boulevard Hallandale, Florida 33009 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue for consideration in this matter is whether Respondent’s license to operate a foster home in Florida should be disciplined because of the matters alleged in the Administrative Complaint issued herein on October 11, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Department of Children and Families was the state agency responsible for the inspection and licensing of foster homes in this state. Respondent, Blanche Hadley, was issued an initial foster home license, No. 1095-13, for one child, for her residence at 1107 East Humphrey Street in Tampa, on October 21, 1995. The license was to continue in effect for one year, and several months before the license is due to expire, the Department does a study of the licensed home to see if re- licensing is appropriate. Ms. Hadley filed an application for renewal of her foster home license on July 5, 1996, several months before the license expired. Because the Department did not act in a timely manner to deny the application, it became a license by default. In the interim, however, on both August 15 and August 20, 1996, Francine McGee, a Department relicensing counselor, called Respondent on the telephone to discuss her relicensing and to schedule the Department’s visit to the home, because the license was due to expire on October 20, 1996. Ms. McGee also wanted to discuss certain items which, in her opinion, had to be corrected. During the August 15 call, Ms. McGee and Respondent discussed the need for a mandatory check of and re-tagging of the fire extinguishers in the home to insure they were working. This could be done only by one of several companies licensed to do so, or the fire department. Ms. Hadley did not want to do this, however. She got angry with Ms. McGee and hung up on her. Ms. McGee called back several days later in a second effort to resolve the fire extinguisher issue and, in addition, to discuss the fact that the home appeared to be overcrowded due to the presence of Ms. Hadley’s two grandchildren who were, purportedly, living there as well. Ms. Hadley again got angry and hung up on Ms. McGee. That same day, August 20, 1996, Ms. Altman, Ms. McGee’s supervisor, also called Ms. Hadley by phone, but Ms. Hadley hung up on her as well. The following day, Ms. McGee wrote to Ms. Hadley about the fire extinguishers and the two extra children in the home and also asked about the location of the nearest disaster shelters. It appears that in discussions about shelters with Ms. McGee in April, 1996, Ms. Hadley had indicated she did not believe in preparing for disasters, adopting instead the philosophy that, “when it’s your time to go, it’s your time to go.” She also hung up on Ms. McGee during that conversation, though she ultimately complied with the Department’s request and identified the closest shelters of which she knew. Ms. McGee, however, was not satisfied and wanted shelters closer to the house. Respondent also hung up on Ms. McGee during a telephone conversation held on May 22, 1996 about 5:30 in the evening. When reached by Ms. McGee, Respondent immediately said she didn’t have time to talk and hung up. This was a routine check call which would have taken no more than five minutes or so. Ms. Hadley responded to Ms. McGee’s August 20, 1996 letter by her own letter in which she did not address the Department’s concerns. Instead, she indicated that if it had been necessary for her to change any of the conditions existing at her home, she would have been told of the defects in the safety inspections done on it. She claimed she would not be used by the system. Ms. McGee tried to explain to Ms. Hadley that these matters were not an attempt by the Department to use her but merely an attempt to enforce the Department rules which had to be followed. Ms. Hadley, as early as February 27, 1996, was asked by Ms. McGee to purchase an additional smoke detector to supplement those already there. One existing detector was located between the bedrooms occupied by Respondent and her brother, who lives with her, and the second is located in the family room near the foster child’s bedroom, which was not occupied at the time. Ms. McGee claims she merely suggested the placement of a third detector near the kitchen to give quicker notice of kitchen fires. This was not a requirement by the Department rules, but Respondent still resisted compliance. Though Respondent now denies any of her grandchildren live with her, Ms. McGee recalls a conversation she had with Respondent on August 15, 1996, when Respondent indicated she had two grandchildren living in the home with her. This, if true, constituted overcrowding since with the two adults, (Ms. Hadley and her brother) and the two grandchildren, and only four beds in the house, there would have been no room for any foster child. Ms. Hadley had initially indicated the children only came for dinner from time to time, and this was acceptable, but, allegedly, she later changed her story to indicate they did live there. Ms. Hadley denies having said this. When Ms. McGee raised the issue with Respondent, Respondent allegedly claimed the grandchildren slept with her, and when Ms. McGee indicated that was too crowded, Respondent hung up on her and on Ms. Altman who called later in the day. In light of the obvious mutual animosity between Ms. Hadley and Ms. McGee, it is clear there was a miscommunication on this issue, and in the absence of some independent evidence of the fact that the grandchildren resided at the house, it is found they did not. Department records indicate no foster children have ever been placed in Respondent’s facility. Whenever she was called to take children, she would not accept them. A foster home has to be prepared to receive foster children, and the deficiencies identified by Ms. McGee, if accurate, would disqualify this home. Based on the above, and due to a continuing lack of ability to communicate with the Respondent, Ms. McGee recommends that Respondent’s license to operate a foster home be disciplined. Ms. Hadley tells a somewhat different version of Ms. McGee’s story. She contends that when Ms. McGee came to her home for the first time, somewhat after a letter had been sent to her, she received McGee warmly. From the very first, however, Ms. Hadley was put off by what she described as Ms. McGee’s “snotty” attitude. Respondent claims that she went to classes to learn what she had to do as the operator of a foster home and did it. In addition, Ms. Hadley claims she followed to the letter the dictates imposed as a result of the safety inspections her facility underwent, though she admits she was resistant to re-tagging the fire extinguisher because it had never been used. She didn’t want to pay $16.00 to have it re-tagged if it was not a bona-fide requirement. Unfortunately for her, fire requirements mandate a yearly check and re-certification whether the unit is used in the interim or not. As for the allegations that she hung up on Ms. McGee and Ms. Altman, Ms. Hadley claims she asked Ms. McGee not to call her at work but to call at home. When McGee called her at home and got “hostile”, Hadley admits to hanging up on her. With regard to the call from Ms. Altman, when that call was made, Ms Hadley was still at work and Hadley merely indicated that she could not talk with Altman at the time. She denies hanging up on a Department representative more than one time, and claims she did it that time only from work when the party calling her continued to talk after she advised she could not take calls at her work place. Ms. Hadley works from 8 to 5 each day and goes home for lunch from 12:05 to 12:45. She requested that Ms. McGee call her at home during that period. McGee admits to this, but claims her schedule did not always allow her to make calls at that time. When she called and Respondent was not at home, she would leave a message on the answering machine and called at work when those messages went unanswered. Ms. McGee stays at her office until 6:30 PM most days, and could see no reason why Respondent could not return her calls after she got home from work at 5:30. McGee tries to convenience foster parents in the matter of phone calls and visits, and she admits that often Respondent did return calls left on the answering machine during the lunch hour, but by that time, McGee was again out of the office. Hanging up on a Department representative is unacceptable without justification. It is clear Ms. Hadley did so, but the question of how often she did so is not resolved by the evidence. Most likely, from the obvious hostility indicated, it was more than once. Ms. Hadley candidly admits to resisting making additional changes to her home which were not called for either in the training classes she took or the pre-licensure inspection made of the home. She agrees to have the fire extinguisher check and recharged if that is a requirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order suspending the license for the foster home operated by Blanche Hadley at 1107 East Humphrey Street, in Tampa, pending compliance with all legitimate safety and operating requirements and a demonstration by the Respondent of a more cooperative attitude toward the Department staff. DONE and ENTERED this 25th day of March, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1997. COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Children and Families 4000 West Dr. Martin Luther King Jr. Boulevard Tampa, Florida 33614 Blanche Hadley 1107 East Humphrey Street Tampa, Florida 33604 Richard A. Doran, General Counsel Department of Children and Families 1317 Winewood Boulevard Building Two, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Families Building Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether the renewal application for a family day care home license filed by Petitioner should be denied based upon alleged violations of Florida Administrative Code Rule 65C-20.10(1)(f), stated in Respondent's letter of proposed denial dated August 3, 2005.
