15-000622 Department Of Children And Families vs. Natasha Richardson, D/B/A Richardson's Learning Enrichment Center Status: Closed Recommended Order on Wednesday, April 15, 2015.

Summary: Respondent, a child care facility licensed by Petitioner, committed both a Class I and a Class II violation and should be fined accordingly.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 15 - 0622

NATASHA RICHARDSON, d/b/a

RICHARDSON'S LEARNING ENRICHMENT

CENTER,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings (DOAH) , on March 31, 2015, in Lakeland,

Florida.

APPEARANCES

For Petitioner: Cheryl D. Westmorela nd, Esquire

Department of Children and Families

1055 U.S. Highway 17 North

Bartow, Florida 33830

For Respondent: Natasha Richardson , pro se

Richardson's Learning Enrichment Center

1426 West Bryant Street

Bartow, Florida 33830

STATEMENT OF THE ISSUE

The issue is whether Petitioner should impose a fine against

Respondent for committing both a Class I and a Class II v iolation

of child care licensing stan dards.

PRELIMINARY STATEMENT

On January 6, 2015, Petitioner, the Department of Children

and Families, filed an Administrative Complaint charging

Respondent, Richardson Learning Enrichment Center, Inc., with

failure to maintain appropriate staff - to - children ratios and

misrepresentation. Respondent timely disputed facts and

requested a hearing. Petitioner referred the matter to DOAH , and

it was scheduled for a final hearing.

At the commencement of the hearing, the parties agreed that

the violation set forth in paragraphs six and seven of the

Administrative Complaint w as no longer at issue, and that

Respondent agreed to the $50 fine associated with that Class II

violation. Therefore, only a single violation is at issue in

this proceeding. Petitioner present ed the testimony of Cheryl

Dishong , one of PetitionerÓs child care licensing counselors, and

Ashley Goff , the records custodian for Lakeside Occupational

Medical Center, as witnesses and offered Exhibits A through D and

Exhibit H, all of which were admitte d into evidence. Natasha

Richardson , RespondentÓs d irector, testified on behalf of

Respondent and offered Exhibits A through D, all of which were

admitted into evidence. As discussed more fully below,

RespondentÓs Exhibit A was admitted over objection fr om

Petitioner with the following limitation: the medical record

comprising Exhibit A proves that Ms. Richardson went to the

Watson Clinic on May 7, 2014, due to illness. Had she gone to

the doctor on that date to receive a certification that she was

clea red to drive children of Respondent child care facility, the

doctor would have so certified on the state - approved form or a

similar form prepared by the doctor.

A t ranscript of the final hearing was not ordered by either

party. After the hearing, Petition er and Respondent filed their

proposed findings of fact and conclusions of law on April 10,

2015, and April 8, 2015, respectively.

References to statutes are to Florida Statutes (20 14 ) unless

otherwise noted.

FINDING S OF FACT

1. Respondent currently hol ds license number C10PO0538,

issued by the Department, to operate a child care facility in

Bartow, Florida, pursuant to sections 402.301 through 402.319,

Florida Statutes, and Florida Administrative Code Chapter 65C - 22.

2. On July 29, 2014, Child Care Reg ulations Counselor

Cheryl Dishong completed a routine inspection at Respondent child

care facility. In the course of the inspection, Ms. Dishong

advised Natasha Richardson, the d irector of Respondent, that her

driverÓs certification had expired on June 11 , 2014, and that she

would have until August 29 , 2014, to provide a current

certification form. Respondent was cited for a Class III

violation for not having a current driverÓs certification f orm in

Ms. RichardsonÓs employee file.

3. When Ms. Dishong adv ised Ms. Richardson that her

driverÓs certification had expired, she appeared genuinely

surprised to learn it had expired. At no time during the

July 29, 2014, inspection did Ms. Richardson tell Ms. Dishong she

had received a health exam in May 2014. Als o, Ms. Richardson did

not provide Ms. Dishong with any health records concerning a

health exam conducted in May during the July 29 inspection.

4. Due to a heavy workload, Ms. Dishong was not able to

revisit Respondent on August 29, 2014, to ensure Ms. R ichardson

had received a new driverÓs certification, and she did not follow

up with Respondent concerning the expired certification.

