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 Should the Gold Seal Quality Care designation of Respondent, Naples Preschool Academy, LLC (Academy), be terminated under the authority of section 402.281(4)(a), Florida Statutes?
Findings Of Fact The Parties 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, the Academy operated a child care facility under Certificate No. C202O0107. The Academy's facility is located at 1275 Airport Road South, Naples, Florida. The Academy operates as a Gold Seal Quality Care Provider. Ms. Rihani is the Academy's owner. Ms. Rea was the Academy’s director at the time of the incident. Samantha McClain is the current director of the Academy. Events Giving Rise to this Proceeding In this case, DCF alleged the Academy failed to timely report an incident of possible child abuse as required by Florida law. On November 29, 2017, D.M., a minor child, was dropped off at the Academy by his father. At some time that morning, D.M. was observed to have a dark area under one eye and injuries on his backside. D.M.’s teacher saw the injuries and took D.M. to the director’s office. The Academy’s staff took photos of D.M., showing both his face with the dark area under one eye and multiple bruises and injuries to his backside. On November 29, 2017, at the end of the day, D.M. was allowed to go home with his father. Ms. Rea called the Abuse Hotline shortly after the Academy opened on November 30, 2017, to report the suspected abuse of D.M. DCF sent Ms. Fracek, a Child Protective Investigator, to the Academy on November 30, 2017. Ms. Fracek observed significant bruising to multiple parts of D.M.’s body. Ms. Fracek sheltered D.M. from his father on November 30, 2017. Ms. Rea maintained that she called the abuse hotline on November 29, 2017, but there is no record of the call. The Academy failed two routine inspections (December 21, 2016 and December 8, 2017), and a renewal inspection (April 3, 2017). All three inspections found the Academy to be out of compliance with licensing standards, and guilty of either Class II or Class III violations. The Academy admitted the violations and agreed to pay the financial penalty of $25.00 for the Class II and III violations. As a Gold Seal Quality Care provider, the Academy is subject to licensing inspections to ensure compliance with all DCF regulations. After investigating the abuse allegation, the DCF counselor determined that the Academy failed to timely report the incident of suspected child abuse. According to Florida Administrative Code Rule 65C-22.010, suspected child abuse is to be reported to the hotline without delay. The failure to do so constitutes a Class I violation of child care licensing standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order revoking Respondent, the Naples Preschool Academy, LLC’s Gold Seal Quality Care designation, and imposing a fine of $525.00. DONE AND ENTERED this 23rd day of August, 2018, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2018.
The Issue Whether Respondent (1) allowed an unscreened employee to be alone with children, and (2) failed to have the proper background screening documentation in its employee files on two occasions; and, if so, what is the appropriate penalty.
Findings Of Fact The Department is responsible for licensing and enforcing regulations to maintain the health, safety, and sanitary conditions at child care facilities. See § 402.305, Fla. Stat. All Aboard is a licensed child care facility (License ID number #C20LE6436) operating at 1918 South East Santa Barbara Place, Cape Coral, Florida. All Aboard has been operating for 25 years. Chemenda Sawyer was a family services counselor with the Department. In this position, Ms. Sawyer conducted inspections of licensed child care facilities, including All Aboard. On November 7, 2019, Ms. Sawyer conducted a routine inspection of the All Aboard facility. As part of the inspection, she reviewed All Aboard's employee files for proper documentation and background screening verification. At this time, Ms. Sawyer determined, All Aboard did not have 3 Exhibit R13 was not accepted into evidence. At the hearing, the parties were looking at different versions of the November 7 inspection report. Respondent was allowed to its version, Exhibit R13, after the hearing, but subject to a ruling on any objections. Respondent emailed Exhibit R13 to DOAH and the Department after the hearing. The Department objected on the grounds of authenticity and because the document had not been disclosed to it prior to the hearing. Due to the late disclosure of the exhibit, the unexplained hand- written comments on the document, and that the document seems to be incomplete (it is missing paragraph 41), the undersigned sustains the objection. appropriate background information for Isabella Escalona, one of its employees. Although Ms. Escalona had been cleared and found "eligible" on November 13, 2018, at another daycare, All Aboard was required to rescreen her upon hire because more than 90 days had elapsed between her last employment and employment with All Aboard in August 2019. Ms. Escalona's employment file did not contain a more recent background check. On the date of the inspection, Linda McClay was serving as the acting director because Anne Marie Walsh, the director, was not available. Ms. Sawyer spoke with Ms. McClay about