11-000565 Department Of Children And Families vs. Lawanda Jackson, D/B/A Tiny Blessings Status: Closed Recommended Order on Monday, December 12, 2011.

Summary: The Department proved some but not all of the allegations in the Administrative Complaint; recommended that Respondent be fined $1,225.00 and that Respondent's license be suspended pending the owner's receiving an exemption from disqualification.

Case No. 11-0565

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILIES, RECOMMENDED ORDER )

)

Petitioner, )

vs. )

)

LAWANDA JACKSON, d/b/a/ TINY )

BLESSINGS, )

)

Respondent. )

)

)

On July 21, 2011, a formal administrative hearing in this

case was held in Jacksonville, Florida, before Lawrence P.

Stevenson, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: David Gregory Tucker, Esquire

Department of Children and Families

5920 Arlington Expressway

Post Office Box 2417

Jacksonville, Florida 32231

For Respondent: Lawanda M. Jackson, pro se

2778 Taylor Hill Drive

Post Office Box 60551

Jacksonville, Florida 32236

STATEMENT OF THE ISSUE

At issue is whether the Respondent committed the violations

alleged in the Administrative Complaint and, if so, what

penalties should be imposed.

PRELIMINARY STATEMENT

On November 30, 2010, the Department of Children and

Families (the "Department") filed a seven-count Administrative

Complaint (the "Complaint") against Lawanda Jackson, d/b/a Tiny

Blessings ("Tiny Blessings").

Count I of the Complaint stated that during a re-inspection

on October 6, 2010, a Department licensing counselor determined

that staff member Monalisa Tedtaotao had been hired on

September 3, 2010, and allowed to work as an unscreened

individual until September 27, 2010, when her FBI/FDLE screening

was cleared. The Complaint stated that this was a Class 1

violation pursuant to Florida Administrative Code Rule 65C-

22.001(5)(a) and assessed a fine of $500.00.

Count II of the Complaint stated that during a re-

inspection on October 6, 2010, a Department licensing counselor

determined that Tiny Blessings did not have in its files the

required background screening form for staff member Tiffany

Turner, hired on September 22, 2010. The Complaint stated that

this was a Class 2 violation pursuant to Florida Administrative

Code Rule 65C-22.006(4). Because this was a second violation,

the Department assessed a fine of $50.00.

Count III of the Complaint stated that during a complaint

investigation on October 12 and 15, 2010, a Department licensing

inspector determined that the owner of Tiny Blessings, Lawanda

Jackson, had been arrested on October 6, 2010, for a

disqualifying offence of battery involving domestic violence, to

which Ms. Jackson had pled nolo contendere and for which

adjudication of guilt was withheld on October 7, 2010.

Ms. Jackson was placed on probation for 12 months. The

Complaint went on to state as follows, referencing Ms. Jackson

as "L.J":

On October 11, 2010, Child Care Licensure

was made aware of the disqualifying offense

and advised L.J. on October 12, 2010, that

she was not to be on site and/or around the

children during operational hours. On

October 15, 2010, an additional complaint

report was made that L.J. transported L.C.

(age 2), home from the daycare on

October 14, 2010. L.J. admitted to

transporting the child. Staff member S.C.

also admitted that L.J. transported the

child home. The parent of the child

confirmed the child (L.C.) was transported

home by L.J. . .

[T]he fine for this first Class 1 violation

is not less than $100.00 nor more than

$500.00 per day. The Department may impose

other disciplinary sanction in addition to

the fine. The fine amount is being assessed

at $1,000.00 as L.J. was disqualified for

five (5) days and failed to take the

appropriate action. Additionally, L.J.

continued to act in the capacity of a child

care personnel after the Licensure

Department was aware of the disqualifying

offense on October 12, 2010, and L.J. agreed

to not be on site and/or around the children

during operational hours. A second

violation for staff member L.J. being on

site as a [disqualified] person was cited on

October 15, 2010, causing the fourth Class 1

violation.

Count IV of the Complaint stated that during a complaint

investigation on October 13, 2010, a Department licensing

counselor determined that K.J., a four-year-old child with

special needs, and his six-year-old sister, A.S., were

transported to school by staff member Joseph Williams. The

children were dropped off alone and later found wandering in the

halls of the school. The Complaint stated that Mr. Williams

admitted to dropping the children off without verifying that a

school employee had taken responsibility for them.

Mr. Williams' personnel file did not qualify him to be a

designated driver. The Complaint stated that this was a Class 1

violation under Florida Administrative Code Rule 65C-

22.001(5)(a) and assessed a fine of $500.00 because of the

heightened risk to the child with special needs.

Count V of the Complaint stated that during a complaint

investigation on October 13, 2010, a Department licensing

counselor determined that staff member Trameka Monroe, who was

supervising a group of one-year-old children, did not have a

background screening clearance on file at the facility. Staff

member Sarra Brown arrived at Tiny Blessings during the

investigation and was found not to have a background screening

clearance on file. The Complaint stated that this was a Class I

violation under Florida Administrative Code Rule 65C-

22.001(5)(a) and assessed a fine of $500.00 because the facility

owner continued to allow unscreened individuals to act as child

care personnel after previous warnings.

Count VI of the Complaint stated that during a complaint

investigation on October 13, 2010, a Department licensing

counselor determined that each of the files of staff members

Trameka Monroe and Sarra Brown lacked a signed Child Abuse and

Neglect Reporting Requirements Form. The Complaint stated that

this was a Class 3 violation pursuant to Florida Administrative

Code Rule 65C-22.006(4) and assessed a fine of $25.00.