5. On or about November 14, 2014, the Department received a

license renewal application packet from Respondent. Ms. Disho ng

noted that some documents , which related to RespondentÓs driver

and vehicle , were missing from the application packet.

Specifically, Ms. Dishong noted that the packet was missing the

driverÓs certification form, the driverÓs CPR and first aid

informati on, the vehicle inspection report, and the proof of

insurance for the vehicle.

6. On November 20, 2014, Ms. Dishong visited Respondent to

complete the renewal inspection. On that date, Ms. Richardson

provided Ms. Dishong with her employee file. Ms. Di shong

obtained copies of the CPR and first aid information,

Ms. RichardsonÓs driverÓs license, and the d r iverÓs certification

form, which were contained within the employee file. Ms. Dishong

also noticed some medical records in the employee file, but thes e

appeared to be addressing medical conditions of a then current

illness and of a personal nature , and not related to a

certification of Ms. RichardsonÓs fitness to transport children

in RespondentÓs vehicle. Ms. Dishong told Ms. Richardson that

all she n eeded from her was the driverÓs certification form, not

the medical records from her May 2014 exam .

7. Ms. Dishong examined a driverÓs certification form

during the November 20 , 2014, inspection that was dated July 29,

2014, and appeared to have been sign ed by both Michael Cogdill,

ARNP , at Lakeside Occupational Medical Center (ÐLakesideÑ) , and

by Ms. Richardson.

8. Ms. Dishong took the documents she obtained on

November 20, 2014, added them to RespondentÓs renewal application

packet, and submitted the pa cket to her supervisor.

Ms. DishongÓs supervisor reviewed the packet and discussed it

with her. Ms. DishongÓs supervisor specifically questioned the

driverÓs certification form and directed her to contact Lakeside

to confirm that Ms. Richardson had been seen by M r. Cogdill on

July 29, 2014. Ms. Dishong testified that when she called

Lakeside, she was told that Mr. Cogdill could not have seen

Ms. Richardson on July 29, 2014, since his employment at Lakeside

ended in March or April of 2014. Ms. Dishong wa s also informed

that Ms. Richardson had not been to Lakeside at any time between

2010 and 2014.

9. Ashley Goff, the records custodian for Lakeside ,

appeared at the hearing. She testified that she is familiar with

how records are kept at Lakeside and that she has access to these

records. She further testified that the only records kept onsite

at Lakeside are from December 2010 to the present. When

presented with the July 29, 2014, certification form, she stated

that this could not have been signed by Mr. Cogdill since he had

retired in April 2014. Ms. Goff also testified that she had

reviewed her records from December 2010 to November 20, 2014, and

that she could find no evidence that Ms. Richardson had ever been

to Lakeside during that time period.

10 . When presented with a certification form signed by

Mr. Cogdill on July 11, 2012, and by Portia Jones on November 16,

2012, Ms. Goff testified that this one could be authentic since

Mr. Cogdill was still employed by Lakeside in July 2012.

Finally, when presented with a driverÓs certification signed by

Darin Lastrapes at Lakeside and by Ms. Richardson on November 25,

2014, Ms. Goff testified that Ms. Richardson was seen at Lakeside

on November 25, 2014, for a physical and that the driverÓs

certification f orm was a true and correct copy of the form

completed by Mr. Lastrapes.

11. Ms. Dishong returned to Respondent on November 25,

2014, and confronted Ms. Richardson about the driverÓs

certification form. Ms. Richardson became upset and said Ðthis

is ridicu lous.Ñ Ms. Richardson then grabbed the keys and left

the facility. Ms. Dishong finalized the renewal inspection

report and had the form signed by the owner, Carolyn Richardson.

At that time, Respondent was cited for misrepresentation, a

Class I violatio n of licensing standards, resulting from the

altered driverÓs certification form.

12. Ms. RichardsonÓs testimony contradicted that given by

Ms. Dishong. She stated that when Ms. Dishong came for the

inspection on July 29, 2014, she knew her driverÓs cert ification

had expired, but that she told Ms. Dishong she had been to her

doctor at the Watson Clinic for her physical in May of that year.

She testified that Ms. Dishong told her the ÐcertificationÑ

(there was no driverÓs certification included in the May 2014

medical records) was on the wrong form and needed to be submitted

on the correct form.

13. Ms. Richardson then admitted she took the certification

form of another employee, and used whiteout to cover the original

date on the form and the signature of the employee.

