STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMILIE MERWINE, )

)

Petitioner, )

)

vs. ) Case No. 97-3638

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on October 15, 1997, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Emilie Merwine, pro se

1300 Northwest 112th Street Miami, Florida 33167

For Respondent: Collen A. Donahue, Esquire

Department of Children and Family Services

201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

Whether Petitioner should be granted the exemption from disqualification from employment that she is seeking.

PRELIMINARY STATEMENT

By letter dated July 11, 1997, the Department of Children and Family Services notified Petitioner of its intent to deny her "request for exemption under Chapter 95-228, Laws of Florida." Petitioner thereafter requested a Section 120.57(1) hearing on the Department's proposed action. On August 6, 1997, the matter was referred to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the hearing Respondent had requested.

As noted above, the hearing was held on October 15, 1997. At the hearing, two witnesses testified. Petitioner testified on her behalf. Delores Davis, a District Screening Coordinator with the Department, testified for the Department. In addition to the Petitioner's and Davis' testimony, ten exhibits (Petitioner's Exhibit 1 and Respondent's Exhibits 1 through 9) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the undersigned inquired of the parties whether they intended to file proposed recommended orders. In response to the undersigned's inquiry, Petitioner indicated that she would be waiving her right to file a proposed recommended order.

Counsel for the Department, on the other hand, indicated that she would be filing a proposed recommended order on behalf of the Department. The undersigned thereupon, on the record,

announced that the Department's proposed recommended order had to be filed no later than October 24, 1997.1 The Department timely filed its proposed recommended order on October 20, 1997. In making the recommendation contained in this Recommended Order, the undersigned has given careful consideration to the Department's proposed recommended order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

1. In 1975, when she was 36 years of age, Petitioner was dating a married man.

2. When the man's wife found out about her husband's extramarital affair, she began to harass Petitioner and members of Petitioner's family.

3. On March 4, 1975, Petitioner was sitting in her vehicle with her then 17-year old son in the driveway of her home. She was about to leave to take her son to work when her boyfriend's wife drove up and blocked the driveway. Petitioner's son got out of the car and asked the wife to move her vehicle. The wife responded by making what Petitioner perceived to be an "ugly" gesture that was directed to Petitioner's son. Petitioner reacted in anger to the wife's response. She exited her vehicle and physically attacked the wife, bloodying the wife's nose.

4. Police officers arrived on the scene and arrested Petitioner.

5. Petitioner was charged with, and on April 22, 1975, convicted of, aggravated assault as a result of this March 4, 1975, incident. As punishment for committing this crime, she was directed to pay a $50.00 fine and court costs.

6. Petitioner recognizes that her physically aggressive behavior on March 4, 1975, was inappropriate. She is remorseful and repentant.

7. Petitioner has not committed any similar unlawful acts of violence in the more than 22 years since the March 4, 1975, incident.

8. In 1980, Petitioner was arrested and charged with two counts of resisting a law enforcement officer without violence after she had intervened in an altercation involving her son and several police officers, but the charges against her were ultimately dismissed.

9. Petitioner is a certified nursing assistant. She began working as nursing assistant approximately 30 years ago.

10. As a nursing assistant, Petitioner has assisted individuals (in their homes and in institutional settings) needing help in performing their activities of daily living. She has provided such assistance without incident, notwithstanding that she has had to care for some individuals who have been quite difficult, including certain residents of South Florida State Hospital, a state-operated mental health facility, where she worked from 1981 through 1991 (as an

    employee of two different private nursing agencies with whom the hospital had contracted to provide nursing assistant services) and from January 24, 1997, to July 23, 1997 (as an employee of

    the hospital).2 There were occasions during the time she worked at South Florida State Hospital that residents would become physically aggressive toward her. On these occasions, Petitioner reacted, not in kind, but rather with restraint and in a professional manner.

11. On July 23, 1997, after a background screening investigation conducted by the Department had revealed that she was not qualified to serve in her position at South Florida State because of her 1975 conviction for aggravated assault, and following the Department's preliminary denial of her request for an exemption from such disqualification, Petitioner was terminated from her position at the hospital.

12. Petitioner has been unemployed since July 23, 1997.

    
    

13. Although she has been unable to find work as a nursing assistant, Petitioner still continues to perform nursing assistant services (without compensation) for her elderly aunt, for whom she has cared for the past five years.

14. Based upon Petitioner's history since the March 4, 1975, incident that led to her arrest and conviction for aggravated assault, it appears that she has rehabilitated herself and that she will not present a danger if her exemption request is granted.

    CONCLUSIONS OF LAW

    
    

15. Petitioner has been advised by the Department that,

    because of her 1975 conviction for aggravated assault, she is presently disqualified from state employment in positions of special trust, like the position she occupied at South Florida State Hospital. See Sections 110.1127, 394.4572, 435.04, and

    435.06, Florida Statutes.

    
    

16. She is seeking from the Department an exemption from such disqualification pursuant to Section 435.07, Florida Statutes, which provides, in pertinent part, as follows:

    Unless otherwise provided by law, the provisions of this section shall apply to exemptions from disqualification.

    
    

    1. The appropriate licensing agency3 may grant to any employee otherwise disqualified from employment an exemption from disqualification for:

       
       

       1. Felonies committed more than 3 years prior to the date of disqualification; . . .

          
          

          For the purposes of this subsection, the term "felonies" means both felonies prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdictions. . . .

          
          

          (3) 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. . . .

          
          

          (5) Exemptions granted by one licensing agency shall be considered by subsequent licensing agencies, but are not binding on the subsequent licensing agency.

          
          

17. Petitioner has met her burden of clearly and convincingly demonstrating that she has rehabilitated herself since the March 4, 1975, incident that led to her aggravated assault conviction and that granting her an exemption from the disqualification from employment arising from that conviction will not endanger any individual that the employment screening and disqualification provisions of Florida Statutes were intended to protect.

18. Accordingly, such an exemption should be granted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department issue a final order granting the exemption that Petitioner has requested.

DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997.

ENDNOTES

1 This filing deadline was proposed by counsel for Respondent and agreed to by Petitioner.

2 Petitioner's other post-March 4, 1975, employers have been Nightingale Nurses Registry (from 1975 to 1981) and Parkway Regional Medical Center (from August of 1991, to May of 1996).

3 "Licensing agency," as used in Chapter 435, Florida Statutes, "means any state or county agency which grants licenses or registration permitting the operation of an employer or is itself an employer. When there is no state licensing agency or the county licensing agency chooses not to conduct employment screening, 'licensing agency' means the Department. "

COPIES FURNISHED:

Emilie Merwine, pro se

1300 Northwest 112th Street Miami, Florida 33167

Colleen A. Donahue, Esquire

Department of Children and Family Services

201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301

Richard Doran, General Counsel

Department of Children and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory D. Venz, Agency Clerk

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.

1 This filing deadline was proposed by counsel for Respondent and agreed to by Petitioner.

2 Petitioner's other post-March 4, 1975, employers have been Nightingale Nurses Registry (from 1975 to 1981) and Parkway Regional Medical Center (from August of 1991, to May of 1996).

3 "Licensing agency," as used in Chapter 435, Florida Statutes, "means any state or county agency which grants licenses or registration permitting the operation of an employer or is itself an employer. When there is no state licensing agency or the county licensing agency chooses not to conduct employment screening, 'licensing agency' means the Department. "

Docket for Case No: 97-003638

Orders for Case No: 97-003638