07-000436 Department Of Children And Family Services vs. Pearl Wright Status: Closed Recommended Order on Monday, May 14, 2007.

Summary: Petitioner demonstrated that Respondent violated Rule 65C-20.009 when she left 2 children in her care under the supervision of her 13-year-old granddaughter for a 15-minute period. No injuries occurred. Recommend $100 fine and probation.

Case No. 07-0436

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN ) ) ) ) ) ) ) ) ) ) )

AND FAMILY SERVICES,

RECOMMENDED ORDER

Petitioner,

vs.

PEARL WRIGHT,

Respondent.

On April 19, 2007, a hearing was held in Palatka, Florida,

pursuant to the authority set forth in Sections 120.569 and

120.57(1), Florida Statutes. The case was considered by Lisa

Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Lucy Goddard-Teel, Esquire

Department of Children

and Family Services

Post Office Box 390, Mail Sort 3

Gainesville, Florida 32602-0390

For Respondent: Pearl Wright, pro se

1826 Locust Avenue

Palatka, Florida 32177

STATEMENT OF THE ISSUE

Whether the Respondent committed the acts charged in the

Department of Children and Family Services' (Department's) letter

of November 21, 2006, and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On November 21, 2006, the Department notified Respondent of

its intention to revoke her annual license to operate a family

day care issued for April 26, 2006, through April 26, 2007. The

Department indicated that the basis for its action was a report

that on September 22, 2006, Respondent left the children in her

care alone with no substitute or adult present; and that no

enrollment information was on file for one of the children in her

home. The Department alleged that this conduct violated Florida

Administrative Code Rules 65C-20.009 and 65C-20.001(4).

On December 8, 2006, Respondent filed a Petition for Formal

Hearing disputing some of the allegations in the Department's

November 21, 2006, letter and requested a hearing pursuant to

Section 120.57(1), Florida Statutes. On January 23, 2007, the

case was filed with the Division of Administrative Hearings and

assigned to the undersigned. The matter was noticed for hearing

April 19, 2007, and proceeded to hearing as scheduled.

A transcript of the hearing was prepared but not

transcribed. Petitioner presented the testimony of 3 witnesses

and Petitioner's Exhibits numbered 1 and 2 were admitted into

evidence. Respondent testified on her own behalf. At hearing,

the parties were advised that proposed recommended orders would

be due on or before April 30, 2007. Respondent timely filed a

letter on that day, accompanied by what is described as a

character reference. On May 1, 2007, the Department filed a

Motion to Accept Department's Untimely Proposed Recommended

Order, asserting that the Proposed Recommended Order was not

filed previously due to an oversight. In order to ameliorate any

perceived prejudice to the Respondent from granting this Motion,

the Department asserted that it is willing to agree that the

hearsay document submitted with the Respondent's letter be

considered as if it were submitted at hearing, to the extent that

it supplements any testimony at the hearing. Accordingly, the

Department's Proposed Recommended Order is accepted as timely

filed and the letter attached to Petitioner's letter of April 30,

2007, is accepted as Respondent's Exhibit 1.

FINDINGS OF FACT

1. Pearl Wright holds Family Day Care Home License

No. F03PU0037, issued by the Department on April 26, 2006, for

the year ending April 26, 2007. Ms. Wright has worked with

children for approximately 27 years.

2. On September 22, 2006, Ms. Wright had five children in

her care. Three of those children are her grandchildren, who

were 9, 11, and 13 years old. In addition to her grandchildren,

Ms. Wright was caring for a 22-month-old named Talia and a 14-

year-old named Jahlisa.

3. Jahlisa is deaf and has some behavioral problems. She

previously attended the Florida School for the Deaf and Blind.

However, when Jahlisa's mother, E.M. was notified that the school

could not accommodate her any longer, Ms. M. was forced to place

Jahlisa in public school and find child care for her after

school. According to Ms. M., Ms. Wright opened her doors when no

one else would.

4. On the day in question, Ms. Wright's vehicle was at the

dealership for repairs and had to be picked up before the shop

closed. Ms. Wright arranged for the dealership to send a

courtesy van to her home so that she could take all five children

with her to pick up the car at the end of the day and return home

with them.

5. When the van arrived at Ms. Wright's home, Jahlisa

refused to board it. Her mother was expected any minute and

Jahlisa wanted to wait for her.

6. When Jahlisa refused to get in the van, Ms. Wright

instructed her grandsons to go to their rooms and stay there.

She instructed her 13-year-old granddaughter Quashonda to watch

Jahlisa and Talia until their parents came, which she anticipated

to be no more than a few minutes. Ms. Wright took the courtesy

van to the dealership, picked up her car and came straight back.

She was gone approximately fifteen minutes.