Findings Of Fact Based upon the observation of and the demeanor of the witnesses while testifying, documentary materials in evidence, stipulations of the parties, and evidentiary rulings during the hearing, the following relevant, material, and substantial facts are determined: Petitioner was initially granted her first family day care home license to operate a family day care home at 2829 Kathryn Drive, Lakeland, Florida 33805, on August 3, 2003, and her family day care home license was renewed by Respondent for operation at the above address for one additional year on August 3, 2004. At the time of the 2004 family day care home license renewal, Petitioner was in compliance, with no noncompliant items noted in her record from 2003 through 2004 that would have justified denial of the license renewal. On an unspecified date prior to August 3, 2005, Petitioner made an application to renew her family day care home license. On August 3, 2005, Respondent notified Petitioner by letter of the proposal to deny her application for renewal of her family day care home license. Petitioner contested the proposed denial resulting in this administrative hearing on November 7, 2005. The denial letter of Respondent indicated that the decision was based upon, "[y]our inability to ensure the safety of children in your care." The letter continued stating: "Your Family Day Care Home was found to be out of compliance in regards to the fencing requirements as stated in 65C-20.10(1)(f), Florida Administrative Code (F.A.C.), on 07/28/03, 03/22/04, 01/12/05, 01/20/05, and 06/10/05." Petitioner acknowledged that the fence was missing a few boards during the above period. It is undisputed that the January 12, 2005, inspection by Timothy Graddy, child care licensing inspector, found numerous violations. Upon reinspection by Mr. Graddy on January 20, 2005, the violations noted during his January 12, 2005, inspection were corrected, but for repair of the fence around the home and the undated fire extinguisher inspection certification. Mr. Graddy was not called to testify regarding the severity of the noncompliance violations, the probability of harm to health or safety of the children nor actions taken by Petitioner to correct the cited violations. No other witness testified regarding these mandatory items. It is likewise undisputed that Respondent imposed an administrative fine on Petitioner for noncompliance items identified during an undated inspection in 2004. Petitioner, without requesting a Chapter 120, Florida Statutes, hearing, paid the administrative fine of $100 on December 9, 2004, for violations noted in compliance inspections that occurred between January and December of 2004. It is likewise undisputed that the Department imposed a second administrative fine on Petitioner for those violations noted from inspections that occurred between January 1, 2005, and June 21, 2005. Again, and without requesting a Chapter 120, Florida Statutes, hearing, Petitioner paid the administrative fine of $250 on June 1, 2005. William Wright, child care licensing inspector and a member of the license application review committee, reviewed the relicensing application filed by Petitioner, voiced as his primary concern a July 2005 central abuse hotline report of an incident that occurred July 11, 2005. In the abuse report, a two-year-old male child was reported to have had bruises on both facial cheeks. The allegations narrative reflected the child received the bruises by falling/tripping over his shoes. Petitioner called the father of the child, who came by, observed the bruise on his child's cheeks, signed an incident statement prepared by Petitioner, and took his child home. The father did not return his child to Petitioner's family day care home. During the subsequent investigation of the abuse incident, bruises were found on the child's thigh(s). Two or three days after the July 11, 2005, incident report, a subsequent investigation by local law enforcement and follow-up investigation by Respondent's personnel resulted in conflicting and unresolved accounts of how the child received the bruises, where the child received the bruises, and who was at fault for the bruises. It was unclear to the investigators where and how the child received the bruises on his thighs. What is clear is that the child did not receive thigh bruises while in Petitioner's family day care home. Respondent closed the abuse report with "[S]ome indicator of bruises, welts and marks. No intervention services were needed." There is insufficient evidence to conclude, infer or establish that while in Petitioner's care the child sustained bruises on his thighs that were discovered several days after the July 11, 2005, abuse report and, thus, to conclude the child's safety was at risk while in Petitioner's family day care home. Another review committee member, Patricia Hamilton, child care licensing supervisor, opined the proposed denial was based upon "the Department's belief" that Petitioner was not able to operate a day care without violating one or more Florida Administrative Code rules. It is her belief that children in Petitioner's family day care home would not be safe because the historical inspection record compiled by Respondent, in her opinion, demonstrated Petitioner could not consistently comply with the rules of operating a safe family day care home. This is a reasonable inference drawn from a historical review of Petitioner's family day care home inspection record. Petitioner, as of November 28, 2005, filed a Notice of Change of Address. Petitioner now resides at 7354 Beaumont Drive, Lakeland, Florida. By moving to a new residence, Petitioner effectively withdrew the family day care home license application for license of the residence at 2829 Kathryn Avenue, Lakeland, Florida 33805, the subject of this case.
