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 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 Florida Administrative Code Rules 65C- 22.009(2)(b)1. and 3., are invalid exercises of delegated legislative authority and whether a statement in a Gold Seal Quality Care Program Fact Sheet constitutes an unadopted rule in violation of section 120.54(1)(a), Florida Statutes.
Findings Of Fact The Department of Children and Families (DCF or Department) is the agency of the State of Florida that regulates child care facilities, large family child care homes, and family day care homes within the state to protect the health and welfare of the children in care. Petitioner RCMA is a child care facility licensed by the Department and located in Arcadia, Florida. RCMA's current child care facility license #CI2DE0009, is effective January 1, 2012, through December 31, 2012. Child care facilities, large family child care homes, and family day care homes in Florida that meet criteria demonstrating that they exceed the minimum licensing requirements and promote quality child care are eligible for Gold Seal Quality Care designation by DCF. Designation indicates a facility providing a higher standard of care. Gold Seal Quality Care designation has no bearing on licensure as a child care facility, large family child care home, or family day care home. A Gold Seal Quality Care designation is an authorization required by law in order for a facility to receive certain tax benefits and enhanced school readiness program reimbursement from the Early Learning Coalition. Issuance of a Gold Seal Quality Care designation is not merely a ministerial act and it is not a license required primarily for revenue purposes. Gold Seal Quality Care designation is a license. DCF granted RCMA Gold Seal designation on March 31, 2008. On December 29, 2011, DCF issued an Administrative Complaint alleging that RCMA committed a Class I licensing violation. The Administrative Complaint sought to impose sanctions against RCMA's child care facility license and to revoke RCMA's Gold Seal designation. On or before April 27, 2012, RCMA's accrediting association, the National Association for the Education of Young Children (NAEYC), revoked RCMA's accreditation. There was no evidence at hearing as to whether its action was based solely upon DCF's allegations in the Administrative Complaint that RCMA had committed a Class I licensing violation.1/ On or about May 24, 2012, RCMA was notified of the Department's intended action to revoke its Gold Seal designation because NAEYC had revoked RCMA's accreditation. The notification letter advised RCMA of its right to request a hearing, but was not in the form of an Administrative Complaint. It was stipulated by the parties that Petitioner is substantially affected by rules 65C-22.009(2)(b)1. and 3. On August 6, 2012, Administrative Law Judge R. Bruce McKibben issued a Recommended Order on the Administrative Complaint in DOAH Case No. 12-750, concluding that DCF had failed to prove the Class I licensing violation and recommending that the Administrative Complaint and Revocation of Gold Seal Quality Care Designation be dismissed. On August 27, 2012, DCF entered a Final Order rescinding the Administrative Complaint. Ms. Sherrie Quevedo was the Child Care licensing Supervisor for the geographic area including Arcadia, Florida, at the time of the formal hearing on the Administrative Complaint against RCMA's child care facility license. Ms. Quevedo was a supervisor called by Respondent and her statements as to policies of DCF were regarding matters within the scope of her employment. Ms. Quevedo did not work in the policy-making arm of DCF, and she could not speak authoritatively as to the Department's interpretation of statutes implemented by DCF. Ms. Deborah Russo is the Director of Child Care Regulation Office at DCF, where she is responsible, in conjunction with Department leadership and the General Counsel's Office, for establishing Department policies and implementing statutes setting out legislative policies. The Department terminates the Gold Seal designation for a facility when its accreditation expires or when it is revoked by the accrediting organization. Ms. Russo testified that it is DCF's interpretation of section 402.281, Florida Statutes, that the Department does not have discretion not to terminate a child care facility's Gold Seal designation if that facility's accrediting association revokes the provider's accreditation. The Gold Seal Quality Care Program Fact Sheet contains the statement that "section 402.281(3), Florida Statutes, requires that the Department deny or revoke a child care provider's Gold Seal Quality Care designation" if the provider has a Class I violation within a two-year period (the Statement). The fact sheet was distributed to Gold Seal child care facilities throughout the State of Florida in 2009 and the Statement is of general applicability to all child care facilities designated as Gold Seal Quality Care providers. The Statement, or a substantially similar statement reflecting the Department's interpretation of the statute, has not been adopted as a rule under chapter 120, Florida Statutes. RCMA has committed no licensing violations defined by DCF rule as a Class I violation during the two years preceding the rule challenge petition in this case.
The Issue Whether the Respondent, Highland Christian Academy (HCA), committed a violation of child care licensing law and, as a result, must lose its designation as a Gold Seal Provider.