Count VII of the Complaint stated that during a complaint

investigation on October 13, 2010, a Department licensing

counselor determined that the files of staff members Trameka

Monroe and Sarra Brown lacked the required Employee Reference

Check. The Complaint stated that this was a Class 2 violation

pursuant to Florida Administrative Code Rule 65C-22.006(4) and

assessed a fine of $50.00.

The Complaint concluded with the following statement:

In addition to the fine the facility license

shall be REVOKED. The children enrolled at

the Child Care Program are at continued risk

of harm. The Owner and staff members

continued to allow a disqualified person

contact with the children as well as

knowingly put the child with special needs

(autism) at risk by dropping him off at

school without proper supervision. The

disqualification (Domestic Battery) of L.J.

(Lawanda Jackson) makes her ineligible to be

the Owner or Operator of a Child Care

Facility. The Owner continues to knowingly

violate the rules outlined in Florida

Administrative Code 65C-22.

Counsel for Tiny Blessings filed a Request for

Administrative Hearing ("Request") on or about January 19, 2011.

In the Request, Tiny Blessings stated that it received the

Complaint on January 6, 2011. The Department conceded that the

Request was timely filed.

On February 3, 2011, the Department forwarded the Request

to the Division of Administrative Hearings for the scheduling

and conduct of a formal hearing. The case was originally set

for hearing on April 1, 2011. On March 23, 2011, the Department

filed a motion to continue the hearing due to witness

unavailability. The motion was granted and the case was

rescheduled for May 27, 2011. At the outset of the hearing,

counsel for Respondent moved to withdraw because of

irreconcilable differences between counsel and client.

Ms. Jackson agreed with her counsel's motion to withdraw. The

undersigned granted the motion, and then continued the hearing

to allow Ms. Jackson a fair opportunity to prepare her own case.

The hearing was rescheduled for July 21, 2011, on which date it

convened and was completed.

At the hearing, the Department presented the testimony of

Jacqueline King, a family care counselor for the Department;

Annette Wiggins, the mother of K.J. and A.S.; and the telephonic

testimony of Sharon McKahand, Ms. Wiggins' mother-in-law and the

grandmother of K.J. The Department also introduced the

deposition testimony of Nancy Garrett and Amalia Santiago,

teachers at Oak Hill Elementary School. The Department's

Exhibits A through D were admitted into evidence.

Respondent testified on her own behalf and presented the

telephonic testimony of Monalisa Tedtaotao, an employee of Tiny

Blessings. Respondent's Exhibits 1 through 4 were admitted at

the hearing over the Department's objection to lack of notice.

At the Department's request, the undersigned left the record

open to permit the Department an opportunity to review the

exhibits, reconsider its objections, and possibly submit its own

supplemental exhibits in response. On August 1, 2011, the

parties filed a supplement to the record in which the Department

withdrew its objection to the admission of Respondent's Exhibits

1 through 4 and the parties stipulated to the admission of the

Department's Supplemental Exhibit 1. On August 2, 2011, the

undersigned entered an Amended Order Closing Record that

acknowledged the parties' agreement and admitted the

Department's Supplemental Exhibit 1 into the evidence. 1 /

The transcript of the hearing was filed at the Division of

Administrative Hearings on August 19, 2011. The Department

timely filed its Proposed Recommended Order on September 2,

2011. Respondent filed a post-hearing submittal on September 9,

2011. The Department has not objected to Respondent's late

filing and the undersigned has therefore considered Respondent's

submission in preparing this recommended order.

FINDINGS OF FACT

1. The Department is authorized to regulate child care

facilities pursuant to sections 402.301-402.319, Florida

Statutes. Section 402.311 authorizes the Department to inspect

licensed child care facilities. Section 402.310 authorizes the

Department to take disciplinary action against child care

facilities for violations of sections 402.301-402.319.

2. Tiny Blessings is a child care facility operating

pursuant to License Number C04DU0799. The facility is located

at 4932 Blanding Boulevard, Jacksonville, Florida. Lawanda

Jackson is the owner of Tiny Blessings.

3. Jacqueline King is a family service counselor for the

Department's child care licensing program. She is charged with

inspecting day care facilities. Ms. King has worked for the

Department for over 20 years. In addition to five years in her

current position, Ms. King has worked as a child protective

investigator on sexual abuse cases and has served as a juvenile

probation officer. Ms. King conducted the inspections of Tiny

Blessings that are at issue in this case.

Count I

4. On October 6, 2010, Ms. King conducted an inspection of

Tiny Blessings. The facility's records appeared to show that

employee Monalisa Tedtaotao had been hired on September 3, 2010,

but that her background screening had not been completed until

September 27, 2010. Ms. King noted that the facility's records

indicated that Ms. Tedtaotao's 40-hour training program began on

September 3, 2010.

5. Ms. Tedtaotao testified she began work at Tiny

Blessings on September 27, 2010, the day the background

screening was completed.

6. Ms. Jackson was adamant that Ms. Tedtaotao did not

begin work at Tiny Blessings until September 27, 2010. She

believed that Ms. King either mistook the date on

Ms. Tedtaotao's job application for her starting date, or was

intentionally misstating the facts in order to stack the alleged

violations and close down Tiny Blessings. 2 /

7. The Department produced no witness who actually saw

Ms. Tedtaotao working at Tiny Blessings prior to September 27,

2010. The only document in evidence showing the date of

September 3, 2010, was created by Ms. King as part of her

inspection report. It is noted that Ms. Jackson produced no

payroll records or other evidence to verify Ms. Tedtaotao's

starting date.

8. As to Count I, the Department proved at most that Tiny

Blessings' recordkeeping was inadequate. The Department did not

prove that Ms. Tedtaotao worked at Tiny Blessings as an

unscreened individual.

