STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STACY DUTTON, )

)

Petitioner, )

)

vs. ) Case No. 98-5169

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on March 4, 1999, at the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida, a formal hearing was held in this case. The authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Stacy Dutton, pro se

226 Martin Lane Whigham, Georgia 31797

For Respondent: John R. Perry, Esquire

Department of Children and Family Services

Suite 252-A

2639 North Monroe Street Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

Is Petitioner entitled to an exemption from being disqualified to work in a position of trust or responsibility?

PRELIMINARY STATEMENT

Petitioner sought an exemption from disqualification to work in a position of trust or responsibility, having been disqualified to hold such position. Petitioner through correspondence on November 1, 1998, was informed that her presentation to the Respondent seeking an exemption had been denied. The denial was with leave to seek a hearing in accordance with Chapter 120, Florida Statutes. On November 10, 1998, Respondent received Petitioner's request for a hearing in accordance with Chapter 120, Florida Statutes. The case was forwarded to the Division of Administrative Hearings and docketed by the Division on November 20, 1998. The case was subsequently assigned to the Administrative Law Judge for conduct of the formal hearing held on the aforementioned date.

At hearing Petitioner testified in her own behalf.

Petitioner presented the testimony of Elaine Dutton. Respondent presented the testimony of Christiene LeClair and Officer Kent Harvey. Respondent's Exhibits 1 and 2 were admitted.

A hearing transcript was prepared. It was filed with the Division of Administrative Hearings on March 12, 1999.

Respondent timely filed a proposed recommended order on March 22, 1999. Petitioner did not avail herself of the opportunity to submit a proposed recommended order. Respondent's proposed

recommended order has been considered in the preparation of the recommended order.

FINDINGS OF FACT

1. From December 17, 1993 through mid 1995, Petitioner was married to Johnny Coleman. The Colemans had one daughter by that marriage. At the time of the hearing in this cause the child was four years old. Following the dissolution of the marriage Mr. Coleman gained principal custody of the child. At present Petitioner is allowed to see their daughter one night during the week and every other weekend.

2. At present Petitioner is married to Steve Cox and has been since November 8, 1996.

3. On April 17, 1995, Petitioner and Johnny Coleman, who were still married, were returning from an outing at Chehaw Park in Albany, Georgia, to their home in Calvary, Georgia. They had been arguing on the return trip. During the course of the argument, Mr. Coleman threw a can of baby formula, striking their child. This upset Petitioner.

4. When the Coleman's arrived home, Mr. Coleman hit Petitioner with his hand somewhere on her body other than her face. Petitioner responded in kind by striking Mr. Coleman on the back with her hand. In the altercation Petitioner attacked Mr. Coleman with a pocket knife. She admitted this attack to

   Deputy Kent Harvey, employed by the Grady County Sheriff's Office. Upon Deputy Harvey's request Petitioner produced the pocket knife to be taken as evidence by the investigating deputy. The extent of injuries which Mr. Coleman suffered by virtue of the assault with the knife were scrapes and cuts on his left arm, as observed by Deputy Harvey. But Petitioner denied the assault upon her former husband with a knife when testifying at hearing.

5. Petitioner was arrested for aggravated assault in association with what was described in the offense report by the Grady County Sheriff's Department as involving "family violence." When Deputy Harvey placed Petitioner under arrest he advised Petitioner that he intended to contact the agency in the State of Georgia, comparable to the Florida Department of Children and Family Services. When this statement was made by the Deputy to Petitioner, she replied, "Oh well, if they take her, they take her." This refers to custody of her daughter. In his report Deputy Harvey went on to state that Petitioner "seems to have some kind of mental problems and does not worry about the safety of her child."

6. At the time of the incident Petitioner had been having difficulty with her husband and Petitioner's child had been living with Petitioner's mother, Mrs. Elaine Dutton. Mrs. Elaine Dutton explained at the hearing that Petitioner had been distraught about the death of Petitioner's father sometime before the incident of April 17, 1995.

7. As a consequence of her assault on Mr. Coleman with a knife, Petitioner appeared in the State Court of Grady County, Georgia in the case of the State v. Stacy Coleman, Criminal Action 95-SR-059. On October 9, 1995, Petitioner knowingly pled guilty to the offense of simple assault and was sentenced to a period of twelve months but was allowed to serve that sentence on probation which Petitioner successfully completed. Petitioner's testimony that she pled guilty to the offense of "slapping" her former husband, Mr. Coleman, is not credited.

8. At the time of the hearing Petitioner had been working as a cashier at a Hardee's Restaurant in a full-time position for a period of three to four months. When not working Petitioner stays at home and spends time with her mother, in addition to the time spent with her daughter that has been described.

9. At hearing Petitioner explained her encounter on

   
   

   April 14, 1995, with her former husband, as she perceived it, as an incident that she now realizes "how stupid it was."

   Petitioner testified that she was relieved that she does not have to be around her former husband anymore, even to the extent of going to pick her daughter up for visitations. Given a further confrontation between Petitioner and her former husband that took place beyond the dissolution of their marriage, the court has ordered that Petitioner's mother be responsible for coordinating the transportation of Petitioner's daughter from the former

   husband to Petitioner during visits between the daughter and Petitioner.

