The Issue Whether Respondent (1) allowed an unscreened employee to be alone with children, and (2) failed to have the proper background screening documentation in its employee files on two occasions; and, if so, what is the appropriate penalty.
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. All Aboard is a licensed child care facility (License ID number #C20LE6436) operating at 1918 South East Santa Barbara Place, Cape Coral, Florida. All Aboard has been operating for 25 years. Chemenda Sawyer was a family services counselor with the Department. In this position, Ms. Sawyer conducted inspections of licensed child care facilities, including All Aboard. On November 7, 2019, Ms. Sawyer conducted a routine inspection of the All Aboard facility. As part of the inspection, she reviewed All Aboard's employee files for proper documentation and background screening verification. At this time, Ms. Sawyer determined, All Aboard did not have 3 Exhibit R13 was not accepted into evidence. At the hearing, the parties were looking at different versions of the November 7 inspection report. Respondent was allowed to its version, Exhibit R13, after the hearing, but subject to a ruling on any objections. Respondent emailed Exhibit R13 to DOAH and the Department after the hearing. The Department objected on the grounds of authenticity and because the document had not been disclosed to it prior to the hearing. Due to the late disclosure of the exhibit, the unexplained hand- written comments on the document, and that the document seems to be incomplete (it is missing paragraph 41), the undersigned sustains the objection. appropriate background information for Isabella Escalona, one of its employees. Although Ms. Escalona had been cleared and found "eligible" on November 13, 2018, at another daycare, All Aboard was required to rescreen her upon hire because more than 90 days had elapsed between her last employment and employment with All Aboard in August 2019. Ms. Escalona's employment file did not contain a more recent background check. On the date of the inspection, Linda McClay was serving as the acting director because Anne Marie Walsh, the director, was not available. Ms. Sawyer spoke with Ms. McClay about Ms. Escalona's 90-day gap and the lack of a timely background screening report in her file. According to Ms. Sawyer, Ms. McClay did not know Ms. Escalona's screening status. Ms. Sawyer admitted at the hearing, however, that Ms. McClay was not the person at All Aboard who would have done the employee screenings. Ms. Escalona was not at All Aboard during the November 7 inspection. Therefore, Ms. McClay called Ms. Escalona to come into the daycare while Ms. Sawyer was present. Ms. Escalona gave All Aboard permission to run her fingerprints and conduct a background check. The resulting background screening report (dated November 13, 2019), indicated Ms. Escalona was eligible for providing child care services. In dispute is whether Ms. Escalona was alone with children at All Aboard prior to being re-screened and deemed eligible on November 13, 2019. The Department asserts Ms. Escalona was unscreened and alone with children in violation of the Department's rules based on Ms. Sawyer's investigation and a statement in the inspection report purportedly made by Ms. McClay. All Aboard denies Ms. Escalona was alone with any children prior to November 13, 2019, and specifically denies the statement attributed to Ms. McClay in the inspection report. Ms. Sawyer's conclusion that Ms. Escalona was alone with children was based on her understanding of the configuration of the daycare workers who were present during lunch.4 Based on this information she concluded Ms. Escalona had been alone with children. No one at All Aboard actually confirmed Ms. Escalona had been alone with children and nothing in Ms. Sawyer's testimony definitively establishes this fact. In fact, Ms. Sawyer never saw Ms. Escalona with children. Moreover, the statement Ms. Sawyer attributed to Ms. McClay does not establish Ms. Escalona was alone with children: We hired her [Ms. Escalona] from another school that she stated she was from. Based on the clearinghouse fingerprints, she was eligible for hire. So when we did the transfer, we did not realize she had a 90-day break in child care. So we were not aware she needed the rescreen feature. This statement does not mention staffing or children; rather, it only states that All Aboard was unaware that Ms. Escalona needed to be re- screened after being hired from another daycare. Even if true, this statement implies Ms. Escalona's fingerprints had been submitted for screening and she was deemed eligible – which was ultimately the case. Furthermore, Ms. McClay credibly denies making the statement in the unsigned inspection report.5 All Aboard's position is also consistent with the email dated November 14, 2019, between All Aboard and Ms. Sawyer following the inspection report which explains, "Isabel was not alone[.] 4 It is unclear whether Ms. Sawyer had a conversation with Ms. Walsh, Ms. McClay, or someone else at All Aboard about the staffing arrangements during lunchtime. It is also unclear whether Ms. Sawyer was testifying about the teacher's lunchtime or the children's lunchtime. 