Count II

9. Ms. King testified that, at the time of the October 6,

2010, inspection, employee Tiffany Turner's personnel file was

missing a mandatory document: CS-FSP 5131, "Background Screening

and Personnel File Requirements" ("Form 5131"). The Department

characterized this as a "filing problem," not a situation in

which the employee had failed to undergo background screening.

Ms. Jackson agreed that a Form 5131 was not in Ms. Turner's

personnel file on the date of the inspection.

Count III

10. Ms. King testified that on or about October 12, 2010,

the Department received a complaint that Ms. Jackson had been

arrested for domestic violence but was still working at Tiny

Blessings. Ms. King's investigation revealed that Ms. Jackson

had been charged with domestic battery in violation of section

784.03(1)(a), Florida Statutes (2010), on October 6, 2010, and

had pled no contest to the charge on October 7, 2010. The

county court in Jacksonville withheld adjudication and placed

Ms. Jackson on 12 months of probation with early termination

contingent upon her completion of the Safe Families program and

her having no contact with the victim. Under the provisions of

section 435.04(3), Florida Statutes (2010), a plea of nolo

contendere to an offence that constitutes domestic violence as

defined in section 741.28, Florida Statutes, is an offence that

disqualifies a person from occupying a position for which a

Level 2 Background Screening is required.

11. Ms. King testified that on October 12, 2010, she

advised Ms. Jackson that her plea constituted a disqualifying

offence. Ms. Jackson did not accept Ms. King's statement.

Ms. King put Ms. Jackson on the phone with staff in the

Department's background screening office, who confirmed

Ms. King's statement.

12. Ms. Jackson testified that she entered her plea only

upon the assurance by the court and the assistant state attorney

that the domestic violence charge was not a disqualifying

offense and the plea would not affect her child care license.

13. On November 3, 2010, Ms. Jackson's counsel filed in

the county court a motion to vacate and set aside the judgment.

In the motion, counsel stated as follows, in relevant part:

6. The Defendant, by and through her

undersigned counsel, raised the issue of the

Defendant's fear of losing her daycare

license as a result of pleading to the

charge of Battery.

7. The State Attorney and the judge both

advised the undersigned counsel that the

daycare license would not be affected.

8. Upon reliance on same, the Defendant

entered a plea of nolo contendere to the

charge of Battery and was sentenced on the

same day.

9. On or about October 15, 2010, the

Defendant was visited by an agent from the

Department of Children and Families and

advised that due to her plea of no contest

to the battery charge and being sentenced on

same, the Defendant's daycare license was

subject to forfeiture and ineligibility.

This came as a result in a change of law

that took effect in July 2010 that mandates

that either an adjudication of guilt or a

withhold [sic] of guilt on a domestic

charge, such as Battery, makes the license

holder ineligible to run a daycare. 3 /

14. As of the date of the hearing in the instant case, the

county court had not acted on Ms. Jackson's motion to vacate.

On May 24, 2011, the court denied a May 17, 2011 motion filed by

Ms. Jackson to "amend the record." 4 /

15. The Department sent Ms. Jackson a certified letter,

dated December 1, 2010, advising her of her disqualifying

offence and of the process contained in chapter 435 for

Ms. Jackson to seek an exemption from disqualification.

The post office tracking slip indicated that the letter was

returned unclaimed on December 31, 2010.

16. Ms. Jackson knew or should have known, no later than

December 31, 2010, that she was disqualified from operating a

day care facility. Ms. Jackson has never filed an application

for an exemption from disqualification.

Count IV

17. K.J. is a four-year-old autistic boy. He has a six-

year-old sister, A.S. Their mother is Annette Wiggins. K.J.

and A.S. attend Oak Hill Elementary School ("Oak Hill"). During

the period relevant to this proceeding, K.J. was enrolled in

pre-kindergarten and A.S. was in kindergarten. During the

latter part of September 2010, K.J. and A.S. were enrolled for

day care at Tiny Blessings.

18. Ms. Wiggins would normally drop off K.J. and A.S. at

Tiny Blessings, and Tiny Blessings would transport the children

to Oak Hill. Two days per week, Ms. Wiggins would pick up the

children from school at the end of the day. Three days a week,

Tiny Blessings would pick up the children when Oak Hill

dismissed its students, and then Ms. Wiggins would pick up the

children from Tiny Blessings. K.J.'s teacher at Oak Hill,

Amalia Santiago, an autism specialist, testified that at the

beginning of the school year, Ms. Wiggins was "heavily

dependent" on the day care to provide transportation for the

children.

19. Ms. Wiggins works at Point West Cluster, a nursing

home. Her regular work hours are from 7:00 a.m. to 3:30 p.m.

Ms. Wiggins did not drop off her children at Oak Hill unless one

of the children was sick, she was not working that day, or there

was some special occasion. Ms. Wiggins testified that she

always let Ms. Jackson and Ms. Santiago know whether she would

be taking the children to Oak Hill.

20. Ms. Santiago confirmed that Ms. Wiggins was scrupulous

in informing her of the children's transportation arrangements.

Ms. Santiago and Ms. Wiggins had a close working relationship

because of their mutual concerns with K.J.'s autism.

Ms. Santiago testified that in her experience, Ms. Wiggins had

never dropped her children off at Oak Hill without personally

leaving K.J. with her.

21. Sharon McKahand is K.J.'s grandmother and Ms. Wiggins'

mother-in-law. Ms. McKahand was sometimes responsible for

picking up K.J. from school or from day care but never for

dropping him off in the morning.

