The Issue The issue presented in DOAH Case No. 13-2051 is whether the allegations of the Administrative Complaint filed by the Department of Children and Families (Petitioner) against Wanda Williams, owner and operator of Mini Miracles Children's World Daycare Center (Respondent), are correct, and, if so, what penalty should be imposed. The issue presented in DOAH Case No. 13-2798 is whether the Petitioner should approve the Respondent's application to renew the license to operate a child care facility.
Findings Of Fact At all times material to these cases, Wanda Williams operated Mini Miracles Children's World Daycare Center located at 1712 West Chase Street, in Lakeland, Florida, under Florida license no. C10PO0769. At the time of the hearing, the status of the license was "provisional." DOAH CASE NO. 13-2051 Improper Transportation of Children The Administrative Complaint filed in DOAH Case No. 13-2051 alleges that the Respondent has transported children attending the child care facility in an unsafe manner and in violation of a written commitment from the Respondent to refrain from providing transportation under the license. Section 402.305(10), Florida Statutes (2012), and Florida Administrative Code Rule 65C-22.001(6)(d) limit the number of individuals being transported in a vehicle on behalf of a child care facility to the number of seat belts present in the transportation vehicle. The Respondent was previously cited for such transportation issues in an Administrative Complaint dated October 21, 2011, related to the Respondent's operation of another licensed child care facility. The Respondent did not contest the allegations and paid an administrative fine. The Respondent also executed a written commitment dated June 27, 2012, wherein she committed to refrain from providing transportation to children attending the facility. Based on the previous litigation, the Respondent was aware that transporting children in a number exceeding the appropriate capacity of a vehicle based on the number of seat belts or child safety restraints in the vehicle was not acceptable. Nonetheless, on more than one occasion while operating the child care facility under the license at issue in this proceeding, the Respondent transported children in an unsafe manner, or directed an employee to transport children in an unsafe manner, by placing more than one child into a seat belt and exceeding the seating capacity of vehicles. An employee of the Respondent who worked at the facility testified at the hearing that Ms. Williams had directed her to transport more children than were seat-belted positions in a vehicle by placing more than one child into a single seat belt. Although the employee knew the practice was unsafe, she complied with the Respondent's direction. Her testimony has been fully credited. During the Petitioner's investigation of the transportation issue, the Respondent initially denied the allegation, but subsequently acknowledged that children had been transported in the manner described. Failure to Employ a Credentialed Director Section 402.305(3) and rule 65C-22.003(8) require that a licensed child care facility employ an appropriately credentialed director. During an inspection conducted by the Petitioner on August 29, 2012, the Respondent was operating without having a credentialed director. Although the Respondent suggested a credentialed director had been employed until the day prior to the inspection, the evidence failed to support the assertion. Although the Respondent asserted that attempts were made to employ a credentialed director, the evidence established that the Respondent failed to employ a credentialed director and routinely operated without a credentialed director. Failure to Maintain Screening Documentation 11. Section 402.305(2)(a) and rule 65C-22.006(4)(d) require that the staff of a child care facility be subjected to "Level 2" background screening prior to employment and that the facility retain documentation that such screening has occurred. 12. During an inspection on October 9, 2012, the Respondent was unable to document that one of the staff members had passed the appropriate background screening process. During an inspection on October 22, 2012, the Respondent was still unable to document that the staff member had passed the appropriate background screening process. DOAH CASE NO. 13-2798 Failure to Maintain Documentation of Staff Training 13. Section 402.305(2)(d) and rule 65C-22.003(2)(a)1. require that all child care personnel must complete a specified introductory training course within 90 days of commencing employment at a child care facility and that the Respondent retain documentation that such training has occurred. During an inspection on October 22, 2012, the Respondent was unable to document that two of the staff members had completed the required training. During inspections on April 23 and June 12, 2013, the Respondent was still unable to document that staff members had completed the training. Failure to Maintain Screening Documentation As stated previously, the staff of a child care facility is required to undergo "Level 2" background screening prior to employment, and the facility is required to retain documentation that such screening has occurred. During inspections on April 23, May 21, and June 12, 2013, the Respondent was unable to document that all staff members involved in providing child care had passed the appropriate background screening process, a deficiency that had