STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAMMIE BUTLER, )

)

Petitioner, )

)

vs. ) Case No. 97-1495

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on August 5, 1997, in Miami, Florida, before Judge Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William E. Stacey, Jr., Esquire

Assistant District Legal Counsel Department of Children and

Family Services

401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128

For Respondent: Ms. Tammie Butler, pro se

826 Northwest 5th Avenue Miami, Florida 33136

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted or denied.

PRELIMINARY STATEMENT

At the final hearing in this case, with the agreement of all parties, the normal order of presenting evidence was reversed, and the Department presented its evidence first.1 The Department presented the testimony of one witness and offered two exhibits, both of which were received in evidence. The Petitioner then testified on her own behalf. The Petitioner did not call any additional witnesses, nor did she offer any additional exhibits.2

At the conclusion of the hearing the Petitioner waived her right to submit a proposed recommended order. The Department requested, and was granted, until August 25, 1997, within which to file its proposed recommended order. Neither party ordered a transcript of the final hearing. On August 25, 1997, the Department filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. The Department's proposed findings and conclusions have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is a single mother who hopes to improve circumstances for herself and her children by working in a child care facility. Absent the exemption she seeks here, she will be unable to do so.

2. The disqualifying offense occurred on September 19, 1991, at which time the Petitioner was 24 years old. The incident took place in an apartment where the Petitioner had

   spent the previous night with a man who had once been her boyfriend, was the father of her child, and with whom she was hoping to reestablish a relationship. In the apartment there was a rifle that had been placed there by the man.

3. At the time in question, the man had a current girlfriend. The current girlfriend arrived at the apartment before the Petitioner had departed. The current girlfriend became enraged upon discovering the Petitioner in the man's apartment and, at some point during the unpleasant encounter, the current girlfriend armed herself with a knife, threatened to cut the Petitioner with the knife, and made thrusting gestures with the knife.

4. The Petitioner responded to the conduct described immediately above by grabbing the rifle and using the rifle as a club or baton to protect herself from the threatened knife attack. The Petitioner was not trying to hurt the current girlfriend. Rather, the Petitioner was simply trying to avoid getting hurt by the knife and trying to leave the apartment to avoid any further confrontation. The Petitioner did not shoot the rifle or threaten to shoot the rifle.

5. At some point in the knife thrusting and rifle swinging, the Petitioner struck the other woman on the head with the rifle butt. The landing of that blow gave the Petitioner an opportunity to leave the apartment, which she did. The blow with

   the rifle butt caused a large bruise and a swelling on the other woman's head, but the injury did not require medical attention.

6. The Petitioner was immediately very sorry for what she had done. When she was arrested, she cooperated with the law enforcement and judicial authorities. She entered a plea of guilty to, among other things, violation of Section 782.045, Florida Statutes, relating to aggravated battery. She promptly complied with all of the terms and conditions of her probation.

7. During the several years since the unfortunate incident described above, the Petitioner has tried hard to be a good mother to her children and to be a good citizen in her community. She has been an active supporter of the school attended by her children and has also been active in trying to help other children in the neighborhood. She has taken courses to improve her job skills. She enjoys working with children and would not intentionally hurt any child.

   CONCLUSIONS OF LAW

   
   

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

9. The determination of which statutory provisions are to be applied to the disposition of this matter depends on the date of the offense which forms the basis for the underlying disqualification. The evidence in this case shows that the underlying offense occurred on September 19, 1991. Accordingly,

   this is a case like Veronica Harris v. Department of Health and Rehabilitative Services, DOAH Case No. 96-2010 (Recommended Order issued September 10, 1996), in which it was noted:

   Such date is prior to the beginning date for which the current provisions of Section 435.04(2), Florida Statutes, as enacted by Chapter 95-228, Section 64, Laws of Florida, may be applied. Accordingly, minimum standards applicable to personnel to be employed in delivering services to children contained in the current screening provisions set forth in Section 435.04(2), Florida

   Statutes, are not applicable. Thus, the preceding law for screening personnel must be applied.

   
   

10. The applicable preceding law includes Section 402.305, Florida Statutes (Supp. 1994), which establishes licensing standards for child care facilities, including minimum standards for child care personnel. Those standards preclude employment at a child care facility by any person who has "been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any" of several itemized criminal offenses. The itemized offenses include violation of Section 782.045, Florida Statutes, relating to aggravated battery. See Section 402.305(2)(a)6., Florida Statutes (Supp. 1994).

11. Even though the Petitioner is disqualified by the statutory provisions quoted immediately above, an exemption from that disqualification is available under some circumstances. In this regard, Section 402.305(2)(c)1., Florida Statutes (Supp. 1994), reads as follows, in pertinent part:

    In order to grant an exemption to a person, the department must have clear and convincing evidence to support a reasonable belief that the person is of good character so as to justify an exemption. The person shall bear the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the incident, the time period that has elapsed since the incident, the nature of the harm occasioned to the victim, and the history of the person since the incident, or such other circumstances that shall by the aforementioned standards indicate that the person will not present a danger to the safety or well-being of children.

12. With regard to the circumstances surrounding the incident, it is first noted that the Petitioner was not the initiator of the conflict that resulted in her striking another person with a rifle. Rather, the Petitioner was defending herself from the threat of being stabbed with a knife, and the Petitioner left the area to avoid further combat as soon as she had temporarily disabled her assailant. The incident was neither premeditated nor prolonged by the Petitioner. With regard to the nature of the harm occasioned to the victim, the harm was slight, a blunt trauma to the head that produced a bruise and a swelling that did not require medical treatment. With regard to the time period that has elapsed since the incident and the history of the person since the incident, the incident was six years ago and during that six-year period the Petitioner has made genuine efforts to be a good parent to her children and a good citizen in her community. The Petitioner has met her burden of setting forth sufficient evidence of rehabilitation. There is no indication that the Petitioner will present a danger to the safety or well-being of children.

RECOMMENDATION

On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued granting to the Petitioner the exemption from disqualification she seeks.

DONE AND ENTERED this 24th day of October, 1997, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1997.

ENDNOTES

1/ This change in the order of presenting evidence did not change the burden of proof. That burden is established by statute and remains with the Petitioner, regardless of the order in which evidence is presented.

2/ The Department's Exhibit 2 was comprised of several documents the Petitioner had submitted to the Department in support of her request. The Petitioner relied on the documents offered by the Department in lieu of offering additional copies of the same documents.

COPIES FURNISHED:

William E. Stacey, Jr., Esquire

Department of Children and Family Services

401 Northwest 2nd Avenue Suite N-1014

Miami, Florida, 33128

Ms. Tammie Butler, pro se 826 Northwest 5th Avenue Miami, Florida 33136

Gregory D. Venz, Agency Clerk

Department of Children and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204

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.

Docket for Case No: 97-001495

Orders for Case No: 97-001495