The Issue Whether Respondent employed an individual who was ineligible to work in a child care facility due to his disqualifying criminal history and, if so, what penalty Petitioner should impose.
Findings Of Fact The Department is responsible for licensing and enforcing regulations to maintain the health, safety, and sanitary conditions at child care facilities. See § 402.305, Fla. Stat.; and Fla. Admin. Code R. 65C-22.010. Respondent is a licensed child care facility (License ID number C18SE0109) operating at 295 Oxford Road, Fern Park, Florida. It has been operated by the same owner for 25 years. As a Family Service Counselor, Mr. Ross’s duties include conducting inspections of licensed child care facilities, including Royal. On October 15, 2018, in the afternoon around 2:00 p.m., Mr. Ross arrived at Royal to conduct a renewal inspection. Although his appearance for the inspection was unannounced, Royal had applied to renew its license, which would require an inspection. Mr. Ross’s inspection lasted for approximately three hours. During this time, there were approximately 56 children and ten staff members at the Royal facility. As part of his inspection, Mr. Ross checked Royal’s personnel files for proper employment background screening documentation on all the employees. Because he had inspected Royal previously, he was familiar with some of the staff. While Mr. Ross was in Royal’s administrative office, he saw an unfamiliar adult male outside in the front yard of the campus. Later, the same man walked into the building and past the office. At this point, Mr. Ross asked Royal’s director, Ms. Henein, about the identity of the man. Ms. Henein informed Mr. Ross that the man, Miguel Lespier, was an employee; he was not a parent or visitor. Royal had hired Mr. Lespier to perform maintenance on the facility. Mr. Ross then asked for Mr. Lespier’s employment documentation. Ms. Henein did not provide Mr. Ross with any hiring documentation such as a personnel file, resume, application, tax form, or job description. Instead, Ms. Henein claimed Mr. Lespier had just recently been hired and it was his first day. She then went to a computer and printed out a report on Mr. Lespier from the Department’s Level II background clearinghouse. The Department established that employees of a child care facility when children are present must go through a Level II background screening by the Department’s clearinghouse, pursuant to section 435.04, Florida Statutes. As explained by Mr. Ross, the screening consists of a security background investigation to ensure an applicant or employee does not have a pending charge against him or her, or has not been found guilty of the offenses listed in section 435.04 or similar types of offenses in other jurisdictions. The Department clearinghouse screens for both federal and state offenses in order to determine whether the person is eligible for employment in a child care facility. The content of the printout is disputed. Ms. Henein claimed the printout included a document titled “Public Rap Sheet.” Mr. Ross did not believe he saw the “Public Rap Sheet,” but testified he relied solely on the document titled “CLH BGS – Person Profile.” Ms. Henein’s claim that she provided the “Public Rap Sheet” to Mr. Ross is suspect given that it is dated October 16, 2018, a day after the inspection. Even if Ms. Henein’s testimony is to be believed, the “Public Rap Sheet” does not indicate whether Mr. Lespier is eligible for employment as a child care provider, nor does it state whether he has cleared a Level II background screening. Rather, the “Public Rap Sheet” indicates Mr. Lespier had “no Florida criminal history.” It made no findings as to whether he had a criminal history in other jurisdictions. The “CLH BGS – Person Profile” has Mr. Lespier’s photograph and states: “A criminal record may exist for this applicant.” It also indicates a screening request was made by Royal on October 2, 2018; and that the Department found Mr. Lespier “Not Eligible” in the categories of “DCF General,” “DCF Child Care,” and “DCF Substance Abuse-Adult Only” on October 5, 2018. The “CLH BGS - Person Profile” indicates it was printed on October 15, 2018. Regardless, Ms. Henein admitted Mr. Lespier was not eligible for employment based on the results from the Department clearinghouse. “I pulled it up and the first page it’s the rap page – when I saw, it says eligible on it on the first page. And this was okay. And then when I printed out the other pages it says he was not eligible.” Based on the printout, Mr. Ross asked Ms. Henein to tell Mr. Lespier to leave the facility, which she did. Mr. Ross later learned Royal had terminated Mr. Lespier from employment. Royal never disputed Mr. Lespier was deemed “not eligible,” nor does it deny he was an employee. Rather, it claims, the day of the inspection