22. Nancy Garrett is a fifth grade teacher at Oak Hill.

She also is the extended day director at Oak Hill for early and

after-school care. Ms. Garrett's responsibilities include

overseeing children who are brought to Oak Hill between 7:00

a.m. and 8:05 a.m. because their parents have to go to work

early. Ms. Garrett stated that there were approximately 55

children who stayed in early care during the early part of the

2010-2011 school year. Ms. Garrett is assisted by a

paraprofessional named Barbara Johnson. Neither K.J. nor A.S.

was enrolled in the early care program at Oak Hill.

23. One day near the end of September 2010, 5 / Ms. Garrett

found K.J. and A.S. in a hallway at Oak Hill at a time close to

7:00 a.m. The children were not accompanied by an adult.

Ms. Garrett did not know the children's names and had no idea

how they got there. Philip Gardner, a special education teacher

who specialized in autistic children, recognized K.J. and took

the children to his classroom.

24. Ms. Garrett noted that it was not quite light outside

when the children were dropped off. She was there for early

care, and Mr. Gardner was a well-known "early bird," but aside

from them, there were very few people on the Oak Hill campus at

seven in the morning. Ms. Garrett reasonably believed that

because the children were "tiny," and K.J. had special needs, an

adult should have been with the children.

25. A couple of days later, Ms. Garrett was at Oak Hill at

about the same time in the morning and heard "little knockings

going on in the hallway." Upon investigation, she discovered

K.J. and A.S. again alone in the hallway. This time,

Ms. Garrett took the children to Ms. Santiago's classroom.

26. Ms. Santiago and Ms. Garret asked the children who had

dropped them off. K.J.'s language deficits were such that he

was unable to answer. A.S. told Ms. Santiago that they had been

dropped off by "the day care." Ms. Garrett then informed

Ms. Santiago that this was not the first time she had found the

children alone in the hallway.

27. Ms. Santiago phoned Ms. Wiggins to alert her that her

children had been found roaming the campus unattended and that

A.S. said that the day care had dropped them off. Ms. Santiago

testified that Ms. Wiggins was "livid" when she learned that her

children had been wandering the campus unattended.

28. Ms. Wiggins was at work when Ms. Santiago called her.

Because she was unable to leave work to address the issue,

Ms. Wiggins contacted Ms. McKahand and asked her to go to Oak

Hill and make further inquiries into the situation.

29. Ms. McKahand immediately went to Oak Hill. The

receptionist at Oak Hill could not tell Ms. McKahand who had

dropped off the children that morning. Ms. McKahand next went

to Tiny Blessings. Ms. McKahand testified that Ms. Jackson

stated that Tiny Blessings had dropped off the children that

morning, but that they had dropped the children off on time and

would never drop them off early.

30. Ms. King testified that she learned of this incident

while investigating a report that staff of the day care was

physically abusive to a school-age child who arrived at Tiny

Blessings early in the morning. Ms. King arrived at the day

care early on the morning of October 13, 2010, to interview

parents as they dropped off their children. She saw Ms. Wiggins

dropping off K.J. and A.S.

31. Ms. King noted that A.S. appeared to be of school age.

She asked Ms. Wiggins whether the day care was transporting A.S.

to school. This was significant to Ms. King because Tiny

Blessings had told the Department that it did not provide

transportation. Ms. Wiggins told Ms. King that Tiny Blessings

had been providing school transportation for both children since

the start of the school year.

32. Ms. King then asked Ms. Wiggins if she had any

concerns about the care her children received at Tiny Blessings.

Ms. Wiggins proceeded to tell Ms. King about her children being

dropped off at Oak Hill by Tiny Blessings and later being found

wandering in the hallway at the school.

33. Ms. King informed Ms. Wiggins that she would have to

make other provisions for the transportation of her children to

school, because Tiny Blessings did not have an employee who met

the licensing standards to transport children. Ms. Wiggins told

Ms. King that in that event she would remove her children from

Tiny Blessings.

34. With Ms. Wiggins' permission, Ms. King interviewed

A.S., who told Ms. King that "Joe" drove her and K.J. to and

from Oak Hill. Joseph Williams is Ms. Jackson's son and an

employee of Tiny Blessings.

35. Ms. King interviewed Mr. Williams, who admitted

transporting children in his mother's vehicle but denied ever

dropping off the children without ensuring they were released to

school staff at the curbside pick-up and drop-off location.

Ms. Santiago, who assisted in the curbside pick-up, recalled

that a "young man" frequently picked up the children after

school. Mr. Williams did not testify at the hearing.

36. At the hearing, Ms. Jackson denied that Tiny Blessings

ever dropped the children off early. Ms. Jackson testified that

on many days the children could not have been dropped off early

at school because Ms. Wiggins did not drop them off at Tiny

Blessings until around 8:00 a.m.

37. Ms. Jackson introduced Tiny Blessings' parent sign-in

sheets for the period from September 20, 2010, through

September 29, 2010. On September 20, Ms. Wiggins dropped off

the children at 8:04 a.m. On September 21, 2010, Ms. Wiggins

dropped off the children at 8:11 a.m. On September 22,

Ms. Wiggins dropped off A.S. at 7:59 a.m.; the sheet indicated

that K.J. was not dropped off at the day care. On September 23,

the date that Ms. Santiago believed to be the second date on

which the children were found wandering the school, Ms. Wiggins

dropped off the children at 7:09 a.m. On Friday, September 24,

Ms. Wiggins dropped off the children at 7:04 a.m. On Monday,

September 27, Ms. Wiggins dropped off the children at 7:36 a.m.

On September 28, Ms. Wiggins dropped off the children at 8:02

a.m. On September 29, Ms. Wiggins dropped off the children at

7:11 a.m.

