STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUDREY Y. WILLIAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3579

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and on September 27, 1996, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing was conducted by video teleconferencing. The parties were located at the Jacksonville Regional Service Center in Jacksonville, Florida. The administrative law judge was located at the offices of the Division of Administrative Hearings in Tallahassee, Florida.

APPEARANCES

For Petitioner: Wade Rolle, Esquire

4730 Norwood Avenue

Jacksonville, Florida 32206

For Respondent: Roger L.D. Williams, Esquire

Department of Health and Rehabilitative Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

STATEMENT OF THE ISSUES

Is Petitioner disqualified by law from working in a position of special trust and responsibility related to child-care services? If disqualified, is Petitioner entitled to exemption from disqualification?

PRELIMINARY STATEMENT

On July 8, 1996, Respondent notified Petitioner that she was disqualified from continuing employment as "child care personnel" in a child-care facility. The basis for the disqualification was the failure to meet the screening standards specified by Section 435.04, Florida Statutes (1995). The stated reason for failing the screening standards was associated with a felony case in Duval County, Florida, for grand theft.

On July 8, 1996, Petitioner requested a hearing before the Respondent to contest the determination of her disqualification by seeking an exemption. On

that same date, Petitioner was notified that she would be provided a hearing on July 17, 1996.

On July 17, 1996, the hearing was conducted before the Respondent.

On July 22, 1996, Petitioner was advised that her request for an exemption from disqualification had been denied based upon an offense of grand theft which was disposed of on October 27, 1981, and a grand theft offense which was disposed of on July 31, 1990, and Petitioner's failure to prove, by clear and convincing evidence, that she should be entitled to exemption from disqualification. Among the alternative responses to the preliminary decision denying the exemption was the opportunity to request an administrative hearing to seek an exemption from her disqualification.

On July 22, 1996, Petitioner requested a hearing consistent with Chapter 120, Florida Statutes.

On August 1, 1996, Respondent transmitted the case to the Division of Administrative Hearings for an administrative law judge to be assigned to conduct a hearing to consider the request for exemption from disqualification. The hearing was held on the aforementioned date.

At hearing, Petitioner testified on her own behalf and presented the testimony of Mary Gibbs, her mother; Mary Jackson, her sister; Michael Williams, her husband; and Lillie R. Huntley. Petitioner's Exhibits 1-4 were admitted into evidence. Respondent did not present witnesses; however, Respondent's Exhibits 1-7 and 9 were admitted into evidence.

The hearing was recorded by electronic means. The tapes prepared during the hearing are provided with this record. The tapes have not been transcribed.

The parties were provided the opportunity to file proposed recommended orders. The parties submitted proposed recommended orders. Although late filed, Petitioner's proposal has been considered together with Respondent's proposal.

FINDINGS OF FACT

1. The discussion in the preliminary statement concerning the case history is incorporated.

   
   

2. At present Petitioner works at St. Vincent's Hospital in Jacksonville, Florida. She is employed as a registered respiratory therapist. She serves critically-ill and terminally-ill patients. She has worked at the hospital for two years. To obtain the Florida license necessary to work as a registered therapist, she spent a total of two and one-half years at Florida Community College at Jacksonville and Flagler Career Institute. In receiving a degree from Florida Community College at Jacksonville, she finished in the top ten in her class.

   
   

3. In the distant past, Petitioner has worked as a teacher's aide in the Duval County, Florida, public school system.

   
   

4. At present, Petitioner and her husband, Michael Williams, have renovated a building and adjacent property with the intent to open a day-care center which would serve the needs of 50-60 children. Petitioner's role in the

   project would be as owner. Petitioner would hire a manager. Petitioner and the manager would hire the staff necessary to care for the children.

   
   

5. Petitioner and Michael Williams were married in 1977. They have several children, the last of whom was born in 1984.

   
   

6. The day-care center would be known as "Kids Points of View".

   
   

7. The day-care center would have a separate checking account from that maintained by Petitioner and her husband.

   
   

8. Petitioner has engaged a CPA firm to provide accounting and payroll services for the day-care center. Those functions would be coordinated between the accountant and Petitioner's husband for the benefit of the day-care center.

   
   

9. In furtherance of the day-care project, the Petitioner and her husband have expended $30,000.00 to $40,000.00 and have expended hundreds of hours in labor.