was Mr. Lespier’s first time at the facility, and that he was not supposed to be at Royal until after operating hours. Moreover, it claims it should not be found guilty of a violation because it terminated him as soon as it was made aware that he was “not eligible.” Ms. Henein’s demeanor at the hearing and the lack of consistency in her testimony make Royal’s version of events unreliable. For example, she was unsure of Mr. Lespier’s name (she thought it was Miguel Lopez). She also claimed Mr. Lespier had never been at the facility prior to October 15, 2018, but later testified that on the date of the inspection, Mr. Lespier walked into the building, walked directly to a locked maintenance closet, and knew where the key was located. The testimony as to whether Mr. Lespier was hired to perform work during operating hours was inconsistent. For example, although Ms. Henein insisted he was not supposed to be at the facility until after hours on the date of the inspection, if Ms. Henein thought Mr. Lespier was eligible to work during operating hours based on the “Public Rap Sheet,” as she testified, she would have had no reason to have him come only after hours. Ms. Henein later admitted Royal had conducted the Level II background screening on Mr. Lespier because it anticipated he would be working during operating hours, just not on the date of the inspection. When asked about Mr. Lespier’s work schedule, at one point in her testimony, Ms. Henein stated that on the date he was hired, she told Mr. Lespier to come to the facility on October 15, 2018, and to arrive after hours. She later testified that she called him the morning of the inspection to report to work that day. Notwithstanding these inconsistencies, the evidence establishes the Level II background results deemed Mr. Lespier “not eligible” to work during operating hours on October 5, 2019; he remained an employee until after the inspection on October 15, 2019; and he was working while children were at the facility. As a result of his inspection, Mr. Ross prepared an inspection report and informed the Department he believed Royal had committed a violation of the background screening requirements by employing a person who was deemed “not eligible” to work during hours when children are present at the facility. The Department then filed the Complaint against Royal. Royal has been designated as a Gold Seal Quality Care provider, which allows it to receive supplemental funding. Royal’s witnesses established that if this designation is revoked, it would lose this funding, and it may be forced to close its facility. As noted below, this designation is terminated upon the final assessment of a Class I violation, which is why Respondent seeks to avoid this determination.
Recommendation It is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent guilty of a Class I violation by allowing an employee who was ineligible due to his background screening results to be present at the facility during operating hours when children were present, imposing a $250.00 fine, and terminating Respondent's Gold Seal Quality Care designation. DONE AND ENTERED this 8th day of April, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 8th day of April, 2019.
The Issue The issues in this case are whether the Respondent's request for hearing was timely filed and whether the Gold Star Quality Care Provider designation of the Respondent should be revoked.
Findings Of Fact All times material to this case, Ms. Garcia was the licensed owner and operator of the Respondent, located at 109 Meriwood Drive, Kissimmee, Florida 34743. On December 23, 2009, an employee of the Petitioner arrived at the home to conduct an inspection, but the inspector was not permitted to enter the home. Upon further inquiry, the inspector learned that Ms. Garcia was not present in the home and that an unlicensed individual had been left to supervise the children, which was a violation of licensing standards. Ms. Garcia was not present at the time of the inspection because she had traveled to visit her dying father. On March 22, 2010, the Petitioner issued an Administrative Complaint seeking to impose a penalty of $225 against the Respondent for the licensing standard violation. The Respondent did not contest the allegations in the 2010 Administrative Complaint and paid the $225 fine by a money order dated June 6, 2010, to the Petitioner. The evidence fails to establish whether the Petitioner issued a final order relative to the 2010 Administrative Complaint, but the Petitioner's Proposed Recommended Order states that upon the Respondent's payment of the fine, the 2010 Administrative Complaint "became final agency action." On or about March 31, 2011, the Petitioner issued an Amended Administrative Complaint that stated as follows: YOU ARE HEREBY NOTIFIED that the Department has imposed