7. During her absence, Ms. M. came to pick up Jahlisa. She

saw her standing approximately one half block from the

Ms. Wright's house, waiting for Ms. M. to pick her up. Jahlisa

was not harmed.

8. Ms. M. was not upset with Ms. Wright and "understood

that she had to do what she did." She appreciated the care that

Ms. Wright gave her daughter, but did not want Jahlisa to be

alone. She was more upset that her daughter was no longer

attending the Florida School for the Deaf and Blind, and reported

the events in this case because she wanted the school to be

investigated.

9. T.P. is Talia's mother. Talia was 22 months old in

September 2006. When Ms. P. came to pick her daughter up on

September 22, Ms. Wright was in the front yard with Jahlisa,

Jahlisa's mother and a policeman. Ms. P. picked up her child and

left. She is aware of what occurred September 22, but remains

steadfast in her support of Ms. Wright, who she refers to as

"Miss Pearl." She does not feel Ms. Wright would ever put her

child in danger, and considers Ms. Wright to be a blessing.

Talia considers Miss Pearl to be like grandmother to her and has

thrived under her care.

10. Ms. Wright accepts responsibility for her actions and

states that it will never happen again. No evidence was

presented at hearing to indicate that there have been any

subsequent events with respect to appropriate supervision. The

undersigned is persuaded that her remorse is genuine.

11. Ms. Wright has worked with local teachers in the public

school system trying to make sure that the children in her care

keep their grades up. Her testimony in that regard is consistent

with the letter supplied by Gladys Wade, a kindergarten teacher

who indicated that Ms. Wright has been the day care provider for

children in her classes for over five years. According to

Ms. Wade, Ms. Wright calls to check on her students regularly,

gives them "pep-talks" when needed and makes sure their homework

is completed. Ms. Wright works with the children on skills

identified by Ms. Wade to reinforce those skills in the daycare

setting.

12. The Department presented testimony indicating that

there had been past disciplinary actions for which Ms. Wright

paid fines. However, no prior final orders were submitted with

respect to any prior disciplinary history.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

14. Section 402.310, Florida Statutes, provides in

pertinent part:

(1)(a) The department or local licensing

agency may administer any of the following

disciplinary sanctions for a violation of any

provision of ss. 402.301-402.319, or the

rules adopted thereunder:

1. Impose an administrative fine not to

exceed $100 per violation, per day. However,

if 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 in addition to or in lieu of any other

disciplinary action imposed under this

section.

2. Convert a license or registration to

probation status and require the licensee or

registrant to comply with the terms of

probation. A probation-status license or

registration may not be issued for a period

that exceeds 6 months and the probation-

status license or registration may not be

renewed. A probation-status license or

registration may be suspended or revoked if

periodic inspection by the department or

local licensing agency finds that the

probation-status licensee or registrant is

not in compliance with the terms of probation

or that the probation-status licensee or

registrant is not making sufficient progress

toward compliance with ss. 402.301 - 402.319.

3. Deny, suspend, or revoke a license or

registration.

(b) In determining the appropriate

disciplinary action to be taken for a

violation as provided in paragraph (a), the

following acts shall be considered:

1. The severity of the violation, including

the probability that death or serious harm to

the health or safety of any person will

result or has resulted, the severity of the

action 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 or

registrant to correct the violation or to

remedy complaints.

3. Any previous violations of the licensee

or registrant.

(c) The department shall adopt rules to:

1. Establish the grounds under which the

department may deny, suspend, or revoke a

license or registration or place a licensee

or registrant on probation status for

violations of ss. 402.301-402.319.

2. Establish a uniform system of procedures

to impose disciplinary sanctions for

violations of ss. 402.301-402.319. The

uniform system of procedures must provide for

the consistent application of disciplinary

actions across districts and a progressively

increasing level of penalties from

predisciplinary actions, such as efforts to

assist licensees or registrants to correct

the statutory or regulatory violations, and

to severe disciplinary sanctions for actions

that jeopardize the health and safety of

children, such as for the deliberate misuse

of medications. The department shall

implement this subparagraph on January 1,

2007, and the implementation is not

contingent upon a specific appropriation.

15. Because Section 402.310, Florida Statutes, is a penal

statute, Petitioner must prove the allegations against Respondent

by clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). The "clear and

convincing standard" is well settled in the law:

[T]he evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such a

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re: Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

16. The Department has adopted rules to address the

staffing requirements for family day care licensees. Florida

Administrative Code Rule 65C-20.009, as it existed at the time of

this incident, 1/ provided in pertinent part:

65C-20.009 Staffing Requirements.

(1) Personnel.

(a) The family day care license shall be

issued in the name of the operator who must

be at least 18 years of age and a resident of

the family home. The operator of a family

day care home may not work out of the home

during the hours when the family day care

home is operating. In the event of rental or

leased property the operator shall be the

individual who occupies the residence.