5 Although the inspection report was entered into evidence, its finality seems questionable because it is unsigned, unlike the follow-up re-inspection report dated January 28, 2020. No testimony was offered by Ms. Sawyer or any other Department witness regarding how the inspection reports were kept or deemed complete. Ms. Leticia was in the classroom with her. Isabel did have a screening[,but] it was incorrect because it was a transfer and not a re-screen." All Aboard's evidence establishes Ms. Escalona was assigned and scheduled to work with two other teachers in the 2-year-old and 3-year-old room. Ms. Walsh testified Ms. Escalona was always with another teacher in the room. Ms. Walsh also established there were two teachers in the room even during the teacher's lunchtime (the children's naptime). The undersigned finds the Department has not produced sufficient credible evidence to establish Ms. Escalona was alone with children. During the November 7 inspection, Ms. Sawyer also found that All Aboard did not have the proper documentation relating to background checks for two other staff members, Kimberly Harris and Laticia Gonzalez. All Aboard had previously been found to have insufficient documentation relating to the background check and clearance for a staff member, Karen Delgado, during a July 5, 2019, inspection. All three of these staff members were ultimately deemed eligible. All Aboard has been designated as a Gold Seal Quality Care provider, which allows it to receive supplemental funding. As noted below, this designation must be terminated upon the final assessment of a Class I violation.
Recommendation It is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent guilty of two Class II violations for failing to have the Level 2 screening information for personnel, and imposing a $50.00 fine. DONE AND ENTERED this 23rd day of October, 2020, 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 23rd day of October, 2020. COPIES FURNISHED: George Gardner, Esquire Department of Children and Families Post Office Box 60085 Fort Myers, Florida 33906 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Ann Marie Walsh All Aboard Day Care, Inc. 1918 Santa Barbara Place Cape Coral, Florida 33990 (eServed) Javier A. Enriquez, Esquire Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary The Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether Respondent violated Sections 112.3148(2)(a) and 112.313(6), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Lawrence R. Hawkins (Hawkins) took office as a Dade County Commissioner on October 18, 1988, and served until November, 1994, when he lost his bid for reelection. At all times pertinent to the instant Complaint, Hawkins was a member of the Dade County Commission. Hawkins became aware of the Code of Ethics (Part III of Chapter 112, Florida Statutes) while he was a member of the Florida House of Representatives from 1978 to 1986. Based on his general experience, Hawkins is basically familiar with the Code of Ethics as it relates to misuse of office, conflict of interest, and nepotism. THE NEW ORLEANS TRIP In March, 1990, Hawkins took a trip to New Orleans as the guest of Lowell Dunn, a Miami businessman. The outing included travel to and from New Orleans for Hawkins and his companion in Mr. Dunn's private airplane, as well as limousine transportation from the New Orleans airport to Commander's Palace and back, and breakfast for Hawkins and his companion. The week following the New Orleans trip, Mr. Dunn had an issue come up before the County Commission for a vote. On July 1, 1991, Hawkins filed a Form 7, Statement of Gifts and Other Non-Compaign Contributions for Year Ending December 30, 1990 (Form 7). The form is dated as being signed by Hawkins on June 17, 1991. Form 7 calls for the officer completing the form to list "each contribution, including any gift, donation, or payment the value of which exceeds $100 . . ." Hawkins entrusted the completion of Form 7 to his mother, Carolyn Hawkins. The trip to New Orleans was not listed on Form 7 which Hawkins filed on July 1, 1991. On December 13, 1991, Hawkins filed an amended Form 7, disclosing the trip to New Orleans. When interviewed by an investigator from the Commission on Ethics, Hawkins stated under oath that he knew that the value of the trip was more than $100. The value of the trip, including air and ground transportation and the meal, was in excess of $100. Carolyn Hawkins testified at the final hearing that in her preparations for filing the financial disclosure statement for her son she comparison shopped and found a round trip ticket to New Orleans for $198 and another for $100. Mrs. Hawkins gave a statement to the State Attorney's office concerning the air fare. The transcript reads that she told the State Attorney that she found a round trip for $198. Mrs. Hawkins asserts that the court reporter did not get the transcript correct and that she told the State Attorney that the fare was $100. Mrs. Hawkins told the State Attorney that she had found a trip for $198. Prior to filing Form 7, Mrs. Hawkins called Bonnie Williams, the Executive Director for the Commission on Ethics concerning whether the trip had to be reported. Ms. Williams has been with the Commission on Ethics since its inception in 1974 and was familiar with the applicable law on disclosure at the time Mrs. Hawkins called her. Contrary to Mrs. Hawkins' claim, Ms. Williams did not tell Mrs. Hawkins that the trip did not have to be reported. Mrs. Hawkins misunderstood what Ms. Williams told her. SEITLIN INSURANCE Hawkins was employed by Seitlin & Company (Seitlin), an insurance brokerage firm, for approximately one year between 1990 and 1991. Hawkins had very little experience in the insurance business. Hawkins received a flat fee of $25,000, in return for which he would learn the practice of insurance and refer business to Seitlin if the opportunity should arise. Hawkins received no commissions or bonuses from referring business to Seitlin, and was not required to refer business to Seitlin. Hawkins viewed his employment with Sietlin as a "long term relationship type of thing." As part of the agreement, Seitlin was to provide Hawkins with an office and support staff at the Seitlin office; however as Hawkins testified at final hearing he was "very very very rarely" at his Seitlin office. In May, 1990, Hawkins sought to have a proclamation presented by the County Commission honoring Seitlin and proclaiming Tuesday, May 15, 1990 "Seitlin and Company" day. He requested that his secretary, Marcia Fernandez- Morin place the item on the County Commission agenda, which she did. At the hearing, Hawkins claims that Ms. Fernandez-Morin had the item placed on the agenda without his knowlege or permission. I find his testimony not to be credible. Hawkins had close personal ties with Steve Jackman, the CEO of Seitlin, and Hawkins was being paid $25,000 a year as a consultant for Seitlin. No evidence was presented to show that Ms. Fernandez-Morin had any interest in Seitlin or that she would have any reason for placing the item on the agenda other than she was requested to do so by Hawkins. Hawkins kept Seitlin business cards and stationery in his County Commission office. On occasion Hawkins had Ms. Fernandez-Morin type Seitlin related correspondence for him while she was working for Hawkins in the County Commission office. Hawkins frequently had visitors from Seitlin in his office; however, there was no evidence presented that they were conducting Seitlin business during these visits. While Hawkins was working for Seitlin, secretaries in Hawkins' County office would place calls to Seitlin for Hawkins and arrange breakfast and dinner meetings with Seitlin representatives for Hawkins. CHI The Community Health Center of South Dade (CHI) provides outpatient care for indigents in the Homestead area in Dade County. Brodis Hartley is, and has been at all times pertinent to the Complaint, the Chief Executive Officer for CHI. CHI receives approximately one-fourth of its funding from Dade County. From 1989 to 1992, Hawkins was Chairman of the Health and Human Services of the County Commission. The Health and Human Services Committee had oversight responsibility for CHI. The Committee reviewed its budget. Hawkins' mother is a member of CHI's board of directors and its finance committee. While reviewing CHI's financial statements, Mrs. Hawkins became concerned that CHI was paying too much for insurance. She asked Hawkins if he could determine whether CHI's insurance premiums were too high. She told Hawkins that the person to contact at CHI was Nicholas Arnao, the Risk Manager for CHI. Based on his mother's request, Hawkins asked Richard Johnson, an insurance agent employed at Seitlin, to call CHI. Mr. Johnson viewed the referral as potential new business for Seitlin. Mr. Johnson called Mr. Arnao concerning the insurance. Mr. Arnao told Mr. Hartley that he had recieved a call from Seitlin. Mr. Hartley knew about the relationship between Seitlin and Hawkins. Mr. Hartley had no interest in having the insurance reviewed except that he wanted to maintain a good relationship with Hawkins. Mr. Arnao was opposed to letting Seitlin take a look at the insurance coverage for CHI. Hawkins knew of Mr. Arnao's opposition. Hawkins told the investigator for the Commission on Ethics that he called Arnao and asked him to cooperate. He stated, "I remember talking to Mr. Arnao and saying, 'you know, I would appreciate it if you would let Dick see what was doing.'" Neither Hawkins nor his mother informed Mr. Hartley that Mr. Johnson would be calling about the insurance. Mr. Hartley discovered that Hawkins had referred Mr. Johnson only after he asked Mr. Johnson who referred him to CHI. Mr. Johnson did review the insurance coverage and discovered that CHI was paying too much for its workers' compensation coverage. He made a proposal to CHI which would reduce its workers' compensation insurance by $50,000. CHI submitted the Seitlin proposal to its own insurance broker, which eventually reduced CHI's workers' compensation by the same amount. The primary purpose in Hawkins' requesting Mr. Johnson to review CHI's insurance was to determine if CHI was paying too much for its insurance, not to garner business for Seitlin. EASTER SEALS In mid-1991, Easter Seals of Dade County (Easter Seals) began looking for a new president. Its current president, Al Calli, was preparing to retire. The position pays approximately $98,000 per year. Mr. Calli approached Hawkins to see whether he was interested in the position. Hawkins indicated that he might be and sent a resume to Easter Seals. Prior to September 19, 1991, Hawkins interviewed for the job with the search committee at Easter Seals. The County Commission holds two hearings each September regarding the proposed budget for the following year. In 1991, the hearings were held on September 5 and 19. Dade County has many community-based organizations (CBOs) that offer services to the poor, sick, and underprivileged of the County. Easter Seals is a CBO. Many CBO's receive a percentage of their funding from Dade County. To receive funding from the County, CBO's must apply. At first the County did not have a formal application process; an interested CBO would simply attend a budget hearing and