a Civil Penalty in the amount of $225 and is revoking the facility's Gold Seal Quality Care Designation. The payment amount of $225 was received on June 07, 2010, however the amount of the original fine should have been $150 [sic] a refund will be mail [sic] to you in the amount of $75. This Administrative Complaint is being amended to include the Gold Seal Langue [sic] as the original Administrative complaint [sic] mailed June 3, 2010. As grounds for the imposition of this penalty, the Department states the following[.] Other than indentifying the statutory authority for termination of a facility's Gold Seal Quality Care Designation, the factual allegations set forth in the 2011 Amended Administrative Complaint were identical to those that had been set forth in the 2010 Administrative Complaint. The Amended Administrative Complaint identified the Petitioner's authority for revocation of the Gold Seal Quality Care Designation as follows: Gold Seal designation. The violation described in paragraphs [sic] one constitutes a Class I violation as defined in rule [sic] 65C-20.012(3)(b), Florida Administrative Code. Section 402.281, Florida Statutes, requires that the department terminate your Gold Seal designation as a result of this Class I violation. Therefore, the department is terminating your Gold Seal designation. You will be ineligible for Gold Seal designation until you have operated for a period of two years without a Class I violation. The Amended Administrative Complaint also included the following notice of the Respondent's right to contest the action: PAYMENT OF FINE, IF NOT CONTESTED Payment of this fine can be made directly to the Department of Children and Family Services by money order or cashier's check. The mailing address is Department of Children and Families; Child Care Licensing Office; 1507 North John Young Parkway; Kissimmee, Florida 34741; Attention: Child Care Licensing. [omitted]. IF YOU BELIEVE THE DEPARTMENT'S DECISION IS IN ERROR, YOU MAY REQUEST AN ADMINISTRATIVE HEARING TO CONTEST THE DECISION. YOUR REQUEST FOR AN ADMINISTARTIVE HEARING MUST BE RECEIVED BY THE DEPARTMENT WITHIN 21 DAYS OF THE RECEIPT OF THIS NOTICE. FAILURE TO REQUEST AN ADMINISTRATIVE HEARING WITHIN THE 21 DAYS PROVIDED SHALL CONSTITUTE A WAIVER OF THE RIGHT TO A HEARING. Notwithstanding the preceding instructions on how to pay a fine, the Amended Administrative Complaint also stated that the Respondent had already overpaid the fine and that a refund would be forthcoming. The Respondent failed to request a hearing within 21 days of the Amended Administrative Complaint. By letter dated May 17, 2011, the Petitioner advised the Respondent that the facility's Gold Seal Quality Care Designation was terminated as of April 26, 2011, the expiration of the 21-day period following the issuance of the Amended Administrative Complaint. By letter filed with the Petitioner on May 26, 2011, the Respondent filed a letter appealing the termination of the Gold Seal Quality Care Designation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order DISMISSING the March 31, 2011, Amended Administrative Complaint filed against the Respondent. DONE AND ENTERED this 21st day of December, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 21st day of December, 2011. COPIES FURNISHED: Shane DeBoard, Esquire Department of Children and Families 400 West Robinson Street, Suite S-1129 Orlando, Florida 32801-1782 Maria T. Navas Y Garcia Garcia Family Day Care Home 109 Meriwood Drive Kissimmee, Florida 34743 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Respondent, Donald C. Whalen, is president of Somerset Security & Investigation, Inc. of Manatee County, Florida. Respondent holds several licenses issued by Petitioner, including a Class "A" Private Investigative Agency license number 86-00242, effective October 24, 1988; a Class "B" Watchman, Guard or Patrol Agency license number B86-00153, effective October 24, 1988; a Class "C" Private Investigator license number 86-00233, effective August 4, 1988; a Class "E" Repossesser license number E87-00027, effective March 20, 1989; and a Class "M" Manager license number M86-00046, effective August 4, 1988. Vaughn Yeager was employed by Respondent as a security guard for three months in 1988 without first obtaining licensure. Tom French was employed by Respondent as a security guard for three months in 1988 without first obtaining licensure. Ralph Chaffin was employed by Respondent as a security guard in May 1988, and worked for 27 hours without being licensed. Mr. Chaffin's application for licensure was not submitted because he quit within a few days of being hired. Judith L. Chester was employed by Respondent as a security guard between May 5, 1988 and September 24, 1988, before becoming licensed by the Division. George Clifton was employed as a security guard