existed since inspections conducted in October 2012. Failure to Comply With Staffing Ratios Section 402.305(4) and rule 65C-22.001(4) establish minimal child care facility staffing requirements based on the number and age of children who are attending a child care facility. During inspections on May 21 and June 12, 2013, the Respondent did not have sufficient staff present to meet the requirements based on the number and age of children present at the facility during the inspection. This deficiency had been identified during an inspection on August 29, 2012. Child Sleeping in "Bouncer Seat" Rule 65C-22.002(5) establishes specific requirements related to the equipment that must be provided by a child care facility to permit children to nap or sleep. The rule requires that children up to one year of age be placed in individual cribs, portacribs, or sided-playpens. During an inspection conducted on May 21, 2013, an infant was observed sleeping in a "bouncer" seat, contrary to the specific provisions of the rule. This deficiency had been identified during an inspection on October 9, 2012. Failure to Post Menus Rule 65C-22.005 establishes specific requirements related to the provision of food by a child care facility. Such requirements state that at the beginning of each week, a child care facility must post menus of meals and snacks available to the children during the week. During inspections on June 12 and June 14, 2013, the required menus were not posted by the Respondent. This deficiency was identified during two inspections conducted in October 2012. Providing Fraudulent Information to DCF The Administrative Complaint alleged that the Respondent twice provided fraudulent information to the Petitioner related to the identification of the credentialed facility director. The allegation was not supported by competent evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order revoking the license at issue in this proceeding and denying the Petitioner's application to renew the referenced license. DONE AND ENTERED this 4th day of February, 2014, 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 4th day of February, 2014. COPIES FURNISHED: Esther Jacobo, Interim Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Cheryl Dianne Westmoreland, Esquire Department of Children and Families 1055 U.S. Highway 17 North Bartow, Florida 33830-7646 Arthur C. Fulmer, Esquire Fulmer and Fulmer, P.A. 1960 East Edgewood Drive Lakeland, Florida 33803-3471
The Issue The issue in this case is whether Respondent should approve Petitioner's registration to operate a family day care home.
Findings Of Fact The Parties Petitioner is a 25-year-old female who admittedly has been providing unlicensed child day care in her home for the past several years. While she has no formal training in child care, she has been employed in the child care field for many years and obtained her GED in 1995. Petitioner has been married to her husband, A.P., for six years, and they live together. Respondent is the state agency responsible for regulating child care facilities pursuant to Chapter 402. The Application On September 18, 2002, Petitioner submitted an application to Respondent seeking licensure to operate a registered family day care within her home located at 6351 Redwood Oaks Drive in Orlando, Florida. Respondent processed the application and effectuated the required background screening of the individuals living within the household, including Petitioner and A.P. The screening of Petitioner revealed that on October 3, 2000, a young girl, living within Petitioner's home and under her supervision, was removed following a report to the abuse hotline and the subsequent investigation by Donald Griffin, a protective services investigator employed by Respondent. The screening of A.P. revealed that he was arrested in October 2000 on charges of lewd, lascivious assault or act on a child; prostitution; lewd or lascivious molestation; renting space to be used for prostitution; and lewd or lascivious conduct. The screening further revealed that on May 15, 2002, the State Attorney's Office determined that the case was not suitable for prosecution and filed a "No Information Notice." Upon receipt and consideration of the screening results, Respondent denied Petitioner's application on January 23, 2003, advising her that: . . . the Department is unable to approve your application to operate a family day care due to safety concerns for children that may be placed under your care for the following reasons: Background screening revealed that a child was removed from your care following an allegation of abuse or neglect. Background screening revealed that a member of your household lacks moral character due to their arrest record involving minors which would place the children at risk of harm. With respect to Petitioner's screening results, Petitioner admits that a child was removed from her home, but alleges that the removal was at her request. Petitioner denies any allegation of abuse and insists that the removed child, her friend's daughter, was "extremely unruly and too difficult to handle." As a result, Petitioner claims that she requested that Respondent remove the child and Respondent complied. Respondent's investigator, Mr. Griffin, testified otherwise. Investigator Griffin stated that he personally investigated Petitioner following a report to Florida's child abuse hotline. He separately interviewed both Petitioner and the child and noticed clear bruises