request funding. Gradually, the County developed a more formalized procedure whereby CBO's would submit a written application. The prior practice of simply attending a budget hearing was never totally abandoned, however, and CBO's who did not submit an application for funding nevertheless would be considered for funding if they requested it at a budget hearing. The Community Committee for Development Handicaps (CCDH) is a community based consortium designated as an umbrella organization for a number of entities which serve the developmentally handicapped. CCDH would request funds from Dade County and then disburse the funds among its member agencies. Agencies which are members of CCDH enter into a contract with CCDH, agreeing not to make individual funding requests to the County Commission at the general yearly budget hearings. Easter Seals was a founding member of CCDH and had a contractual agreement as described above with CCDH in September, 1991. Easter Seals viewed the agreement with CCDH not to prohibit Easter Seals from requesting capital funds from the County Commission and had requested capital funds in the past. Prior to the budget hearings in September, 1991, CCDH had submitted a written request to the County indicating the amount of money it sought and the way it expected to distribute the money. CCDH had expected to distribute approximately $14,000 to Easter Seals. On September 19, Easter Seals Board Chairman John Fox received a telephone call at his office. The caller identified himself as being from Hawkins' office. He indicated that a funding request from Easter Seals to the County might be favorably received and suggested that Easter Seals send a representative to the Commission meeting that night and request $75,000. George Hiados, an Easter Seals employee, was sent to the budget meeting to request the $75,000 for Easter Seals, which he did. Helene Goode, who has been the Executive Director of CCDH for the past thirteen years, attended the budget meeting on September 19 and became concerned when Mr. Hiados requested the money for Easter Seals. She viewed the request as a breach of the agreement between CCDH and Easter Seals. Ms. Goode sent a note to Hawkins during the budget meeting expressing her concern over Easter Seals' request. When the matter came to a vote, it was Commissioner Art Teele who moved that Easter Seals be appropriated $50,000. In making the motion, Mr. Teele looked at Respondent and asked if that was for capital and Hawkins nodded his head affirmatively. Hawkins voted in favor of the appropriation to Easter Seals. Hawkins was hired as the CEO of Easter Seals in November, 1991. HARRASSMENT OF EMPLOYEES Dade County had a sexual harrassment policy in force when Hawkins was County Commissioner. Hawkins was aware of the policy and believed it applied to Commissioners as well as County employees. Rashel Nudelman was employed as a secretary in Hawkins' office from February 1990 to November 1991. While Ms. Nudelman was employed in Hawkins' office, Hawkins made sexually explicit remarks to her. Examples of these remarks include: "Your tits look great today," and "Your tits are hanging out." Many of these remarks would be accompanied by lewd facial expressions and leers. Hawkins also made remarks about Ms. Nudelman to other employees, telling Mary Delpino that Ms. Nudelman "had a great set of tits." There were also occasions when Hawkins, in talking to Ms. Nudelman on the telephone, would inform her that he was in bed naked and invite her to join him. On one occasion, Hawkins asked Ms. Nudelman to rub liniment on his back. In the fall of 1991, Ms. Nudelman was placed on a medical leave of absence for two weeks. When she returned she was fired because Terry Murphy, Hawkins' assistant, advised Hawkins that Ms. Nudelman was being disruptive to the office and had made some disparaging remarks about Hawkins to Lynn Solte, Hawkins' secretary at Easter Seals. Ms. Nudelman did not make such remarks to Ms. Solte. When Ms. Solte told Hawkins that Ms. Nudelman had not made any disparaging remarks about him to her, Hawkins laughed and said, "Welcome to politics." When Ms. Nudelman was dismissed in November, 1991 she told Terry Murphy about her allegations of sexual harrassment by Hawkins. Mr. Murphy told Hawkins about the allegations. Ms. Nudelman tolerated Hawkins' behavior because she was afraid she would be fired if she did not. Mary Difede Delpino was employed as a secretary in Hawkins' office from October, 1990 to May, 1992. On at least one occasion, Hawkins told Ms. Delpino, "if I wasn't in this wheelchair, I would jump you right now." Hawkins frequently referred to Ms. Delpino as "sin tetas" which is Spanish for "without breasts." Ms. Nudelman witnessed Hawkins making such comments on occasion. On at least one occasion, Hawkins said to Ms. Delpino, "the things that I can teach you" while he made twisting motions with his hands and wiggling his tongue at her. When Ms. Delpino was walking in front of Hawkins, he would sometime say, "it must be jelly 'cause jam don't shake like that." Sylvia Farina, an employee for the County Commission, heard Hawkins make such a remark to Ms. Delpino while Ms. Delpino was walking in front of Hawkins. On one occasion, when Ms. Delpino was in Hawkins' office, he asked her to look at something, and, while her attention was diverted, jabbed her in the breast with a pencil. When she came out of his office, she was upset and told a co-worker, Iraella Abello, that he had poked her in the breast