Ms. Richardson joked about how Ms. Dishong always calls her the

ÐQueen of W h iteoutÑ since her printer is never in good working

order . She said her intent was to have her physician, Dr. Elena

Batardo, either sign over the signature of Mr . Cogdill or

complete a new form on July 29, 2014. She testified she had

called Dr. BatardoÓs office on July 29, 2014, but could not be

seen by the doctor that day. She said she then placed the

altered form in her file and forgot about it.

14. Ms . Richa rdson also testified, contrary to

Ms. DishongÓs testimony, that she did not become upset during the

renewal inspection on November 25, 2014, when confronted with the

altered certification form. Ms. Richardson conceded that she had

gone to see her doctor a t the Watson Clinic on May 7, 2014, not

to receive a new driverÓs certification, but for personal medical

issues that had arisen at the time. She agreed that Ms. Dishong

would not be able to divine, from those medical records, that

Ms. Richardson was cert ified to transport children at the child

care facility.

15. Ms. Dishong rebutted Ms. RichardsonÓs testimony that

the medical records were in the file on July 29, 2014, by

confirming she had never seen the May 7, 2014, medical records at

the first of her t hree inspections of Respondent on July 29,

2014 . This conflicted with her earlier testimony that she saw

the medical records in the employee file during the November 20,

2014, inspection. Without a transcript, the only finding the

undersigned can make is that Ms. Dishong did not see the May 7,

2014, records on July 29, 2014, but may have seen them, yet

discounted their relevance since they did not include a driverÓs

certification , at the time of the November 20, 2014, inspection.

She further testified th at at no time did Ms. Richardson tell her

the driverÓs certification form dated July 29, 2014, was not

intended to be used as her own certification form. Ms. Dishong

conceded that the July 29 altered form could have been put in the

file and forgotten abou t by Ms. Richardson.

16. If Ms. Richardson had told Ms. Dishong the altered f orm

had been placed in the file and forgotten about and that she had

not received her new driverÓs certification, Respondent would not

have been cited for the Class I violation f or misrepresentation.

Respondent would have been cited a second time for failure to

have the required driverÓs certification form in the employeeÓs

file, a lesser violation.

17. The issue of whiting out information on official forms

had been raised by Ms . Dishong with Ms. Richardson on at least

one prior occasion. In December 2013, a childÓs enrollment form

had been altered by whiting out the name of one child and filling

in the name of another child belonging to the same family.

Ms. Dishong stated that Respondent was not cited i n December 2013

for the altered form, but Ms. Richardson was warned that any

further altered forms would result in a citation for

misrepresentation.

CONCLUSIONS OF LAW

18 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes.

19. The Department has established a licensing program for

child care facilities such as Respondent, pursuant to sections

402.301 thr ough 402.319, Florida Statutes. The standards for

such facilities are set forth in section 402.305 and in Florida

Administrative Code Chapter 65C - 22. The Department has authority

to enforce these standards pursuant to section 402.310 and r ule

65C - 22.010.

20. Pursuant to section 402.310, the Department is

authorized to impose administrative fines. The Department is

required to adopt rules in order to establish a uniform system

under which the fines are imposed. This has been done through

the promulgatio n of chapter 6 5 C - 22. More specifically, the rules

governing enforcement of licensing standards are outlined in

rule 65C - 22.010. Pursuant to this rule , each violation of a

licensing standard is classified by the severity of the

violation. T he violation a t issue in this proceeding is a

Class I violation.

21. The Department is governed by rule 65C - 22.010(2)(e) in

determining what disciplinary action to take against a facility

for violations that occur during a two - year period. This rule

provides, in part : ÐFor the first and second violation of a

Class I standard, the department shall, upon applying the factors

in Section 402.310(1), F.S., issue an administrative complaint

imposing a fine of not less than $100 nor more than $500 per

day.Ñ

22. Where the De partment seeks to impose sanctions on a

licensee, the Department must prove the allegations contained in

the a dministrative c omplaint by clear and convincing evidence.

See DepÓt of B anking & Fin. v. Osborn Stern & Co., Inc. , 670 So.

2d 932 (Fla. 1996); Fe rris v. Turlington , 510 So. 2d 292 (Fla.

1987).

