09-004059 Department Of Children And Family Services vs. The Biltmore School And Gina Romero Status: Closed Recommended Order on Tuesday, February 2, 2010.

Summary: Petitioner demonstrated that Respondents failed to have documentation of Level 2 screening for some its staff. Recommend a $50 administrative fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, ) Case No. 09-4059

)

vs. )

)

THE BILTMORE SCHOOL AND GINA )

ROMERO, )

)

Respondents. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 12, 2009, by video teleconference with connecting

sites in Miami and Tallahassee, Florida, before Errol H. Powell,

an Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Frances Arlene Faccidomo, Esquire

Department of Children and Families

401 Northwest 2nd Avenue, Suite N-1014

Miami, Florida 33128

For Respondents: Gina Romero, pro se

The Biltmore School

1600 Southwest Red Road

Miami, Florida 33155

STATEMENT OF THE ISSUE

The issue for determination is whether Respondents committed

the offense set forth in the Amended Notice of Fine for Violation

of Child Care Standards dated July 15, 2009 and, if so, whether

Petitioner should impose a fine of $50 upon Respondents.

PRELIMINARY STATEMENT

By Amended Notice of Fine for Violation of Child Care

Standards (Amended Notice) dated July 15, 2009, the Department of

Children and Family Services (DCF) notified Gina Romero and The

Biltmore School (School) that it (DCF) was imposing a fine of

$50, pursuant to Section 402.310, Florida Statutes, against the

School for failing to have documentation of Level 2 screening for

its staff in violation of Florida Administrative Code Rule 65C-

22.006(4). Further, the Amended Notice notified Ms. Romero and

the School that such a failure was a Class II violation of

Florida Administrative Code Rule 65C-22.006(4); and that DCF was

imposing an administrative fine of $50 for the violation.

Ms. Romero and the School disputed the allegations of fact and

requested a hearing. This matter was referred to the Division of

Administrative Hearings on July 30, 2009.

The final hearing was scheduled in accordance with the

parties' joint request. At the hearing, DCF presented the

testimony of two witnesses and entered six exhibits (Petitioner's

Exhibits numbered 1 through 6) into evidence. The School

presented the testimony of two witnesses and entered 11 exhibits

(Respondents' Exhibits numbered 1 through 11) into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was set

for more than ten days following the filing of the transcript.

The Transcript, consisting of one volume, was filed on

December 7, 2009. An extension of time was granted for the

parties to file their post-hear submissions. The parties timely

filed their post-hearing submissions, which have been considered

in the preparation of this Recommended Order.

FINDINGS OF FACT

1. No dispute exists that, at all times material hereto,

the School was licensed as a day care facility by DCF, having

been issued license number C11MD1288.

2. No dispute exists that, at all times material hereto,

the School was located at 1600 Southwest 57th Avenue, Miami,

Florida 33155.

3. Gina Romero is the director and owner of the School.

4. On July 29, 2008, an employee of DCF, Theresa Williams-

Burney, conducted a routine inspection of the School. At the

time, Ms. Williams-Burney was the licensing counselor for the

School.

5. The School's administrative assistant, Melissa Ferrer,

was present during the routine inspection and assisted

Ms. Williams-Burney during the inspection. Ms. Ferrer’s duties

included interacting with both the parents and children.

Ms. Ferrer had been employed at the School for two years.

6. During the routine inspection, Ms. Williams-Burney

discovered that the School was not in compliance in the areas of

training, personnel records, and background screening documents.

She noted the areas of non-compliance in an inspection checklist.

7. Regarding the background screening documents, i.e.,

Level 2 screening items, after randomly reviewing personnel

files, Ms. Williams-Burney discovered that the documents had not

been submitted for several staff members within the required

time-period of their employment at the School. She noted in a

supplemental inspection sheet the names of the staff members who

had not been screened.

8. Ms. Ferrer signed both the inspection checklist and the

supplemental inspection sheet, which noted the deficiencies, on

the date of the routine inspection, July 29, 2008.

9. After completing the routine inspection, Ms. Williams-

Burney provided technical assistance to the School, which

included reviewing all non-compliant items with the School and

informing the School as to how to obtain proper screening for its

staff.

10. On May 7, 2009, an employee of DCF, Gary McLeary,

performed a renewal of licensure inspection of the School.

Mr. McLeary was the licensing counselor for the School.

11. During the renewal inspection, Mr. McLeary reviewed all

files at the School and discovered that the School was not in

compliance in the areas of children's health/immunization records

and background screening documentation. He noted the areas of

non-compliance in a renewal inspection checklist. Being non-

compliant with background screening meant that the documentation

in the file was either expired or missing.