Recommendation Based upon the foregoing findings of fact and conclusions of law hereinabove, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing the petition filed by Tarsha Seay, d/b/a Seay Family Day Care Home. DONE AND ENTERED this 24th day of February, 2006, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 February, 2006.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. At all times material to the instant case, Petitioner and her husband, Keith Sterling, were licensed to operate a family foster home at their residence in Palm Beach County, Florida. On September 1, 1994, as part of the licensing process, the Sterlings signed an "Agreement to Provide Substitute Care for Dependent Children" (hereinafter referred to as the "Agreement"). In so doing, they agreed that they would, as licensed foster parents, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the [D]epartment" and, "whenever possible, give the [D]epartment at least two weeks notice," if they wanted the Department to "remove a child from [their] home." In the spring of 1995, the Sterlings, on a fairly regular basis, "returned" foster children to the Department only a day or two after the children had been placed in their home without giving the Department the "two weeks notice" required by the Agreement. The Sterlings' actions created a further disruption in the lives of these foster children and ran counter to the Department's goal of providing foster children with a relatively "stable setting" until they are adopted or reunited with their birth family. Jo Ann Weisiger, a foster care licensing counselor working in the Department's District 9 foster care licensing and adoption office, visited the Sterlings' home in April of 1995 and expressed the Department's concerns about the Sterlings' practice of "returning" recently placed foster children to the Department. After Weisiger's visit, the practice continued. Weisiger therefore paid another visit to the Sterlings' home on May 15, 1995, to discuss the matter with the Sterlings. During Weisiger's May 15, 1995, visit, Petitioner requested that the Department not place any foster children in her home for three months. She explained that she needed "a break due to her health." The Department complied with Petitioner's request. On September 11, 1995, Weisiger telephoned the Sterlings' residence to find out from Petitioner whether she and her husband wanted to renew their foster family home license (which was due to expire on October 31, 1995). Petitioner was not at home. Weisiger therefore left a message to have Petitioner return the telephone call. The following morning (September 12, 1995), Weisiger received a telephone call from Petitioner. Petitioner told Weisiger that she and her husband wanted to renew their foster family home license, but she expressed an unwillingness to comply with Weisiger's request that she authorize the release of information and records concerning her medical condition. Weisiger advised Petitioner that the Department needed to have such medical information and records in order to determine whether to renew Petitioner's and her husband's license. Weisiger followed up her September 12, 1995, telephone conversation with Petitioner by sending to Petitioner, on September 13, 1995, a letter, which read as follows: Pursuant to your request in June [sic] 1995, to remove the foster children due to your health concerns and personal reasons, we are requesting that you sign a medical release. We will need to contact your physician to obtain a professional opinion on your capacity to parent and meet the needs of our children. We are unable to contact a physician without your permission and without this information, we will not be able to evaluate your home for relicensing. We are enclosing a medical release for your signature. Please return this at your earliest convenience in the enclosed envelope, as your license expires on 10/31/95. The "medical release" that Weisiger sent along with the letter "for [Petitioner's] signature" was the following "Authorization for Release of Health and Medical Information for Prospective Foster and Adoptive Parents" form (hereinafter referred to as the "Medical Release Form") that Weisiger's office uses in its efforts to obtain the necessary information to ascertain whether applicants seeking to become or remain foster or adoptive parents are able to care for children: I hereby request and Authorize (Name of Person) Health [and] Rehabilitative Services 1784 N. Congress Ave., Suite 102 West Palm Beach, FL 33409 To obtain from: (Name of Person or Agency Holding the Information) Address: PHYSICIANS: Please provide complete information The following: All Medical Information, Reports, and Records, including diagnoses, subsequent courses of treatment, and prognoses pertaining to current and future physical and mental health status. All Medical Information, Reports and Records pertaining to health history during the past two years. From the medical record of : (Print or type name of client [and] birth date) For the purpose of assessing the health of the prospective caretaker as it relates to the applicant's ability to provide long-term care of a child/children, including economic support. I understand that my signature authorizes full disclosure of my medical and health condition and thereby, includes HIV test results. All information I hereby authorize to be obtained from this agency will be held strictly confidential and cannot be released by the recipient without my written consent, except for the purpose of judicial review in adoption proceedings. I understand that I may withdraw my consent at any time, but to do so will stop further consideration of myself as an adoptive or foster parent. Date Signature of Applicant USE THIS SPACE ONLY IF APPLICANT WITHDRAWS CONSENT Date consent Signature of Applicant revoked by applicant On September 15, 1995, Petitioner telephoned Weisiger and informed Weisiger that she was not going to sign the Medical Release Form Weisiger had sent her inasmuch as, in her opinion, her "health was none of [the Department's] business." As of the date of the final hearing in this case, Petitioner had not signed the Medical Release Form. She did produce at the final hearing, a letter from her gynecologist, Stephen H. Livingston, M.D., dated October 13, 1995, which read as follows:: Peggy Sterling has been under my care since April 24, 1995. On April 27, 1995, she had a vaginal hysterectomy. She has been cleared to return to work. While Dr. Livingston's letter provides some information regarding Petitioner's health, the information is insufficient to enable the Department to determine whether Petitioner has any health-related problems that would impair her ability to care for, or would otherwise be injurious to, foster children placed in her and her husband's home. On October 31, 1995, the Department "closed" the Sterlings' family foster home "due to [the Department's] inability to determine capability of [the] foster mother [Petitioner] to parent, due to her recent physical problems." By letter dated November 2, 1995, the Department notified the Sterlings that "[s]ince [it had] failed to receive the Authorization for Medical Release [it had] requested from [Petitioner] several weeks [prior thereto], [the Sterlings'] Foster Home license expired on 10/31/95."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Petitioner's and her husband's application for the renewal of their family foster home license, without prejudice to Petitioner and her husband applying for a new license if, in conjunction therewith, they take the necessary measures to "share [Petitioner's] health history" with the Department, as required by Rule 10M- 6.025(8), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of March, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-5974 The following are the Hearing Officer's specific rulings on the findings of facts proposed by the Department in its proposed recommended order: 1. Rejected because it lacks sufficient evidentiary/record support. 2-3. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. First sentence: Accepted as true and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. First sentence: Rejected as a finding of fact because it is more in the nature of a statement of the law than a finding of fact; Second and third sentences: Accepted as true and incorporated in substance. Accepted as true and incorporated in substance. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: To the extent that this proposed finding states that Petitioner told Weisiger "that she was not going to sign the authorization to release any of her medical records to Dept. HRS," it has been accepted as true and incorporated in substance. Otherwise, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Accepted as true and incorporated in substance. To the extent that this proposed finding states that, during their September 15, 1995, telephone conversation, "Petitioner again refused to sign the authorization to release her medical records to the Dept. HRS," it has been accepted as true and incorporated in substance. Otherwise, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted as true and incorporated in substance. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. COPIES FURNISHED: Peggy Sterling 1626 West 17th Street Riviera Beach, Florida 33404 Karen M. Miller, Esquire District Legal Counsel Department of Health and Rehabilitative Services 111 South Sapodilla Avenue West Palm Beach, Florida 33401 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sandy Coulter, Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Respondent, Margaret Speer (Speer), received her initial foster care license from Petitioner, Department of Health and Rehabilitative Services (HRS), on March 18, 1991. Speer resided at 1501 Windorah Way, West Palm Beach, Florida 33411, on that date. On March 18, 1992, HRS renewed Speer's foster care license. At that time Speer was living at 992 Whipporwill Way, West Palm Beach, Florida. On April 14, 1992, after moving to 12212-3 Sagharbor Court, Wellington, Florida, Speer received a foster home license for the new address. In October 1992, Speer received a foster home license for her residence at 129 Gregory Road, West Palm Beach, Florida. In June or July of 1992, Speer moved to 5380 Gene Circle, West Palm Beach, Florida. HRS never issued a foster home license to Speer at this address and the residence was not inspected by the local health department. In September 1993, Speer moved to 738 Carissa Drive, Royal Palm Beach, Florida 33411. On October 18, 1993, the Health Department inspected Speer's home at 783 Carissa Drive, Royal Palm Beach, Florida 33411, and found it to be unsatisfactory for use as a foster home for children. Speer moved to 4852-C Orleans Circle, West Palm Beach, Florida. She received a foster home license for that residence on October 31, 1993. At the date of the final hearing, Speer was living at 515 North 10th Street, Lake Worth, Florida. It is important that foster children have stability in their lives, including the location of their residence. Speer's frequent changes of residence could have a detrimental effect on the foster children in her care as noted by an HRS children and families counselor who visited Speer's homes over 17 times from June 1992 to October 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Margaret Speer's application for renewal of her foster care license. DONE AND ENTERED this 9th day of August, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1769 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-9: Accepted in substance. Paragraph 10: Rejected as not necessary. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as subordinate to the facts found. Respondent's Proposed Findings of Fact. Respondent's letter did not delineate findings of fact and conclusions of law. Paragraphs 1-2: Rejected as subordinate to the facts found. Paragraph 3: Rejected as constituting argument. COPIES FURNISHED: Catherine M. Linton Assistant District Legal Counsel Department of Health and Rehabilitative Services 111 South Sapodilla West Palm Beach, Florida 33401 Margaret Speer 515 North 10th Street Lake Worth, Florida 33460 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner’s application for a foster home license should be approved or denied by Respondent, the Agency for Persons with Disabilities (“APD”).
