The Issue Whether the Department of Children and Family Services (Department) properly denied the renewal of Clay and Diana Merritt's family foster home license, No. 019917.
Findings Of Fact The Department of Children and Family Services is the administrative agency responsible for the licensing of foster homes under the laws of the State of Florida. The Department is responsible for investigating allegations of child abuse against citizens of the State of Florida. The Respondents, Clay Merritt and Diana Merritt were the holders of a foster care home license which was issued by the Department on January 27, 1997. That license was renewed in 1998 and provisionally renewed in 1999. During the period of time that the Respondents were a legally licensed foster home, three different children resided in their home, Amy C., Bo T. and Joe H. On January 27, 1999, an argument ensued between Respondents and Amy C. over Amy C.'s returning late from a date. During that argument, Amy stated that she would report the Merritts for sexual abuse if they did not relax their restrictions upon her. When the Respondents refused to relax their restrictions, Amy C. requested that she be removed from the home. The Department was called and Amy C. was removed from the foster home, and placed in a facility for run-a-way children in Gainesville, Florida. Very soon thereafter, Amy C. alleged that she had been sexually abused by the Respondent, Clay Merritt, on three occasions, all of which included sexual intercourse. The Respondent, Clay Merritt, denies the allegations in their entirety. Amy C. had been a prior victim of sexual abuse by her father, her brother, and her half brother. Amy C.'s father and her brother were convicted of sexually abusing her, and her father is still incarcerated. Amy C. testified at her father's criminal trial. Because of her prior abuse, Amy C. suffers from a number of mental disorders, to include post-traumatic stress syndrome, dysthymia, and attachment disorder. The child further evidences self-destructive behavior and vindictive behaviors against others. Susan Pierce counseled Amy C. for approximately nine months from early 1998 until the end of January of 1999. During that period of time, she developed a close therapeutic relationship with the child, and believed that the child was comfortable with her as a therapist. During that nine-month time period, the child never made any allegations of sexual abuse against the Respondent, Clay Merritt, although she discussed other instances of abuse with the counselor unrelated to the Respondents. Ms. Pierce felt Amy C. would have revealed abuse by Clay Merritt had such abuse occurred. The child lied on numerous occasions to her counselor and the Respondents. The child became increasingly interested in psychopathic murder, which was indicative of the disorders that were suffered by the child in Pierce's opinion. The child stated that she had been sexually abused by Clay Merritt in July, August, and September of 1997 and had a miscarriage in November or December of 1997. However, her diaries indicate that she had menstrual periods on October 25th and November 14th, 1997, thus precluding the possibility of pregnancy. The child further testified that the miscarriage was one of the most painful things she had ever encountered. The child stated under oath that she had not reported the miscarriage because "she did not want to hurt Diana's feelings." She stated to investigators that she did not report the abuse because she did not want to be taken out of the foster home. Throughout the period of time that Amy C. resided with the Respondents, she was a discipline problem. In June of 1998, Respondent, Diana Merritt, discovered Amy C. at home one afternoon with a boy with whom she had just completed having sexual intercourse. Diana Merritt took Amy C. to medical professionals for pregnancy testing and tests for sexually transmitted diseases. Diana Merritt counseled with Amy C. about the dangers of her conduct, and the Merritts maintained a closer watch upon the child. Amy C. refused to comply with the requests of the Respondents to restrict her sexual activities which led to numerous disagreements and arguments with Amy C. These arguments culminated in the argument of January 27, 1999, which resulted in Amy C.'s removal from the home. Amy C. was asked to take a voice stress test by the Sheriff's department, but she declined. The statements of Amy C. are contradictory with regard to specific facts. She gave two different dates for her alleged miscarriage: June and November 1997. She described severe physical trauma associated with the alleged miscarriage, but did not seek or receive medical assistance. She was subsequently examined and tested for sexually transmitted diseases as the result of an unrelated, consensual sexual relationship, and no findings were made indicating a prior, terminated pregnancy. Amy C.'s diaries are vague and unrevealing, except for the reporting the commencement of a menstrual period in October and in November. This is inconsistent with a reported miscarriage in December 1997. Because of the Amy C.'s prior abuse, resort to physical examination, or her description of details about the encounter is not helpful in resolving the her credibility. The allegations by Amy C. of sexual abuse by Clay Merritt are unsupported by any