00-001421 Department Of Children And Family Services vs. Cool School, Inc., D/B/A Antoinette Garrity Status: Closed Recommended Order on Tuesday, January 23, 2001.

Summary: Respondent`s failure to timely submit background forms on employees and failure to retain documentation of the event per form CF/FSP 5131 dictates the imposition of license discipline in the form of a monetary fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 00-1421

)

COOL SCHOOL, INC., d/b/a )

ANTOINETTE GARRITY, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis,

Administrative Law Judge for the Division of Administrative

Hearings, held a final hearing in the above-styled case on

Thursday, January 11, 2001, in Jacksonville, Duval County,

Florida.

APPEARANCES

For Petitioner: Robin Whipple-Hunter, Esquire

Department of Children and

Family Services

5920 Arlington Expressway

Jacksonville, Florida 32231-0083

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding is whether

Respondent, as a child day-care facility operator, committed

the violations of Florida Statutes and Florida Administrative

Code, as alleged in the Administrative Complaint, of failing

to submit background screening documents within ten days of

employment of seven staff employees.

PRELIMINARY STATEMENT

Respondent, a child day-care facility operator licensed

by the Department of Children and Family Services

(Department), was the subject of an Administrative Complaint

filed by the Department on March 9, 2000. The Administrative

Complaint alleged that Respondent's facility was in violation

of certain provisions of Chapter 435, Florida Statutes, and

Chapter 65-C, Florida Administrative Code, by failing to

submit employee background screening information within ten

days of employment.

Respondent timely sought an administrative proceeding to

contest the violations, pursuant to Section 120.57, Florida

Statutes, and the dispute was transferred to the Division of

Administrative Hearings.

At the final hearing, the Department presented one

witness and three exhibits. Respondent failed to appear at

the final hearing and no evidence was presented on her behalf.

Official recognition was taken of Sections 402.305(2),

402.310, 435.04, and 435.05, Florida Statutes; Rule 22.006

(5)(e), Florida Administrative Code; and Respondent's response

to the undersigned's Order of Pre-hearing Instructions.

No transcript was provided. The Department's counsel

submitted a Proposed Recommended Order which has been reviewed

and utilized in preparation of this recommended order.

Respondent did not submit a recommended order.

FINDINGS OF FACT

1. Cool School is a licensed day care facility licensed

by the Department of Children and Family Services.

2. On or about M arch 1, 2000, the Department received a

complaint, inter alia , that required background screening

documents had not been submitted on some employees.

3. Pursuant to this complaint, Susan Kipen, Family

Services Counselor, Day Care Licensure, of the Department,

investigated the matter and further conducted a routine

inspection of the facility. The investigation and inspection

took place on March 1, 2000.

4. During the March 1, 2000, investigation/inspection,

Kipen discovered that the facility was out of compliance in

the areas of Personnel and Record Keeping.

5. After review of personnel files, Kipen discovered

that background screening documents had not been submitted on

seven staff persons within ten days of their employment with

the facility, as required by the Department.

6. Further, Kipen discovered that none of the files for

the seven staff persons included form CF/FSP 5131, Background

Screening and Personnel File Requirements; a form required by

the Department to be used by day care operators and kept in

employee files. The files were incomplete and in a state of

disarray.

7. In her response to the undersigned's Order of Pre-

hearing Instructions, Respondent admitted that she had failed

to send all background screening within the ten day period for

three employees: Merry Howard, Christie Sosa, and Michelle

Williams.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Section 120.57(1), Florida Statutes.

9. The Department alleges that Respondent should be

subjected to an administrative fine of $350 for violations of

section 402.305, Florida Statutes, and Rule Chapter 65C-22,

Florida Administrative Code.

10. Section 402.305(2), Florida Statutes, stat es:

PERSONNEL. —minimum standard for child

care personnel shall include minimum

requirements as to:

(a) Good moral character based upon

screening. This screening shall be

conducted as provided in Chapter 435,

using level 2 standards for screening

set forth in that chapter.