Findings Of Fact DCF is the state agency charged with the responsibility of regulating child care facilities operating in the State of Florida. At all times material to the allegations of this case, HCA operated a child care facility designated as a Gold Seal Provider by DCF. HCA is exempt from licensing standards as a religious provider. However, as a designated Gold Seal facility it must comply with licensing standards to retain its designation. In this case DCF alleged HCA failed to timely report an incident of possible child abuse as required by Florida law. All licensed child care providers must immediately report incidents of suspected abuse without delay. Any unexplained injury to a child attending a child care facility must be reported and investigated. Pertinent to this case was an unexplained injury to a minor child who attended HCA on or about January 29, 2018. Mrs. M. (the minor child’s mother whose name is intentionally omitted) noticed some marks on her child when she picked the child up from daycare. Her initial inquiry regarding the marks was dismissed as a probable play yard injury. That evening while she was bathing the child Mrs. M. noticed distinct marks and bruises that she believed looked like the child had been grabbed. Mrs. M. photographed the marks and bruises to memorialize the locations and severity of the bruises. The bruises could have easily been the result of a hand grabbing the child as there were five distinct marks that would align with finger imprints. The next day, January 30, 2018, Mrs. M. approached the HCA school director to show her the photographs of the child and to further inquire as to how the marks were made. It was logical for Mrs. M. to question how her child could have received the marks. Instead of reporting the unexplained marks to the state (DCF) as required by law, the school director asked Mrs. M. to allow her additional time to investigate the matter. Later in the week the school director acknowledged that the marks/bruises should have been reported and that the child’s teacher failed to report the incident that caused the injuries. Eventually the matter was reported to DCF and an investigator met with Mrs. M. to review the facts of the incident. As several days had passed, no conclusion could be reached as to how the marks/bruises were made. The investigator did verify that the child had sustained an injury that should have been reported. As a Gold Seal child care provider, HCA is subject to licensing inspections to ensure compliance with all DCF regulations. In this case a licensing counselor was advised of a possible licensing violation regarding the incident with Mrs. M.’s child. After investigating the matter, the DCF counselor determined HCA had failed to timely report the incident of suspected child abuse. According to the licensing counselor, Florida Administrative Code Rule 65C-22.010 requires suspected child abuse to be reported to the hotline without delay. The failure to do so constitutes a Class I Violation of Child Care Licensing Standards. HCA terminated the employment of the school’s director who had failed to timely contact the hotline regarding suspected abuse. Additionally, HCA terminated the child’s teacher. Next, HCA took steps to educate all staff of the child care facility as to the reporting requirements for incidents related to suspected abuse. HCA maintains that it took all action reasonably available to assure it would comply with all licensing standards. Further, HCA asserts that the loss of the Gold Seal designation adversely impacts its families who might not be able to obtain assistance funding only available to Gold Seal-designated facilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order revoking the Respondent’s Gold Seal designation. DONE AND ENTERED this 30th day of July, 2018, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 30th day of July, 2018. COPIES FURNISHED: Brian Christopher Meola, Esquire Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801 (eServed) Manisha Williams, Office Manager Highland Christian Academy 441 South Highland Avenue Apopka, Florida 32703 Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 2, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) John Jackson, Acting General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether Petitioner, Department of Children and Families ("Department"), established by clear and convincing evidence that Respondent, A Child's World Childcare and Preschool, Inc. ("A Child's World"), committed a Class I violation; and, if so, what penalty should be imposed.
Findings Of Fact The Department is responsible for the enforcement of sections 402.301 through 402.319, Florida Statutes, governing the regulation of child care facilities in Florida. Since 2003, A Child's World has operated continuously as a licensed child care facility at 703 Southwest 6th Street, Okeechobee, Florida. By all accounts, A Child's World is an exemplary facility. A Child's World is recognized as a Tier 4 provider by the Early Learning Coalition, the highest quality indicator in the community. Since 2004, A Child's World has been Gold Seal accredited. The incident giving rise to the Administrative Complaint occurred on January 29, 2019, at the child care facility. In August 2018, K.P. began attending A Child's World along with her older sister, A.P. On the date of the incident, K.P. was four years old and A.P. was five years old. During the morning of January 29, 2019, K.P., A.P., and other children were playing on the outdoor fenced-in playground at the facility. At that time, all of the children were supervised by a teacher. Subsequently, Angela Osterman, center director for A Child's World, called for A.P to be brought from the playground to the office for dismissal. When K.P. went to the office along with A.P., Ms. Osterman brought K.P. back to the playground and brought her directly to Deion Hayes, the teacher responsible for the group of children still on the playground. Subsequently, Ms. Osterman made an intercom announcement to all staff not to allow K.P. to accompany her sister when only the sister is called for dismissal. At 11:55 a.m., the children and teacher came inside the