07-005038 Department Of Children And Family Services vs. Thorpe Lindsey Status: Closed Recommended Order on Thursday, April 10, 2008.

Summary: Petitioner established that Respondent`s registration to operate a family day care home should be revoked for repeated violations regarding staff-to-child ratios and use of unscreened, untrained caregivers.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 07-5038

)

THORPE LINDSEY, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 19, 2008, a formal administrative hearing in

this case was held in Orlando, Florida, before Lawrence P.

Stevenson, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: T. Shane DeBoard, Esquire

Department of Children and

Family Services

400 West Robinson Street, Suite S-1114

Orlando, Florida 32801

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue in the case is whether the registration of Thorpe

Lindsay's family day care home should be revoked.

PRELIMINARY STATEMENT

By certified letter dated September 24, 2007, the

Department of Children and Family Services (the "Department")

notified Respondent, Thorpe Lindsey, that the registration for

his family day care home was being revoked. By letter dated

October 11, 2007, Respondent disputed the allegations of the

September 24 revocation letter and requested a formal hearing.

On November 1, 2007, the Department forwarded the request to the

Division of Administrative Hearings for the scheduling and

conduct of a formal hearing.

On November 29, 2007, the Department filed a "Motion to

Amend Administrative Complaint" 1 that sought to bring forward

additional evidence supporting the proposed revocation of

Respondent's registration. Without objection, the motion was

granted by Order dated December 17, 2007, and the hearing

proceeded based on the Department's Amended Administrative

Complaint.

On December 28, 2007, Respondent filed a letter requesting

a continuance of the hearing then scheduled for January 4, 2008,

on the ground that his employer would not let him take that day

off. By Order dated January 2, 2008, the request was granted.

The Order Granting Continuance required the parties to convene

within ten days and arrive at mutually-agreeable dates for the

rescheduled hearing, then to advise the undersigned of those

dates.

On January 15, 2008, the Department filed a notice of

availability, setting forth the dates on which the Department

was available for the hearing. The notice stated the Department

had made several attempts to contact Respondent, without

success. The hearing was rescheduled for February 19, 2008.

Respondent filed no objection to the hearing date, nor did he

contact the undersigned's office by telephone to register any

objection or seek a different hearing date.

Respondent did not appear at the hearing. The Department

presented the testimony of Patricia Richardson, a child care

licensing specialist for the Department, and of Eric Allen, an

inspector for the Early Learning Coalition. The Department's

Exhibits 1 through 8 were admitted into evidence.

After the hearing, an Order to Show Cause was issued to

Respondent, directing him to show cause as to why the record in

this case should not be closed and a recommended order entered

based on the current record. Neither Respondent nor any person

purporting to represent Respondent responded to the Order to

Show Cause.

No transcript of the hearing was ordered. An Order Closing

Record was entered on March 3, 2008, directing the parties to

file proposed recommended orders no later than March 13, 2008.

Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. The Department is responsible for the registration and

supervision of family day care homes, pursuant to Section

402.313, Florida Statutes (2007).

2. Respondent, Thorpe Lindsey, has been registered to

operate a family day care home at 2306 Savoy Drive, Orlando,

Florida, since December 18, 2006.

3. On June 27, 2007; July 13, 2007; and July 26, 2007,

Respondent allowed an unscreened and unapproved substitute,

Sheneka Henderson, to be alone with and supervise children in

the family day care home. Respondent was not present in the

home on at least two of these occasions. On all three

occasions, Respondent appeared after the Department's protective

investigator or child care licensing supervisor noted his

absence and the presence of Ms. Henderson as the caregiver. 2

On July 13, 2007, Respondent was cautioned in person about the

repercussions of allowing unscreened personnel to supervise

children.

4. On September 14, 2007, the Department issued an

Administrative Complaint against Respondent, seeking to impose a

civil penalty in the amount of $500.00 for the three instances

of using an unscreened and unapproved substitute caregiver.

Respondent refused to accept service of the Department's

certified letter. The copy of the Administrative Complaint sent

by regular U.S. Mail was not returned to the Department, and

Respondent never sought a hearing or otherwise contested the

allegations of the Administrative Complaint.

5. Aside from the problem of unscreened personnel,

Respondent also had a recurring problem of caring for a number

of children greatly in excess of the ratios allowed by statute

in his family day care home. Under any circumstances, a family

day care home may provide care for no more than ten children.

See § 402.302(7), Florida Statutes (2007). On June 27, 2007,

the Department sent a certified letter to Respondent noting that

on the previous day, the Department had received a report that

Respondent was caring for between 30 and 40 children. The

letter cautioned Respondent that he must immediately reduce

enrollment and submit a written plan to the Department by July

10, 2007, identifying the names and birth dates of the children

for whom Respondent would continue to provide care, as well as

the names and birth dates of the children whom Respondent

eliminated from his roster. Respondent never provided the

required documentation to the Department.