38. Ms. Jackson testified that on days when the children

were brought to Tiny Blessings at around seven, they were given

breakfast at the day care before being transported to Oak Hill.

On days when Ms. Wiggins was running late, Ms. Jackson would

drive the children directly to school. School staff persons

would be waiting at the curb to take the children from the

vehicle.

39. Ms. Jackson testified that she had one child whom she

had to pick up from the child's home no later than 7:30 a.m. By

the time she returned to the day care at around 7:45, it would

be time to transport school-age children such as A.S.

Ms. Jackson stated that, within the strictures of her morning

schedule, it would make no sense for her to drive K.J. and A.S.

to school before 7:45 a.m.

40. Ms. Jackson testified that on the days in question,

Ms. Wiggins must have dropped the children off at school

herself. She noted that on September 22, Ms. Wiggins had not

dropped both children off at Tiny Blessings because K.J. was

sick.

41. It is problematic that the Department could not

definitely state the dates on which K.J. and A.S. were dropped

off at the school. However, the Department has proven facts

sufficient to establish Tiny Blessings' responsibility for the

incident. Ms. Garrett and Ms. Santiago were absolutely clear

that both K.J. and A.S. had been dropped off early at Oak Hill

and been found wandering the halls of the school. Ms. Garrett

witnessed this situation twice within a few days. These

teachers had no motive to invent such a story. Ms. Santiago

testified as to the shock and anger registered by Ms. Wiggins

when she learned that her children had been found wandering the

school, and that Ms. Wiggins always came in and spoke to her

when she dropped off her children at the school. Ms. Wiggins'

testimony was credible and consistent with Ms. Santiago's

observations.

42. Ms. Jackson's own records established that Ms. Wiggins

left both children at Tiny Blessings on each weekday morning

between September 20 and 29, with the exception of September 22,

when only A.S. was left at Tiny Blessings. Therefore,

Ms. Wiggins could not have dropped off the children at Oak Hill

at around 7:00 a.m. on any of those mornings. The children

could only have been left at Oak Hill by Ms. Jackson or some

agent of Tiny Blessings. 6 /

43. The Department did not prove that the children were

dropped off at the school by Mr. Williams. The hearsay

statements of Mr. Williams and A.S. are the only evidence

supporting a finding that Mr. Williams drove the children to

school. Though she denied that anyone at Tiny Blessings would

ever drop off the children without supervision, Ms. Jackson

testified that she did most of the driving in the mornings.

Mr. Williams drove mostly in the afternoons, picking up the

children from Oak Hill.

Counts V, VI, and VII

44. Ms. King followed up her October 13, 2010,

investigation with a visit to Tiny Blessings on October 14.

During the follow up visit, Ms. King observed an individual

named Trameka Monroe supervising the one-year-old children.

Ms. King did not recognize Ms. Monroe and requested to see her

personnel folder.

45. The personnel folder showed no documentation that

Ms. Monroe had undergone an employment history check, a part of

the background screening the Department requires of child care

personnel. Also, Ms. Monroe's folder contained no documentation

of the required FBI/FDLE criminal records clearance.

46. Ms. Jackson testified that Ms. Monroe had obtained

background screening and that her local law enforcement

clearance and FDLE/FBI clearance had been completed on

October 13, 2010. She introduced a document produced by the

Department stating that it had received Ms. Monroe's complete

criminal history records and found nothing that would disqualify

her from working for Tiny Blessings. The letter stated:

"RESULTS VALID AS OF: 10/13/2010."

47. However, the document also stated: "PLEASE BE ADVISED

THAT LOCAL LAW ENFORCEMENT CHECKS WERE NOT INCLUDED IN THE

DETERMINATION/PROCESS." No evidence was presented that

Ms. Monroe's background screening was ever fully completed.

48. Ms. Jackson did not provide an employment history for

Ms. Monroe. Ms. Jackson testified that Ms. Monroe was so

anxious to start work at Tiny Blessings that she personally went

to the Department's office on October 13 to have her background

check completed. Ms. Jackson stated that the morning of

October 14 was Ms. Monroe's first day on the job, and that it

was a coincidence that this was the day Ms. King arrived at the

facility.

49. Ms. Monroe did not testify at the hearing.

50. In the absence of any information in the personnel

file confirming the status of Ms. Monroe's background screening,

Ms. King instructed Ms. Monroe to leave the premises, which she

did. Ms. Jackson testified that Ms. Monroe never came back

"because of how rude Ms. King was."

51. Ms. King also observed that the personnel file for

employee Sarra Brown was incomplete. Ms. Brown had been

employed previously at Tiny Blessings, but at some point she had

been terminated and then rehired. Ms. Jackson provided no

records to show the dates of the prior employment or how many

days elapsed from the day Ms. Brown was fired to the date she

was rehired. Florida Administrative Code Rule 65C-

22.006(4)(e)6. provides that child care personnel must be re-

screened following a break in employment in the child care

industry that exceeds 90 days.

52. Because Ms. Brown's file lacked an employment history,

Ms. King was not able to determine whether or for how long

Ms. Brown had been out of the day care industry. Ms. King

required Ms. Brown to leave the premises.

53. The personnel files of both Ms. Monroe and Ms. Brown

were missing completed Form 5131 and CS-FSP 5337, "Child Abuse &

Neglect Reporting Requirements" ("Form 5337"). Ms. Monroe's

file lacked the forms entirely; Ms. Brown's forms were

incomplete. Ms. Brown later completed the forms in her file.

Ms. Monroe did not complete the forms, possibly because she

never came back to Tiny Blessings after Ms. King directed her to

leave on October 14.

CONCLUSIONS OF LAW

54. 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. (2010).

