STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAMMIE COLLINS, )

)

Petitioner, )

)

vs. ) Case No. 98-2972

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 5, 1999, in Marianna, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Tammie Collins, pro se

Post Office Box 208 Greenwood, Florida 32444

For Respondent: Steven Wallace, Esquire

Department of Children and Family Services

Suite 252

2639 North Monroe Street Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

The issue at the hearing was whether Petitioner is entitled to an exemption from disqualification of employment as a person who has direct contact with aged or disabled adults.

PRELIMINARY STATEMENT

By letter, Respondent informed Petitioner that, after reviewing its records, it was denying Petitioner's request for an exemption from disqualification from employment. Petitioner requested a formal hearing on Respondent's denial. Petitioner's request was forwarded to the Division of Administrative Hearings.

At the hearing Petitioner testified in her own behalf, and offered one (1) exhibit into evidence. Respondent did not present any testimony, but offered four (4) exhibits into evidence.

Neither party filed Proposed Recommended Orders.

FINDINGS OF FACT

1. In 1993, Petitioner was 25 years old.

   
   

2. Petitioner was employed by Sunland to care for its disabled clients. Petitioner's duties included direct contact with the clients of Sunland.

3. The background screen revealed that on November 9, 1993, Petitioner plead guilty to two counts of battery (domestic violence). The conviction was the result of a physical altercation between Petitioner and Petitioner's live-in boyfriend, during which Petitioner threw an iron at her boyfriend missing him and striking her 3 year-old child.

4. As a consequence of the conviction, Petitioner was fined the minimum amount and sentenced to two years' probation. She was adjudicated guilty.

5. Contrary to Petitioner's testimony, the evidence showed that Petitioner has had at least two other encounters with the criminal justice system.

6. The greater weight of the evidence showed that Petitioner has a problem with controlling her anger and in controlling her violent response thereto.

7. Based on the record in this case, Petitioner has not established by clear and convincing evidence that she will not be and is not a danger to disabled or elderly persons with which she might come into contact and that she has not learned to control her anger and use of physical aggression. The Petitioner is therefore not entitled to an exemption from disqualification from employment.

   CONCLUSIONS OF LAW

   
   

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

9. The Petitioner has the burden of proof to establish by clear and convincing evidence that she has been rehabilitated to the extent that she will not present a danger to the safety or well-being of the aged or disabled adults entrusted to her care. Sections 435.03 and 435.04, Florida Statutes, provide for employment screening where such screening is required. Section 435.03, Florida Statutes, states in pertinent part:

   1. All employees required by law to be screened shall be required to undergo

      background screening as a condition of employment and continued employment . . . .

      
      

   2. Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication or entered a plea of nolo contendere or quilty to, any offense prohibited under any

      of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:

      
      

      1. Section 414.111, relating to adult abuse, neglect, or exploitation of aged persons or disabled adults.

         
         

      2. Section 782.04, relating to murder.

         
         

      3. Section 782.07, relating to manslaughter.

         
         

      4. Section 782.071, relating to vehicular homicide.

         
         

      5. Section 782.09, relating to killing of an unborn child by injury to the mother.

         
         

      6. Section 784.011, relating to assault, if the victim of the offense was a minor.

         
         

      7. Section 784.021, relating to aggravated assault.

         
         

      8. Section 784.03, relating to battery, if the victim of the offense was a minor.

         
         

      9. Section 784.045, relating to aggravated battery.

         
         

      10. Section 787.01, relating to kidnapping.

          
          

      11. Section 787.02, relating to false imprisonment.

          
          

      12. Section 794.011, relating to sexual battery.

          
          

      13. Section 794.041, relating to prohibited acts of persons in familial or custodial authority.

          
          

      14. Chapter 796, relating to prostitution.

          
          

      15. Section 798.02, relating to lewd and lascivious behavior.

          
          

      16. Chapter 800, relating to lewdness and indecent exposure.

      17. Section 806.01, relation to arson.

          
          

      18. Chapter 812, relating to theft, robbery, and related crimes, if the offense was a felony.

          
          

      19. Section 817.563, relating to fraudulent sale of controlled substances, only if the offense was a felony.

          
          

      20. Section 826.04, relating to incest.

          
          

      21. Section 827.03, relating to aggravated child abuse.

          
          

      22. Section 827.04, relating to child abuse

          
          

      23. Section 827.05, relating to negligent treatment of children.

          
          

      24. Section 827.071, relating to sexual performance by a child.

          
          

      25. Chapter 847, relating to obscene literature.

          
          

      26. Chapter 893, relating to drug abuse prevention and control, only if the offense was a felony or if any other person involved in the offense was a minor.

          
          

   3. Standards for screening shall also ensure that the person:

      
      

      1. For employees and employers licensed or registered pursuant to Chapter 400, does not have a confirmed report of abuse, neglect, or exploitation as defined in Section 415.102(5), which has been uncontested or upheld Section 415.103.

         
         

      2. Has not committed an act which constitutes domestic violence as defined in Section 741.30.

10. Section 435.04, Florida Statutes, has the same provisions as Section 435.03, Florida Statutes. However, it provides for a broader records search for the background screen.

11. Section 435.07, Florida Statutes, provides for exemption from disqualification from employment. Section 435.07, Florida Statutes, states, in part:

    1. The appropriate licensing agency 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;

          
          

       2. Misdemeanors prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdictions;

          
          

       3. Offenses that were felonies when committed but are now misdemeanors;

          
          

       4. Findings of delinquency;

          
          

       5. Commissions of acts of domestic violence as defined in Section 741.30;

          
          

       6. Confirmed reports of abuse, neglect, or exploitation of a vulnerable adult.

          
          

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

          
          

          * * *

          
          

          1. In order for a licensing department to grant an exemption to any employee, the employer 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.

             
             

          2. Disqualification from employment under subsection (1) shall not be removed from, nor may exemption be granted to, any personnel who is found guilty of, regardless of adjudication, or having entered a plea of nolo contendere or guilty to, any felony covered by section 453.03, solely by reason of any pardon, executive clemency, or restoration of civil rights.

12. Based on the evidence presented at the hearing, Petitioner has not demonstrated that she is not a danger to those in her care and she is not entitled to an exemption from disqualification from employment.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the Department of Children and Family Services enter a

Final Order denying Petitioner, Tammie Collins, an exemption from disqualification from employment.

DONE AND ENTERED this 11th day of February, 1999, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1999.

COPIES FURNISHED:

Steven Wallace, Esquire Department of Children

and Family Services Suite 252

2639 North Monroe Street Tallahassee, Florida 32399-2949

Tammie Collins

Post Office Box 208 Greenwood, Florida 32444

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: 98-002972

Orders for Case No: 98-002972