tangible evidence. Amy C.'s reputation for truth and veracity is not good. Her allegations are not supported by her diaries. Her allegations were made almost one and one-half years after the alleged events, and immediately after a fight with the Merritts. The Department's investigation revealed that the Merritts had spanked one of the other children on occasion in contravention of a Department policy banning corporal punishment. The Merritts did not deny this allegation; however, there was no evidence that these spankings were abusive. The spanking was a violation of agency policy; however, testimony was received that this type of conduct was generally not a basis for revoking a license by itself. The Respondent, Diana Merritt, is a licensed practical nurse who is employed by the Putnam County health Department. She has no prior criminal record, no prior child abuse record, nor has she had any legal difficulties in her life. The Respondent, Clay Merritt, is employed as a paramedic and firefighter. He is certified as a paramedic. He has never been arrested nor had any child abuse allegations filed against him in his entire life. The guardian ad litem for Bo T. testified that Bo T. was suffering as the result of his removal from the Respondents' home. Bo T. was the child who was spanked. His guardian ad litem favored placing the child back in the Merritt's home and care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order renewing the foster home license No. 19917 of the Respondents. DONE AND ENTERED this 3rd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 3rd day of March, 2000. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 Richard J. D'Amico, Esquire 619 North Grandview Avenue Daytona Beach, Florida 32118 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this matter are whether Respondent, the owner of a child care facility, committed the violations alleged in the Administrative Complaint; and, if so, what is the appropriate sanction for the violation.
Findings Of Fact Based on the evidence adduced at hearing, and the complete record, the following Findings of Fact are made: DCF is authorized to regulate child care facilities pursuant to sections 402.301 through 402.319, Florida Statutes. Section 402.310 authorizes DCF to take disciplinary action against child care facilities for violations of sections 402.301 through 402.319. A to Z Child Development Center (A to Z) is a child care facility owned and operated by Jill Johnson at 1049 East 8th Street, Jacksonville, Florida. The license number is C04DU1409. It is undisputed that on December 20, 2020, Respondent received a citation for employing a person for which she had not conducted a background screening following a 90-day break in employment. At all times material to this matter, E.L. was a child care provider working at A to Z. She began working with the facility on February 2, 2021. E.L. had been cleared and found “eligible” to work as a child care provider on April 6, 2017, at a different child care facility. On April 22, 2021, Gretrell Marshall, a DCF licensing counselor, conducted a routine inspection of the child care facility. Ms. Marshall has 20 years working with DCF. She has worked as a family services counselor for three years and has been trained to inspect child care facilities. Before working with DCF, Ms. Marshall owned a family day care home for two years and served as a director for a child care facility for seven years. During her inspection of A to Z, Ms. Marshall reviewed the employment records for each employee of the facility. Specifically, she reviewed the file for E.L. and discovered that the background screening for E.L. was completed on April 9, 2021. This was a concern for Ms. Marshall as child care personnel should update their background screening if there is more than a 90-day absence from working as a child care provider. Ms. Marshall reviewed the completed background screening report and employment history form for E.L. The background screening report dated February 3, 2021, reflected that E.L. had successfully passed a background screening on April 6, 2017. The employment history and reference form reflected that E.L. was last employed as an assistant teacher at Nono’s Home Daycare (Nono’s). The employment dates were listed as October 2019 to Present. Although there is a question regarding whether E.L. had a 90-break in employment or worked at Nono’s, she was subsequently she was deemed eligible to work with children. Ms. Marshall then reviewed the DCF Child Care Administration, Regulation and Enforcement System (CARES). CARES maintains employment history information for child care personnel, including new employee information, verifying existing employees, and checking employment history. The information input in the system is reported by employers. However, employees do not have access to review information in the system. Ms. Marshall’s review of CARES reflected that E.L.’s most recent employer was with T and A Learning Center, which terminated in February 2020. CARES did not reflect that E.L. worked at Nono’s. After review of E.L.’s employee records, Ms. Marshall concluded that E.L.’s background screening should have been completed on February 2, 2021, when E.L. began working at A to Z. Ms. Marshall testified that the form reflected that Jill Johnson was identified as the person