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and the entire record of this proceeding, the following Findings of Fact are made: Petitioner is an applicant for licensure of a foster home residential facility. Ms. Allen is designated as the owner of the proposed new facility. The proposed name of the facility is Darleen Allen Foster Home, to be located 6 Upon review of Respondent’s Exhibit 1, Ms. Allen’s social security number was clearly legible on page 6, and the number was redacted from the exhibit. 7 Respondent’s counsel advised that Ms. Allen’s social security number was clearly legible in Respondent’s Exhibit 4, and that number was redacted from that exhibit. 8 Petitioner emailed her PRO (with a copy sent to APD’s counsel) directly to the undersigned, which is inappropriate. The undersigned directed her Judicial Assistant to have the document placed on the docket. at 208-A 42nd Avenue East, in Bradenton, Florida. In April 2020, Ms. Allen submitted her completed initial application to APD. On April 15, 2020, Larry Collins, an APD employee “who handles all new and initial applications for licensure” requested a background record search of Ms. Allen. On April 23, 2020, Mr. Collins signed a note and affixed it to Ms. Allen’s application indicating it was a “complete package 4/23/2020.” APD licenses both foster homes and group homes. The “main difference” between a foster home and a group home is the number of residents who may live in either home: a foster home is limited to three residents, and the owner usually lives in the home as the primary caregiver. The number of residents in a group home was not provided. APD did not notify Ms. Allen of any apparent errors or omissions in her completed application, and did not request any additional information from her until sometime in June 2020. On or about June 11, 2020, as part of her review of Ms. Allen’s application and based on Mr. Collins’ request, Ms. Leitold completed a background search of Ms. Allen utilizing DCF’s network data base. Ms. Leitold learned that Ms. Allen had a “verified report in Manatee County with respect to inadequate supervision.” Ms. Leitold testified that Ms. Allen “was not aware of the verified report.” Ms. Allen immediately contacted DCF, requested a copy9 of the DCF report, and filed corrections to her foster home license application10 in late June 2020. When Ms. Allen filed corrections to her foster home license application, she also provided a copy of a Sunrise Community, Inc., “Disciplinary Warning 9 Ms. Allen testified that her Exhibit F, the report she received from DCF, had various portions “blacked out.” Further, Ms. Allen testified that the victim in her Exhibit F was listed by two different names and her age was different than found in Ms. Allen’s Exhibit C and/or APD’s Exhibit 3. 10 APD’s denial of Ms. Allen’s application was not based on any allegations of fraud, and none is found. Notice & Action Taken” for an incident that occurred in December 2012. Ms. Allen was contacted about a male client who fell in the shower and hit his head on the soap dish. Ms. Allen did not direct the staff to take the client to the emergency room for an evaluation. Ms. Allen was told at that time the disciplinary warning was “only a written warning.” Further, according to her foster home license application, Ms. Allen remains employed by Sunrise Community, Inc., these eight years later. In its denial letter, APD provided in addition to section 393.0673(2), Florida Statues, as the basis for the denial, the following: 4. On or about March 19, 2012, the Department of Children and Families (“DCF”) opened an investigation into allegations of neglect by Darleen Allen against vulnerable adult B.G. The investigation was closed by DCF on or about May 2, 2012 with verified findings of neglect of a vulnerable adult by Darleen Allen. Both parties offered DCF’s (CIS) as an exhibit,11 and both were admitted. APD did not present the DCF investigator(s) or anyone to testify as to the basis for the “Verified Findings.” Upon review of the CIS, the undersigned finds multiple instances of inconsistencies, miscalculations, and errors. There are so many inconsistencies, miscalculations, and errors that the “Verified Findings” are suspect at best and completely unworthy of any credence at worst. The inconsistencies, miscalculations, and errors include: Page 1: The DCF investigation was opened against Manasota ARC, a group home, on March 19, 2012, based on “concerns that this group home does not have the ability to adequately care for Mr. [G].” Page 1 of 4, under case name, section I, and page 2 of 4, section III: the 11 Petitioner’s Exhibit D, DCF’s CIS, contained pages 1 through 4. Respondent’s Exhibit 3, DCF’s CIS, contained the same pages 1 through 4, plus an additional 21 pages of “Chronological Notes Report.” Respondent’s Exhibit 3, pages 50, 54, 55, and 59 are identical to Petitioner’s Exhibit M, pages 9, an 18, 19 through 20, respectively. victim’s name is “B.E.G.”12 or “Ms. G,” yet in sections V, VI, and VII the victim is identified as “B.S.”13 Page 2 of 4, section III: the victim’s date of birth is written as “07/09/1993,” yet her age is recorded as 26 years old in section V. The date of the alleged abuse is March 19, 2012. At the time of incident, the patient was 18 years old. Page 2 of 4, section IV: Ms. Allen’s date of birth is written as “09/21/1962,” yet her age is recorded as 57 years old. The date of the alleged abuse is March 19, 2012. At the time of the incident, Ms. Allen was 49 years old. Page 2 of 4, section III:, the victim’s disabilities are listed as: Autism Physical Limitations - Other Retardation Mental Limitations - Other Mental Retardation Physically Disabled Other Medically Diagnosed Conditions Requiring Special Care Learning Disability Yet on page 2 of 4, section V: “[B.S.] is a frail 18-year-old vulnerable adult who suffers from Autism, Cri Du Chat Syndrome, mental and physical limitations, and dysphasia ... is non-ambulatory and must be moved in a wheelchair ... has scoliosis, and cannot perform her activities of daily living ... is not deaf or hard of hearing.” Page 2 of 4, section V, and page 3 of 4, sections VI and VII: the following 12 The undersigned is only using the initials of the alleged patient in order to shield her identity. 13 The undersigned is only using the initials of the alleged patient in order to shield her identity. sentence is found in ten separate sentences: “Implications for victim safety are low.” This sentence can have multiple meanings, and is therefore meaningless. Page 2 of 4, section V, A., in the “05-02-2012 UPDATE,” the following sentence is found: “Victim [B.S.] had been placed inappropriately at Manasota ARC. Upon discharge from the hospital, [B] was transferred to ... where her needs are being appropriately cared for.” Page 2 of 4, section III: the Caregiver Responsible is named Darlene Allen, yet the CIS notes attached provide: “Need to attempt to ID the AP [“alleged perpetrator”] and this may be the charge person of the group home.” Page 3 of 4, section VII, is in conflict with section 1, page 1. Section 1, page 1 provides: “Over the past two weeks, [Ms. G] had lost 15lbs. When [Ms. G] was admitted to the facility she weighed 86lbs and went down to 71lbs. …. Her weight was up to over 80 pounds and since being placed in the group home, she is not down to 71 pounds.” The victim was taken to the emergency room on March 15, 2012. The conflict arises through section VII, page 3 which provides: “She weighed just 74.2 pounds upon admission to [hospital] from 86 pounds she reportedly weighed when she was placed at the group home a couple of weeks earlier. The group home does not keep weight records so the actual amount of weight loss cannot be verified.” The victim’s exact weight loss is unknown. Ms. Leitold’s dismissal of these multiple discrepancies as “just errors, minor errors in the report” that “doesn’t change the fact that there was a delay in treatment … from the provider regarding the young lady or the gentleman in the shower” is troublesome. More troublesome is DCF’s CIS which does not provide clear or concise documentation of the person or persons responsible. The CIS itself is an institutional report, directed to Manasota ARC. As such, it would be critical to have reliable information on which to base a finding that Ms. Allen or someone else was responsible for the incident addressed in the CIS. Ms. Allen credibly testified she was the director of the Manasota ARC group home and there were other staff members in the home, but she was the only person from the home who was interviewed. Ms. Allen was in contact with the victim’s parents, and was the person who took B.G. (or B.S.) to the emergency room. Without more precise information, the verified finding is of no value to APD to make the determination of licensure. Ms. Allen credibly testified she was not aware of the DCF’s CIS or the “Verified Findings” related to the March 2012 incident until eight years after the fact. Mr. Corbett has known Ms. Allen for over three years. Mr. Corbett testified that he is aware of the DCF verified report. When asked directly, Mr. Corbett did not hesitate to testify that Ms. Allen could take care of his loved ones.