23. As to the allegations contained in paragraphs six and

seven of the A dministrative Complaint, Respondent did not contest

the fact it had violated section 402.305(4) and rule 65C -

22.001(4) related to staff - to - child ratios on October 21, 2013,

and June 26, 2014, and, therefore, should be fined $50 for the

Class II violation.

24. Section 402.319 provides , in pertinent part:

(1) It is a misdemeanor of the first degree,

punishable as provided in s. 775.082 o r

s. 775.083, for any person knowingly to:

(a) Fail, by false statement,

misrepresentation, impersonation, or other

fraudulent means, to disclose in any

application for voluntary or paid employment

or licensure regulated under ss.402.301 -

402.318 all infor mation required under those

sections or a material fact used in making a

determination as to such personÓs

qualifications to be child care personnel, as

defined in s. 402.302, in a child care

facility, family day care home, or other

child care program.

* * *

(f) Make any other misrepresentation, by act

or omission, regarding the licensure or

operation of a child care facility or family

day care home to a parent or guardian who has

a child placed in the facility or is

inquiring as to placing a child in the

facili ty, or to a representative of the

licensing authority, or to a representative

of a law enforcement agency, including, but

not limited to, any misrepresentation as to:

1. The number of children at the child care

facility or the family day care home;

2. Th e part of the child care facility or

family day care home designated for child

care;

3. The qualifications or credentials of child

care personnel;

4. Whether a family day care home or child

care facility complies with the screening

requirements of s. 402 .305; or

5. Whether child care personnel have the

training as required by s. 402.305.

25. The Department provided clear and convincing evidence

that Respondent violated section 402.319 by misrepresenting

information concerning the failure of Ms. Richard son,

RespondentÓs d irector, to have a valid driverÓs certificat ion

form in her employee file at the time of the initial inspection

on July 29, 2014, and at the time of the renewal inspection s on

November 20 and 25, 2014. Respondent had numerous opportunit ies

to inform the Department she had mistakenly put an altered

driverÓs certification form in the file or simply that she had

neglected to receive her new certification at the time of the

July inspection or the renewal inspection s in November 2014.

While she may have forgotten she placed the altered form into her

employee file, she never admitted that it was, in fact , altered.

She continued to maintain that she had undergone a physical exam

in May 2014 for the purpose of receiving a driverÓs certification

when the evidence proves she went to the doctor in May 2014 when

she was ill and never received (nor even requested ) a

certification at that time, or at any other time between July 29

and November 25, 2014. Further, it would have been impossible

for her to have a driverÓs certification form signed by

Mr. Cogdill in July 2014 since he had retired from Lakeside in

April of that year.

26. Ms. Dishong gave Ms. Richardson every opportunity to

admit the form had been altered, even during the renewal

inspection on November 25, 2014, yet Ms. Richardson held fast in

her position that she had received the driverÓs certification

physical exam and received the certification. W hether she

intended to misrepresent her obtaining a driverÓs certification

or was merely ne gligent in following through with the

certification form do es not matter under t he statute governing

misrepresentation, section 402.319, which makes no mention of

intent as a requirement for this Class I violation, merely that

the act or omission itself co nstitutes misrepresentation. Here,

the form was altered to show Ms. Richardson had the required

certification to provide transportation on behalf of Respondent.

The altered form was made available to the Department by being in

Ms. RichardsonÓs employee f ile, and she never argued prior to the

hearing that she had made a mistake by leaving the form in her

file.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Families enter a f inal o rder finding that Respondent violated a

Class I day care licensing standard and fining Respondent $300

for the violation of the misrepresentation standard, and finding

that Respondent violated a Class II day care licensing standard

and fining Respondent $50 for the violation of the staff - to -

children ratio standard.

DONE AND ENTERED this 15th day of April , 2015 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 15th day of April , 2015 .

COPIES FURN ISHED:

Natasha Richardson

Richardson's Learning Enrichment Center

1426 West Bryant Street

Bartow, Florida 33830

Paul Sexton, Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

( eServed)

Cheryl D. Westmoreland, Esquire

Department of Children and Families

1055 U.S. Highway 17 North

Bartow, Florida 33830

(eServed)

Mike Carroll, Secretary

Department of Children and Families

Building 1 , Room 20 2

1317 Winewood Boulevard

Tallahasse e, Florida 32399 - 0700

(eServed)

Rebecca Kapusta, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the righ t 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.