contacted to verify employment. The evidence of record demonstrated that the person contacted was actually Nono Johnson (owner of Nono’s) instead of Respondent’s owner, Jill Johnson. Ms. Marshall also reviewed the renewal application records for Nono’s. There was no record in the renewal applications that E.L. was an employee. Relying upon her review of E.L.’s records maintained by Jill Johnson, the renewal applications for Nono’s, and the CARES records, Ms. Marshall determined that a background screening was warranted for E.L. because it appeared that she had a 90-day break in employment. Ms. Marshall did not interview Nono Johnson and she did not interview E.L. In addition, neither person testified at the final hearing. Ms. Marshall testified that a factor in making her decision was that the employment history form for E.L. did not clearly indicate the person contacted for employment verification. However, the record reflects that Nono Johnson was listed as the person contacted to verify the background reference check. The threshold issue in this matter is whether E.L. worked for Nono’s. If E.L. worked for Nono’s, the background screening would not be required. On the other hand, if E.L. did not work for Nono’s, E.L. would be required to perform the background screening due to the 90-day break in employment. Ms. Johnson presented the testimony of Crystal McMillion, who assisted Ms. Johnson with the reference checks. She testified that she spoke to Nono Johnson and verified that E.L. worked at Nono’s during the dates provided on the employment history form. Ms. McMillion testified that she then logged into the background screening portal and verified that E.L. had previously successfully completed a background screening in 2017. Ms. McMillion was the only witness with direct knowledge of the employment verification for E.L. Ms. McMillion has experience as a child care facility operator and understands what is required to conduct employment verification. The undersigned found her to be credible and truthful. However, her testimony was uncorroborated hearsay.1 Such evidence may not be considered by the undersigned as a basis for findings of fact. Assuming Ms. McMillion made an error in her employment verification as argued by Petitioner, the question remains whether Nono’s failed to properly disclose all its employees and E.L. was in fact an employee. The undersigned finds it unlikely, but possible, that E.L. presented erroneous employment history information. Another possibility is that the records for Nono’s did not accurately reflect all of its employees and, thus, such information was not put into CARES. Neither Nono Johnson nor E.L. testified at the hearing. Likewise, the record does not include any interview statement made by Nono Johnson or E.L. The only evidence presented by DCF to demonstrate that E.L. had a 90-day break in employment was the absence of records for Nono’s, a facility over which Respondent has no control. This evidence is not sufficient to meet the clear and convincing evidence burden in this matter. Ultimate Finding of Fact Based on the evidence presented at the hearing, the undersigned finds that there was no clear and convincing evidence to establish that E.L. had a 90-day break in employment. As a result, there is no clear and convincing evidence to establish that Respondent was required to obtain background re-screening for E.L. DCF’s burden in this case is to prove the facts alleged in the Administrative Complaint by clear and convincing evidence, and the credible admissible evidence did not meet that burden. 1 Because Nono Johnson did not testify during the final hearing, the portion of Ms. McMillion’s testimony concerning Nono’s verification of employment is uncorroborated hearsay that cannot support a finding of fact. See § 120.57(1)(c), Fla. Stat. (2020)(providing that “[h]earsay evidence may be used for the purpose
Conclusions For Petitioner: David Gregory Tucker, Esquire Department of Children and Families 5920 Arlington Expressway Jacksonville, Florida 32211 For Respondent: Jill Johnson, pro se A to Z Child Development Center 1049 East 8th Street Jacksonville, Florida 32206
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 Administrative Complaint against Jill Johnson d/b/a A to Z Child Development Center. DONE AND ENTERED this 30th day of August, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2021. COPIES FURNISHED: Shevaun Harris, Secretary Department of Children and Families 2415 North Monroe Street, Suite 100 Tallahassee, Florida 32303 David Gregory Tucker, Esquire Department of Children and Families 5920 Arlington Expressway Jacksonville, Florida 32211 Javier Enriquez, General Counsel Department of Children and Families Office of the General Counsel 2415 North Monroe Street, Suite 100 Tallahassee, Florida 32303 Jill Johnson A to Z Child Development Center 1049 East 8th Street Jacksonville, Florida 32206 Danielle Thompson, Agency Clerk Department of Children and Families Office of the General Counsel 2415 North Monroe Street, Suite 100 Tallahassee, Florida 32303
The Issue Whether Respondent, a licensed child care facility, committed two Class I violations as alleged in the Administrative Complaint; and, if so, the appropriate penalty, including whether Petitioner may terminate Respondent's participation in the Gold Seal Quality Care program.