12. As to the background screening documents, i.e., Level 2

screening items, after reviewing the personnel files, Mr. McLeary

discovered that the documents, although required, were missing

for two staff members at the School, Ms. Ferrer and Maria

Chinchilla. He specifically noted in a supplemental inspection

checklist that Ms. Ferrer was missing her Federal Bureau of

Investigation (FBI) results, i.e., clearance letter, and that

Ms. Chinchilla was missing her Florida Department of Law

Enforcement (FDLE) results.

13. Ms. Ferrer and Ms. Romero were present during the

renewal inspection. However, Mr. McLeary's contact was mostly

with Ms. Ferrer.

14. As to Ms. Ferrer, she was under the impression that the

School had received her FBI results, but that they were only

missing from her personnel file. Ms. Ferrer's personnel file did

not contain any document evidencing that she or the School had

made a request to the FBI as to the status of her clearance

letter.

15. On the same day of the inspection, Mr. McLeary returned

to his office and searched in his system for Ms. Ferrer's FBI

results. DCF is able to access a clearance letter from the FBI.

He located Ms. Ferrer's clearance letter, which was dated

February 5, 2008, and discovered that it had been erroneously

addressed to another daycare; he faxed the clearance letter to

the School. Nevertheless, the School had failed to make inquiry

of the FBI for over one year as to the status of Ms. Ferrer's

clearance results.

16. Regarding Ms. Chinchilla, her FDLE clearance results

were not in her personnel file. Typically, FDLE results are

received by a facility within one month after submission; FDLE

sends the results directly to the facility. No documentation was

in her file evidencing that the FDLE results had been previously

requested. Further, even though a fingerprint card was in her

file, it had expired; and no current fingerprint card was in her

file. Ms. Chinchilla had been employed at the School for over

two years.

17. Ms. Ferrer signed both the renewal inspection checklist

and the renewal supplemental inspection sheet, which noted the

deficiencies, on the date of the renewal inspection, May 7, 2009.

18. Also, after the renewal inspection, Mr. McLeary

provided the School the form that was required to request FDLE

results in order for the School to request the FDLE results for

Ms. Chinchilla.

19. The School has now employed the services of a private

company to perform the Level 2 screening on its (the School’s)

behalf. With the private company handling the process, the

screening is completed within a two-week period.

20. The School is currently in compliance with all

requirements.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2009).

22. The ultimate burden of proof is on DCF to establish by

clear and convincing evidence that the School violated Section

402.310, Florida Statutes (2008), and Florida Administrative Code

Rule 65C-22.006(4), as alleged in the Amended Notice dated

July 15, 2009. Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932 (Fla. 1996); § 120.57(1)(j), Fla. Stat.

23. Florida Administrative Code Rule 65C-22.006, titled

“Record Keeping,” provides in pertinent part:

(4) Personnel Records. Records shall be

maintained and kept current on all child care

personnel, as defined by Section 402.302(3),

F.S., and household members if the facility

is located in a private residence. These

shall include:

(a) An employment application with the

required statement pursuant to Section

402.3055(1)(b), F.S.

(b) Position and date of employment.

(c) CF-FSP Form 5337, March 2009, Child

Abuse & Neglect Reporting Requirements, which

is incorporated by reference, must be signed

annually by all child care personnel.

(d) Initial Screening. Screening

information must be documented on CF-FSP Form

5131, March 2009, Background Screening and

Personnel File Requirements, which is

incorporated by reference. Screening

includes the following:

1. Level 2 screening as defined in Section

435.04, F.S., which includes at a minimum

Federal Bureau of Investigations (FBI),

Florida Department of Law Enforcement (FDLE),

and local law enforcement records checks.

For the purpose of issuing a license, any

out-of-state criminal offense, which if

committed in Florida, would constitute a

disqualifying felony offense, shall be

treated as a disqualifying felony offense for

screening purposes under this rule.

2. An employment history check must include

the previous two years, which shall include

the applicant's job title and a description

of their regular duties, confirmation of

employment dates, and level of job

performance. Failed attempts to obtain the

employment history must be documented in the

personnel file, and include date, time, and

the reason the information was not obtained.

3. CF Form 1649A, January 2007, Child Care

Attestation of Good Moral Character, which is

incorporated by reference, must be completed

for all child care personnel annually or in

accordance with the local licensing

authority. A copy of the CF Form 1649A may

be obtained from the department's website at

www.myflorida.com/childcare.

24. Section 435.04, Florida Statutes (2008), titled “Level

2 screening standards,” provides in pertinent part:

(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 subsection, 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 criminal records

checks through the Federal Bureau of

Investigation, and may include local criminal

records checks through local law enforcement

agencies.