with a pencil. On at least one occasion, Mr. Hawkins called Ms. Delpino into his office and asked her to pick up a bullet which had fallen from his desk onto the floor. Ms. Delpino picked up the bullet and before she left the office, Hawkins had knocked the bullet off his desk and again asked her to pick it up. Ms. Delpino felt that he did this so that he could look down her blouse as she bent to pick the bullet up. When the investigator for the Commission on Ethics asked him if that was the purpose for asking Ms. Delpino to pick up the bullet, Hawkins replied that Ms. Delpino did not have anything down her blouse to look at. At the final hearing Hawkins testified that his desk was specially built and it would have been impossible for him to look down Ms. Delpino's blouse as she bent down. Previously when Hawkins was questioned by the Assistant State Attorney, the Ethics Commission investigator, and the Advocate concerning the bullet incident, Hawkins did not mention that his desk would have prevented him from looking down Ms. Delpino's blouse. I find that Hawkins testimony about his inablility to see because of the desk not to be credible. Ms. Delpino tolerated Hawkins' behavior because she was afraid she would be fired if she did not. Prior to Ms. Delpino leaving Hawkins's employ she complained to employees of other County Commissioners about Hawkins' inappropriate behavior toward her. Marcia Fernandez-Morin was employed as an Executive Secretary in Hawkins' office from late 1988 until sometime in August, 1990. Hawkins frequently made comments concerning Ms. Fernandez-Morin's body. He told her that she "looked good" but said it in a lewd and leering manner. He also commented that she had a "good butt," and using his hands to gesture, indicated that she had an hourglass figure. At a time when she had lost weight, Hawkins referred to her as "sin tetas." Hawkins would call Ms. Fernandez-Morin late at night. More than once he told her that she seemed to be out of breath and asked her if she had been having sex. Ms. Fernandez-Morin tolerated Hawkins' behavior out of fear of retaliation by Hawkins. Ms. Fernandez-Morin was fired from Hawkins' employ. Hawkins' staff, including Ms. Nudelman, Ms. Delpino, and Ms. Fernandez-Morin, served at his pleasure, meaning that he could fire them without cause. Hawkins' lewd and sexual comments and inappropriate actions were univited and unwanted by Ms. Nudelman, Ms. Delpino, and Ms. Fernandez-Morin. In October, 1992, Terry Murphy, Hawkins' assistant, was interviewed by Assistant State Attorney Joe Centorino on the issue of alleged sexual improprieties regarding Hawkins and his female staff members. Mr. Murphy immediately advised Hawkins about the nature of the interview. Yanette Bravo and Francis Pons were hired to work in Hawkins' office in June 1992 and June 1993, respectively. They testified that Hawkins never made inappropriate remarks to them while they were employed by him. Debra Mayo has known Hawkins since 1978 and was his legislative aide in 1983. Until recently she had been his escort for political functions when Hawkins was between lady friends. Hawkins never made lewd or direct sexual comments to her. Lynn Solte, has been Hawkins' secretary at Easter Seals for over three years. On occasion Hawkins has made remarks to her of a sexual nature which she considered to be improper. Before the allegations that are the subject matter of this proceeding, Mr. Hawkins had never been the subject of a Commission on Ethics complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Lawrence R. Hawkins violated Section 112.3148(2)(a), Florida Statutes (1989), violated Section 112.313(6), Florida Statutes, as it relates to the allegations concerning the use of County employees and equipment for Seitlin business and the harrassment of three female employees, did not violate Section 112.313(6), Florida Statutes, as it relates to the CHI allegations, and did not violate Section 112.313(6), Florida Statutes as it relates to the Easter Seals allegations, and recommending the imposition of a civil penalty of $8,100.00, and public censure and reprimand as described above. DONE AND ENTERED this 28th day of September, 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 28th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4715EC 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: Advocate's Proposed Findings of Fact. Respondent Paragraphs 1-2: Rejected as unncessary. Paragraphs 3-6: Accepted in substance. The New Orleans Trip Paragraphs 1-5: Accepted in substance. Paragraph 6: Rejected as unnecessary. Paragraphs 7-14: Accepted in substance. Paragraph 15: Rejected as subordinate to the facts found. Seitlin Insurance Paragraph 1: The first sentence is accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 2: Accepted in substance. Paragraph 3: Accepted. Paragraphs 4-6: Accepted in substance. CHI Paragraphs 2-6: Accepted in substance. Paragraph 7: Rejected as irrelevant to the extent that it refers to Hartley and Arnao because Mrs. Hawkins as a member of the Board of Directors wanted the insurance coverage reviewed. Paragraph 8: The first sentence is rejected because a board member wanted it reviewed. The second sentence is accepted in substance. Paragraph 9: Accepted. Paragraphs 10-11: Accepted in substance. Paragraph 12: Rejected as subordinate to the facts found. Paragraphs 13-14: Rejected as unnecessary detail. Paragraphs 15-16: Accepted in substance. Paragraphs 17-19: Rejected as subordinate to the facts found. Respondent's Intent Paragraphs 1-2: Accepted in substance. Paragraph 3: The first sentence is accepted in substance as that is what he testified but rejected as not supported by the evidence as it relates to correspondence. The remainder is rejected as subordinate to the facts found. Paragraph 4: The second sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 5: The first sentence is accepted. The remainder is rejected as unnecessary. Paragraphs 6-8: Rejected as unnecessary. Paragraph 9: Rejected as subordinate to the facts found. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as subordinate to the facts found. Paragraph 12-13: Accepted in substance. Paragraphs 14-17: Rejected as subordinate to the facts found. Paragraph 18: Rejected as not supported by the greater weight of the evidence. Easter Seals Paragraphs 1-12: Accepted in substance. Paragraph 13: Rejected as unnecessary. Paragraphs 14-17: Accepted in substance. Paragraphs 18-19: Rejected as irrelevant. Paragraph 20: Accepted in substance. Paragraph 21: Rejected as irrelevant. Paragraph 22: Accepted in substance. Paragraph 23-24: Rejected as subordinate to the facts found. Paragraph 25: Accepted in substance. Paragraph 26: The first three sentences are accepted in substance. The remainder is rejected to the extent that Easter Seals had asked for capital funds. The evidence is not clear if that request was during the hearings on the County General Revenue Budget. Paragraph 27: The first sentence is accepted in substance. The remainder is subordinate to the facts found. Paragraph 28: Accepted in substance. Paragraph 29: Rejected as unnecessary. Paragraph 30: Rejected as irrelevant. Paragraph 31: Rejected as not supported by the greater weight of the evidence because Hawkins had directed staff in the past to work with Easter Seals on their request for funds. Paragraph 32: The first sentence is accepted. The remainder is rejected as subordinate to the facts found. Paragraphs 33-35: Rejected as not supported by the greater weight of the evidence. Respondent's Harassment of Subordinate Employees Paragraphs 1-19: Accepted in substance. Paragraph 20: Rejected as unnecessary. Paragraphs 23-26: Accepted in substance. Paragraph 27: The first and second sentences are accepted in substance. The remainder is rejected as unnecessary. Paragraph 28: Accepted. Paragraph 29: Rejected as constituting argument. Credibility of Terry Murphy and Kevin Stein Paragraph 1: The first part of the sentence is accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraphs 2-6: Rejected as unncessary. Pararagraph 7: Accepted in substance. Credibility of Rashel Nudelman, Mary Delpino, and Marcia Fernandez-Morin Paragraphs 1-2: Accepted in substance. Paragraph 3: There is no paragraph 3. Paragraphs 4-7: Accepted in substance. Respondent's Credibility Paragraphs 1-3: Rejected as constituting argument. Paragraphs 4-5: Accepted in substance. Paragraph 6: Accepted in substance as to some allegations and as set forth in the Recommended Order. Respondent's Intent Paragraph 1: Accepted. Paragraph 2: Rejected that his testimony constituted an admission. Paragraph 3: Accepted in substance. Paragraph 4: Rejected as constituting a conclusion of law. Respondent's Proposed Findings of Fact. Paragraph 1: The first three sentences are accepted in substance. The remainder is rejected as irrelevant. Paragraph 2: The first sentence is accepted in substance. The second sentence is rejected as unnecessary. Paragraph 3: Accepted in substance. Paragraph 4: Accepted. Paragraph 5: Accepted in substance. Paragraph 6: Rejected as irrelevant because Section 112.3148(2) deals with reporting contributions not just gifts. Paragraph 7: Accepted. Paragraphs 8-9: Accepted in substance. Paragraph 10: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts found because whether the air fare was $100 or $198, the trip was still valued over $100. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as not supported by the greater weight of the evidence. Paragraph 13: Accepted in substance. Paragraph 14: The first sentence is rejected as irrelevant. The second sentence is accepted in substance. Paragraph 15: Accepted in substance. Paragraph 16: The first two sentences are accepted in substance. The third sentence is rejected as subordinate to the facts found. Paragraphs 17-18: Accepted in substance. Paragraph 19: The first sentence is accepted in substance. The second sentence is rejected based on Mr. Hartley's testimony. Paragraphs 20-22: Accepted in substance. Paragraph 23: The first part of the first sentence is accepted in substance. The second part of the first sentence is rejected. The reason Hartley let Johnson review the insurance was to maintain a good relationship with Hawkins. The second sentence is accepted in substance. Paragraphs 24-26: Accepted in substance. Paragraph 27: The first sentence is accepted in substance. The remainder is rejected as in conflict with Hawkins testimony at the final hearing that he was "very, very, very rarely" at the Seitlin office. Paragraph 28: The last sentence is rejected as not supported by credible testimony. The remainder is rejected as subordinate to the fact that he did use it on some occasions when he asked a County employee to type on the letterhead. Paragraph 29: Rejected as subordinate to the facts found. Paragraph 30: Accepted in substance. Paragraph 31: The first sentence is rejected as not supported by credible evidence. The last sentence is accepted in substance to the extent that it refers to