Findings Of Fact The Department is the state agency responsible for licensing and regulating child care facilities in the state in Florida. StarChild is a licensed child care facility located in Apopka, Florida. StarChild is designated as a Gold Seal Provider and has a contract with the Early Learning Coalition to provide school readiness services. As a designated Gold Seal Quality Care Provider, StarChild is subject to the provisions of section 402.281, Florida Statutes. In order to obtain and maintain a designation as a Gold Seal Quality Care provider, a child care facility must not have had any Class I violations, as defined by rule, within the two years preceding its application for designation as a Gold Seal Quality Care provider. § 402.281(4)(a), Fla. Stat. "Commission of a Class I violation shall be grounds for termination of the designation as a Gold Seal Quality Care provider until the provider has no Class I violations for a period of two years." § 402.281(4)(a), Fla. Stat. 1 By agreeing to an extended deadline for post-hearing submissions beyond ten days after the filing of the transcript, the parties waived the 30-day timeframe for issuance of the Recommended Order. See Fla. Admin. Code R. 28-106.216. As of the date of the final hearing, StarChild had never had a Class I violation. The May 5, 2020, Incident At all times relevant to this case, CJ was a two-year-old boy who attended StarChild. On May 5, 2020, CJ, along with several other children and two teachers, were in a two-year-old classroom at StarChild. The actions of the children and a teacher, Ms. Crisman, were recorded by a surveillance camera mounted in the room. The factual allegations in the Administrative Complaint are primarily based on an incident captured on video. In the video, CJ is seen interacting with other children in the room. The children are all engaged in different activities; some are standing while others are sitting on the floor. CJ stood near a group of children who were sitting on the floor in close proximity to Ms. Crisman, who also sat on the floor. CJ walked up behind another child who sat in front of Ms. Crisman. CJ placed his hands on the other child's shoulders. The other child turned his torso toward CJ, while still sitting, and pushed CJ away from him. This was by no means a hard push. CJ stumbled into a seated position and then immediately thereafter laid on his back. CJ remained laying on his back for approximately five to ten seconds, during which he playfully kicked his feet. Ms. Crisman stood up from her seated position, walked over to CJ, and stood over him. She then grabbed CJ by both wrists and forcefully yanked him off the ground. It is clear from the video that Ms. Crisman used great force when she pulled CJ off the floor—CJ's feet flew up in the air and his head flew back. Ms. Crisman then pulled CJ, by his wrists, approximately ten feet across the room, and placed him in a corner in timeout. CJ sat in the corner clutching his arm. Zuleika Martinez (Ms. Martinez) was one of the two teachers assigned to CJ's classroom. She was not present during the incident, but came back to see CJ sitting in timeout. Ms. Martinez noticed that CJ was favoring one hand over the other. Approximately 30 minutes after noticing this, Ms. Martinez notified Deborah Files (Ms. Files). Ms. Files has been employed by StarChild since March 2005, and has been serving as the Director of StarChild since April 2020. Ms. Files walked over to the classroom to check on CJ and speak to Ms. Martinez. She learned that CJ was holding his arm and he would not use it for play or to eat. Ms. Files brought CJ into StarChild's front-desk area—the area typically used for children who are not feeling well. Ms. Files iced CJ's arm. Shortly thereafter, Ms. Files contacted Shelby Feinberg (Ms. Feinberg). At the time of the incident, Ms. Feinberg was the Executive Director of StarChild. Ms. Feinberg was working remotely and, therefore, not at StarChild's facility. Ms. Files explained to Ms. Feinberg that CJ appeared to be having difficulty utilizing one of his arms. Ms. Feinberg advised Ms. Files to contact CJ's parents. Ms. Files contacted CJ's mother, Meghan Jones, at approximately 11:00 a.m. Ms. Files reported to the mother that CJ was favoring one arm, and that he was not using the other arm at all. Ms. Files encouraged Ms. Jones to pick CJ up. At approximately 12:30 p.m., CJ's father, Kurt Jones (Mr. Jones), arrived at StarChild to pick CJ up. Mr. Jones found CJ in the classroom, lying on the floor. He told CJ to get up. CJ attempted to push himself up off the floor but was unable to do so. CJ appeared to be in pain and unable to support his body weight on his arm. It was clear to Mr. Jones that his son was in pain. Mr. Jones had difficulty getting CJ strapped into his car seat. Mr. Jones drove CJ to their home, which was five minutes away. When at home, Mr. Jones