building from the playground. However, K.P. was left outside on the playground, alone and unsupervised because the teacher who was responsible for her confused his "head count" of the children when he brought the children back in the building.1/ K.P. was alone and unsupervised playing on the playground for approximately 40 minutes. At 12:37 p.m., K.P. exited the playground by climbing a five-feet high chain-link fence, which surrounds the perimeter of the playground. Almost immediately, facility staff saw K.P. standing close to the front of the building (approximately three and one-half to four feet from the building) in front of the infant room, playing with rocks in a flower bed, at which time K.P. was retrieved and brought back inside the building for an immediate evaluation. K.P. never left the facility premises. A video recording shows K.P. on the playground, alone; climbing over the fence at 12:37 p.m.; and being retrieved and brought back inside the building almost immediately thereafter. K.P. was not injured or in any distress following the incident. In fact, K.P. was smiling and in very good spirits following the incident. Under the particular facts of this case, the Department failed to prove by clear and convincing evidence that the inadequate supervision of K.P. posed an imminent threat which could or did result in her death or serious harm to her health, safety, or well-being. At 1:12 p.m., Malissa Morgan, the owner of the facility, self-reported the incident. In addition, K.P.'s mother was contacted and came to the school. K.P.'s mother kept K.P. in school for the remainder of the day and K.P. returned to the school the very next day. A Child's World fired Mr. Hayes on January 29, 2019. In addition, the next day, A Child's World conducted a full retraining of its staff and imposed stricter policies regarding supervision. K.P. continued attending A Child's World for months after the incident and returned after summer vacation. K.P. and A.P. are currently enrolled for this new school year.2/
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 finding that A Child's World did not commit a Class I violation and dismissing the Administrative Complaint. DONE AND ENTERED this 3rd day of September, 2019, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 3rd day of September, 2019.
The Issue Whether Respondent’s application for renewal of its child care facility license was untimely submitted; and, if so, what is the appropriate penalty.
Findings Of Fact DCF is the state agency that licenses and regulates child care facilities in Florida. Small World is a licensed child care facility in Miami, Florida, that has been doing business at this location for at least several years. As a licensed child care facility, Small World undergoes at least three routine inspection visits a year by DCF. During its second routine evaluation in the summer of 2020, Small World was reminded by Alexis Stevens, former DCF Family Services Counselor, that its renewal application was due to be submitted to DCF at least 45 days prior to its license expiration on November 23, 2020. Ms. Stevens provided this courtesy reminder to prevent Small World from incurring a penalty for a late filing. Ms. Stevens, who had been Small World’s point of contact at DCF for several years, had no concern that Small World would be late because, in the past, Small World was never late, and it consistently filed all materials needed for renewal of its license. At the beginning of October 2020, Ms. Stevens advised Small World that DCF’s Miami office was closed to the public due to COVID-19 and directed Small World to mail its renewal application rather than hand- delivering it as it had done in the past. The owners of Small World were aware the renewal application needed to be submitted to DCF on or before October 9, 2020. Small World’s owner, Marcia Martorell, completed the renewal application packet on October 1, 2020. On the next day, her daughter mailed the application packet from the Miami post office to DCF’s Miami office by certified, return receipt requested, mail. They reasonably anticipated that, at most, delivery would occur within a few days and in plenty of time to avoid the October 9, 2020, deadline. According to the United States Postal Service (“USPS”) tracking record, the application package was signed for by an individual at the DCF Miami office on October 13, 2020. However, the actual “green card” receipt bears no signature, and instead is marked “CO19” (presumably for COVID-19) on October 15, 2020. DCF Secretary Assistant, Susan Freeman, received the package on October 13, 2020, from the DCF mailroom and date-stamped each page. Ms. Freeman does not know on what date the package arrived in the mailroom. Ms. Freeman testified that although the office was closed to the public, most days the staff came to the office to complete their assigned duties, including receiving checks and other mail, including license renewal packages. However, she also recalled that the office was completely closed to personnel for several days due to riots in Miami.
Conclusions For Petitioner: Aaron Feuer, Esquire Department of Children and Families 401 Northwest 2nd Avenue, Suite N1014 Miami, Florida 33128-1740 For Respondent: Marcia Esther Martorell, pro se It's A Small World Academy, Inc. 2990 Northwest 81st Terrace Miami, Florida 33147
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. DONE AND ENTERED this 17th day of August, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S MARY LI CREASY 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 17th day of August, 2021. Marcia Esther Martorell It's A Small World Academy 2990 Northwest 81st Terrace Miami, Florida 33147 Aaron Feuer, Esquire Department of Children and Families 401 Northwest 2nd Avenue, Suite N1014 Miami, Florida 33128-1740 Danielle Thompson, Agency Clerk Department of Children and Families Office of the General Counsel 2415 North Monroe Street, Suite 100 Tallahassee, Florida 32303 Javier Enriquez, General Counsel Department of Children and Families Office of the General Counsel 2415 North Monroe Street, Suite 100 Tallahassee, Florida 32303
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