55. The Department has the burden of establishing the

grounds for revocation of the Respondent's licensure by clear

and convincing evidence. Dep't of Banking and Fin. v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987); Coke v. Dep't of Child. & Fam.

Servs. , 704 So. 2d 726 (Fla. 5th DCA 1998).

56. In Evans Packing Co. v. Dep't of Agric. and Consumer

Servs. , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), the Court

defined clear and convincing evidence as follows:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the evidence

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 weight that it produces in the mind of

the trier of fact the firm belief of

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983).

57. Judge Sharp, in her dissenting opinion in Walker v.

Dep't of Bus. and Prof'l Regulation , 705 So. 2d 652, 655 (Fla.

5th DCA 1998) (Sharp, J., dissenting), reviewed recent

pronouncements on clear and convincing evidence:

[C]lear and convincing evidence requires

more proof than preponderance of evidence,

but less than beyond a reasonable doubt. In

re Inquiry Concerning a Judge re Graziano ,

696 So. 2d 744 (Fla. 1997). It is an

intermediate level of proof that entails

both qualitative and quantative [sic]

elements. In re Adoption of Baby E.A.W. ,

658 So. 2d 961, 967 (Fla. 1995), cert.

denied , 516 U.S. 1051, 116 S. Ct. 719, 133

L. Ed. 2d 672 (1996). The sum total of

evidence must be sufficient to convince the

trier of fact without any hesitancy. Id.

It must produce in the mind of the

factfinder a firm belief or conviction as to

the truth of the allegations sought to be

established. Inquiry Concerning Davey , 645

So. 2d 398, 404 (Fla. 1994).

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

provider of child care, pursuant to section 402.302, Florida

Statutes (2010), 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.

* * *

(2) "Child care facility" includes any child

care center or child care arrangement which

provides child care for more than five

children unrelated to the operator and which

receives a payment, fee, or grant for any of

the children receiving care, wherever

operated, and whether or not operated for

profit....

59. Section 402.305(2)(a), Florida Statutes (2010),

provides:

(2) PERSONNEL. -- Minimum standards for

child care personnel shall include minimum

requirements as to:

(a) Good moral character based upon

screening. This screening shall be

conducted as provided in chapter 435, using

the level 2 standards for screening set

forth in that chapter.

60. Section 435.04(1)(a), Florida Statutes (2010),

provides:

(1)(a) All employees required by law to be

screened pursuant to this section must

undergo security background investigations

as a condition of employment and continued

employment which includes, but need not be

limited to, fingerprinting for statewide

criminal history records checks through the

Department of Law Enforcement, and national

criminal history records checks through the

Federal Bureau of Investigation, and may

include local criminal records checks

through local law enforcement agencies.

61. Section 402.302(14), Florida Statutes (2010),

provides:

"Screening" means the act of assessing the

background of child care personnel and

volunteers and includes, but is not limited

to, employment history checks, local

criminal records checks through local law

enforcement agencies, fingerprinting for all

purposes and checks in this subsection,

statewide criminal records checks through

the Department of Law Enforcement, and

federal criminal records checks through the

Federal Bureau of Investigation.

62. The Department has adopted rules to implement the

quoted statutes regarding the background screening of child care

facility personnel and to require the facility to maintain

personnel records to document the screening. Florida

Administrative Code Rule 65C-22.006(4) provides:

(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.

Count I

63. Ms. Tedtaotao clearly recalled that she commenced work

at Tiny Blessings on September 27, 2010, after she was cleared

by her background screening. There is no need to ascribe bad

motives to Ms. King in order to find that her notation that

Ms. Tedtaotao began work on September 3 was incorrect.

64. The Department suggests that it was an "unlikely

coincidence" that the background screening for Ms. Tedtaotao was

completed on the same day that she started work at Tiny

Blessings. To the undersigned, it seems only reasonable that an

eager potential employee would wish to start work as soon as her

background screening was complete.

65. The Department points out that Ms. Jackson offered no

easily obtainable documentary evidence, such as payroll records,

"to substantiate the later starting date for Ms. Tedtaotao and

refute Ms. King's observation." See Valcin v. Public Health

Trust of Dade County , 473 So. 2d 1297, 1305 (Fla. 3d DCA 1984),

affirmed in part, quashed in part , 507 So. 2d 596 (Fla. 1987)

(where a party "fails to produce evidence within his control or

produces weaker evidence without satisfactory explanation,"

courts permit an inference that the withheld evidence would be

unfavorable to the party that failed to produce it.)

66. While it is true that payroll records would have been

helpful, the burden was on the Department to prove that

Ms. Tedtaotao began work on September 3, not on Tiny Blessings

to prove that she did not. Moreover, Ms. Jackson did present

her own sworn testimony and that of Ms. Tedtaotao, who was a

credible witness. Their testimony was sufficient to offset the

notations made by Ms. King during her inspection.

67. The Department failed to prove the allegations of

Count I of the Complaint by clear and convicing evidence.

Count II

68. Ms. King testified, and Ms. Jackson did not dispute,

that a Form 5131 was missing from employee Tiffany Turner's

personnel file when Ms. King inspected Tiny Blessings on

October 6, 2010.

69. The Department proved the allegations of Count II by

clear and convincing evidence.

Count III

70. The evidence established, and Ms. Jackson did not

dispute, that on October 7, 2010, she pled nolo contendere to a

charge of domestic battery in violation of section 784.03(1)(a),

Florida Statutes (2010).

71. Section 435.04(3), Florida Statutes (2010), provides:

The security background investigations under

this section must ensure that no person

subject to this section has been found

guilty of, regardless of adjudication, or

entered a plea of nolo contendere or guilty

to, any offense that constitutes domestic

violence as defined in s. 741.28, whether

such act was committed in this state or in

another jurisdiction.