noticed that CJ still appeared to be in pain. Mr. Jones noticed that CJ would not move or touch his arm. He was holding his arm as if it was in a sling. CJ would periodically cry. Mr. Jones grew worried as his son still appeared to be in pain and did not seem to be getting better as time passed. Mr. Jones considered taking CJ to the emergency room but decided against it because of concerns related to the COVID-19 pandemic. He could not take CJ to his primary care pediatrician as there were scheduling difficulties also tied to the COVID-19 pandemic. The family's usual after-hours urgent care pediatrics office did not open until 4:00 p.m. At approximately three or four hours after picking CJ up from StarChild, Mr. Jones, with few options, searched for help on the internet. He researched possible causes of CJ's pain and why he was holding his arm like a sling. After watching several videos, he came across a YouTube video made by a nurse who described a condition called "nursemaid elbow." A nursemaid elbow is a dislocated elbow. The symptoms matched what CJ was experiencing and Mr. Jones determined CJ had dislocated his elbow. The video provided instructions on how to correct the nursemaid elbow. Desperate to help his son who was still in pain, he attempted the procedure to put CJ's elbow back in place. Mr. Jones followed the instructions. He heard a "pop" noise, which was to be expected per the instructions in the video. CJ cried for ten to 15 seconds. Thereafter, CJ regained full mobility of his arm and no longer appeared to be in pain. CJ began acting like his typical self. The next day, Mr. and Mrs. Jones took CJ to his pediatrician. CJ was diagnosed with nursemaid elbow. They were advised that the procedure that Mr. Jones conducted the previous day was the correct one. The Department conducted an investigation of the incident. As part of its investigation, the Department scheduled an examination of CJ by its Child Protective Team (CPT). Margarita Diaz (Nurse Diaz) is a pediatric nurse practitioner who works for CPT. She has been with CPT for three years. She has received extensive training in child abuse. On May 7, 2020, she did a complete head- to-toe examination of CJ. She reviewed the history of CJ's injury provided by CJ's parents and collateral information which included the video of the incident. She diagnosed CJ as having suffered a nursemaid elbow due to child abuse. Nurse Diaz described a nursemaid elbow as a condition that occurs when the ligament in the elbow gets trapped between two bones. When a child's arm is pulled away, the tendon slips down. When the arm goes back into place, the tendon gets stuck between the humerus and the radial bones. When this condition happens, it is usually very painful for the child. The child often presents as protective of the arm and will not move it. Nurse Diaz further testified that the most common mechanism of injury is when a child is pulled. Other mechanisms for injury include swinging or lifting a child by the arm. She testified that a nursemaid elbow is easy to correct and once corrected, a child is back to normal in five to ten minutes. Nurse Diaz testified that her finding of child abuse was based on her observations of the actions of the teacher as shown in the video. She confirmed that the actions of the teacher in the video were consistent with the infliction of a nursemaid elbow injury on CJ. StarChild's Response to Incident When Ms. Martinez reported CJ's injury, StarChild took immediate action to address the situation. They removed CJ from the classroom, tended to his injuries, promptly contacted his parents, and set out to find out the cause of the injury. StarChild administrators watched video footage of the activity leading up to CJ's change in behavior. In reviewing the video, StarChild determined that Ms. Crisman used improper form by lifting CJ by his wrists when moving CJ to the timeout corner. By noon on the same day of the incident, StarChild terminated Ms. Crisman's employment. StarChild then contacted the Department to report the incident. Mr. Jones made a request to review video footage of the incident. Danny King, the owner of StarChild, reached out to Mr. Jones personally and agreed to meet with him and Mrs. Jones to review the video together in person. The parents were informed that Ms. Crisman was terminated. Following the incident, StarChild developed a self-imposed Corrective Action Plan, that included re-training its entire staff. Ms. Feinberg met with all members of the staff and conducted in-person training in small class settings. All staff members were provided StarChild's discipline policy and child interaction policies. Staff members were also required to take a child abuse and training course. StarChild re-wrote its staff handbook to include stronger and clearer language about how children are to be moved and repositioned in the