by Respondent between August 31 and September 5, 1988. An application for licensure was never submitted because of Mr. Clifton's termination. Roger Lee Curtis was employed by Respondent as a security guard from March 4 through August 1, 1988, before his application for 1icensure was received by the Division. James DeCoff was employed as a security guard by Respondent between June 17, 1988 and June 21, 1988, when he was terminated for improperly using a client's phone. His application for licensure was never submitted. Michael Durbin was employed as a security guard by Respondent in May 1988. He quit after working one day and an application was not submitted. Anthony R. Edwards was employed as a security guard by Respondent in May 1988. He quit after working one day and his application was not submitted. Albert F. Ferrell was employed as a security guard by Respondent between May 6, 1988 and November 20, 1988, before his application was submitted. Drenda Giambra was employed as a security guard for Respondent from September 16, 1988 to September 26, 1988, before becoming licensed by the Division. Dean Harris was employed as a security guard by Respondent from July 19, 1988 to November 20, 1988, before he was licensed by the Division. Dietrich Hogrefe was employed as a security guard by Respondent between November 30, 1988 and January 28, 1989, before becoming licensed by the Division. Daniel Hunt, Jr., was employed as a security guard by Respondent on April 10, 1989, before he was licensed on April 18, 1989. David Laplante was employed as a security guard by Respondent on January 15, 1989. He worked six hours and quit. An application was not submitted. Victor Lesso was employed as a security guard by Respondent from June 16 through July 7, 1988, without submitting an application for licensure. He was terminated after being arrested for arson. Ray Linderman was employed as a security guard by Respondent between April 8 and April 30, 1988, without being licensed. His application was submitted late. Todd Persinger was employed as a security guard by Respondent in January 1989, and worked one weekend before quitting. An application for licensure was never submitted. Arthur Samson was employed as a security guard by Respondent on September 30, 1988. His application was submitted by Respondent on October 2, 1988. He was terminated when the application was denied. Russell W. Schmidt was employed as a security guard by Respondent from March 4, 1988 thru April 1, 1988. He quit before his application for licensure was submitted. Jennifer Slaton was employed as a security guard by Respondent in November 1988. She worked part-time for three days and quit before her application was submitted. Randall Springer was employed as a security guard by Respondent for two weeks in September 1988. His application was never submitted because he quit. Tracy Tamburin worked as a security guard for Respondent for one weekend in December 1988. Her application was never submitted because she quit. James Wooten was employed as a security guard by Respondent from October 2, 1988 through March 25, 1989, before becoming licensed. Brian Frenn was employed as a security guard by Respondent for three shifts in January 1989. An application for licensure was not submitted. Gina Spaniak was employed as a security guard by Respondent for two weeks in March 1988. An application for licensure was never submitted. Tom Hunt was employed as a security guard by Respondent for two weeks in May 1989. An application was not submitted. Earl Watson was employed as a security guard by Respondent for a short period of time in April 1989. An application was not submitted. Todd Moudy was employed as a security guard by Respondent for a short period of time in April 1989. An application was not submitted. John Mullins was employed as a security guard by Respondent for a short period of time in May 1989. An application was not submitted. Walker Mobley was employed as a security guard by Respondent for a short period of time in May 1989. An application for 1icensure was not submitted. Richard Yelvington was employed as a security guard by Respondent from January 17, 1989, to February 28, 1989, before being licensed by the Division. Terry Harrison was employed as a security guard by Respondent from January 10, 1989 to February 10, 1989, before submitting an application for licensure. Cynthia K. Burdell was employed as a security guard by Respondent from July 18, 1988 through November 20, 1988, before being licensed by the Division. Flynn C. Gregory was employed as a security guard by Respondent from January 30, 1989 through April 4, 1989, before being licensed by the Division. David Morico was employed as a security guard by Respondent from March 30, 1989 to May 15, 1989, before being licensed by the Division. Daniel F. Hunt, Sr., was