and welts on the child. Investigator Griffin determined that Petitioner's home was not suitable for the young girl and removed her from the residence. Mr. Griffin's testimony was more credible. No evidence was offered to support Petitioner's assertion. With respect to the screening results of A.P., Respondent presented compelling evidence that A.P. lacks the requisite good moral character. First, Respondent demonstrated and Petitioner admits that A.P. occasionally gets angry and lacks self-control. In fact, the local police department has responded to domestic disturbance calls from the family home on at-least two occasions. In addition, the evidence surrounding A.P.'s arrest demonstrates that A.P. lacks good moral character. Specifically, A.B., the alleged victim of A.P., credibly testified at hearing that in October 2000, at age 12, she and her minor female friend, L.M. were walking near their school during the early evening when an unknown black male, later identified as A.P., driving a green sports utility vehicle, offered them a ride. The female minors entered his S.U.V. and were taken to a convenience store and then to a hotel. A.B. testified that while in the hotel room, the male inappropriately touched her butt, pushed her on the bed and solicited her to have sex with him for money. A.B. said "no" to his offer and asked him to stop. Shortly thereafter, the male departed the hotel and abandoned the girls in the hotel room with the room key. The police were contacted and investigator Rick Salcido conducted an investigation. After interviewing the girls, Mr. Salcido acquired physical evidence at the hotel linking A.P. to the room and supporting A.B.'s allegations. He retrieved a copy of A.P.'s driver's license and hotel credit card used at check-in from the hotel manager. In addition to the physical evidence linking A.P. to the hotel, A.B. positively identified A.P.'s photo as the perpetrator. Moreover, the investigator determined, and Petitioner admits that A.P. owned and drove a green sports utility vehicle at the time of the alleged incident. While Petitioner asserts that she and A.P. were out of town and on vacation on the date of the incident, she admits that they returned home at approximately 7:00 p.m. that evening. Although A.P. was subsequently arrested, the State Attorney's Office later declined to prosecute and filed a "No Information Notice." At hearing, counsel for A.P. indicated that the statute of limitations had not expired and A.P. invoked his Fifth Amendment privilege to remain silent. A.P. declined to testify and answer questions related to his moral character and the circumstances of his arrest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for a registration to operate a child care facility. DONE AND ENTERED this 29th day of August, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2003. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Jeremy K. Markman, Esquire 800 North Ferncreek Avenue Orlando, Florida 32803 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this matter are whether Petitioner proved that Respondent committed statutory or administrative code violations, and, if so, what is the appropriate fine.
Findings Of Fact The Parties Petitioner is the state regulatory entity responsible for licensing, inspecting, and regulating child care facilities. See §§ 402.301 through 402.319, Fla. Stat. (2003). Respondent is a licensed day care facility in Polk County, Florida. The Inspections On October 17, 2003, following receipt of a complaint, Vicki Richmond, a child care licensing inspector employed by Petitioner, performed a routine on-site inspection of Respondent's day care. Ms. Richmond spent several hours at the facility, interviewed staff persons as well as children, and concluded that Respondent was in violation of various child care facility laws. Immediately following the inspection, Petitioner notified Respondent, via the "Child Care Facility Inspection Checklist," that the facility was in violation of Section 402.3125, Florida Statutes (2003), for failing to post its license in a conspicuous place; in violation of Subsection 402.305(5), Florida Statutes, for failing to directly watch the children during nap time; and in violation of Subsection 402.305(12), Florida Statutes, for imposing physical punishment upon the children. In addition, Respondent was also advised that the facility was not in compliance with Florida Administrative Code Rules 65C-22.001(5), relating to supervision; 65C-22.001(8), relating to discipline; 65C-22.002, relating to its physical environment; and 65C-22.004, relating to the health requirements of the facility. The following month, on November 17, 2003, Amy Anderson, a child abuse investigator employed by Petitioner, investigated a complaint that a child had been injured at Respondent's day care. During her investigation, Ms. Anderson spoke with Candi Tipton, the facility director. Ms. Tipton admitted that she witnessed a child being dragged on the playground by other children. She advised Ms. Anderson that she stopped the activity and did not see any injury. There is no evidence that the child complained about any injury until some scrapes and minor bruises were discovered when he arrived home at the end of the day. Ms. Anderson alleged that the teachers were neglectful and concluded that the child's injuries resulted from inadequate supervision by center staff. On November 21, 2003, Petitioner conducted a follow-up inspection of