classroom. Additionally, StarChild implemented permanent policy changes which required discussions during weekly staff meetings about behavior and how staff members should positively deal with behavior in the classroom. All staff members were also provided with information on nursemaid elbow, specifically. StarChild has current plans to bring in guest speakers, such as a behavior management professional and a CPT speaker, to further educate their staff members. StarChild acted commendably in response to the incident. It took immediate and comprehensive action to try to reduce the probability of an incident like that occurring again. It must be noted that complete prevention is an impossibility. CJ continued to attend StarChild after the incident. Indeed, he attended StarChild the day after the incident and appeared to be in good spirits. CJ's younger sister was also enrolled at StarChild after the incident, when she was three-and-a-half months old.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families impose a fine of $100.00 against StarChild and revoke its designation as a Gold Seal Quality Care provider. DONE AND ENTERED this 19th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Brian Christopher Meola, Assistant General Counsel Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801 Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 2021. Lucia C. Pineiro, Esquire Lucia C. Pineiro & Associates, P.A. Suite 309 717 Ponce de Leon Boulevard Coral Gables, Florida 33134 Javier A. Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are: (1) whether Respondent misrepresented or fraudulently provided information to Petitioner regarding compliance of its child care facility with the annual physical examination and annual vehicle inspection requirements in Florida Administrative Code Rule 65C- 22.001(6)(a) and (c), in violation of section 402.319(1)(a), Florida Statutes, and Child Care Facility Standard No. 63, incorporated by reference into rule 65C-22.010(1)(d)1.; and (2) if Respondent committed the alleged violations, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency responsible for licensing, inspecting, and monitoring child care facilities pursuant to chapter 402, Florida Statutes. Respondent is a child care facility licensed by Petitioner, operating under License No. C11MD1476. Respondent's facility is located at 968 Southwest 82nd Avenue, Miami, Florida. Soraya Sanabria and Lyan Barrus are the Respondent's owners, and Sanabria is its Director. At the time of the alleged conduct giving rise to this proceeding, Respondent was designated a Gold Seal Quality Care provider pursuant to section 402.281(1)(b) and was participating in the Gold Seal Quality Care program. Events Giving Rise to this Proceeding License Renewal Process Pursuant to section 402.308(1), Respondent applied for the annual renewal of its child care facility license in mid- to late 2013. On November 20, 2013, Pauline Kinsey, Family Service Counselor, conducted a license renewal inspection of Respondent's facility. During the inspection, Kinsey identified a few minor noncompliance issues, which Respondent expeditiously addressed and are not at issue in this proceeding. As part of the annual license renewal application review process, Petitioner's auditors carefully review each application to ensure compliance with the statutes and rules governing child care facility licensure. Gloria Johnson, an auditor with Petitioner's child care facility regulation program, reviewed Respondent's 2013 license renewal application.5/ The Vehicle Inspection and Health Examination Forms In the course of her review of Respondent's 2013 application, Johnson discovered that Respondent had submitted a vehicle inspection form for its facility's child transportation vehicle dated June 14, 2011, that previously had been submitted as part of Respondent's 2011 license renewal application. Johnson notified Kinsey, who contacted Sanabria on December 17, 2013. Kinsey requested that Respondent submit a current vehicle inspection form for inclusion in its 2013 license renewal application. That same day, Sanabria faxed a vehicle inspection form, dated June 14, 2013, to Petitioner. Johnson reviewed this vehicle inspection form and determined that it was a copy of the June 14, 2011, form that had been altered. Specifically, the date in the top left space on the form had been altered by writing a "3" over the last "1" in "2011." In every other respect——including handwriting, vehicle mileage, name of inspector and business (Goodyear),6/ and date of inspection written in the lower right-hand corner——the two forms were identical. This spurred Johnson to take a closer look at Respondent's facility licensing files. In doing so, she discovered that the June 14, 2011, vehicle inspection form also had been submitted to Petitioner as part of Respondent's 2012 license renewal application.7/ Johnson notified Kinsey that the vehicle inspection form Respondent submitted on December 17, 2013, was an altered version of the form dated June 14, 2011. Kinsey immediately contacted Respondent regarding the altered form. On December 18, 2013, Respondent submitted a vehicle inspection form indicating that the vehicle had been inspected at Tires Plus that same day. Petitioner refused to accept the December 18, 2013, form. Kinsey informed Respondent that Petitioner had determined that the vehicle inspection form Respondent had submitted on December 17, 2013, was altered, so the matter was being referred to Petitioner's legal department to determine appropriate action. In the course of reviewing Respondent's license renewal application files, Johnson also discovered that a "Health Examination" form that Respondent had submitted in its 2012 license renewal application8/ also was altered. Respondent submitted a copy of the Health Examination form dated "6/10/2011" as part of its 2011 application, and then again submitted the same form in its 2012 application; however, the date on the form submitted in the 2012 application had been changed from "6/10/2011" to "6/10/2012" by whiting out the last "1" in "2011" and replacing it with a "2." In every other respect, including handwriting and other marks, the forms were identical.9/ Complaint Inspection and Administrative Complaints As a result of Johnson's discovery of the altered vehicle inspection and health examination forms in Respondent's application files, Kinsey conducted a complaint inspection of Respondent's facility on December 20, 2013. At that time, Petitioner issued an Administrative Complaint citing Respondent for violating section 402.319(1)(a), rules 65C-22.001(11) and 65C-22.001(6)(c), and Petitioner's Child Care Facility Standard No. 63, by having misrepresented information and fraudulently provided information to Petitioner related to Respondent's child care facility. On January 13, 2014, Respondent filed a request for administrative hearing challenging the Administrative Complaint. Attached to the request for hearing was a vehicle inspection form dated June 14, 2013. The information on the form stated that the vehicle had been inspected on that date by Francisco Perez, a mechanic employed at Albert of Miami. This document had not previously been submitted to Petitioner and was not part of Respondent's 2013 license renewal application. On February 18, 2014, Petitioner issued an Amended Administrative Complaint, alleging in greater detail the facts giving rise to its charges that Respondent misrepresented information and fraudulently provided information to Petitioner related to the child care facility. The Amended Administrative Complaint charged Respondent with the same statutory and rule violations as had been charged in the Administrative Complaint, and imposed the same penalties. Respondent's Defenses At the final hearing, Barrus and Sanabria testified that Respondent inadvertently had submitted a copy of the June 14, 2011, vehicle inspection form in its 2013 license renewal application. When contacted by Kinsey, Sanabria had accidentally faxed a draft copy of the vehicle inspection form with the date changed to June 14, 2013. Barrus and Sanabria testified that this draft had been prepared for the purpose of demonstrating to the mechanic how to complete the form. They claimed that Perez did, in fact, inspect the vehicle on June 14, 2013, as evidenced by the vehicle inspection form showing his name that was submitted as an exhibit to the request for administrative hearing filed on January 13, 2014.10/ They claimed that the vehicle actually had been inspected twice in 2013, so that Respondent was in compliance with the rule requirement regarding annual vehicle inspection.11/ Barrus testified that the June 14, 2011, vehicle inspection form mistakenly had been included in the 2012 license renewal application. Barrus and Sanabria both testified that Respondent did not transport children in its facility vehicle in 2012, so that in any event, Respondent was not required to submit a vehicle inspection form showing current inspection status for that year. Neither Barrus nor Sanabria disputed that the Health Examination form discovered in its 2012 license renewal application file had been altered by the date having been changed from "6/10/2011" to "6/10/2012." Barrus testified that she did not know how the altered form came to be part of Respondent's 2012 license renewal application. She reiterated that Respondent did not transport children in its facility vehicle in 2012, so that under any circumstances, Sanabria was not required to have a physical examination that year.12/ Findings of Ultimate Fact The undersigned finds the testimony of Barrus and Sanabria regarding the vehicle inspection form issue incredible and unpersuasive. The evidence establishes that Respondent