02-001435 Department Of Children And Family Services vs. Dorothy Dempsey Family Day Care Home Status: Closed Recommended Order on Wednesday, August 7, 2002.

Summary: Respondent`s day care license could be terminated due to her permitting disqualified ex-husband to be in home while vulnerable children also were present. Her behavior demonstrates lack of judgment. Issue of legal residency was non-issue.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1435

)

DOROTHY DEMPSEY FAMILY DAY CARE )

HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed - fact

hearing June 20, 2002, in Ocala, Florida, before Ella Jane P.

Davis, a duly - assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For P etitioner: Ralph J. McMurphy, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785 - 8158

For Respondent: Dorothy Dempsey

1633 Northwest 14th Street

Ocala, Florida 34475

STA TEMENT OF THE ISSUE

Whether the Department of Children and Family Services (DCF)

may revoke Respondent's Family Day Care Home License for cause.

PRELIMINARY STATEMENT

By a March 14, 2002, letter, DCF notified Respondent that it

was immediately revoking her Family Day Care Home License for

"known incidents of occurrence" as authorized in Section 402.310,

Florida Statutes, and her failure to comply with Sections

402.301 - 402.319 et. seq. , Florida Statutes . Respondent timely

requested a disputed - fact heari ng and DCF referred the case to

the Division of Administrative Hearings on or about April 11,

2002.

At the disputed - fact hearing convened on June 20, 2002,

DCF had five composite exhibits admitted in evidence. DCF also

presented the oral testimony of Steve Davis and Cathy White.

Petitioner testified on her own behalf.

No transcript of the proceedings was provided. Both parties

submitted Proposed Recommended Orders, which have been considered

in preparation of this Recommended Order.

FINDINGS OF FACT S

1. Since approximately September 3, 2001, Respondent has

held a license from DCF to operate a Family Day Care Home for up

to ten children in her residence Mondays through Fridays.

2. DCF seeks to revoke her current license due to her

allowing her ex - husband, Eddie Morand, to have access to her home

and the children entrusted to her care there.

3. Mr. Morand's name was submitted for background clearance

as a resident in the home in connection with a different

application to authorize Respondent to p rovide 24 - hour per day

care, which she submitted to DCF in 1997. DCF notified

Mr. Morand by a notice dated January 16, 1998, that he was

ineligible to have contact with children in a Family Day Care

Home due to two prior felony convictions for crimes add ressed in

Section 435.04, Florida Statutes: aggravated battery and

possession of crack cocaine. Respondent was sent a copy of this

notice.

4. On April 13, 1999, Mr. Morand pled guilty to two felony

counts for the sale and possession of cocaine and was sentenced

to 23.8 months of incarceration with the Department of

Corrections. These crimes are also disqualifying under Section

435.04, Florida Statutes. Respondent was still married to

Mr. Morand in November 1998, when these charges arose.

5. Someti me in 1999, Respondent divorced Mr. Morand.

6. Sometime thereafter, Respondent changed her residence

and secured a permanent injunction against Mr. Morand for

protection against domestic violence. After about a year,

Respondent believed that Mr. Morand had changed, and she lifted

the injunction.

7. DCF's Abuse Hotline received a call alleging that on

March 9, 2002, Mr. Morand had sexually molested a female day - care

registrant in Respondent's Family Day Care Home. March 9, 2002,

was a Saturday, a day not authorized for day - care by Respondent's

current license.

8. The child had reported to her foster mother that she had

been fondled while at Respondent's Family Day Care Home. The

Ocala Police Department was notified. After interviewing the

child, the police went to Respondent's home. Mr. Morand was

present, and he was arrested.

9. Respondent told police officers that while she was

outside watching the other children in care, Mr. Morand was alone

in the house with the accusing child for about ten minutes,

getting something to eat. Respondent confirmed this at the

disputed - fact hearing, but also maintained that she could see

inside the house from the porch and observed nothing amiss. She

believes the child's accusations were untruthful.

10. Chi ld Protective Investigator Steve Davis was assigned

to investigate the abuse report received by DCF. On the morning

of March 10, 2002, Mr. Davis happened to be in court in

connection with another case. Mr. Morand also was brought up for

first appearance at that time and was allowed to bond out. In

court, Mr. Morand gave his address of residence as that of

Respondent's Family Day Care Home.

11. At about 3:15 p.m., the afternoon of March 10, 2002,

Mr. Davis went to Respondent's Family Day Care Home to

in vestigate the abuse report. When he arrived, he saw Mr. Morand

about to exit the front door of the home. Mr. Morand

acknowledged that it was Respondent's home and held the door open

for Mr. Davis to enter. Mr. Davis entered the home where he

found Respo ndent caring for other children registered in her

Family Day Care Home. This was Sunday, also a day not authorized

for day - care by Respondent's current license. Respondent

acknowledged that the man Mr. Davis had met at the door was

Mr. Morand. Responde nt told Mr. Davis that Mr. Morand got his

mail at her home and stayed there occasionally. At the hearing,

Respondent testified that she had no control over where

Mr. Morand had his mail sent and that "he was not a man you say,

'no,' to."

12. Respondent 's DCF Day Care Licensing Counselor was Cathy

White. On March 16, 2002, Ms. White, accompanied by a law

enforcement officer, went to Respondent's home to deliver the

Notice of Revocation of Respondent's license. Mr. Morand was the

only person at the home when Ms. White and the officer arrived.

Mr. Morand told the officer and Ms. White that Respondent had

taken the children to the park. He first said that Respondent

had told him she was going to the park and then said she left him

a note to that effect.