Respondent's day care. Petitioner concluded that all of the violations had been corrected. On March 22, 2004, Respondent was notified that Petitioner sought to impose a penalty of $300 upon the day care license as a result of the alleged violations, and Respondent timely contested the proposed fine. The Evidence Upon careful consideration of the record, there is clear and convincing evidence that Respondent committed numerous violations. First, it is clear that at least one of Respondent's staff used physical punishment on children at the day care. Respondent's staff admitted that children were occasionally struck on the back of the hand with a green stick when the children misbehaved. Several children corroborated the admission. Moreover, during the inspection, Ms. Tipton located the green stick that was used to punish the children. Second, the clear and convincing evidence demonstrates that Respondent, at times, routinely failed to provide direct supervision to the children. Classrooms were configured in a manner that prevented staff to maintain proper sight and sound contact with all children during naptime. Third, the clear and convincing evidence demonstrates that Respondent committed additional violations noted in the Inspection Checklist but not referenced or charged in Petitioner's Notice to Assess. During her inspection, Ms. Richmond actually saw bleach and other cleaning agents accessible to children. She noted that prescription medications were accessible to children, and fencing was inadequate in the children's play area. Infant crib sheets failed to properly fit the mattresses and presented suffocation hazards. High chairs did not have safety straps. In addition, Respondent failed to post its operating license in a conspicuous place and had an incomplete first aid kit, missing records, and incomplete emergency numbers posted on the wall. Finally, the facility director failed to have the required credentials. With respect to Petitioner's allegation that the boy who was dragged by other children received his minor injuries as a result of inadequate supervision, there is insufficient evidence to conclude that Respondent's staff was neglectful. The investigator's report is far-reaching and based on speculation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order imposing an administrative fine of $700.00 upon Respondent. DONE AND ENTERED this 5th day of October, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Katie Stowell Early Childhood Resources, Inc. 122 Central Avenue, West Winter Haven, Florida 33880 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue presented in this case is whether the Respondents’ family foster home license should be revoked for the reasons set forth in the Department of Children and Family Services' (Department) revocation letter.
Findings Of Fact The Department of Children and Family Services is the state agency responsible for licensing and regulating family foster homes in Florida. Section 409.175, Florida Statutes. At all times relevant hereto, the home of Respondents, Wanda and Howard Barker (Respondents), was licensed by the Department as a family foster home, having been initially licensed in July 1997. Prior to receiving the family foster home license, Respondents were required to and did attend the Department's Model Approach to Partnership in Parenting (MAPP) training. Upon completion of the training course Respondents were required to sign a discipline policy agreement in which they acknowledged that they had been informed of the Department's policy against "hitting a child with any object . . ., spanking a child and any other form of physical discipline." Respondents signed a copy of this agreement. In August 1997, the Department placed D. G. and his brother, J. G., in Respondents' home. D. G. was born on October 21, 1993, and J. G.'s was born on January 7, 1995. At all times relevant to the proceeding, D. G. was four years old and J. G. was three years old. Respondent Wanda Barker, is a registered nurse at Suncoast Child Protection Team, Inc. (Suncoast). A majority of the clients served by Suncoast are children with behavioral problems. As a nurse at Suncoast, Respondent Wanda Barker comes in contact with such children on a regular basis. On August 10, 1998, Respondent Wanda Barker called the Department and reported to D. G.'s assigned children service counselor that she had slapped D. G. the previous day. Respondent Wanda Barker further advised the counselor that as a result of the slap, a mark had appeared on D. G.’s face. Immediately after receiving the call, the counselor notified the appropriate Department personnel and made a report of abuse to the proper authorities. On that same day, August 10, 1998, the Department assigned a child protective investigator to conduct an investigation of the reported incident. On August 10, 1998, both the Department's child protective investigator and an officer with the Pinellas County Police Department interviewed Respondent Wanda Barker at her home. In each of these interviews, Mrs. Barker stated that on the preceding day, August 9, 1998, she slapped D. G. in the face. According to Respondent Wanda Barker, on the day of the incident, D. G. was in a bad mood. At some point that afternoon D. G. began yelling at Respondents' daughter. In an effort to discipline D. G. for yelling, Respondent Wanda Barker told D. G. to go to his room. When he refused, Respondent Wanda Barker took D. G. by the arm and attempted to