employed as a security guard by Respondent from March 18, 1989 to May 15, 1989, before submitting an application for licensure. Robert F. Hunt was employed as a security guard by Respondent for two weeks in March 1989, before submitting an application for licensure. John Moffat was employed as a security guard by Respondent from May 18, 1989 to June 1, 1989, with an expired Class "D" license. Jeff Clarkson was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure. Jay Abram was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure. Shedrick Bates was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure. Joseph Likes was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure. Dawn Dodson was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure. Woodrow Roberts was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure. Robert Anderson was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure. In July 1989, twenty of Respondent's employees performed security guard services without identification cards. In July 1989, Respondent issued to six employees security guard badges which depicted a facsimile reproduction or pictorial portion of the Great Seal of the State of Florida without authorization. On or about June 30, 1988, Respondent repossessed a 38 ft. Wellcraft St. Tropez boat for Barnett Bank of Manatee County, Florida. The bank authorized Respondent to store the boat near Joe Ungarelli's house at 2409 69th Avenue West, Bradenton, Florida. Mr. Ungarelli expressed an interest in purchasing the boat from the Bank, and on July 2 or 3, 1988, Respondent, Ungarelli and two Barnett Bank employees, Doug Kramer and Tom French took the boat on a five to six hour trip so that Ungarelli could inspect the boat. The next day Respondent attended a Fourth of July party at Ungarelli's house. The boat was moved from Trailer Estates Marina to Ungarelli's dock and parked there. Respondent was also aboard for the second moving. Respondent solicited his friend Ungarelli to accompany him on the trip to repossess the St. Tropez boat from Englewood, Florida, a distance of over 40 miles south of Bradenton. Lee Bissette drove Respondent, Ungarelli and French to Englewood. Additionally, French worked part-time for Respondent as a security guard. After the boat was repossessed and brought from Englewood to Bradenton, Ungarelli again indicated to Respondent and Tom French that he was interested in purchasing the boat. Ungarelli requested that Barnett Bank allow him to take the boat out so that he could show his wife the boat and hopefully get her approval to purchase it. Barnett Bank thereafter contacted Respondent and authorized him to show the boat to Ungarelli and his wife. For doing so, Respondent was paid for his services. On Sunday, July 3, 1989, Respondent, acting on behalf of Barnett Bank, took the Ungarellis, Tom French and Doug Kramer out on the boat for approximately five hours. Karen Erikson, a friend and former employee of Respondent was picked up at a local seafood establishment earlier in the day. Immediately upon boarding the boat, Karen Erikson retired to the berth for at least three hours during the boat trip as she had consumed approximately ten beers and was somewhat intoxicated. On July 4, Joe Ungarelli had a Fourth of July party at his house. Respondent and other employees of Somerset Security were invited to Ungarelli's party. Ungarelli's house is located on a canal where the 38 ft. St. Tropez was docked along with four other boats, including a 40 ft. Scarub and a 32 ft. Sports Fisherman. Ungarelli dug the 25 ft. canal behind his home and it is, on the most favorable day, at best "tricky" to maneuver a large boat such as the repossessed 38 ft. St. Tropez into the canal. Respondent did not move the repossessed boat from Ungarelli's home on July 4th, nor did any other party, as Respondent, Ungarelli and several of his employees were busy barbecuing a pig for the party which was held that day. On each occasion that Respondent moved the repossessed boat, it was with the owner's (Barnett Bank of Bradenton) permission and was not used for any personal benefit of Respondent. Ungarelli submitted a bid to purchase the repossessed St. Tropez, however, he was out-bid by another party.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law and Stipulation of the parties, it is RECOMMENDED: Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $4,000.00 and place his Class "A", "B", "C" and "M" licenses on probation for a term of six (6) months. 1/ DONE and ENTERED this 3rd day of July, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 3rd day of July, 1990.
The Issue The issue presented in this case is whether the Respondents’ family foster home license should be revoked for the reasons set forth in the Department of Children and Family Services' (Department) revocation letter.