meetings in which they discussed Seitlin business. Paragraph 32-34: Accepted in substance. Paragraph 35: Rejected as subordinate to the facts found. Paragraph 36: The first sentence is accepted in substance. The second sentence is rejected as subordinate to the facts found. Paragraph 37: Accepted in substance. Paragraph 38: The first sentence is accepted in substance. The second sentence is rejected as unnecessary. Paragraph 39: Accepted that on September 19 Hawkins was being considered for the position of executive director for Easter Seals. The remaining is rejected. Fox testified that he was called by a staff person in Hawkins' office. Hawkins testified that he had been interviewed prior to the budget hearing. Paragraph 40: Accepted to the extent Hiados went to the meeting. The remainder is rejected as subordinate to the facts found. Paragraph 41: Rejected as subordinate to the facts found. Paragraphs 42-45: Accepted in substance. Paragraph 46: Rejected as not supported by the greater weight of the evidence. Ms. Goode sent him a note during the budget hearing. Paragraph 47: The two sentences are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraphs 48-50: Rejected as subordinate to the facts found. Paragraph 51: The first sentence is accepted in substance. The second and third sentences are rejected as subordinate to the facts found. The first part of the last sentence is rejected as not based on credible evidence. The remainder is rejected as subordinate to the facts found. Paragraphs 52-54: Accepted in substance. Paragraph 55: The sixth sentence is accepted in substance. The seventh and eight sentences are rejected as not supported by credible evidence. The remainder is rejected as subordinate to the facts found. Paragraph 56: The first sentence is rejected to the extent that it implies that Ms. Nudelman made such remarks. The last sentence is rejected as irrelevant. Paragraph 57: Rejected as irrelevant. Paragraph 58: Hawkins testimony is rejected as not credible. Paragraph 59: Having judged the credibility of the wintesses, it is rejected. Paragraph 60: Accepted that Ms. Difede was hired in 1990. The remainder is rejected as irrelevant. Paragraph 61: Accepted in substance. Paragraphs 62-64: Rejected as subordinate to the facts found. Paragraph 65: Hawkins testimony is rejected as not credible. Paragraph 66: The first and third sentences are accepted in substance. The second sentence is rejected as irrelevant. The fourth and fifth sentences are rejected as not supported by credible evidence. Paragraph 67: Having judged the credibility of the witnesses, it is rejected. Paragraphs 68-69: Accepted in substance. Paragraph 70: Hawkins's testimony as it relates to lewd comments is rejected as not credible. Paragraph 71: The first sentence is accepted in substance. Rejected as not supported by credible evidence. Paragraph 72: The first sentence is rejected as not supported by credible evidence. The second sentence is rejected as irrelevant. Paragraph 73: Rejected as constituting argument. Paragraph 74: Rejected as subordinate to the facts found. COPIES FURNISHED: Virlindia Doss, Esquire Advocate For the Florida Commission on Ethics Alexander Building, Suite 208 Koger Executive Center Tallahassee, Florida 32399-1050 George T. Yoss, Esquire Raoul Cantero, Esquire 2601 South Bayshore Drive, Suite 1600 Miami, Florida 33133 Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Whether the Petitioner correctly cited the Respondent with a Class I violation when the Respondent left an unscreened individual to supervise children in the Respondent’s care, and, if so, is the proper penalty an imposition of a $100.00 fine and termination of the Respondent’s Gold Seal designation.
Findings Of Fact KinderKids is a child care facility licensed by the Department as License No. C11MD1905. KinderKids is located at 26049 South Dixie Highway, Naranja, Florida 33032. Fatima Zaldiba ("Zaldiba") owns and operates KinderKids. KinderKids has been in operation since January 1, 2011. The Department awarded KinderKids a Gold Seal on July 11, 2012. KinderKids offers a full readiness program, infant care, and an aftercare program. On March 12, 2015, Zaldiba informed Raimy Coipel ("Coipel"), the pre-K age four teacher and afternoon director, that a volunteer was coming to the school. Zaldiba instructed Coipel to train and supervise the volunteer with the four-year- olds for two hours. Zaldiba introduced Coipel to the volunteer, Marilys Perez ("Perez"). Coipel took her 12 four-year-old children to the playground area with Perez around four thirty in the afternoon. Coipel left her 12 four-year-old children with Perez on the playground to go meet in the KinderKids' office with Yessenia Plata ("Plata"), the Department’s then family service counselor. Coipel asked Elsita Jalil ("Jalil"), a background- screened pre-K teacher, to supervise Perez and her class while she went to the office. Jalil agreed to watch the volunteer and Coipel’s class. Plata was assigned to conduct a complaint inspection at KinderKids regarding a child who allegedly cut his hand. Plata arrived at the school after four o’clock in the afternoon. Upon her arrival, Plata met with Coipel and Zaldiba regarding the abuse complaint. Plata briefed them about the complaint and took their statements regarding the complaint. Afterwards, Plata proceeded to walk the facility inspecting the center, going class-by-class checking the ratios of children. Plata took the ratios of the classes inside the building first. That same