72. Section 741.28(2), Florida Statutes (2010), provides:

"Domestic violence" means any assault,

aggravated assault, battery, aggravated

battery, sexual assault, sexual battery,

stalking, aggravated stalking, kidnapping,

false imprisonment, or any criminal offense

resulting in physical injury or death of one

family or household member by another family

or household member.

73. There is no question that, under section 435.04(3),

Florida Statutes, as revised by chapter 2010-114, Laws of

Florida, Ms. Jackson's plea to domestic battery constituted a

disqualifying offense. However, the Department does not dispute

that Ms. Jackson was advised by her attorney, by the state

attorney, and by the presiding judge, that her plea would not

disqualify her from operating Tiny Blessings.

74. The Department concedes that during the times relevant

to the allegations of Count III of the Complaint, Ms. Jackson

was reasonably relying on the advice of the court that her plea

would not affect her child care license, and that despite the

clear and convincing evidence of her disqualifying offense,

Ms. Jackson should not be penalized for being on the premises of

Tiny Blessings in October 2010.

75. The Department sensibly contends that Ms. Jackson's

reliance on the judge's advice was no longer reasonable after

December 31, 2011, when the certified letter from the Department

notifying her of her disqualification was returned unclaimed.

This letter followed Ms. Jackson's conversations with Ms. King

and other Department representatives in which Ms. Jackson was

informed of the Department's position that she was disqualified.

Count IV

76. During the latter part of September 2010, K.J., a

four-year-old autistic boy, and his six-year-old sister, A.S.,

were enrolled for day care at Tiny Blessings. Both children

attended Oak Hill. The evidence established that either

Ms. Jackson or an agent of Tiny Blessings twice dropped off K.J.

and A.S. at Oak Hill well before the 8:05 a.m. opening of the

school. The Tiny Blessings employee who drove the children to

Oak Hill did not make sure that an adult at the school took

charge of the children. The children were not enrolled in the

early care program at Oak Hill, and both times were found

wandering the halls by Ms. Garrett, the director of the early

care program.

77. Ms. Jackson attempted to shift the blame for these

incidents onto Ms. Wiggins, the mother of the children.

However, Ms. Jackson's own records demonstrated that Ms. Wiggins

dropped the children off at Tiny Blessings on every morning on

which these events could have occurred, with the exception of

September 22, 2010, when Ms. Wiggins dropped off only A.S. at

Tiny Blessings. The only explanation that is supported by the

credible evidence adduced at the hearing is that someone from

Tiny Blessings dropped the children off, unsupervised, at Oak

Hill.

78. The Department has established by clear and convincing

evidence that Tiny Blessings did not adequately supervise K.J.

and A.S., in violation of Florida Administrative Code Rule 65C-

22.001(5)(a). Both children were very young, and K.J. was

autistic, meaning that the lack of supervision could have

resulted in serious harm to the safety and/or well-being of the

children.

Count V

79. During her follow-up visit to Tiny blessings on

October 14, 2010, Ms. King observed that the personnel file of

Tiny Blessings' employee Trameka Monroe did not document an

employee reference check or an FBI/FDLE criminal records

clearance.

80. Ms. Jackson produced documentation indicating that

Ms. Monroe's criminal history records had been screened by the

Department as of October 13, 2010, but also indicating that the

screening did not include local law enforcement checks.

81. Ms. Jackson testified that October 14 was the one and

only day that Ms. Monroe worked at Tiny Blessings. Ms. Monroe's

background screening was never completed.

82. Even accepting Ms. Jackson's story that Ms. Monroe did

not begin working until September 14, and did not work

thereafter, the evidence produced at hearing established that

Ms. Monroe was supervising children at Tiny Blessings before her

background screening was completed and without an employment

history in her personnel file.

83. As to Count V, the Department has established by clear

and convincing evidence that an unscreened individual was

supervising a group of one-year-old children at Tiny blessings,

in violation of Florida Administrative Code Rule 65C-

22.001(5)(a).

Counts VI and VII

84. During the October 14, 2010, follow-up inspection,

Ms. King found that the personnel files of Ms. Monroe and Sarra

Brown were missing mandatory Forms 5131 and 5337. Ms. Monroe's

file was missing the forms completely and was never completed.

Ms. Brown's forms were merely incomplete and were later

completed. Ms. Brown's file was also missing an employee

reference check, which was later provided.

85. The Department has established by clear and convincing

evidence that Ms. Brown's personnel file was incomplete on the

day that Ms. King inspected it, but was later completed.

86. The Department has established by clear and convincing

evidence that Ms. Monroe's personnel file was incomplete on the

day that Ms. King inspected it and was never completed.

However, the Department did not establish that Ms. Monroe

continued to work at Tiny Blessings after October 14. The

penalty should not be enhanced based on Ms. Jackson's failure to

complete a personnel file for someone who was no longer an

employee of Tiny Blessings.

87. In summary, the Department has proven by clear and

convincing evidence the violations it alleged in Counts II, IV,

V, VI, and VII of the Complaint.

88. The violation found for Count II of the Complaint is a

Class 2 violation pursuant to Florida Administrative Code Rules

65C-22.006(4) and 65C-22.010(1)(d)2. Because this was a second

violation, the Department should assess a fine of $50.00,

pursuant to Florida Administrative Code Rule 65C-

22.010(2)(e)2.b. 7 /

89. The violation found for Count IV of the Complaint is a

Class 1 violation pursuant to Florida Administrative Code Rules

of the children, the special needs of K.J., and the caregiver's

disregard for the safety of the children, the Department should

assess a fine of $500.00 per day, for a total of $1,000.00,

pursuant to Florida Administrative Code Rule 65C-

22.010(2)(e)1.a.