Findings Of Fact The Department of Children and Family Services is the state agency responsible for licensing and regulating family foster homes in Florida. Section 409.175, Florida Statutes. At all times relevant hereto, the home of Respondents, Wanda and Howard Barker (Respondents), was licensed by the Department as a family foster home, having been initially licensed in July 1997. Prior to receiving the family foster home license, Respondents were required to and did attend the Department's Model Approach to Partnership in Parenting (MAPP) training. Upon completion of the training course Respondents were required to sign a discipline policy agreement in which they acknowledged that they had been informed of the Department's policy against "hitting a child with any object . . ., spanking a child and any other form of physical discipline." Respondents signed a copy of this agreement. In August 1997, the Department placed D. G. and his brother, J. G., in Respondents' home. D. G. was born on October 21, 1993, and J. G.'s was born on January 7, 1995. At all times relevant to the proceeding, D. G. was four years old and J. G. was three years old. Respondent Wanda Barker, is a registered nurse at Suncoast Child Protection Team, Inc. (Suncoast). A majority of the clients served by Suncoast are children with behavioral problems. As a nurse at Suncoast, Respondent Wanda Barker comes in contact with such children on a regular basis. On August 10, 1998, Respondent Wanda Barker called the Department and reported to D. G.'s assigned children service counselor that she had slapped D. G. the previous day. Respondent Wanda Barker further advised the counselor that as a result of the slap, a mark had appeared on D. G.’s face. Immediately after receiving the call, the counselor notified the appropriate Department personnel and made a report of abuse to the proper authorities. On that same day, August 10, 1998, the Department assigned a child protective investigator to conduct an investigation of the reported incident. On August 10, 1998, both the Department's child protective investigator and an officer with the Pinellas County Police Department interviewed Respondent Wanda Barker at her home. In each of these interviews, Mrs. Barker stated that on the preceding day, August 9, 1998, she slapped D. G. in the face. According to Respondent Wanda Barker, on the day of the incident, D. G. was in a bad mood. At some point that afternoon D. G. began yelling at Respondents' daughter. In an effort to discipline D. G. for yelling, Respondent Wanda Barker told D. G. to go to his room. When he refused, Respondent Wanda Barker took D. G. by the arm and attempted to direct him to the room. While Respondent was holding D. G.'s arm and escorting him to his room, D. G. continued to yell and he also spit in Respondent Wanda Barker's face. Immediately after D. G. spit on Respondent Wanda Barker, she slapped D. G. in the face with an open hand hard enough to leave a mark on his face. The slap was so forceful that it caused a 2-3 inch long bruise that was visible the day after the incident. In the past, Respondent Wanda Barker had sought the assistance of Department staff in addressing discipline problems involving D. G. The Department staff had suggested that Respondents implement various disciplinary methods, including the use of time-out and positive reinforcement. However, at no time did the Department personnel ever recommend that Respondents hit any foster child within their care. On the contrary, the Department's disciplinary guidelines expressly prohibit hitting a child or using any form of corporal punishment. As noted in paragraph 3, Respondents were aware of the Department's policy regarding corporal punishment and had signed a statement acknowledging that they would abide by the policy. On August 10, 1998, after the child protective investigator interviewed Respondent Wanda Barker, he took D. G. to Suncoast for a physical examination. The examination revealed the D. G. had several bruises and abrasions typical of an active child. However, in addition to these bruises and abrasions, D. G. also had a "red/purple" linear bruise about 2 inches long and 1 3/8 inches wide on his face. The impression of the advanced nurse practitioner who examined D. G. was that the bruise on D. G.'s face was the result of a non-accidental injury. Moreover, the bruise on D. G.’s face was consistent with one that could be caused by a slap. It is likely that striking a four-year-old child in the face with an open hand will cause serious injury to the child, particularly to the child's head. In fact, an injury to the head of a child has the potential of causing more serious damage than an injury to any other part of the body. Accordingly, Respondent Wanda Barker's willful and intentional act of forcefully slapping D. G.'s face was one that was likely to result in physical injury to the child. This intentional act materially affected the health or safety of D. G. During the course of the investigation, the Department removed D. G., his brother, and another foster child in Respondents' care from their home. At the conclusion of his investigation, the child protective investigator entered a final report which concluded that "verified bruises/welts abuse" were found and that some indicators of "excess[ive] corporal punishment/abuse" were also found. This Florida Protective Services System Abuse Report was forwarded to the Department's licensing unit. After a review and consideration of the facts contained in the abuse report, the Department revoked the Respondents' family foster home license.
