17-003844 Department Of Children And Families vs. Family Learning Center Status: Closed Recommended Order on Tuesday, April 24, 2018.

Summary: DCF proved second violation of level 2 background screening requirements by a child care facility. Fifty-dollar fine recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 17 - 3844

FAMILY LEARNING CENTER,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (Division) heard this case by

video teleconference at locations in Tallahassee and Lakeland,

Florida, on January 4, 2018.

APPEARANCES

For Petitioner: Cheryl D. Westmoreland, Esquire

D epartment of Children and Families

1055 U.S. Highway 17 North

Bartow, Florida 33830

For Respondent: Gregg S. Kamp, Esquire

Gregg S. Kamp, P.A.

Post Office Box 6235

Lakeland, Florida 33807

STATEMENT OF THE ISSUE S

A. Did Respondent , Family Learning Cen ter (Family

Learning), violate Florida Administra tive Code Rule 65C -

22.006(4)(e) 1 . and 4 . by not having documentation of l evel 2

background screening as alleged in the Administrative Complaint

(Complaint) ?

B. If so, what penalty should be imposed?

PRELIMI NARY STATEMENT

The Administrative Complaint of Petitioner, Department of

Children and Families (Department) , alleged that on April 5,

2017 , Family Learning did not have documentation that Armentha

Edwards and Tamarra Morse had the required level 2 backgrou nd

scre ening because there was a 90 - day break in their employment in

childcare. This the Complaint alleged violated r ule 65C -

22.006(4)(e) 1 . and 4. The Complaint further alleged that the

violations were a second occurrence. The first violation

allegedly was that on December 13, 2016, Family L earni ng did not

have documentation that De Andria Harris had a valid level 2

b ackground screening.

Family Learning disputed the ComplaintÓs allegations and

requested an administrative hearing. The Department referred the

matter to the Division to conduct the hearing. The hearing was

set for Sept ember 8, 2017. Pursuant to an E xecutive O rder of the

Governor directing that all state offices be closed to allow

preparation for Hurricane Irma, the hearing was canceled. Th e

hearing was re - scheduled for January 4, 2018, and conducted as

scheduled.

Toinette Ash and Patricia Step testified on behalf of the

Department. Department Exhibits A and B were entered into

evidence. Deloris Franklin testified on behalf of Family

Le arning. Family Learning entered Exhibits 1, 3, and 4 into

evidence.

The day after proposed recommended orders were due Family

Learning filed a document titled ÐStatement to the Honorable John

D. C. Newton, II,Ñ stating that it wished to obtain a transcri pt

of the hearing. This was treated as a motion and granted by

Order Extending Proposed Recommended Order Deadline. The O rder

extended the deadline for filing proposed recommend ed orders to

10 days after filing of the transcript. Because the Department

had already filed its Proposed Recommended Order, the Order

granted the Department leave to file a rebuttal to Family

Learni ngÓs Proposed Recommended Order.

Subsequently , the Department asked for clarification of the

O rder because Family Learning had no t ordered the transcript.

The motion was granted by order imposing a deadline for filing a

transcript or a proposed recommended order. Family L earn ing did

not file a transcript. It filed a Proposed Recommended O rder.

The Department did not file a rebut tal. The proposed recommended

orders have been considered in preparation of this Recommended

Order.

FINDING S OF FACT

1. Family L earn ing is a childcare facility licensed by the

Department. Ms. Franklin owns and operates Family L earn ing.

2. On Octob er 2 , 2015, Patricia Ste p , a Department

childcare licensing speciali st, visited the Family Learning

facility before it opened for business. She inspected the

facility and provided education and training for the owner and

operator, Ms. Franklin. The training included education about

file organization, record keeping, and background screening

requirements for employees and volunteers working at a child day

care facility.

3. Ms. Step performed her first post - opening review of the

Family L earn ing facility on De cember 13, 2016. The review

included a review of the file of employee De A ndria Harris.

Ms. Harris lived in Georgia before working with Family L earn ing.

4. When a person has been out - of - state, performing a

background check takes longer. For this reas on at that time, the

Department issued provisional letters to permit people to work in

a childcare facility while their background screening was being

completed. Ms. HarrisÓ s file included a 45 - day provisional

letter dated October 18, 2016. It expired De cember 2, 2016. The

October 18 letter plainly advised Family Learning of the 45 - day

limit upon provisional status. The file did not include proof of

a successful background check of Ms. Harris from Georgia.

5. Nothing in Ms. HarrisÓs file indicated t hat she was no

longer employed at Family L earn ing. Ms. Franklin testified that

at the time of the December inspection Ms. Harris had given

notice. If that is accurate, it does not mean that she was no

longer employed.

6. On December 13, 2016, Ms. Step again told Ms. Franklin

about the background screening requirements. Their conversation

included reminding Ms. Franklin that if a person with a

successful background screening had a break of 90 days or more in

childcare employment the person had to be re - screened if she

returned to childcare employment. Ms. Step also reminded

Ms. Franklin that provisional letters only permitted employment

for 45 days while an out - of - state check is being conducted.