   
   

10. Petitioner has been prohibited from working with children in a position of special trust, such as day care, based upon certain criminal law violations, which Respondent maintains would disqualify Petitioner from that undertaking.

    
    

11. The basis for disqualifying Petitioner from working with children in the day-care facility is associated with a criminal law offense disposed of on October 27, 1981 involving grand theft and a second grand theft charge disposed of on July 31, 1990, both offenses having occurred in Duval County, Florida. Both offenses were felonies.

    
    

12. In the case of State of Florida v. Audrey Yevette Williams, in the Circuit Court of Duval County, Florida, Case No. 81-7707CFQ, Petitioner entered a plea of guilty to the offense of grand theft. She was given 18 months probation and made to pay restitution to the Sears Surplus Store in the amount of $504.00, within one year of the case disposition. Petitioner also had to pay

    $10.00 to the victims' crime compensation trust fund. Petitioner met the terms of her probation.

    
    

13. Petitioner describes the experience in 1981 as one in which she accompanied another person to the Sears Surplus Store. She made purchases which she paid for. Her acquaintance gave merchandise to Petitioner to carry out of the store, together with the purchases which Petitioner had made. Petitioner and her companion were apprehended and two weeks later were arrested for theft.

    
    

14. The arrest for the grand theft was made on September 4, 1981.

    
    

15. Petitioner concedes that the companion who was with her in the Sears Surplus Store took items from the store and did not pay for them.

    
    

16. On March 15, 1990, Petitioner was again arrested for grand theft. This arrest was in connection with Petitioner's work as a director in a child- care center in which she was accused of misappropriating funds from the center. Petitioner pled no contest to that offense. On July 31, 1990, she was adjudicated guilty of a felony and placed on community control for two years, followed by probation for one year, and made to make restitution in the amount of $5,856.20. Petitioner met the terms of her probation.

17. Petitioner explains that the circumstance was one in which she misapprehended the opportunity which she had to meet the financial needs of the child-care center based upon the belief that permission from one person within that organization was sufficient to carry out her fiscal duties, when, in fact, that individual did not have the exclusive authority to authorize Petitioner to expend money. As her plea suggests, Petitioner chose not to contest the facts, feeling the need to dispose of the case and not leave her children unattended by contesting the facts.

    
    

18. In addition to the grand theft offenses described, Petitioner has a history of worthless check cases that postdate the first offense for grand theft. Petitioner has made restitution in these cases. She has also made restitution in instances where the basis for restitution was not in association with requirements imposed on her by the criminal justice system. The worthless check offenses were offenses investigated by the Sheriff's Office in Jacksonville, Duval County, Florida.

    
    

19. In explaining the worthless check cases, Petitioner points out that, in some instances, the problems were occasioned by the fact that her husband was overseas in military service and her confusion over dates upon which his salary check would be deposited and available for Petitioner to write checks on. Petitioner concedes that on some occasions, the problems arose because she assumed checks she had written would not be presented and honored before sufficient funds would be placed in her account to pay for the checks. Out of this experience, Petitioner has decided that if she is unable to pay for something, she does not need it.

    
    

20. Overall, Petitioner wishes that she had not done the acts which have been described. She attributes her conduct to lack of maturity. She now sees the need to abide by the law. She has not had criminal-law problems since 1992. She has no outstanding worthless checks at present.

    
    

21. Petitioner expresses an affection for children and wants to provide a nurturing environment in a day-care facility.

    
    

22. Mary Gibbs is a domestic worker and cosmetologist. Petitioner is her daughter. Following the problems which Petitioner has experienced with the criminal-law authorities, Ms. Gibbs has noticed a change in her daughter. She believes her daughter has grown up. She notes that her daughter is active in the church, involved with the choir, and serves as church secretary and usher. The church which Petitioner attends is the Free Spirit Church of God in Christ.

    
    

23. Ms. Gibbs believes that if Petitioner were granted an exemption she would act responsibly in running the day-care center.

    
    

24. Mary Jackson is Petitioner's sister. She is the proprietor of M.J. Creative Hair Design and a student at Florida Community College at Jacksonville. In her opinion, Petitioner acted immaturely in the 1980's and is more mature now. Ms. Jackson also notes Petitioner's religious conversion. She believes that some of Petitioner's past conduct was associated with an attempt by Petitioner to meet the needs of Petitioner's family. At present, Ms. Jackson would trust Petitioner with large amounts of money.