* * *

(4) Supervision.

(a) At all times, which includes when the

children are sleeping, the operator shall

remain responsible for the supervision of the

children in care and capable of responding to

the emergencies and needs of children.

During the daytime hours of operation,

children shall have adult supervision which

means watching and directing children's

activities, both indoors and outdoors, and

responding to each child's needs.

17. The Department has proven by clear and convincing

evidence that Respondent violated Florida Administrative Code

65C-20.009(4)(a) when she left the children in her day care

unattended by an adult on September 22, 2006, while she went to

pick up her vehicle.

18. The Department's letter of November 21, 2006, also

charged Respondent with violating Florida Administrative Code

Rule 65C-20.011(4), which requires the operator to maintain

enrollment information for each child in her care. This charge

has not been demonstrated by clear and convincing evidence, and

the Department has not recommended finding such a violation in

its Proposed Recommended Order.

19. Section 402.310(1)(c)2., Florida Statutes, directs the

Department to establish a uniform system of procedures to impose

disciplinary sanctions, which must provide for the consistent

application for disciplinary actions. No such rule has been

cited by the Department in this case.

20. In the absence of such a rule, the undersigned is

guided by the factors outlined in Section 402.310(1)(b), i.e. ,

the severity of the violation, including the probability that

death or serious harm has or could result; actions taken by the

licensee to correct the violation; and any previous violations of

the licensee or registrant.

21. In this case, no child was injured as a result of

Ms. Wright's conduct. There was no evidence that her actions

created a probability, rather than a possibility that death or

serious harm would occur. However, leaving the children alone

even for the short time identified in this case represented a

serious lapse in judgment.

22. With respect to actions taken by the licensee to

correct the violation, the evidence indicated that this was a

one-time occurrence, and not likely to be repeated. Ms. Wright

was forthright and took full responsibility for her actions.

Moreover, the evidence indicates that she is a caring provider

who has sought to not only address the physical needs of the

children under her care, but the educational needs as well, going

the extra mile to make sure the children she cares for progress

in school.

23. The Department presented testimony that Ms. Wright had

been the subject of minor infractions in the past and had paid

fines for those infractions. No case numbers were identified and

no final orders of discipline were entered into evidence.

Reference to unidentified past infractions does not provide

sufficient evidence of previous violations to be useful in this

case. Moreover, the Department indicated that its recommendation

would be the same with or without any past violations.

24. As stated above, Section 402.310(1)(c)2. required the

Department to establish a uniform system of guidelines for

imposition of disciplinary sanctions. Those guidelines would not

have been in place at the time of the infraction here and

apparently are not in place now. It is clear, however, that the

Legislature intends for licensees and the public to have some

notice as to how sanctions will be imposed and to have some

uniformity in the applications of those sanctions.

25. While the Department stated at hearing that it intended

to seek revocation in similar cases, it did not cite to any other

case similar to Respondent's where revocation had been imposed.

After consideration of the evidence presented and the factors

identified in Section 402.310, Florida Statutes, the decision

most similar to the present case is Scurry v. Department of

Children and Family Services , DOAH Case No. 04-0713 (Final Order

issued January 12, 2005). In Scurry , the operator of a family

day care left the children in her care with her 15-year-old

daughter. The length of time the children were left with the 15-

year-old is not stated. The administrative law judge recommended

setting aside the revocation imposed by the Department, imposing

a $250 fine and issuing a six-month provisional license. 2/ The

Department adopted the recommendation. Given the similarities of

the violations committed, a similar penalty is appropriate here.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered which finds that Respondent

violated the provisions of Florida Administrative Code Rule 65C-

20.009(4)(a), for which violation Respondent is fined $100 and

her license is placed on probation status.

DONE AND ENTERED this 14th day of May, 2007, in Tallahassee,

Leon County, Florida.

S

LISA SHEARER NELSON

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 14th day of May, 2007.

ENDNOTES

1/ Rule 65C-20.009 was amended effective April 12, 2007. None of

the amendments to the Rule are relevant to the issues in this

proceeding.

2/ Section 402.310(1)(a)2. has changed the terminology from a

provisional license to a probation-status license.

COPIES FURNISHED :

Lucy Goddard-Teel, Esquire

Department of Children

and Family Services

Post Office Box 390, Mail Sort 3

Gainesville, Florida 32602-0390

Pearl Wright

1826 Locust Avenue

Palatka, Florida 32177

Gregory Venz, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Robert A. Butterworth, Secretary

Department of Children

and Family Services

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John J. Copeland, General Counsel

Department of Children

and Family Services

Building 2, Room 204

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

this recommended order should be filed with the agency that will

issue the final order in this case.