submitted the June 14, 2011, inspection form as part of its 2013 license renewal application. The credible, persuasive evidence in the record gives rise to the inference that when Petitioner discovered the outdated form and contacted Respondent, on December 17, 2013, Respondent intentionally submitted the altered inspection form with the date changed from June 14, 2011, to June 14, 2013. Petitioner discovered this alteration and contacted Respondent. Thereafter, in an attempt to comply with the annual inspection requirement, Respondent had the vehicle inspected by Tires Plus on December 18, 2013, and submitted the vehicle inspection form to Petitioner that day. The credible, persuasive evidence further gives rise to the inference that when Petitioner refused to accept the December 18, 2013, form, Respondent created another vehicle inspection form that it dated June 14, 2013, obtained Perez' handwritten name on the form, and submitted the form to Petitioner as an exhibit to the request for hearing that it filed on January 13, 2014.13/ In committing this conduct, Respondent misrepresented information and fraudulently provided information to Petitioner related to the child care facility, in violation of section 402.319(1)(a) and Standard 63 of Petitioner's Child Care Facility Standards. The undersigned also finds the testimony of Barrus and Sanabria regarding the "Health Examination" form in the 2012 application incredible and unpersuasive.14/ The credible, persuasive evidence gives rise to the inference that Respondent altered the Health Examination form by changing the date from "6/10/2011" to "6/10/2012" and intentionally submitted the altered form to Petitioner as part of its 2012 renewal application. In committing this conduct, Respondent misrepresented information and fraudulently provided information to Petitioner related to the child care facility, in violation of section 402.319(1)(a) and Standard 63 of Petitioner's Child Care Facility Standards. In sum, Petitioner has proved, by clear and convincing evidence, that Respondent committed the violations alleged in the Amended Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order imposing a $200.00 administrative fine on Respondent, My First School, Inc.; converting Respondent's child care facility license, License No. C11MD1476, to probation-status for a six-month period; and terminating Respondent's Gold Seal Quality Care designation. DONE AND ENTERED this 6th day of August, 2014, 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 6th day of August, 2014.
The Issue The issues are whether Respondent, a child care facility, violated the minimum staffing ratio in one of its classes and, if so, what penalty should be imposed.
Findings Of Fact Respondent owns and operates the Children's Christian School House, which is a licensed child care facility. Ileana Echevarria is the director of Respondent. Each year, Petitioner's inspectors conduct three routine and one annual-renewal inspection of each licensed child care facility. On one such inspection, conducted on June 5, 2006, the inspector observed that the facility's two-year-old room had 12 children and only one adult. Pursuant to Petitioner's policy not to fine a facility for the first violation, the inspector directed Ms. Echevarria to telephone one of the parents and have her come and pick up her child. Ms. Echevarria did so, and the violation was corrected before the inspector left the facility. The same inspector returned to the facility on June 20, 2006, to perform a re-inspection. On this occasion, the facility was out of compliance in a different room. The room occupied by children five years old and older contained 39 children and one adult. On June 20, two of the teachers were on vacation and another teacher had called in sick. A new teacher had reported to work for her first day, but she was sitting in the cafeteria and was not supervising any children. Ms. Echevarria herself had been sick, had come to school earlier, and had returned home to retrieve her medicine, so she was not at the facility at the time of the re-inspection of the out-of-compliance classroom.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order imposing a civil penalty of $100 against Respondent for a violation of the staff-to-children ratio during the June 20, 2006, inspection. DONE AND ENTERED this 16th day of April, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2007. COPIES FURNISHED: Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert A. Butterworth, Secretary Department of Children and Family Services Building 1 Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Kimberly D. Coward, Esquire Department of Children and Family Services 401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128 Ileana Echevarria Qualified Representative Children's Christian School House, Inc. 380 West 21st Street Hialeah, Florida 33010