25. Section 435.05, Florida Statutes (2008), titled

Except as otherwise provided by law, the

following requirements shall apply to covered

employees:

(1)(a) Every person employed in a position

for which employment screening is required

must, within 5 working days after starting to

work, submit to the employer a complete set

of information necessary to conduct a

screening under this section.

(b) For level 1 screening, the employer must

submit the information necessary for

screening to the Florida Department of Law

Enforcement within 5 working days after

receiving it. The Florida Department of Law

Enforcement will conduct a search of its

records and will respond to the employer

agency. The employer will inform the

employee whether screening has revealed any

disqualifying information.

(c) For level 2 screening, the employer or

licensing agency must submit the information

necessary for screening to the Florida

Department of Law Enforcement within 5

working days after receiving it. The Florida

Department of Law Enforcement will conduct a

search of its criminal and juvenile records

and will request that the Federal Bureau of

Investigation conduct a search of its records

for each employee for whom the request is

made. The Florida Department of Law

Enforcement will respond to the employer or

licensing agency, and the employer or

licensing agency will inform the employee

whether screening has revealed disqualifying

information.

(d) The person whose background is being

checked must supply any missing criminal or

other necessary information to the employer

within 30 days after the employer makes a

request for the information or be subject to

automatic disqualification.

26. The evidence demonstrates that certain employees at the

School, who interacted with both parents and children, failed to

have their Level 2 screening completed in a timely manner.

27. Also, the evidence demonstrates that the first

occurrence was noted during a routine inspection of the School by

DCF on July 29, 2008. DCF provided the School with technical

assistance at that time, which included informing the School as

to how to obtain proper screening for its staff.

28. Further, the evidence demonstrates that another

occurrence was noted less than a year later during a renewal

inspection on May 7, 2009. Moreover, no documentation was

contained in the personnel files of the affected employees to

demonstrate that the School had made inquiry to the FBI or the

FDLE regarding the missing screening results.

29. The School did demonstrate that it had taken measures

to remedy future non-compliance. Further, the School

demonstrated that it was currently in compliance with all

requirements.

30. Hence, DCF demonstrated that the School had violated

Florida Administrative Code Rule 65C-22.006(4), as alleged in the

Amended Notice.

31. Section 402.310, Florida Statutes (2008), 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 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.

32. Florida Administrative Code Rule 65C-22.010, titled

“Enforcement,” provides in pertinent part:

(1) Definitions.

* * *

(c) “Standards” are requirements for the

operation of a licensed facility provided in

statute or in rule.

(d) “Violation” means a finding of

noncompliance by the department or local

licensing authority of a licensing standard.

* * *

2. “Class II Violation” is the second or

subsequent incident of noncompliance with an

individual Class II standard as described on

CF-FSP Form 5316. Class II violations are

less serious in nature than Class I

violations, and could be anticipated to pose

a threat to the health, safety or well-being

of a child, although the threat is not

imminent.

* * *

(2) Disciplinary Sanctions.

(a) Enforcement of disciplinary sanctions

shall be applied progressively for each

standard violation. In addition, providers

will be offered technical assistance in

conjunction with any disciplinary sanction.

The department shall take into consideration

the actions taken by the facility to correct

the violation when determining the

appropriate disciplinary sanction.

* * *

(e) Disciplinary sanctions for licensing

violations that occur within a two year

period shall be progressively enforced as

follows:

* * *

2. Class II Violations.

* * *

b. For the second violation of the same

Class II standard, the department shall issue

an administrative complaint imposing a fine

of $ 50 for each violation. This violation,

and subsequent violations, of the same

standard within a two year period will be

classified as “Class II.”

33. DCF desires to impose an administrative fine of $50, as

indicated in its Amended Notice. The penalty is warranted.

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 finding that The Biltmore School and

Gina Romero violated Florida Administrative Code Rule 65C-

22.006(4) and imposing an administrative fine of $50.

DONE AND ENTERED this 2nd day of February, 2010, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

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 2nd day of February, 2010.

COPIES FURNISHED:

Frances Arlene Faccidomo, Esquire

Department of Children and Families

401 Northwest 2nd Avenue, Suite N-1014

Miami, Florida 33128

Gina Romero

The Biltmore School

1600 Southwest Red Road

Miami, Florida 33155

Gregory Venz, Agency Clerk

Department Children and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John J. Copelan, General Counsel

Department Children and Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

George H. Sheldon, Secretary

Department Children and Family Services

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

this recommended order should be filed with the agency that will

issue the final order in this case.