10. Mrs. Elaine Dutton describes Petitioner's present demeanor as one of maturity compared to the Petitioner's past demeanor. The mother describes Petitioner as being more responsible and more interested in having a "good life." The conduct of a "good life," as Petitioner's mother perceives it, is in the interest of, "so she gets her baby back." Petitioner's mother sees the Petitioner every day. Petitioner's mother described an arrangement in which Petitioner sees a psychologist once a week to help Petitioner.

11. The circumstances involving the April 17, 1995, assault by Petitioner on her former husband were discovered through the conduct of Level 2 screening in accordance with Section 435.04, Florida Statutes. In particular, the decision to disqualify the Petitioner that has been described in the preliminary statement was brought about by screening which determined that Petitioner had been disqualified by virtue of an act constituting domestic violence. See Section 435.04(3)(b), Florida Statutes.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

13. Petitioner had been subjected to Level 2 screening

    standards imposed by Section 435.04, Florida Statutes. At Section 435.04(1), Florida Statutes, the law explains that all employees holding positions designated by law as positions of trust or responsibility are required to undergo a security background investigation as a condition of obtaining employment or if the employee intends to continue in employment. If the background investigation reveals that an employee has committed an act that constitutes domestic violence as described in Section 435.04(3)(b), Florida Statutes, that employee is disqualified from prospective or further employment in a position designated by law as a position of trust or responsibility.1

14. In considering the issue of the question of domestic violence Section 435.04(3)(b), Florida Statutes, refers to the definition in Section 741.30, Florida Statutes. The latter section refers to the ability to seek redress in court by a cause of action for injunction to protect against domestic violence. The actual definition of domestic violence is found at Section 741.28(1), Florida Statutes, which states:

    'Domestic violence' means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense 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.

15. At Section 741.28(2), Florida Statutes, "family or household member" is more specifically defined as:

    Means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as a family or whoever resided together in the past as if a family, and persons who have a child in common regardless of whether they have been married or have resided together at any time.

    
    

16. When Petitioner assaulted her former husband

    
    

    Mr. Coleman with the knife, she committed an act of domestic violence as defined in Section 741.28(1), Florida Statutes, in that it was an act of assault resulting in physical injury to Mr. Coleman, a family member and spouse, as defined in Section 741.28(2), Florida Statutes.

17. Petitioner may seek exemption from her disqualification for the act of domestic violence. See Section 435.07(1)(e), Florida Statutes.

18. The standard for the preliminary decision by Respondent in considering the request for exemption from Petitioner and in allowing Petitioner to contest the outcome of the decision of the Respondent's denying a request of exemption through a further contest involving hearing procedures set forth in Chapter 120, Florida Statutes, is set forth in Section 435.07(3), Florida Statutes, which states in pertinent part:

    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 is elapsed since the incident, the nature or 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.

    
    

19. In accordance with Section 435.07(3), Florida Statutes, Petitioner must either convince Respondent in the preliminary proceeding conducted before Respondent or in the hearing before the Administrative Law Judge that she is entitled to the exemption from disqualification based on clear and convincing evidence that she should not be disqualified from employment. Petitioner failed to convince the Respondent in the preliminary proceeding and has failed in that proof in the present case. It is not clear and convincing that Petitioner is rehabilitated from the act of domestic violence. Petitioner has not been truthful in her testimony concerning the incident with her former husband that took place on April 17, 1995. She disclaims the disqualifying incident, notwithstanding the admission of her conduct to Deputy Harvey. That forms a sufficient basis to deny the exemption, notwithstanding her other attempts to prove rehabilitation that have been described. Given Petitioner's reluctance to acknowledge her misconduct which disqualified her from employment, it is not clear and convincing that Petitioner would not present a danger if allowed to undertake employment in a position of trust or responsibility.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered which denies Petitioner's request to be exempt from disqualification to work in a position of trust or responsibility.

DONE AND ENTERED this 6th day of April, 1999, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 6th day of April, 1999.

ENDNOTE

1/ Section 435.04(3)(b), Florida Statutes, only became effective on October 1, 1995, to apply to offenses committed on or after that date in accordance with Section 64, Chapter 95-228, Laws of Florida. The same disqualifying language for working in similar positions of trust or responsibility existed before October 1, 1995, to include April 17, 1995, the date of the incident here.

An example of past provisions in existence on April 17, 1995 which formed the basis of the disqualification for an act which constitutes domestic violence was found in Section 42.305(2)(b)3, Florida Statutes, (1994 Supp). Under the circumstances, an act constituting domestic violence that took place on April 17, 1995, would form the basis for disqualification to work in a position of trust or responsibility in the same manner, that such conduct would form the basis for disqualification if committed on

October 1, 1995 and dates thereafter. It is not perceived that the Legislature intended to differentiate the treatment of the persons who committed an act on April 17, 1995, which had been a disqualifying event prior to the effective date of Section 435.04(3)(b), Florida Statutes, on October 1, 1995, from a person committing an act of disqualification for domestic violence that took place on October 1, 1995, and dates thereafter. Therefore, Section 435.04(3)(b), carries forward pre-existing disqualifications.

COPIES FURNISHED:

Stacy Dutton

226 Martin Lane Whigham, Georgia 31797

John Perry, Esquire Department of Children

and Family Services Suite 252-A

2639 North Monroe Street Tallahassee, Florida 32399-2949

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: 98-005169

Orders for Case No: 98-005169