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order granting Petitioner’s application for a foster home license. DONE AND ENTERED this 26th day of October, 2020, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 26th day of October, 2020. COPIES FURNISHED: Darleen Marie Allen 208-A 42nd Avenue East Bradenton, Florida 34208 (eServed) Trevor S. Suter, Esquire Agency for Persons With Disabilities 4030 Esplanade Way, Suite 315C Tallahassee, Florida 32399-0950 (eServed) Danielle Thompson, Senior Attorney/Agency Clerk Agency for Persons With Disabilities 4030 Esplanade Way, Suite 309 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons With Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Francis Carbone, General Counsel Agency for Persons With Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Petitioner's license to operate a family day care home should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Parties Respondent is the state agency responsible for licensing and regulating child care facilities, including family day care homes. Respondent routinely conducts inspections of licensed family day care homes to determine whether the homes are 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. Respondent 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. Petitioner is the owner and operator of a licensed family day care home located at 1502 North Kettles Avenue, Lakeland, Florida (hereinafter "Petitioner's facility" or "the facility"). Petitioner resides at that address as well. Petitioner has operated a day care home at the above address for approximately three years. Petitioner 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. Petitioner keeps children in her home, and children also play in Petitioner's backyard. This area is enclosed by a fence. Inspections and Resulting Actions by Respondent Petitioner's facility was inspected on February 4, 2003, by Respondent's inspector, Timothy Graddy, who found Petitioner caring for children. Several areas of noncompliance were identified during this inspection. Violations noted included unsafe and unsecured storage of materials dangerous to children, namely, bleach and other household cleaning chemicals were left out in the kitchen and a bathroom cleaning product was observed in the tub; paper and trash were littered around the home's back door which leads to the playground area; water that had collected in the sandbox, which presented a drowning hazard; no written evidence of a fire drill having been conducted on a monthly basis; and some of the children's immunization records were found to be out-of-date, which presented a health safety issue. A re-inspection was conducted on February 6, 2003, all violations had been corrected, and no fine or other penalty was imposed at that time. On August 26, 2004, Respondent's inspector, Tricia Step, went to Petitioner's family day care home to carry out a routine inspection, and she observed five children in the home at that time. Several areas of noncompliance were identified. The lock on a kitchen cabinet did not catch, allowing children access to household cleaning products stored there; the children's play area contained litter (empty chip bags and soda cans); an extension cord was lying on the ground in the playground area; the play areas in the home were not clean and stacked against a wall were toys and "stuff," which could fall on the children; at the time of the inspection, children were observed sleeping on blankets with no mats under them, which is in violation of the requirement that each child be provided with a mat, at least one inch thick, covered with an impermeable surface; Petitioner could not provide a record of fire drills being conducted within the previous six months; and an up-to- date and age-appropriate immunization record was missing for a child in her care. After Ms. Step completed her inspection, she discussed the results with Petitioner and provided Petitioner a copy of the inspection report. Petitioner made the corrections required prior to the due date listed on the report. Petitioner's premises were inspected for re-licensure by Mr. Graddy on January 15, 2004, and several areas of noncompliance were identified. Mr. Graddy observed a hammer, motor oil, and a plastic garbage bag on the front stoop area, which are hazardous and dangerous to children; litter, including aluminum cans and paper, was observed in areas where children play; a gap in the required 4-foot fence was observed, which would permit children in the outdoor play area access to a trafficked street; a written record of fire drills for the months of December 2003 and January 2004 were not provided; Petitioner was unable to produce a student health examination file on two children in her care; and the current enrollment information was incomplete on four children. The results of the inspection were discussed with Petitioner, and she was given a copy of the report. Graddy then went back to his office and discussed the results of the inspection with his supervisor, Patricia Hamilton. Based upon the results of the January 15, 2004, inspection and the prior incidents of noncompliance at Petitioner's facility, Ms. Hamilton determined that Petitioner's license should not be renewed. Although Petitioner attempted to do so, Respondent did not give Petitioner an opportunity to bring her home into compliance with the minimum standards in Respondent's licensing rules and standards before deciding to issue a letter of denial. Thereafter, on March 2, 2004, Mr. Graddy sent a letter to Petitioner informing her that her license was not being renewed and advising Petitioner of her right to "appeal" that decision through the administrative process. At the hearing, Ms. Hamilton testified that she was particularly concerned about Petitioner's repeat violations, namely Petitioner allowing the children access to toxic and other dangerous materials, repeated failure to conduct fire drills, and to keep health and enrollment records current. She characterized these as serious child safety violations. These were the primary reasons she recommended that Petitioner's child care license not be renewed. Petitioner, in her testimony, did not deny committing the violations noted in the inspections of February 4, 2003, August 26, 2003, and January 15, 2004. However, she did demonstrate that a re-inspection of her facility listed her to be in compliance with all violations listed in the report. Petitioner's testimony is credible, especially when bolstered by her friends, family, and client's testimonials, that she is a loving and caring person who goes out of her way to care for the children she keeps in her home. The evidence is clear and convincing that Petitioner violated several code provisions, including repeated violations of the rules regarding toxic and hazardous materials; trash and dangerous conditions in the children's play area; failure to conduct fire drills; and failure to have current health and enrollment records on file for each child. Respondent withdrew its allegation that Petitioner was not a person of good moral character. Petitioner has shown mitigating evidence that she is a concerned and loving caregiver and has demonstrated that her license for a family day care home should not be denied or revoked but that a lesser penalty should be imposed.
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-20.010(1)(b) (three counts), 65C-20.010(1(e) (three counts), and 65C-20.010(3)(b)4. (three counts). Finding Petitioner not guilty of violating the provisions of Section 402.301, Florida Statutes. Issuing Petitioner a provisional license. DONE AND ENTERED this 30th day of July, 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 30th day of July, 2004.
The Issue Whether Petitioner’s application for licensure as a foster home should be granted.