6. The Early Learning Coalition of Orange County is a

public/private partnership established to ensure that children

enter school ready to learn. In coordination with the

Department, the Early Learning Coalition provides health and

safety inspections for anyone receiving school readiness

funding. Because Respondent received such funding, Eric Allen,

an inspector for the Early Learning Coalition, made regular

visits to the family day care home.

7. On July 6, 2007, Mr. Allen made a routine visit to

Respondent's home and found several violations, including a

ratio violation, the presence of unscreened volunteers caring

for children, chemicals under kitchen and bathroom sinks without

door locks on the cabinets, and uncapped electrical outlets. On

July 9, 2007, the Early Learning Coalition sent a letter to

Respondent outlining the violations and requiring their

correction pending a re-inspection of the family day care home.

8. On July 20, 2007, Mr. Allen conducted a routine visit

to Respondent's home and again found the home to be out of

ratio. On July 26, 2007, the Early Learning Coalition sent a

letter, signed by Donna J. Williams, director of quality

services, to Respondent that stated the following, in relevant

part:

This letter will clear up any confusion as

to the number of children you are legally

allowed to care for. As a family home

provider, six (6) is the maximum number of

children under the age of five you are

allowed to have in care at one time. If an

infant is present, the maximum number of

children allowable at one time is five (5).

I am enclosing the state ratio chart so you

may be clear on the number and age of

children you are legally allowed to have in

your care at one time.

Since this falls under our Non-compliance

Policy, you are hereby on notice that if

there is any other incident where you are

found in non-compliance with any Level I

violation, the parents of school readiness

funded children will be contacted and given

the opportunity to transfer as you will be

ineligible to receive school readiness funds

for a period of one year.

9. On September 7, 2007, at approximately 3:45 p.m.,

Mr. Allen again visited Respondent's registered family day care

home. Mr. Allen found a note on the front door stating, "We are

on a field trip," with contact information for parents at the

bottom. Mr. Allen noted that the contact numbers on the note

did not match the contact information on file at the Early

Learning Coalition. He also noted that all of the windows of

the house were covered with blinds or cardboard.

10. Mr. Allen testified that he had made several prior

attempts to visit the home in recent days, but that on each

occasion was met with a note claiming the children were out on a

"field trip." He was about to walk away from the house when he

heard a baby crying inside. He rang the doorbell and knocked on

the door but received no response. He called out to whomever

was inside the house, "This is Eric from the Early Learning

Coalition. I can hear a baby crying. You need to open the door

or you are violating your provider agreement and you are in

danger of being de-funded." There was still no response from

inside the house. Mr. Allen walked around to the back door.

He knocked on the window of the rear childcare area and repeated

his warning.

11. After several minutes, a car pulled up to the home.

A woman got out of the car and approached the front door.

Mr. Allen asked if she was there to pick up a child, and she

answered affirmatively. She rang the doorbell but no one

answered. Mr. Allen offered to call the contact number, but the

woman just turned and drove away.

12. Mr. Allen called the Early Learning Coalition's office

and asked the administrative assistant to verify and call the

contact number for Respondent's home. When the assistant called

the number, a woman who identified herself as Respondent's

sister answered and stated that the children were out on a field

trip.

13. Mr. Allen then called the contact number and asked

Respondent's sister where the children were. She stated they

were on a field trip to Pizza Hut. Mr. Allen told her he could

hear a baby crying inside and that if the door was not opened he

would call the police. Respondent's sister hung up the phone.

14. Just as Mr. Allen's phone conversation concluded,

approximately 25 minutes after he first arrived at the house,

the woman in the car returned. As the woman walked up to the

front door, the door was opened by Toshiba Lindsey, another of

Respondent's sisters, who was holding a baby she said was her

son. Mr. Allen showed Ms. Lindsey his identification and asked

her why he had been left outside trying to get someone to open

the door for nearly a half hour. Ms. Lindsey claimed to have

been sleeping and not to have heard the knocking.

15. Mr. Allen entered the home and started down the

hallway, but Ms. Lindsey forbade him from entering one of the

rooms. Mr. Allen could hear a child crying inside the room. He

demanded to know whose child was behind the door. Ms. Lindsey

denied there was anyone in the room.

16. For several minutes, Mr. Allen attempted to convince

Ms. Lindsey to open the door, but she continued to say that she

could not open it. Mr. Allen told her to call Respondent, who

was not in the house. Mr. Allen spoke to Respondent and told

him that he would call the police if Ms. Lindsey did not open

the door. Respondent hung up on him.