direct him to the room. While Respondent was holding D. G.'s arm and escorting him to his room, D. G. continued to yell and he also spit in Respondent Wanda Barker's face. Immediately after D. G. spit on Respondent Wanda Barker, she slapped D. G. in the face with an open hand hard enough to leave a mark on his face. The slap was so forceful that it caused a 2-3 inch long bruise that was visible the day after the incident. In the past, Respondent Wanda Barker had sought the assistance of Department staff in addressing discipline problems involving D. G. The Department staff had suggested that Respondents implement various disciplinary methods, including the use of time-out and positive reinforcement. However, at no time did the Department personnel ever recommend that Respondents hit any foster child within their care. On the contrary, the Department's disciplinary guidelines expressly prohibit hitting a child or using any form of corporal punishment. As noted in paragraph 3, Respondents were aware of the Department's policy regarding corporal punishment and had signed a statement acknowledging that they would abide by the policy. On August 10, 1998, after the child protective investigator interviewed Respondent Wanda Barker, he took D. G. to Suncoast for a physical examination. The examination revealed the D. G. had several bruises and abrasions typical of an active child. However, in addition to these bruises and abrasions, D. G. also had a "red/purple" linear bruise about 2 inches long and 1 3/8 inches wide on his face. The impression of the advanced nurse practitioner who examined D. G. was that the bruise on D. G.'s face was the result of a non-accidental injury. Moreover, the bruise on D. G.’s face was consistent with one that could be caused by a slap. It is likely that striking a four-year-old child in the face with an open hand will cause serious injury to the child, particularly to the child's head. In fact, an injury to the head of a child has the potential of causing more serious damage than an injury to any other part of the body. Accordingly, Respondent Wanda Barker's willful and intentional act of forcefully slapping D. G.'s face was one that was likely to result in physical injury to the child. This intentional act materially affected the health or safety of D. G. During the course of the investigation, the Department removed D. G., his brother, and another foster child in Respondents' care from their home. At the conclusion of his investigation, the child protective investigator entered a final report which concluded that "verified bruises/welts abuse" were found and that some indicators of "excess[ive] corporal punishment/abuse" were also found. This Florida Protective Services System Abuse Report was forwarded to the Department's licensing unit. After a review and consideration of the facts contained in the abuse report, the Department revoked the Respondents' family foster home license.
Recommendation Based of all of the foregoing, it is recommended that the final order be issued revoking the Respondents' foster home license. DONE AND ENTERED this 19th day of July, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1999. COPIES FURNISHED: Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 R. Michael Robinson, Esquire 701 49th Street, North Saint Petersburg, Florida 33710 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue At issue is whether Respondent’s license to operate a child care center should be revoked.
Findings Of Fact From February 2, 1999, until April of 2001, when they sold their business assets to the Church of the Nazarene, Petitioner Shanion1 McCarthy (McCarthy) and her then-partner Maricel Perez (Perez) owned and operated the Little Bears Day Care Center (Little Bears). McCarthy and Perez were equal partners in the purchase, ownership, and operation of Little Bears. Both had been employed at Little Bears prior to going into business together. McCarthy had been a competent, caring, day care worker for over a decade. She did not shirk form unpleasant obligations, such as the duty to report child abuse, even when it meant exposing herself to abuse and retaliation from the accused abuser. Within months of forming their partnership, McCarthy and Perez began to seek a better facility for their business, and began making plans to move Little Bears to a new location. Perez, however, began to plan a personal business strategy, which involved opening the new center in her own name, dissolving the partnership, and recruiting Little Bears employees to work at the new center in competition with McCarthy. One of the employees whom Perez would later hire away from Little Bears was Stacy Cooper (Cooper). The Department's primary charge against McCarthy is that on March 19, 2001, McCarthy was "not aware" that a three- year-old child named Sergio had left Little Bears through a bathroom door which exited to the outside after going to the bathroom and removing his wet underwear and shorts. It is undisputed that Sergio did leave the center and was shortly thereafter found by Robin Kamrow (Kamrow), an employee of a nearby auto-transmission shop. Sergio was able to let himself out the bathroom door because he had been granted permission to go to the bathroom, without supervision, by Cooper. At all times material to this incident, Cooper, and not McCarthy, was the child care worker directly responsible for Sergio's supervision. Cooper was eager to leave for lunch with a co-worker, and did so