Recommendation Based of all of the foregoing, it is recommended that the final order be issued revoking the Respondents' foster home license. DONE AND ENTERED this 19th day of July, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1999. COPIES FURNISHED: Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 R. Michael Robinson, Esquire 701 49th Street, North Saint Petersburg, Florida 33710 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner was incorporated on July 27, 1987. The original incorporators were Irene M. Kent and her husband, Jay Easterbrook. The original directors were Ms. Kent and Mr. Easterbrook. Ms. Kent and Mr. Easterbrook have remained the only directors of Petitioner. They are also the only shareholders. Since the formation of Petitioner, Ms. Kent has owned 51% of the shares and Mr. Easterbrook has owned 49% of the shares. Mr. Easterbrook is the president, and Ms. Kent is the vice- president of Petitioner. Petitioner is in the business of general contracting. Prior to deciding to form petitioner, Ms. Kent had been a schoolteacher for five years. She had had no prior significant experience in contracting and holds no contracting license or registration. Her educational background is in education. Mr. Easterbrook is a licensed general contractor and is qualifying agent of Petitioner. He is a civil engineer with a college degree in engineering. When Petitioner was incorporated, Mr. Easterbrook was employed full- time by National Seal Company as manager of the southeast region. A substantial portion of the work that he supervised was the installation of industrial plastic liners manufactured by National Seal Company. Petitioner's first job, which was for $20,000, was for the installation of a National Seal liner in Ellaville, Georgia. Petitioner learned of the job through Mr. Easterbrook's contacts. Toward the end of the job, a welder who worked for National Seal assisted in the installation. However, Ms. Kent, not Mr. Easterbrook, performed the on-site supervision and inspections of the job, which was completed on October 26, 1987. Petitioner's second job, which was for less than $10,000, was for the installation of a National Seal liner in Bostwick, Georgia. Petitioner learned of the job through Mr. Easterbrook's contacts. The job was performed shortly after the Ellaville job. Petitioner's third job, which was for $15,000, was for the installation of a National Seal liner in Hardee County, Florida. The contract for this job, which Petitioner learned of through Mr. Easterbrook's contacts, was entered into at about the same time as the Bostwick contract. Petitioner's only other job to date was as the general contractor responsible for the construction of 14 relocatable classrooms for various public schools in Seminole County, Florida. Ms. Kent learned of this job, which was for about $300,000, through an announcement in the local newspaper. This job was completed on March 31, 1988 and earned Petitioner a profit of $40,000. Mr. Easterbrook does all of the estimating for Petitioner in the preparation of its bids for contracts and interpretation of blueprints and specifications contained in invitations for bids. Ms. Kent assists in this part of the work by pricing materials. She also hires, supervises, and pays the subcontractors; purchases materials and equipment; and performs the bookkeeping, although Petitioner also employs an independent public accountant. Mr. Easterbrook quit his job with National Seal Company effective February 16, 1988, and took another week to close his office. He has since worked exclusively for Petitioner. Prior to his departure from National seal Company, Mr. Easterbrook devoted considerable time, although often by telephone only, rendering technical assistance to his wife with respect to the above- described jobs. In February, 1988, be spent 40-50 hours a week working for Petitioner where he has been on the payroll since January or February, 1988.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying the application of Petitioner for certification as a minority business enterprise. DONE and RECOMMENDED this 10th day of June, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0355 Treatment Accorded Respondent's Proposed Findings 1-3. Adopted. 4-5. Rejected as unnecessary. 6 and 9. Adopted in substance. 7-8. Adopted. 10. Adopted, except that first sentence is rejected as legal argument and reference to licensure in eight other states is rejected as unnecessary. 11, 14 and 16. Rejected as unnecessary. 12-13, 15. Adopted. 17. Adopted, except that reference to Ms. Kent's work hours is rejected as unsupported by the greater weight of the evidence. 18-19. Adopted. 20, 24-25. Adopted in substance. 21. Rejected as legal argument. 22-23 and 26-27. Adopted. COPIES FURNISHED: Irene M. Kent Diversified Tech, Inc. 2296 Matthew Circle Deltona, Florida 32738 Deborah S. Rose, Esquire Department of General Services 452 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services Room 133, Larson Building Tallahassee, Florida 32399-0955 Susan Kirkland General Counsel Department of General Services 457 Larson Building Tallahassee, Florida 32399-0955