17. Mr. Allen called 911 and requested an officer to come

to the house and open the door. A moment later, the door to the

room opened and another woman, Sheneka Henderson, emerged with

13 children. Neither Ms. Lindsey nor Ms. Henderson had been

background screened or trained to act as caregivers. Mr. Allen

recorded the names and ages of the children, then left the home.

Respondent never showed up at the house while Mr. Allen was

there.

18. On September 10, 2007, the Early Learning Coalition

sent Respondent a letter notifying him that he would be

ineligible to receive school readiness funds for a period of one

year, based on Respondent's repeated violations of mandatory

state ratio requirements.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

20. The Department has the burden of establishing the

grounds for revocation of the Respondent's licensure 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); Coke v. Department of

Children & Family Services , 704 So. 2d 726 (Fla. 5th DCA 1998).

In this case, the burden has been met.

21. At all times material to this case, Respondent was a

provider of child care, pursuant to Section 402.302, Florida

Statutes (2007), which provides the following relevant

definition:

(1) "Child care" means the care,

protection, and supervision of a child, for

a period of less than 24 hours a day on a

regular basis, which supplements parental

care, enrichment, and health supervision for

the child, in accordance with his or her

individual needs, and for which a payment,

fee, or grant is made for care.

* * *

(7) "Family day care home" means an

occupied residence in which child care is

regularly provided for children from at

least two unrelated families and which

receives a payment, fee, or grant for any of

the children receiving care, whether or not

operated for profit. A family day care home

shall be allowed to provide care for one of

the following groups of children, which

shall include those children under 13 years

of age who are related to the caregiver:

(a) A maximum of four children from birth

to 12 months of age.

(b) A maximum of three children from birth

to 12 months of age, and other children, for

a maximum total of six children.

(c) A maximum of six preschool children if

all are older than 12 months of age.

(d) A maximum of 10 children if no more

than 5 are preschool age and, of those 5, no

more than 2 are under 12 months of age.

22. Section 402.310, Florida Statutes (2007), provides in

relevant part as follows:

402.310 Disciplinary actions; hearings upon

denial, suspension, or revocation of license

or registration; administrative fines.--

(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:

* * *

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 factors 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

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 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.

(d) The disciplinary sanctions set forth in

this section apply to licensed child care

facilities, licensed large family child care

homes, and licensed or registered family day

care homes.

23. Subsection 402.313, Florida Statutes (2007), provides

in pertinent part:

(1) Family day care homes shall be licensed

under this act if they are presently being

licensed under an existing county licensing

ordinance, if they are participating in the

subsidized child care program, or if the

board of county commissioners passes a

resolution that family day care homes be

licensed. If no county authority exists for

the licensing of a family day care home, the

department shall have the authority to

license family day care homes under contract

for the purchase-of-service system in the

subsidized child care program.

(a) If not subject to license, family day

care homes shall register annually with the

department, providing the following

information:

1. The name and address of the home.

2. The name of the operator.

3. The number of children served.

4. Proof of a written plan to provide at

least one other competent adult to be

available to substitute for the operator in

an emergency. This plan shall include the

name, address, and telephone number of the

designated substitute.

5. Proof of screening and background

checks.

6. Proof of successful completion of the

30-hour training course, as evidenced by

passage of a competency examination, which

shall include:

a. State and local rules and regulations

that govern child care.

b. Health, safety, and nutrition.

c. Identifying and reporting child abuse

and neglect.

d. Child development, including typical and

atypical language development; and

cognitive, motor, social, and self-help

skills development.

e. Observation of developmental behaviors,

including using a checklist or other similar

observation tools and techniques to

determine a child's developmental level.

f. Specialized areas, including early

literacy and language development of

children from birth to 5 years of age, as

determined by the department, for owner-

operators of family day care homes.

* * *

(3) Child care personnel in family day care

homes shall be subject to the applicable

screening provisions contained in ss.

402.305(2) and 402.3055. For purposes of

screening in family day care homes, the term

includes any member over the age of 12 years

of a family day care home operator's family,

or persons over the age of 12 years residing

with the operator in the family day care

home. Members of the operator's family, or

persons residing with the operator, who are

between the ages of 12 years and 18 years

shall not be required to be fingerprinted,

but shall be screened for delinquency

records. . . .

24. Florida Administrative Code Chapter 65C-20 provides

standards for family day care homes. Florida Administrative

Code Rule 65C-20.009 provides, in relevant part:

(2) Personnel.

(a) Operator. The family day care home

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. In

the event of rental or leased property, the

operator shall be the individual who

occupies the residence. The operator of a

family day care home may not work outside of

the home during the hours the family day

care home is operating.

