03-000931 Tamieka Petty vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, August 29, 2003.

Summary: Petitioner failed to prove that she was qualified to obtain a registration to operate a family day care home.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAMIEKA PETTY, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0931

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted on July 11, 2003, in Orlando,

Florida, before William R. Pfeiffer, a duly - designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Jeremy K. Markman, Esquire

800 North Ferncreek Avenue

Orlando, Florida 32803

For Respondent: Richard Cato, Esquire

Department of Children and

Family Services

400 West Robinso n Street, Suite S - 1106

Orlando, Florida 32801 - 1782

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent should approve

Petitioner's registration to operate a family day care home.

PRELIMINARY STATEMENT

Petitioner, Tamieka Petty, submitted an application with

Respondent, the Department of Children and Family Services, to

operate a registered family day care. As required by day care

regulations, Respondent conducted a background screening on

Petitioner and her husban d, who resided in the family home.

Petitioner's screening revealed that a child was removed from

Petitioner's care in October 2000, following an allegation of

abuse or neglect. Furthermore, the screening of Petitioner's

husband revealed that he was arres ted for allegedly committing a

lewd act upon a minor girl in October 2000.

Respondent notified Petitioner that her application to

operate a day care was denied. Petitioner timely requested an

administrative hearing to challenge the denial.

At final hear ing, Petitioner testified, presented three

witnesses, and introduced two exhibits which were admitted into

evidence. Respondent presented the testimony of four witnesses.

The parties jointly introduced one exhibit which was admitted.

Neither party order ed a transcript of the hearing. Each of

the parties timely filed its respective Proposed Recommended

Orders, which have been duly considered.

All citations are to Florida Statutes (2002) unless

otherwise indicated.

FINDINGS OF FACT

The Parties

1. Petit ioner 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.

2. Respondent is the state agency responsible for

regulating child care facilities pursuant to Chapter 402.

The Application

3. 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

backgro und screening of the individuals living within the

household, including Petitioner and A.P.

4. 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 r eport to the abuse

hotline and the subsequent investigation by Donald Griffin, a

protective services investigator employed by Respondent.

5. 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

suitabl e for prosecution and filed a "No Information Notice."

6. 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 applicat ion to operate a family day

care due to safety concerns for children

that may be placed under your care for the

following reasons:

a. Background screening revealed that

a child was removed from your care following

an allegation of abuse or neglect.

b. 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.

7. 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, Peti tioner claims that she requested that

Respondent remove the child and Respondent complied.

8. Respondent's investigator, Mr. Griffin, testified

otherwise. Investigator Griffin stated that he personally

investigated Petitioner following a report to Florid a'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 residen ce.

Mr. Griffin's testimony was more credible. No evidence was

offered to support Petitioner's assertion.

9. With respect to the screening results of A.P.,

Respondent presented compelling evidence that A.P. lacks the

requisite good moral character. Fir st, 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.

10. 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 n ear 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.

11. 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.

12. 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.

13. In addition to the physical evidence linking A.P. to

the hotel, A.B. positively identifie d 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.

14. Although A.P. was subsequently arrested, the State

Attorney's Office later declined to prosecute and filed a "No

Information Notice."

15. 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 circumstan ces of his arrest.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings pursuant to Section 120.57(1).

17. Generally, the party asserting the affirmative of an

i ssue has the burden of presenting evidence as to that issue.

See Florida Department of Transportation v. J.W.C. Company ,

396 So. 2d 778 (Fla. 1st DCA 1981). Pursuant to Subsection

120.57(1)(j), "Findings of fact shall be based upon a

preponderance of th e evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute, and shall be based exclusively on the evidence of

record and on matters officially recognized."

18. While Petitioner bears the burden of pres enting

evidence supporting her application for registration to operate

a family day care within her home and Respondent has the burden

of presenting evidence demonstrating that she is unfit,

Petitioner bears the burden of ultimate persuasion at each and

ev ery step of the licensure proceedings, regardless of which

party bears the burden of presenting certain evidence.

Department of Banking and Finance v. Osborne Stern and Company ,

670 So. 2d 932 (Fla. 1996).

19. Section 402.305 sets forth the licensing s tandards for

child care facilities. Subsection 402.305(2)(a) states that

minimum standards for "child care personnel" shall include

minimum requirements as to "good moral character based upon

screening" that is conducted as provided in Chapter 435, using

the "level 2 standards for screening set forth." Section

402.302(3) defines "child care personnel" as all owners,

operators, employees and volunteers working in a child care

facility, including "any member, over the age of 12 years, of a

child care facili ty operator's family, or person, over the age

of 12 years, residing with a child care facility operator if the

child care facility is located in or adjacent to the home of the

operator."

20. The Level 2 screening standards set forth in

Section 435.04 are as follows:

(1) 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 the purposes of this

subsecti on, security background

investigations shall include, but not be

limited to, fingerprinting for all purposes

and checks in this subsection, statewide

criminal and juvenile records checks through

the Florida Department of Law Enforcement,

and federal crimin al records checks through

the Federal Bureau of Investigation, and may

include local criminal records checks

through local law enforcement agencies.

(2) The security background investigations

under this section must ensure that no

persons subject to the provisions of this

section have been found guilty of,

regardless of adjudication, or entered a

plea of nolo contendere or guilty to, any

offense prohibited under any of the

following provisions of the Florida Statutes

or under any similar statute of anoth er

jurisdiction: . . .

21. Petitioner failed to prove that her husband, who

resides within the proposed day care home and will inevitably be

exposed to the children, possesses the requisite good moral

character. First, A.P. declined to testify and prese nt direct

evidence of his alleged good moral character. While A.P.'s

pastor indicated that A.P. has a reputation for being an

upstanding individual, Pastor Smith spends very little time with

A.P. and his testimony provides little value.

22. Second, nei ther A.P. nor Petitioner provided any

reliable evidence refuting Respondent's persuasive evidence

supporting A.B.'s allegation. The mere fact that the prosecutor

declined to prosecute the case does not demonstrate that A.P.

possesses good moral character. Clearly, when determining good

moral character, it is not necessary for a person to be charged

with or convicted of a crime in order to be denied licensure .

Katz v. Education Practices Commission , 771 So. 2d 1248 ( Fla.

4th DCA 2001).

23. Pursuant t o Section 39.202, Respondent is privy to all

reports made to the central abuse hotline, and all records

generated as a result of such reports, when reviewing licensure

applications for child care facilities and family day care

homes. Respondent proved tha t a young child was removed from

Petitioner's home following an allegation of child abuse and

subsequent investigation. Respondent proved that the protective

investigator personally interviewed Petitioner and the child and

witnessed visible injuries on th e child while she was in

Petitioner's care.

24. Although it is uncertain whether Petitioner personally

caused the injuries, the competent evidence demonstrates that

Petitioner's home is not a safe or appropriate environment for

child day care services.

25. In sum, Petitioner failed to demonstrate that her home

is a safe and appropriate site for a registered family day care.

To the contrary, Respondent proved by a preponderance of the

evidence its determination to deny a registration to Petitioner.

R ECOMMENDATION

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 Aug ust, 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 - 967 5 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 W est 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 Bo ulevard

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 Serv ices

Building 1, Room 202

1317 Winewood Boulevard

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 th is Recommended Order should be filed with the agency that

will issue the Final Order in this case.