    
    

25. Michael Williams has been married to Petitioner for approximately 20 years. He notes the complications associated with maintaining a family when he was overseas and his wife and children were in the United States. In

    particular, he makes this observation concerning the financial circumstances in the past when Petitioner wrote worthless checks.

    
    

26. Over the years Mr. Williams believes that his wife has changed and become more responsible.

    
    

27. Mr. Williams has observed that Petitioner is "good" with children.

    
    

28. Lillie R. Huntley has known Petitioner all of Petitioner's life and knows of Petitioner's past problems that have been discussed. Ms. Huntley observes that Petitioner has changed over time and is more prone to seek help when Petitioner needs help. At present Ms. Huntley observes that Petitioner's reputation in the community is one of honesty.

    
    

29. Elder Ernest Lee Huntley of the Free Spirit Church is married to Ms. Lillie R. Huntley. He has provided a letter addressing Petitioner's long- standing membership in the church and his belief that Petitioner is a person of high morals. Elder Huntley also comments on Petitioner's devotion to their church.

    
    

30. Ms. Tamara Gilbert has written a letter commending Petitioner for Petitioner's devotion to her own children and other children. Ms. Gilbert believes that Petitioner is a positive role model in the lives of children.

    
    

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Section 120.57(1), Florida Statutes.

    
    

32. In Petitioner's position as the owner of a day-care center she is required to undergo screening as an individual in a position of special trust or responsibility. The basis for screening Petitioner is found in Section 402.305(2), Florida Statutes (1994 Supp.). 1/

    
    

33. Petitioner must undergo screening as "child care personnel" in that she intends to own a "child-care facility". Section 402.302(4) and (8), Florida Statutes (1994 Supp.).

    
    

34. Section 402.305(2), Florida Statutes (1994 Supp.), does not refer to the 1981 and 1990 grand theft offenses as a basis for disqualifying Petitioner from working in a position of special trust or responsibility. Consequently, Petitioner should not have been disqualified and need not seek an exemption.

    
    

35. Alternatively, if one assumes that Section 435.04(2)(r), Florida Statutes (1995), has application to this case, a felony theft, which corresponds to grand theft under Chapter 812, Florida Statutes, is a disqualifying event.

    In order to gain exemption from the disqualification, Petitioner would then need to satisfy the requirements set forth in Section 435.07(3), Florida Statutes, which state:

    
    

    In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth sufficient evidence

    of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120.

    
    

36. In accordance with that standard, Petitioner has presented clear and convincing evidence that she should not be disqualified from employment as owner at the day-care center. She has explained in a satisfactory manner the circumstances surrounding the criminal incidents for which an exemption is sought. The time period that has elapsed since the incidents is sufficient to show rehabilitation. The nature of the harm caused to the victims is not such as to continue to cause harm to the victims. Petitioner's history since the incidents shows rehabilitation. Other evidence and circumstances point to rehabilitation by Petitioner since the events in question took place.

Petitioner does not present a danger to children if allowed to own the day-care center.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED a final order be entered which finds that Petitioner should not

have been disqualified from owning the day-care facility, or, alternatively, finding that Petitioner should be exempt from disqualification to work with children in a position of special trust.

DONE AND ENTERED this 18th day of October, 1996, in Tallahassee, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1996.

ENDNOTE

1/ This provision related to minimum standards for personnel to be employed in delivering services to children applies because the current provisions for screening set forth in Section 435.04(2), Florida Statutes, only took effect for allegedly disqualifying offenses which occurred on October 1, 1995 or date subsequent. See Chapter 95-224, Section 64, Laws of Florida. Offenses for which Petitioner is alleged to have been disqualified took place prior to October 1, 1995. Thus, the prior law for screening personnel must be applied.

COPIES FURNISHED:

Wade Rolle, Esquire 4730 Norwood Avenue

Jacksonville, Florida 32206

Roger L.D. Williams, Esquire Department of Health and

Rehabilitative Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Suite 204-X Tallahassee, Florida 32399-0700

Richard Doran, Esquire Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Suite 204

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.

Docket for Case No: 96-003579

Orders for Case No: 96-003579