(b) Substitutes. There shall be a written

plan to provide at least one (1) other

competent adult, who must be at least 18

years of age, to be available as a

substitute for the operator on a temporary

or emergency basis. This plan shall include

the name, address and telephone number of

the designated substitute. Substitutes may

not work over 40 hours per month on average

during a 12 month period in any single home

for which they have been identified as the

designated substitute.

(c) No person shall be an operator,

substitute or employee in a family day care

home while using or under the influence of

narcotics, alcohol, or other drugs that

impair an individual’s ability to provide

supervision and safe child care.

(3) Staff Training.

(a) Prior to licensure and prior to caring

for children, all family day care home

operators and substitutes who work 40 hours

or more per month on average during a 12

month period must:

1. Successfully complete the Department of

Children and Family Services' 30 clock-hour

Family Child Care Home training, as

evidenced by successful completion of a

competency based examination(s) offered by

the Department of Children and Family

Services or its designated representative

with a weighted score of 70 or better.

Family day care home operators who

successfully completed the mandatory 30

clock-hour Family Child Care Home training

prior to January 1, 2004, are not required

to fulfill the competency examination

requirement. Beginning July 1, 2006, the 30

clock-hour Family Child Care Home training

will be replaced by five (5) individual

training courses which total 30 clock-hours

of training: Family Child Care Home Rules

and Regulations; Health, Safety and

Nutrition; Identifying and Reporting Child

Abuse and Neglect; Child Growth and

Development; and Behavioral Observation and

Screening.

* * *

(b) Family day care home substitutes who

work less than 40 hours a month on average

during a 12 month period shall complete the

Department of Children and Family Services'

3-clock-hour Fundamentals of Child Care

training prior to caring for children, as

documented on the Department of Children and

Family Services' CF-FSP Form 5267 and the

Department of Children and Family Services'

child care training transcript.

* * *

(5) Supervision.

(a) At all times, which includes when the

children are napping or sleeping, the

operator shall remain responsible for the

supervision of the children in care and

capable of responding to emergencies and the

needs of the children. While children are

napping or sleeping in bedrooms, the bedroom

doors must remain open. 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. . . .

25. The facts found above establish that Respondent

repeatedly violated Florida Administrative Code Rule 65C-

20.009(5), as well as the very definition of "family day care

home," by failing to be present in the home during its hours of

operation to directly supervise the children in his care. The

facts establish that Respondent repeatedly violated Subsection

402.302(7), Florida Statutes, by caring for many more children

than the statute allows. The facts establish that Respondent

repeatedly violated Subsection 402.313(1)(a) and (3), Florida

Statutes, by using caregivers who had not received screening or

background checks. The facts establish that Respondent violated

Florida Administrative Code Rule 65C-20.009(3) by using

caregivers who had not received even the minimal training

required of substitutes who work less than 40 hours per months

on average during a 12 month period.

26. Subsection 402.310(1)(a)3., Florida Statutes (2006),

provides that revocation of registration is within the range of

disciplinary penalties, which may be imposed for a violation of

statute and rule. Subsection 402.310(1)(b), Florida Statutes

(2006), provides that in determining the appropriate penalty,

the severity of the violation, including the probability of

serious harm, must be considered. In this case, Respondent

repeatedly absented himself from the home and used unscreened,

untrained persons to care for a number of children grossly in

excess of the number allowed by statute, a situation rife with

potential harm to the children in question. Further, Respondent

continued to operate in this fashion after repeated warnings and

even the imposition of a civil penalty of $500.00. Respondent

took no action to remedy the situation, thus providing no ground

for mitigation of the penalty sought by the Department.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Children and Family

Services enter a final order revoking the registration of Thorpe

Lindsey to operate a family day care home.

DONE AND ENTERED this 10th day of April, 2008, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 10th day of April, 2008.

ENDNOTES

1/ On September 14, 2007, the Department attempted to serve

Mr. Lindsey with an Administrative Complaint seeking to impose

on him a civil penalty of $500.00. He refused service and never

requested a hearing on the Administrative Complaint, which was

not forwarded to the Division of Administrative Hearings. The

fact that there was an existing Administrative Complaint against

Respondent apparently led the Department to style its pleading

as a "Motion to Amend Administrative Complaint" despite the fact

that no administrative complaint was actually before this

tribunal.

2/ The Department had reason to believe, though it could not

affirmatively prove, that Respondent was working an outside job

during the family day care home's hours of operation.

COPIES FURNISHED :

T. Shane DeBoard, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite S-1114

Orlando, Florida 32801

Thorpe Lindsey

2306 Savory Drive

Orlando, Florida 32808

Gregory Venz, Agency Clerk

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399-0700

John Copelan, General Counsel

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399-0700

Robert Butterworth, Secretary

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Room 204B

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.