Findings Of Fact The Department is the state agency responsible for licensure of foster homes. In carrying out its licensure duties, the Department contracts some license processing functions to FamiliesFirst Network. In turn, FamiliesFirst subcontracts with Children’s Home Society to perform a variety of license processing functions. In this case, Children’s Home Society was the organization that initially reviewed Petitioner’s 2007 licensure application. In 1984, prior to her employment with the Department, Petitioner married a man in the military. Petitioner testified that the marriage was one of convenience for both parties and, while legal, was not a true marriage since the marriage was never consummated. Petitioner’s explanation regarding the benefit each got from the marriage was vague. In essence, Petitioner characterized her marriage as a way for her to get out of financial difficulty. She testified that a soldier approached her and offered to pay her bills if she would marry him so that he could live off base. However, Petitioner legally divorced her husband in 1988 when she learned that he had contracted AIDS. Since at least 1997, Petitioner was employed by the Department. At some point, she was employed as an Economic Self-Sufficiency Specialist I (ESSI). As an ESSI, Petitioner generally handled applications for food stamps and interviewed clients to determine eligibility for food stamps, Medicaid and cash assistance benefits. In 1999, while employed with the Department, Petitioner applied for licensure as a foster home. On the initial licensing application in 1999, Petitioner wrote in the marital history section, “I am single and have never been married.” On the foster family self-study, Petitioner left her marital history blank. Furthermore, Petitioner marked “n/a” for ‘not applicable’ in the section regarding her divorce. That information was incorporated in the initial licensing study compiled by Children’s Home Society on April 28, 1999. Clearly, the statements made by Petitioner in her 1999 application and the information she provided to the Department during the application process were false since she had been married and divorced. Petitioner also completed a licensure self-study form in April 2001. In the sections regarding her marital history, Petitioner marked “n/a” for ‘not applicable,’ incorrectly indicating that she had never been married or, in some manner, the section on marriage did not apply to her. Again, the information was false. In another licensure self-study in September 2001, Petitioner left her marital history blank. Similarly, Petitioner left the marital history section blank on a personal profile form completed by her in 2001. That document was updated in 2003 and the marital history section was again left blank. In March 2003, Petitioner again marked “n/a” in the marital history section of a licensure self-study form. At about the same time, Petitioner also completed a questionnaire as part of the home-study process performed by FamiliesFirst Network. One of the questions called for a box to be checked as to how a previous marriage ended. Petitioner did not check any of the answers or indicate that she had been divorced. The lack of response is particularly troubling since Petitioner had indicated at least once that she had not been married, at least twice that the marital history sections on various forms did not apply to her based on her rationalization that the marriage had never been consummated, and at least once that the divorce history section did not apply to her. However, Petitioner knew that she had been legally married and legally divorced. Indeed, the fact of her divorce was not affected by the lack of consummation of the marriage; her ostensible rationale for not recognizing her marriage was from a religious point of view. These misrepresentations were material to the review of her fitness for licensure. Finally, in her 2005 application, Petitioner did indicate to the person who was processing her application that she was married. The provision of the correct information by Petitioner in 2005 occurred after the processor inquired and pursued questions about Petitioner’s marital history and does not mitigate Petitioner’s past multiple misrepresentations regarding her marital and divorce history. At hearing, Petitioner acknowledged that she provided inconsistent information about her prior marriage. She was concerned that her marriage was coming back to haunt her. She stated, “I didn’t know that it was going to come back and bite me.” However, such concern does not mitigate the fact that Petitioner failed, on multiple occasions, to disclose her divorce and marriage to the Department. As indicated above, Petitioner was also employed by the Department during the time she was seeking licensure as a foster home. Unfortunately, throughout the time that Petitioner was employed, she developed a very troubled relationship with the Department and, in particular, with Katie George, the Department’s General Counsel. Petitioner’s difficulty with the Department resulted in several legal cases against the Department in which Ms. George represented the Department. These cases extended over a five-year period. The cases involved two small claims cases requesting reimbursement for sodas and copying costs that arose out of five other litigations before the Public Employees Relations Commission. The two small-claims lawsuits seeking reimbursement for out-of-pocket expenses, including sodas and photocopies, were dismissed by the Court. The evidence demonstrated that Petitioner was terminated twice by the Department. Petitioner contested her first dismissal before the Public Employees Relations Commission. Petitioner’s first dismissal was overturned by the Public Employees Relations Commission on a legal technicality. The Commission specifically noted that they neither condoned nor agreed with malfeasance in office but had to grant a double- jeopardy type exception since the Department had originally suspended Petitioner for malfeasance in office and then attempted to increase the discipline it had imposed to dismissal of Petitioner. Petitioner was reinstated to her position by the Commission and back pay was ordered. As part of the back-pay case with the Public Employees Relations Commission, the Petitioner was denied reimbursement for private cash advances and private auto insurance expenses that she claimed the Department owed to her as part of her wages. Petitioner’s second termination was for conduct unbecoming a public employee and involved outrageous and bizarre behavior towards a client of the Department who had applied for Medicaid and food stamps. During the incident Petitioner berated, belittled and treated the client so poorly that he was reduced to tears and would not return for food stamps when it was time to renew the same. The client prayed with Petitioner inside her office. The client described Petitioner as chanting and acting so strangely that he abruptly ended the prayer by saying “amen.” Additionally, Petitioner told the client that she understood how he felt and that the Department was out to terminate her because some of her co-workers thought she was crazy. She also told the client the Department had tried, but failed, to terminate her before. The client eventually filed a complaint with the Department regarding Petitioner and her behavior during the interview with the client. Later, Petitioner called the client at his unlisted phone number that she could only have obtained through Departmental records and tried to intimidate the client into changing his complaint or not testifying. Based on this incident and some other incidents regarding Petitioner’s work, the Department dismissed Petitioner a second time. Petitioner, again, contested her dismissal before the Public Employees Relations Commission. The dismissal was upheld by all the Courts who heard the case and eventual appeals. The nature of the litigation and the eventual outcome are illustrated in the Public Employees Relations Commission Hearing Officer’s Recommended Order dated February 10, 2003; the Public Employees Relations Commission Final Order dated March 17, 2003; the per curiam affirmed opinion of the First District Court of Appeal dated February 18, 2004; the Order of the First District Court of Appeal denying rehearing dated April 5, 2004, and the Order of the Supreme Court of Florida dismissing review dated May 19, 2004. In addition, Petitioner filed a federal employment discrimination lawsuit against the Department. The suit was based, in part, on her earlier termination. During the course of the federal litigation, depositions were taken. During those depositions, Ms. George learned that Petitioner had falsified her application with the Department because she had previous jobs from which she had been fired that were not listed on the application. However, the Department was represented by outside risk counsel, who negotiated a $5,000.00 settlement payment to Petitioner. The settlement was accepted by the Department based on the nuisance value of continued litigation of the case. The Department did not admit any discriminatory action towards Petitioner in its termination of her. At some point after her second termination, Petitioner visited Ms. George’s legal office at the Department. Petitioner visited the office to either pick up or deliver some papers. However, testimony was not clear on the exact nature of the visit and what occurred during Petitioner’s visit. Testimony did establish that Petitioner became disruptive in the office towards Ms. George’s legal staff. Petitioner was asked to leave and initially refused. Eventually, Petitioner left the office after Ms. George instructed her staff to