without first verifying that Sergio was back in class, and without advising McCarthy that the child had been sent to the bathroom by himself. The incident could have ended tragically, but did not, due to Kamrow's willingness to attend to a little boy walking alone with a dog. The dog turned out to be owned by Sergio's uncle, who lived directly behind the day care center. Upon exiting to the outside from the Little Bears bathroom, Sergio proceeded to his uncle's house and took the dog with the intention of having the dog accompany him to his home, some seven blocks away. Apparently Sergio has not been taught to fear strangers, for he willingly allowed Kamrow to put a rag on his uncovered bottom, and to pick him up and carry him the rest of the way home. Sergio was able to direct Kamrow to his family's home, telling her where and where not to turn. Kamrow released Sergio to his grandmother. Rather than telephone the day care center or the police, Sergio's grandmother went to the center to confront the owners. By this time, McCarthy had discovered that Sergio was missing and had called the police. At the time of the incident, Sergio's family knew, but had not informed Little Bears, that Sergio had a propensity to run away. Immediately after this incident, McCarthy had the locks child proofed and installed a chain link fence, although the law did not require that either of these things be done. In its letter of April 2, 2001, the Department further alleges that McCarthy asked a staff member to lie about this incident, and that McCarthy told the Department that Sergio was under the supervision of a staff person who was actually out of the center on a lunch break. The only evidence that McCarthy asked a staffer to lie was offered by Cooper. Cooper claimed that McCarthy asked her to not tell investigators that Sergio had let the dog out of his uncle's gate and that Sergio was riding a tricycle. The undersigned rejects Cooper's testimony on this matter as patently implausible. Cooper never claimed to have personal knowledge of any aspect of Sergio's escape. Moreover, there was never any evidence from any source that he had a tricycle. These silly fabrications, coupled with Cooper's deceptive demeanor under oath and her financial stake in permanently eliminating McCarthy as a competitor of Perez's day care center, all contribute to the undersigned's conclusion that Cooper's testimony is unworthy of belief. Cooper is the only witness who claims personal knowledge that McCarthy's negligence was the proximate cause of Sergio's escape. To the contrary, the evidence establishes that Cooper lied under oath for the most obvious of reasons---to shift responsibility from herself to McCarthy. The Department also alleges that Little Bears "has had a history of problems." In support of this allegation, the Department relies primarily upon three incidents. On January 12, 1999, the Department found Little Bears to be out of compliance with minimum child care standards because the center was over capacity. However, on that date, McCarthy was an employee, not an owner. There is no evidence that McCarthy had any legal obligation or authority to deny admittance to a child who had been duly enrolled by McCarthy's employer. On July 11 1999, the Department again cited Little Bears for a violation of minimum child care standards because the center had 26 children enrolled. On this date, McCarthy and Perez were in an ownership position and obliged to comply with state standards. Based upon the square footage of Little Bears (as opposed to the adult-child ratios, which were in compliance) 23 was the upper limit of enrollment. McCarthy acted promptly and worked with the Department to correct the violation. There is no evidence that this violation posed a threat to the health or safety of any child in care. At least one child was granted a Department waiver and permitted to remain after the parent complained about being forced to go elsewhere for child care. The Department did not seek to punish this violation, but rather worked to accommodate the needs of the families which relied on the center. The third incident alleged as part of the "history of problems" is an incident on February 22, 2000, in which McCarthy "engaged in a physical altercation with her daughter on the grounds of the Little Bears Day Care Center." Although the Department alleged that McCarthy's daughter, Chastity, was employed at the center at the time of the incident, no evidence was offered to support that allegation. Instead, the evidence revealed that Chastity, angry and upset that McCarthy had called police to report that Chastity was at a motel, possibly engaging in illegal or dangerous activities with her boyfriend, showed up unannounced, uninvited, and greatly agitated, at Little Bears. Chastity came to the door and demanded to confront her mother. McCarthy made every effort to keep the argument away from the children. Chastity became violent and McCarthy reacted in self-defense to protect herself and to restrain and calm her daughter. A police investigation revealed no wrongdoing by McCarthy. The Department imposed a $100 fine for the incident which McCarthy personally paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order dismissing the charges against Petitioner, Shanion R. McCarthy. DONE AND ORDERED this 31st day of October, 2001, in Tallahassee, Leon County, Florida. ________________________________ FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2001.