7. Ms. Step gave Ms. Franklin a copy of the inspection form

that indicated the Family L earn ing personnel records did not

comply with the Department requirements. Ms. Franklin received

and signed the form. Ms. Franklin also signed a Supplemental

Inspection Sheet that described the background screening process

and the 45 day limit on provisional hiring status. Finally,

Ms. Franklin received and signed a Notice of Administrative

Warning for Ms. Harris not having a documented, completed

background check.

8. Ms. Step conducted another routine inspection of Fa mily

Learning on April 5, 2017. She reviewed the employee files of

Armentha Edwards and Tamarra Morse. Their files contained

documentation of background screening clearance, work histories,

and applications for employment , among other documents.

9. Ms. EdwardsÓ background clearance document, also called

an eligibility letter, was dated August 30, 2016. Her employment

with Family L earn ing started March 6, 2017. Because more than 90

days separated those dates, Ms. Step reviewed Ms. EdwardsÓ work

history in the file to see if Ms. Edwards had been employed in

other positions that required a background check and the dates of

that employment. She had not been.

10. Ms. Step also reviewed the employee file for

Tamarra Morse. The Background Screening Resul t printout for

Ms. Morse indicated that she cleared screening on November 2,

2015. Ms. M orseÓs employment with Family Learn ing started on

November 3, 2016. Because more than 90 days separated those

dates, Ms. Step reviewed Ms. MorseÓs file to see if it

established that she had been employed in other positions that

required a background check and if the dates of that employment

were during the 90 - day period.

11. T he ÐDate of Employment, Start Date Ñ field, of

Ms. MorseÓs application identified period o f employment at a

facility named Journey to Excellence as Ð4 to 5 years.Ñ Notes of

an employment verification check with Journey to Excellence

indicated employment from Ð8/09 Î present.Ñ November 2, 2016 ,

was the date of the employment verification. Ms. Step sought

additional information from Journey to Excellence.

12. The information Journey to Excellence provided included

an Affidavit of Good Moral Character dated May 6, 2016; a Child

Abuse & Neglect Reporting Requirements acknowledgement signed by

Ms. Morse on November 5, 2015; and a Journey to Excellence

volunteer sign - in sheet indicating that Ms. Morse had last signed

in on July 29, 2016.

CONCLUSIONS OF LAW

13. Section 402.305, Florida Statutes (2017) 1/ , directs the

Department to establish lic ensing standards for childcare

facilities. Section 402.310(1), authorizes the department to

impose a fine not to exceed $100 per violation per day for a

violation of sections 402.301 through 402.319 or rules adopted by

authority of those statutes.

14. In December of 2016 and April of 2017, r ule 65C -

22.06(4)(d)1 . required a childcare facility to maintain re cords

that included proof of a l evel 2 background screening as defined

in section 435.04, Florida Statutes, including at a minimum

Federal Bureau of Inv estigation, Florida Department of Law

Enforcement, and local law enforcement records checks. Rule 65C -

22.06(4)(e)1 . provided that a screening was valid for five years

and required a state - wide re - screen after five years for all

child care personnel.

15. Rule 65C - 22.06(4)(e) required that the Ð[r]e - screening

information for all child care personnel must be documented on

CF - FSP Form 5131 March 2009, Background screening and Personnel

File Requirements.Ñ

16. The re - screening req uirements of r ule 65C - 22.0 6(4)(e)6 .

provided that Ð[c]hild care personnel must be re - screened as

outlined in paragraph (4)(d) above following a break in

employment in the child care industry that exceeds 90 days.Ñ

Section 435.04 establishes the l evel 2 screening standards.

17. As the Department acknowledges, it must prove its

charges by clear and convincing evidence. Coke v. DepÓt of

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

18. The clear and convincing evidence proved that Family

Learning Center did not maintai n the required background

screening documentation for Ms. Edwards. The clear and

convincing evidence also proved that this was a second violation.

19. The Department did not prove by clear and convincing

evidence that Family L earn ing did not maintain th e required

background screening documentation for Ms. Morse.

20. Rule 65C - 22.010(2)( e )2 .b. (as in effect at the time )

states the following: ÐFor the second violation of the same

Class II standard, the Department shall issue an administrative

complaint i mposing a fine of $50.00 for each violation.Ñ The

clear and convincing evidence established a second violation of

the background screening documentation requirement. For this

violation, the Department should impose a fine of $50.00 on

Family L earn ing.

RE COMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Department of Children

and Families, impose a fine of $50.00 on Respondent, Family

L earn ing Center.

DONE AND ENTERED this 2 4th day of March, 201 8 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this this 2 4th day of March, 2018 .

ENDNOTE

1/ All citations to Florida Statutes are to the 2017 compilation.

COPIES FURNISHED:

Gregg S. Kamp , Esquire

Gregg S. Kamp, P.A.

Post Office Box 6235

Lakeland, Florida 33807

(eServed)

Cheryl D. Westmoreland, Esquire

Department of Children and Families

1055 U.S. Highway 17 North

Bartow, Florida 33830

(eServed)

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399

(eServed)

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399

(eServed)

Joh n Jackson, Acting General Counsel

Department of Children and Families

Building 2, Room 204 F

1317 Winewood Boulevard

Tallahassee, Florida 32399

(eServed)

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.