13. Later on March 16, 2002, Ms. White returned to the

residence where she found Respondent and several day - care

children. This was also a Saturday, not covered by Respondent's

license. Ms. White explained why DCF was moving to close the day

care hom e and that Ms. White could not leave until all the

children had been picked up by their parents.

14. On March 28, 2002, Respondent executed another sworn

petition for protection from domestic violence, seeking an

injunction against Mr. Morand. In this , her second petition,

Respondent stated that Mr. Morand had threatened her and was very

violent when he was drinking.

15. On April 4, 2002, Mr. Morand was arrested for sexual

battery, false imprisonment, battery on a person over the age of

65, and vio lation of a domestic violence injunction. The charges

stemmed from an attack on Respondent.

16. Respondent's testimony at the disputed - fact hearing and

documentary evidence leaves the impression that Mr. Morand had

overpowered, beaten, and raped Respo ndent on or about April 4,

2002.

17. After the incident of April 4, 2002, Respondent moved

to a new address in order to get away from Mr. Morand.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties and subjec t matter of this cause,

pursuant to Sections 402.310(2) and 120.57, Florida Statutes.

19. Because this case involves the revocation of an

existing license and not renewal of a license expiring by

operation of the statute, DCF has the burden of demonstra ting by

clear and convincing evidence grounds for revocation under

Section 402.310, Florida Statutes. Department of Banking and

Finance v. Osborne Stern and Co. , 670. So. 2d 932, 935 (Fla.

1996).

20. Under Section 402.313(3), Florida Statutes, child care

personnel subject to background screening include any person over

the age of 12 who is a member of the family of an operator or

resides in the operator's home.

21. The credible evidence in this case establishes that

Respondent permitted Mr. Morand to s tay in her home off and on,

and that he was there on March 9, and 10, 2002, while children

were in her care, and that he was again there alone on March 16,

2002.

22. This case presents the typically tragic situation of a

woman overpowered by love, wishf ul thinking, intimidation, or

sheer force into permitting access to her day - care charges by a

man she knew to be banned from such contact. The fact that

Respondent divorced Mr. Morand, got the original injunction, and

moved her place of residence, all dem onstrate her initial resolve

to avoid Mr. Morand and protect any children entrusted to her

day - care. However, when she got that injunction lifted because

she "thought he [Mr. Morand] had changed," she also demonstrated

that DCF cannot rely on her good int entions or her judgment.

Whether Mr. Morand had another address where he also stayed, is a

de minimus legalistic consideration. Respondent permitted Mr.

Morand to use her home at will as if he were an actual resident

there during hours she had day - care c hildren present, and that is

the evil the law is designed to prevent.

23. There have been instances in which banned family

members have been permitted to remain in the home during evening

hours and on weekends when day - care children have not been

present, but that does not mitigate or alter the situation here.

Here, Respondent had day - care registrants in her home during

hours and/or days not permitted by her license when Mr. Morand

was simultaneously present. Therefore, DCF also cannot rely on

Respondent adhering to the restrictions of her license.

24. The stated legislative intent in Section 402.301,

Florida Statutes, is to protect the health, safety, and well -

being of children. Placing a narrow construction in the instant

case on the term "residing wi th the operator," would be raising

form over substance. Respondent's duty to protect children in

her care was abrogated by her allowing Mr. Morand free access to

her home as if he resided there at a time vulnerable children

were present, and had the effec t of failing to dismiss an

employee whom Respondent knew to be disqualified by reason of his

criminal record. Refusal to dismiss a disqualified employee

requires DCF's revocation of a day - care license, pursuant to

Section 402.3055(2)(g), Florida Statutes.

25. It is concluded that DCF's March 16, 2002, removal of

children from Respondent's home was legally justified in this

case. Mr. Morand's April 4, 2002, attack on Respondent

underscores DCF's wisdom in immediately removing the children

from Respondent' s home. It is further concluded that revocation

of Respondent's license is justified for her past failure to

protect the children and the judgment considerations set out in

Conclusions of Law 22 and 23.

26. A license is not transferable to a new home, an d under

Section 402.305, Florida Statutes, each day care facility or home

must meet certain physical, sanitary, and safety standards in

order to be licensed. In order for Respondent's new home to be

licensed, she must now apply for licensure of that home, and the

home must undergo the physical, sanitary, and safety inspections

required by law. However, Respondent's move to a new residence

after Mr. Morand's April 4, 2002, attack on her does not render

moot the issue of whether DCF was justified in its imm ediate

revocation of the existing license. Sub - sections 402.3055(1)(a)

and (b), Florida Statutes, concern applicants for licensure or

employment who have had a day care license revoked in the past

and provide "real world" significance to the legitimacy, v el non,

of the revocation, in the event Respondent seeks to be re -

licensed in her new residence.

27. In making an assessment of Respondent's new license

application, DCF may consider the physical attributes of the new

residence, the circumstances of this revocation, and any changed

circumstances, including but not limited to Mr. Morand's

predicted length of incarceration and the current permanent

injunction against Mr. Morand.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that the Department of Children and Family

Services enter a final order ratifying the past immediate

revocation of the Respondent's current license for a Family Day

Care Home.

DONE AND ENTERED this 7th day of August, 2002, in

Tallahassee , Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Fil ing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of August, 2002.

COPIES FURNISHED :

Ralph J. McMurphy, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic High way

Wildwood, Florida 34785 - 8158

Dorothy Dempsey

1633 Northwest 14th Street

Ocala, Florida 34475

Paul F. Flounlacker, Jr., Agency Clerk

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions w ithin 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.