11. With regard to Level 2 screening standards, Section

435.04(1), Florida Statutes, states:

All employees in positions designated

by law as positions of trust or

responsibility shall be required to

undergo security background investigations

as a condition of employment and continued

employment. For purposes of this

subsection, security background investi-

gations shall include, but not be limited

to, employment history checks,

fingerprinting for all purposes and

checks in this subsection, statewide

criminal and juvenile records checks

through the Florida Department of Law

Enforcement, and federal criminal records

checks through Federal Bureau of

Investigation, and may include local

criminal records checks through local

law enforcement agencies

12. Section 435.05, Florida Statutes states, in part:

Except as otherwise provided by law, the

following requirements shall apply to

covered employees:

(1)(a) Every person employed in a position

for which employment screening is required

must, within 5 working days after starting

to work, submit to the employer a complete

set of information necessary to conduct a

screening under this section.

(b) For level 1 screening, the employer

must submit the information necessary for

screening to the Florida Department of Law

Enforcement within 5 working days after

receiving it. The Florida Department of Law

Enforcement will conduct a search of its

records and will respond to the employer

agency. The employer will inform the

employee whether screening has revealed any

disqualifying information.

(c) For level 2 screening, the employer or

licensing agency must submit the

information necessary for screening to the

Florida Department of Law Enforcement

within 5 working days after receiving it.

The Florida Department of Law Enforcement

will conduct a search of its criminal and

juvenile records and will request that the

Federal Bureau of Investigation conduct a

search of its records for each employee for

whom the request is made. The Florida

Department of Law Enforcement will respond

to the employer or licensing agency, and

the employer or licensing agency will

inform the employee whether screening has

revealed disqualifying information.

(d) The person whose background is being

checked must supply any missing criminal or

other necessary information to the employer

within 30 days after the employer makes a

request for the information or be subject

to automatic disqualification.

13. Rule Section 65C-22.006(5), Florida Administrative

Code, states in part:

Personnel Records. Records shall be

maintained and kept current on all child

care personnel, as defined by s.

402.302(8), F.S.. . . These shall

include:

(a) Position and date of employment

(e) Level 2 screening information

documented on CF-FSP Form 5131, Apr. 97,

background Screening and Personnel File

Requirements.

14. Section 402.310, Florida Statutes, states in part:

(1)(a) The department or local licensing

agency may deny, suspend or revoke a

license or impose an administrative fine

not to exceed $100 per violation, per day,

for the violation of any provision of ss.

402.301-402.319 or rules adopted

thereunder. However, where the violation

could or does cause death or serious harm,

the department or local licensing agency

may impose an administrative fine, not to

exceed $500 per violation per day.

(b) In determining the appropriate

disciplinary action to be taken for a

violation an provided in paragraph (a), the

following factors shall be considered:

1. The severity of the violation,

including the probability of death or

serious harm to the health and safety of

any person will result or has resulted, the

severity of the actual or potential harm,

and the extent to which the provisions of

ss. 402.301-402.319 have been violated.

2. Actions taken by the licensee to

correct the violation or to remedy

complaints.

3. Any previous violations of the

licensee.

15. Respondent admitted to not submitting background

screening on three of seven named staff persons. The purpose

of background screening employees is to eliminate from

employment in areas of trust those persons found guilty, or

who have pled guilty, or pled nolo contendere to any offense,

as delineated in Section 435.03(2), Florida Statutes.

16. The failure to either submit or timely submit

background screening information, while not posing an

immediate threat to the health, safety, and well being of a

child in this case, posed potential harm. Respondent's

unlawful practice, if undisciplined, could result in eventual

harm to a child through Respondent's permitting of employment

of inappropriate persons in the facility.

17. Further, the failure to document the submission of

background screening information necessarily hinders the

licensing agency from being able to determine the progress, if

any, a facility has made in screening its employees. Under

the circumstances, the administrative fine of $350 is

reasonable.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, and the candor and

demeanor of the witness, it is recommended that a Final Order

be entered confirming the imposition of an administrative fine

against Respondent in the amount of $350.

DONE AND ENTERED this 23rd day of January, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of January , 2001.

COPIES FURNISHED:

Robin Whipple-Hunter, Esquire

Department of Children and

Family Services

5920 Arlington Expressway

Jacksonville, Florida 32231-0083

Antoinette Garrity

c/o Cool School, Inc.

57 College Drive

Orange Park, Florida 32065

Virginia A. Daire, 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

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.