90. The violation found for Count V of the Complaint is a

Class 1 violation pursuant to Florida Administrative Code Rules

65C-22.001(5)(a) and 65C-22.010(1)(d)1. The evidence

established that an unscreened individual was directly

supervising children at the facility. Based on all the

circumstances, the Department should assess a fine of $100.00,

pursuant to Florida Administrative Code Rule 65C-

22.010(2)(e)1.a.

91. The violation found for Count VI of the Complaint is a

Class 3 violation pursuant to Florida Administrative Code Rules

65C-22.006(4) and 65C-22.010(1)(d)3. Because this is the third

Class 3 violation found against Tiny Blessings, the Department

should assess a fine of $25.00, pursuant to Florida

Administrative Code Rule 65C-22.010(2)(e)3.c.

92. The violation found for Count VII of the Complaint is

a Class 2 violation pursuant to Florida Administrative Code

Rules 65C-22.006(4) and 65C-22.010(1)(d)2. Because this was a

second violation, the Department should assess a fine of $50.00

pursuant to Florida Administrative Code Rule 65C-

22.010(2)(e)2.b.

93. As to Count III, the undersigned accepts the

Department's suggestion that no penalty should attach to

Ms. Jackson's presence on the premises of Tiny Blessings during

the period covered by the Complaint despite her status as a

disqualified individual. Ms. Jackson's reliance on the advice

of the court regarding the effect of her plea was reasonable

under all the circumstances.

94. This conclusion, however, does not affect

Ms. Jackson's status going forward. As of December 31, 2010,

Ms. Jackson knew or should have known that the court's advice to

her was mistaken and that she is required to seek an exemption

from disqualification before she may operate a day care

facility.

95. Because only two Class I violations were proven at the

hearing, the undersigned concludes that outright revocation of

Ms. Jackson's license is inappropriate under Florida

Administrative Code Rule 65C-22.010(2)(e)1.b. However, Tiny

Blessings should not be allowed to operate under License Number

C04DU0799 unless and until the Department grants Ms. Jackson an

exemption from disqualification pursuant to section 435.07,

Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Families enter a final order imposing a fine of $1,225.00 upon

Lawanda Jackson d/b/a Tiny Blessings, and suspending License

Number C04DU0799 until such time as the Department grants

Lawanda Jackson an exemption from disqualification pursuant to

section 435.07, Florida Statutes.

DONE AND ENTERED this 12th day of December, 2011, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of December, 2011.

ENDNOTES

1/ In their supplement to the record, the parties referenced

Respondent's Exhibits 1 through 4 as "Respondent's Supplemental

Exhibits 1 through 4." The undersigned finds this terminology

could cause confusion by implying there is some difference

between the exhibits admitted at the hearing and those submitted

by the parties with the supplement to the record. In fact,

Respondent's Exhibits 1 through 4 that were admitted at the

hearing are the same documents that were attached to the

supplement to the record and labeled "Respondent's Supplemental

Exhibits 1 through 4."

2/ Ms. King credibly denied any intention other than to enforce

the laws governing child care facilities.

3/ Section 38, chapter 2010-114, Laws of Florida, effective

August 1, 2010, deleted former subsection (4) of section 435.04,

Florida Statutes, and amended subsection (3) to read:

The security background investigations under

this section must ensure that no person

subject to this section has been found

guilty of, regardless of adjudication, or

entered a plea of nolo contendere or guilty

to, any offense that constitutes domestic

violence as defined in s. 741.28, whether

such act was committed in this state or in

another jurisdiction.

Prior to the passage of chapter 2010-114, subsection (4)(b) of

section 435.04 provided that the screening standards must ensure

that the person "[h]as not committed an act that constitutes

domestic violence as defined in s. 741.30." This provision was

interpreted as requiring proof that the person had committed the

act, not merely that the person had pled to the offense. See ,

e.g., J.D. v. Dep't of Children and Family Services , Case No.

09-4792 (DOAH March 31, 2010).

4/ Though the motion was titled "Amendment of Record," the text

of the motion made it clear that Ms. Jackson sought to withdraw

her plea and take the case to hearing. The court denied the

motion without explanation. It is noted that Ms. Jackson had

completed her probation prior to filing the motion.

5/ No witness had a firm recollection of the dates on which

these incidents occurred. Ms. Santiago believed that the

incident involving her occurred on September 23, but could not

be certain of the date. Ms. Jackson understandably complained

that it was difficult to defend her facility's actions when the

Department could not provide dates for the alleged violations.

6/ The hearsay statements of A.S., who told Ms. Santiago that

"the daycare" dropped her off and told Ms. King that "Joe" drove

her and her brother to Oak Hill, are not necessary to reach the

ultimate finding of Tiny Blessings' responsibility for the

incident alleged in Count IV of the Complaint.

7/ The previous violations that provide enhancement for several

of these penalties were not contested by Tiny Blessings at the

hearing.

COPIES FURNISHED

:

David Gregory Tucker, Esquire

Department of Children and Families

5920 Arlington Expressway

Post Office Box 2417

Jacksonville, Florida 32231

Lawanda M. Jackson

2778 Taylor Hill Drive

Post Office Box 60551

Jacksonville, Florida 32236

Gregory D. Venz, Agency Clerk

Department of Children and Families

1317 Winewood Boulevard

Building 2, Room 204A

Tallahassee, Florida 32399-0700

Drew Parker, General Counsel

Department of Children and Families

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

David Wilkins, Secretary

Department of Children and Families

1317 Winewood Boulevard

Building 1, Room 202

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.