day Plata also checked the ratios of the children on the playground and Coipel escorted her around. Plata met Perez, the volunteer, who was outside on the playground watching Coipel’s four-year-old class. Plata questioned Perez about the abuse complaint. Jalil met Perez for the first time on March 12, 2015, when Coipel asked Jalil to supervise Perez and her classroom outside on the playground. Jalil never left Perez or the four- year-olds alone. Jalil remained on the playground at the same time with her three-year-old class supervising Perez and the four-year-old class the whole time Perez was with the children while Coipel was away.1/ After checking the ratios, Plata and Coipel returned to the KinderKids' office. Plata requested the employee files for Coipel and Perez, the two new individuals working at KinderKids who had not been there at the time of the last inspection, so that she could update their background screening and training. Zaldiba provided Plata Coipel's file, including the requested background screening. Zaldiba informed Plata that she did not have a background screening for Perez because she was on a trial period. Zaldiba even explained that she was not sure if she was going to keep her. Plata responded by telling Zaldiba that Perez had to leave the day care facility immediately because she did not have a background screening and that Coipel should take over the care of the four-year-olds. Zaldiba followed Plata's instructions and had Perez leave immediately. Plata informed Zaldiba that she was going to give her a Class I violation for having an unscreened person left with the children. Zaldiba explained to Plata that Perez was a volunteer she was trying out to determine if she was going to hire her at KinderKids. Zaldiba also tried to provide Plata with Perez’s Volunteer Acknowledgement Form, but Plata would not accept it.2/ Instead, Plata repeatedly requested a background screening document for Perez, which Zaldiba did not have for Perez. Since Plata had Zaldiba send Perez away from the facility, Plata was unable to verify Perez's position with her in person. Zaldiba tried to find Perez’s information and to make contact with Perez in front of Plata but was not able to do so. Plata requested a Department specialist in background screening to run Perez’s name and three individuals named Marilys Perez were found, but none of them looked like the person she had talked to on the playground earlier. Plata determined that no indicators existed for the abuse complaint and closed the case. However, Plata believed that Zaldiba came up with a story about Perez being a volunteer and that it was never proven to her, so she cited KinderKids with a Class I violation. Perez was never paid for her volunteer work. On March 17, 2015, the Department issued KinderKids an Administrative Complaint, citing the Respondent with a Class I violation of Standard #5, Supervision Rule, charging the facility with having Perez as an unscreened individual, left alone to supervise children in their care. The Administrative Complaint also terminated KinderKids Gold Seal designation. KinderKids contested the Administrative Complaint and requested a hearing.
The Issue Should the Gold Seal Quality Care designation of Respondent, Wonderland Day Care, Inc. (Wonderland), be terminated under the authority of section 402.281(4)(a), Florida Statutes (2015)1/ on account of a “class I violation?”
Findings Of Fact Wonderland is a child care facility licensed by Hillsborough County. Ms. Wilson owns and operates Wonderland. The Department awarded Wonderland a Gold Seal Quality Care designation effective May 9, 2011. The Department’s letter advising Wonderland that it had been awarded the Gold Seal designation also advised Wonderland that to maintain the Gold Seal it must not have a “class I violation.” (Ex. 2). Wonderland’s application for a sales and use tax exemption, signed by Ms. Wilson, stated that to qualify for the exemption the application must hold a “current Gold Seal Quality Care designation as provided in s. 402.281, F.S. ” (Ex. 3). Section 402.281(4)(a) states that a child care provider must not have any “class I violations” in order to maintain its Gold Seal designation. Ms. Wilson knew, or should have known, that a “class I violation” would result in the loss of Wonderland’s Gold Seal designation. On April 20, 2015, Hillsborough County’s Children and Youth Services issued an Administrative Complaint (Complaint) against Wonderland proposing to administer a “class I violation” based upon a determination that Wonderland did not provide adequate supervision for the children. Specifically, the Complaint charged that on March 5, 2015, a four-year-old child left the facility and walked across the street without the staff’s knowledge. The Complaint told Ms. Wilson that Wonderland had a right to request an administrative hearing to challenge the Complaint. Ms. Wilson chose not to challenge the Complaint. She elected for Wonderland to pay the proposed $250.00 fine. Ms. Wilson did not think of the effect accepting the Complaint would have upon Wonderland’s Gold Seal Quality Care designation. The Complaint did not advise of this collateral consequence. But, as found above, Ms. Wilson and Wonderland knew or should have known of it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, terminate the Gold Seal Quality Care designation of Respondent, Wonderland Day Care, Inc. DONE AND ENTERED this 9th day of March, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2016.