call law enforcement. Petitioner also filed a complaint with the Florida Bar regarding Ms. George’s representation of her client. The Bar complaint against Ms. George was dismissed by the Florida Bar. Finally, during this proceeding, Petitioner accused Ms. George of sending law enforcement to Petitioner’s house. Ms. George did not take such action against Petitioner. Given all of these incidents, Petitioner’s troubled employment history and litigation with the Department, the evidence demonstrated that, in the past, Petitioner has not worked cooperatively with the Department and seems to have developed a difficult and suspicious relationship with it. Based on this history, the evidence did not demonstrate that Petitioner could, presently or in the future, work cooperatively with the Department as a foster parent. The 2007 application was reviewed by Nicola Spear. Ms. Spear works in the licensing section of FamiliesFirst Network. She compiled the November 2007 foster parent licensing home-study on Petitioner. After reviewing the application and completing the home-study, Ms. Spear recommended that Petitioner’s license application be granted by the Department. Ms. Spear was unaware of the Petitioner’s history regarding the Department or her prior statements regarding her marriage and divorce. She subsequently learned the reasons why Petitioner was terminated from her employment with the Department, including inappropriate client interactions. Once the Department learned of Petitioner’s application and the initial recommendation of Ms. Spear, either Ms. George or administrative staff called a meeting with its contractors and Ms. Spear to review the recommendation and provide information regarding Petitioner’s history with the Department. After receiving the information, Ms. Spear changed her recommendation and recommended that Petitioner not be licensed as a foster parent. Ms. Spear testified that while Petitioner was very cooperative during the licensure process, she was concerned that Petitioner might not be able to work cooperatively with the Department or its contracted partners. Mary Martin, a licensing specialist with the Department, received Petitioner’s licensing packet from Ms. Spear. Ms. Martin was made aware that Petitioner had been dismissed from the Department, had a history of difficulties with the Department and of Petitioner’s lack of candor regarding her marriage and divorce. Ms. Martin also learned from Ms. Oakes, a contractor for the Department, that in 2002, Ms. Oakes had instructed her staff to call law enforcement to a visitation between foster children and their parent because Petitioner wanted to participate in the court-ordered closed visit and would not leave the visitation site at Children’s Home Society. However, the contractor who supplied this information did not witness the incident. The person who was present during the alleged incident did not testify at the hearing and all the testimony regarding the incident was based on hearsay. Additionally, Petitioner was not aware that law enforcement had been called since Petitioner voluntarily left the visitation before the police arrived. Given the hearsay nature of the facts surrounding the visitation incident, the incident cannot provide a basis for denial of Petitioner’s application. On the other hand, Ms. Martin found Ms. Peagler hostile to work with during the interview process with her. Ms. Martin did not feel that Petitioner could work cooperatively with the Department and could not be trusted to provide accurate information to the Department. She recommended denial of Petitioner’s 2007 application. Ultimately, Petitioner’s foster home application was denied on February 18, 2008. The basis for denial was her false statements, her history with the Department, and her intolerance and inflexibility with the Department. Currently, Petitioner is self-employed as a provider of services to persons with developmental disabilities. She is licensed through the Agency for Persons with Disabilities (APD). There was no evidence that Petitioner had difficulty working with APD. The evidence also did not show that Petitioner had a long and troubled relationship with APD or that APD was aware of Petitioner’s misrepresentations regarding her marriage and divorce. Robin Woods Reshard testified generally about her friendship with Petitioner. Although she works with school-age children, she never worked with or for the Department. Ms. Reshard primarily knows Petitioner through their Church. She speaks highly of Petitioner, although finds her to be stubborn, at times. She thinks Petitioner would make an excellent foster parent. However, given the facts of this case regarding Petitioner’s multiple litigations with the Department, her general suspiciousness regarding the Department and its personnel, her misrepresentations regarding her marriage and divorce, and her mistreatment of a client of the Department, her good work with APD and Ms. Reshard’s recommendation do not demonstrate that Petitioner can now work cooperatively with the Department or can be trusted by the Department to be honest with it in fostering children. Both of these qualities are necessary for successful licensure as a foster home. Therefore, Petitioner’s application for licensure as a foster home should be denied.
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 denying the application of Robin Peagler for foster home licensure. DONE AND ENTERED this 4th day of December, 2008, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2008. COPIES FURNISHED: Eric D. Schurger, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501-5734 Robin Peagler 1011 West Chase Street Pensacola, Florida 32501 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 George Sheldon, Interim Secretary Department of Children and Family Services Building 1, Room 202 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
The Issue The issue in this case is whether Petitioner is entitled to issuance of a license to operate a family day care home, pursuant to chapter 402, Florida Statutes, and Florida Administrative Code Rule 65C-20.008.
Findings Of Fact The Parties Petitioner, Shaguandra Ruffin Bullock, is an applicant for a family day care home license for the Ruffin Bullock Family Day Care Home. Respondent is the state agency responsible for licensing family day care homes in Florida. § 402.312(1), Fla. Stat. Events Giving Rise to this Proceeding A "family day care home" is an occupied residence in which child care is regularly provided for children from at least two unrelated families and which receives a payment, fee, or grant for any of the children receiving care, whether or not operated for profit. § 402.302(8), Fla. Stat. On or about July 6, 2017, Petitioner filed an application to operate a family day care home. Respondent reviewed the application and determined that it was incomplete, pending completion of the background screening required by sections 402.313(3), 402.305, and 402.3055.2/ On or about December 8, 2017, Respondent sent Petitioner a Notice of Intent to Deny Family Day Care Home Licensure ("NOI"), informing her of Respondent's intent to deny her application for a family day care home. The NOI stated, in pertinent part: On October 10, 2017, the Department received background clearance letters from child care personnel at Respondent's Family Day Care Home. Pursuant to Section 402.313(3), Florida Stat., childcare personnel in family day care homes are subject to applicable screening provisions. Pursuant to Section 402.302(15), Florida Stat. and Section 39.201(6), Florida Stat., The Department assessed the background of child care personnel at Respondent's family day care home including, but not limited to information from the central abuse hotline. The Department's assessment revealed the Respondent did not meet minimum standards for child care personnel upon screening which requires personnel to have good moral character pursuant to Section 402.305(2)(a), Florida Stat. The foregoing violates Rule 65C- 22.008(3), Fla. Admin. Code,[3/] Section 402.305(2)(a), Fla. Stat. and Section 402.313(3), Florida Stat. Based on the foregoing, Ruffin Bullock Family Day Care Home's, [sic] pending licensure application will be denied. Evidence Adduced at the Hearing At the final hearing, Respondent acknowledged that the background screening for Petitioner and her husband, Marlon Bullock, did not reveal that either had ever engaged in any of the offenses identified in section 435.04, Florida Statutes, which establishes the level 2 screening standards applicable to determining good moral character in this proceeding, pursuant to section 402.305(2)(a).4/ Rather, Respondent proposes to deny Petitioner's license application solely based on two confidential investigative summaries ("CIS reports") addressing incidents—— one involving Petitioner that occurred over 11 years ago, and one ostensibly involving Marlon Bullock that allegedly occurred almost 11 years ago. The CIS report for Intake No. 2007-310775-01 addresses an incident that occurred on or about January 16, 2007. Petitioner acknowledges that the incident addressed in the CIS report for Intake No. 2007-310775-01 occurred. Petitioner testified, credibly and persuasively, that at the time of the incident, Petitioner and her then-husband, Bernard L. Johnson, were going through a very difficult, emotionally-charged divorce. Petitioner went to Johnson's home to retrieve their minor children. An argument between her and Johnson ensued, and she threw a car jack through the back window of Johnson's vehicle. As a result of this incident, Petitioner was arrested. However, she was not prosecuted, and the charges against her were dropped. Respondent's witnesses, Ann Gleeson and