Ms. Escalona's 90-day gap and the lack of a timely background screening report in her file. According to Ms. Sawyer, Ms. McClay did not know Ms. Escalona's screening status. Ms. Sawyer admitted at the hearing, however, that Ms. McClay was not the person at All Aboard who would have done the employee screenings. Ms. Escalona was not at All Aboard during the November 7 inspection. Therefore, Ms. McClay called Ms. Escalona to come into the daycare while Ms. Sawyer was present. Ms. Escalona gave All Aboard permission to run her fingerprints and conduct a background check. The resulting background screening report (dated November 13, 2019), indicated Ms. Escalona was eligible for providing child care services. In dispute is whether Ms. Escalona was alone with children at All Aboard prior to being re-screened and deemed eligible on November 13, 2019. The Department asserts Ms. Escalona was unscreened and alone with children in violation of the Department's rules based on Ms. Sawyer's investigation and a statement in the inspection report purportedly made by Ms. McClay. All Aboard denies Ms. Escalona was alone with any children prior to November 13, 2019, and specifically denies the statement attributed to Ms. McClay in the inspection report. Ms. Sawyer's conclusion that Ms. Escalona was alone with children was based on her understanding of the configuration of the daycare workers who were present during lunch.4 Based on this information she concluded Ms. Escalona had been alone with children. No one at All Aboard actually confirmed Ms. Escalona had been alone with children and nothing in Ms. Sawyer's testimony definitively establishes this fact. In fact, Ms. Sawyer never saw Ms. Escalona with children. Moreover, the statement Ms. Sawyer attributed to Ms. McClay does not establish Ms. Escalona was alone with children: We hired her [Ms. Escalona] from another school that she stated she was from. Based on the clearinghouse fingerprints, she was eligible for hire. So when we did the transfer, we did not realize she had a 90-day break in child care. So we were not aware she needed the rescreen feature. This statement does not mention staffing or children; rather, it only states that All Aboard was unaware that Ms. Escalona needed to be re- screened after being hired from another daycare. Even if true, this statement implies Ms. Escalona's fingerprints had been submitted for screening and she was deemed eligible – which was ultimately the case. Furthermore, Ms. McClay credibly denies making the statement in the unsigned inspection report.5 All Aboard's position is also consistent with the email dated November 14, 2019, between All Aboard and Ms. Sawyer following the inspection report which explains, "Isabel was not alone[.] 4 It is unclear whether Ms. Sawyer had a conversation with Ms. Walsh, Ms. McClay, or someone else at All Aboard about the staffing arrangements during lunchtime. It is also unclear whether Ms. Sawyer was testifying about the teacher's lunchtime or the children's lunchtime. 5 Although the inspection report was entered into evidence, its finality seems questionable because it is unsigned, unlike the follow-up re-inspection report dated January 28, 2020. No testimony was offered by Ms. Sawyer or any other Department witness regarding how the inspection reports were kept or deemed complete. Ms. Leticia was in the classroom with her. Isabel did have a screening[,but] it was incorrect because it was a transfer and not a re-screen." All Aboard's evidence establishes Ms. Escalona was assigned and scheduled to work with two other teachers in the 2-year-old and 3-year-old room. Ms. Walsh testified Ms. Escalona was always with another teacher in the room. Ms. Walsh also established there were two teachers in the room even during the teacher's lunchtime (the children's naptime). The undersigned finds the Department has not produced sufficient credible evidence to establish Ms. Escalona was alone with children. During the November 7 inspection, Ms. Sawyer also found that All Aboard did not have the proper documentation relating to background checks for two other staff members, Kimberly Harris and Laticia Gonzalez. All Aboard had previously been found to have insufficient documentation relating to the background check and clearance for a staff member, Karen Delgado, during a July 5, 2019, inspection. All three of these staff members were ultimately deemed eligible. All Aboard has been designated as a Gold Seal Quality Care provider, which allows it to receive supplemental funding. As noted below, this designation must be terminated upon the final assessment of a Class I violation.
Recommendation It is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent guilty of two Class II violations for failing to have the Level 2 screening information for personnel, and imposing a $50.00 fine. DONE AND ENTERED this 23rd day of October, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2020. COPIES FURNISHED: George Gardner, Esquire Department of Children and Families Post Office Box 60085 Fort Myers, Florida 33906 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Ann Marie Walsh All Aboard Day Care, Inc. 1918 Santa Barbara Place Cape Coral, Florida 33990 (eServed) Javier A. Enriquez, Esquire Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary The Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
