STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STACEY C. ANDREWS, )

)

Petitioner, )

)

vs. ) Case No. 98-2153

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on February 4, 1999, in Lakeland, Florida.

APPEARANCES

For Petitioner: Stacey C. Andrews, pro se

Post Office Box 3298 Lakeland, Florida 33802

For Respondent: Jack Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33803 STATEMENT OF THE ISSUE

Should Petitioner's request for exemption from disqualification from employment in a position of trust or responsibility be granted?

PRELIMINARY STATEMENT

By letter dated March 25, 1998, the Department of Children and Family Services (Department) advised Petitioner that her

request for exemption pursuant to Section 435.07, Florida Statutes, had been denied because Petitioner had failed to demonstrate by clear and convincing evidence that she had been sufficiently rehabilitated. The letter also advised Petitioner of her right to a formal hearing under Section 120.57(1), Florida Statutes. Petitioner responded to the Department's letter on April 23, 1998, and requested a formal hearing. On May 6, 1998, this matter was referred to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a hearing.

At the hearing, the Petitioner testified on her own behalf and presented the testimony of Teresa Waters. Petitioner's Exhibits Nos. 1 through 3 were received as evidence. The Department presented the testimony of Malcolm Miller, Robert King, and Dale Woojdyla. The Department’s Exhibits Nos. 1 through 3 were received as evidence. Chapter 435, Florida Statutes, and Sections 402.305 and 741.28, Florida Statutes, were officially recognized.

There was no transcript of this proceeding filed with the Division. The parties elected not to file any proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is the agency of the State of Florida charged with the responsibility of requiring security background investigations of persons employed by employers under the Department's jurisdiction and licensing powers in positions designated by law as positions of trust or responsibility.

2. The purpose of the security background screening is to determine if there are individuals who have committed an offense which would disqualify the individual from working in positions designated by law as positions of trust or responsibility.

3. Petitioner was employed in a position of trust or responsibility by Polk Opportunity Council (the Council) located in Polk, County, Florida. The Council cared for children which required licensure by the Department.

4. Petitioner's job with the Council required that she be screened in accordance with level 2 standards for screening set forth in Chapter 435, Florida Statutes.

5. The screening revealed Petitioner's arrest on

   
   

   September 14, 1992, for spouse battery (domestic violence), under Section 784.03, Florida Statutes. The screening further revealed that on December 3, 1992, Petitioner: (a) entered a plea of nolo contendere to the charge of spouse battery, a misdemeanor; (b) was adjudicated guilty and; (c) placed on probation for a period of one year.

6. After being placed on probation, Petitioner successfully completed, although not timely, the community service hours and

   the Domestic Violence Program required by the court's probation order. Petitioner timely completed all other requirements of her probation. On January 5, 1994, the court terminated Petitioner's probation but due to the untimely completion of the Domestic Violence Program and the community service hours the record reflects that her probation was terminated unsatisfactorily.

7. The arrest and subsequent adjudication of guilt disqualified Petitioner from employment in a position of trust or responsibility. Subsequent to the screening, the Department notified Petitioner and the Council of Petitioner's disqualification. Thereafter, Petitioner was discharged from her employment with the Council.

8. The Council has agreed to hire Petitioner back in her old position if she is granted exemption from disqualification by the Department. Petitioner would be working in the kitchen in the morning and working with children in the afternoon.

9. There is no record of Petitioner being charged with any other crime (domestic violence or otherwise) since her arrest on September 14, 1992.

10. Petitioner is no longer married to the person involved in the incident on September 14, 1992, which resulted in Petitioner's arrest. In fact, her former husband was charged and served time with the Department of Corrections for subsequently beating Petitioner.

11. Since Petitioner completed her probation, she has worked to support her children. Petitioner is presently supporting her seven children.

12. It appears that the Department or its predecessor, Department of Health and Rehabilitative Services, has, since Petitioner's completion of probation, allowed Petitioner to care for children in her home.

13. Petitioner has worked hard and diligently to stay off of welfare, to support her children, and to better her and her children's position in life. In addition to her regular work, Petitioner is always first to volunteer for charitable projects.

14. Petitioner has been sufficiently rehabilitated so as to be employed in a position of trust and responsibility and that she will not present a danger if allowed to be employed in a position of trust or responsibility

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.57(1), Florida Statutes.

16. Section 402.305, Florida Statutes provides licensing standards for child care facilities. Section 402.305(2)(a)(b), Florida Statutes, provides as follows:

    1. PERSONNEL.--Minimum standards for child care personnel shall include minimum requirements as to:

       1. 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.

       2. The department may grant exemptions from disqualification from working with children or the developmentally disabled as provided in s. 435.07,

          
          

17. Sections 435.04(1),(2), and (3)(b), Florida Statutes, provide in pertinent part as follows:

    1. All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. . . .

    2. The security background investigations under this section must ensure that no persons subject to the provisions of this section have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction.

    3. Standards must also ensure that the person:

    * * *

    (b) Has not committed an act that constitutes domestic violence as defined in s. 741.30.

    
    

18. Section 741.28(1), Florida Statutes, provides as follows:

    
    

    As used in ss. 741.28-741.31:

    (1) "Domestic violence" means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offenses resulting in physical injury or death of one family or household member by another who is or was residing in the same single dwelling unit.

19. Section 435.07(3), Florida Statutes, provides as follows:

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

    
    

    * * *

    
    

    (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 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 it continued employment is allowed. The decision of the licensing department regarding an exemption may be contested through the hearing procedure set forth in chapter 120.

20. It is clear from the evidence that Petitioner committed and was adjudicated guilty by the court to an offense that disqualifies her from employment in a position of trust or responsibility unless Petitioner can show by clear and convincing evidence that she has been sufficiently rehabilitated and would not present a danger if continued employment was allowed in the position of trust or responsibility; and thereby, is entitled to an exemption from disqualification. Petitioner has presented that evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Department enter a final order granting Petitioner's request for an exemption from disqualification for employment in positions of trust and responsibility.

DONE AND ENTERED this 19th day of February, 1999, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1999.

COPIES FURNISHED:

Stacey C. Andrews, pro se Post Office Box 3298 Lakeland, Florida 33802

Jack Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33803

Gregory D. Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, 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: 98-002153

Orders for Case No: 98-002153