Suzette Frazier, both acknowledged that they did not have any independent personal knowledge regarding the occurrence, or any aspects, of the incident reported in the CIS report for Intake No. 2007-310775-01. The other CIS report, for Intake No. 2007-455485-01, addresses an incident that ostensibly took place on September 7, 2007, involving Marlon Bullock, who is now Petitioner's husband. Petitioner was not married to Bullock at the time of the incident reported in the CIS report for Intake No. 2007- 455485-01. She credibly testified that she was completely unaware of the incident, and had no knowledge of any aspect of it, until she saw the CIS report in connection with this proceeding. Gleeson and Frazier both acknowledged that they did not have any independent knowledge regarding the occurrence, or any aspects, of the incident addressed in the CIS report for Intake No. 2007-455485-01.5/ The CIS reports and their contents are hearsay that does not fall within any exception to the hearsay rule.6/ The CIS reports and the information contained therein consist of summaries of statements made by third parties to the investigators who prepared the reports. The investigators did not have any personal knowledge about the matters addressed in the reports. It is well-established that hearsay evidence, while admissible in administrative proceedings, cannot form the sole basis of a finding of fact in such proceedings. § 120.57(1)(c), Fla. Stat. Accordingly, the CIS reports do not constitute competent, substantial, or persuasive evidence in this proceeding regarding the matters addressed in those reports. Thus, Petitioner's testimony constitutes the only competent substantial evidence in the record regarding the matters addressed in the CIS report for Intake No. 2007-310775-01, and there is no competent substantial evidence in the record regarding the matters addressed in the CIS report for Intake No. 2007-455485-01. Respondent has not adopted a rule defining the term "good moral character." Therefore, it is required to determine an applicant's "good moral character" based on the definition of that term in statute. As noted above, section 402.305(2)(a) provides that "good moral character" is determined "using the level 2 standards for screening set forth in" chapter 435. Ann Gleeson reviewed Petitioner's application for a family day care home license. She testified that based on her review of the CIS reports for Intake No. 2007-310775-01 and Intake No. 2007-455485-01, she "didn't feel comfortable" recommending approval of Petitioner's application for a family day care home license, and she recommended that the license be denied. As noted above, Gleeson did not have any personal knowledge of any of the matters in the CIS reports. She relied on the reports and their contents in making her recommendation to deny Petitioner's application. Suzette Frazier, Gleeson's supervisor, made the ultimate decision to deny Petitioner's application for the license. At the final hearing, Frazier testified that she determined that Petitioner's license should be denied based on the matters addressed in the CIS reports. Frazier testified that Petitioner's application raised particular concerns because of the two CIS reports, even though the CIS report for Marlon Bullock contained a "Findings – No Indicator" notation.7/ Frazier testified that it is Respondent's "policy" to deny an application for a family day care home license in every case in which the background screening for the applicant reveals an incident addressed in a CIS report. According to Frazier, this policy applies even if the background screening shows that the applicant does not have a history involving any of the offenses listed in section 435.04. Further to this point, when Petitioner asked Frazier at the final hearing what she (Petitioner) could do to demonstrate that she has good moral character for purposes of obtaining her license, Frazier told her that although she could reapply, she would never qualify to get the license because of the CIS reports. Frazier testified that, in her view, the CIS reports contain information indicating that both Petitioner and Marlon Bullock have a "propensity" toward violent behavior. Webster's Collegiate Dictionary, 11th edition,8/ defines "propensity" as "a natural inclination or tendency." A "tendency" is "an inclination, bent, or predisposition to something." Id. An "inclination" is a "tendency toward a certain condition." Id. A "predisposition" is a "tendency to a condition or quality." Id. Frazier's view that Petitioner and Marlon Bullock have a "propensity" toward violent behavior is not supported by the competent, substantial, or persuasive evidence in the record. To the extent Frazier relies on the information contained in the CIS reports to conclude that Petitioner and Marlon Bullock have a "propensity" toward violent behavior, neither of these reports constitutes competent substantial evidence regarding the matters addressed therein. Furthermore, to the extent Petitioner acknowledges that she engaged in the conduct addressed in CIS report Intake No. 2007-310775-01, the competent, substantial, and persuasive evidence shows that this incident——which was an isolated event that occurred in the context of an extremely emotional and difficult personal event in Petitioner's life——simply does not establish that she has a "tendency" or "inclination" or "predisposition" toward violent behavior. To the contrary, the competent, persuasive evidence shows that this was a one-time event that happened over 11 years ago, that Petitioner did not have any instances of violent behavior before then, and that she has not had any instances of violent behavior since then. Far from showing a "propensity" toward violent behavior, the competent, persuasive evidence shows that Petitioner has exhibited an otherwise completely non-violent course of conduct throughout her life. Additionally, as previously noted, the evidence shows that neither Petitioner nor Marlon Bullock have any history involving any of the offenses listed in section 435.04. There is no competent substantial evidence in the record showing that Petitioner has engaged, during the past 11-plus years, in any criminal or other conduct that would present a danger to children, and there is no competent substantial evidence in the record establishing that Marlon Bullock has ever engaged in any criminal or other conduct that would present a danger to children. To the contrary, the competent substantial evidence establishes that Petitioner and Marlon Bullock are law-abiding citizens. Petitioner is employed as the manager of a department for a Wal-Mart store. Marlon Bullock is, and has worked for 23 years as, a chef. Petitioner credibly and persuasively testified that she is a Christian who attends, and actively participates in, activities with her church. Petitioner also credibly and persuasively testified that she has raised her four sons from her previous marriage to be law-abiding, upstanding citizens. None of them has ever been arrested or involved in any criminal behavior, and her three adult children are all gainfully employed. Petitioner posits, persuasively, that her children are testaments to the stability of her character and her ability to provide a safe, nurturing environment for the care of children. Frazier testified that Respondent's review of Petitioner's application showed that apart from the good moral character requirement, Petitioner's application met all other requirements to qualify for a family day care home license.9/ Findings of Ultimate Fact Although Respondent has adopted a rule, detailed in its Handbook, which establishes the background screening process for purposes of determining good moral character, Respondent has not adopted a rule defining "good moral character" or establishing, apart from the standards set forth in section 402.305(2)(a), any other substantive standards for determining "good moral character." Accordingly, pursuant to the plain language of section 402.305(2)(a), the level 2 screening standards set forth in section 435.04 are the standards that pertain in this proceeding to determine good moral character. Pursuant to the foregoing findings of fact, and based on the competent, substantial, and persuasive evidence in the record, it is found, as a matter of ultimate fact, that Petitioner and Marlon Bullock are of good moral character. Conversely, the competent, substantial, and persuasive evidence in the record does not support a determination that Petitioner and Marlon Bullock do not have good moral character. As noted above, Respondent determined, in its review of Petitioner's application, that other than the good moral character requirement, Petitioner met all other statutory and rule requirements for a family day care home license. Because it is determined, in this de novo proceeding under section 120.57(1), that Petitioner and Marlon Bullock meet the good moral character requirement, Petitioner is entitled to issuance of a family day care home license pursuant to sections 402.305(2)(a), 402.312, and 402.313 and rule 65C-20.008. Finally, it is noted that Respondent has not adopted as a rule pursuant to section 120.54(1)(a), its "policy" of denying applications for family day care home licenses in every case in which the background screening for the applicant reveals an incident addressed in a CIS report. Accordingly, pursuant to section 120.57(1)(e)1., Respondent cannot rely on or apply this "policy" to deny Petitioner's application for a family day care home license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's license for a family day care home. DONE AND ENTERED this 12th day of April, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 April, 2018.
