STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CECILIA S. ADAMS, )

)

Petitioner, )

)

vs. ) Case No. 99-3440

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed-fact hearing on October 27, 1999, in Lake City, Florida, before

Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Cecilia S. Adams, pro se

Post Office Box 394

Lake City, Florida 32609

For Respondent: Lucy Goddard, Esquire

Department of Children and Family Services

1000 Northeast 16th Avenue Box 3

Gainesville, Florida 32601 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to an exemption to work in a position of special trust.

PRELIMINARY STATEMENT

Petitioner was denied an exemption to work in a position of special trust by a June 30, 1999, letter. The case was referred to the Division of Administrative Hearings on or about August 16, 1999.

At the disputed-fact hearing, Petitioner testified on her own behalf and presented the oral testimony of John Mayo. She had three exhibits admitted in evidence. Respondent presented the oral testimony of Pat Joiner and had four exhibits admitted in evidence.

No transcript was provided. Only Petitioner submitted a Proposed Recommended Order, which has been considered.

FINDINGS OF FACT

1. Petitioner has had a number of prior problems with the law which were found as fact in C.A. v. Department of Health and Rehabilitative Services, DOAH Case No. 94-6162C (Recommended Order entered May 12, 1995; Final Order entered August 15, 1995), as follows:

   Petitioner was the defendant in the following criminal cases in Columbia County, Florida:

   
   

   1. November 2, 1987--Placed on Probation for three counts of forgery. Case No. 87-400-CF.

      
      

   2. March 28, 1989-- Pled guilty to Battery, Assault, and Criminal Mischief. Ordered to refrain from unlawful contact with Maurice Jackson. Case No. 89-471-MM.

      
      

   3. April 12, 1989--Charge of Battery Nolle prossed at victim's request because victim

      was in state of New York. Victim was a woman with a baby in her arms. Case No. 89-29-MM.

      
      

   4. July 18, 1989--Pled guilty to Criminal Mischief, Petit Theft, Battery, and Improper Exhibition of Dangerous Weapon. Order to refrain from unlawful or harassing contact with Maurice Jackson. Case Nos. 89-866 mm & 89-924-MM.

      
      

   5. January 8, 1990--Signed a Deferred Prosecution Agreement after being charged with one count of Disorderly Conduct, two counts of Battery, two counts of Assault and one count of Improper Exhibition of Dangerous Weapon, all of which arose out of altercation with Maurice Jackson. Case Nos. 89-2183-MM & 89-2073-MM.

      
      

   6. April 24, 1991--Pled Guilty and convicted of Battery and Trespass After Warning involving Maurice Jackson. Case No.

      91-579mm.

      
      

   7. June 2, 1992--Pled Guilty to seven counts of cashing worthless checks. Case Nos.

      91-2489-MM through 91-2495-MM.

      
      

   8. June 9, 1992--Violated probation in Case No. 87-400-CF and placed under Community Control supervision.

      
      

   9. November 17, 1992--Charge of Battery dismissed because victim declined to pursue damages. Case No. 92-1882-MM.

      
      

2. Currently, Petitioner is disqualified from working in positions of special trust as a result of her nolo contendere plea and criminal conviction for battery and trespass, both first degree misdemeanors, in Alachua County, Florida, on November 28, 1995, in Case No. 95-2789CFA.

3. On April 12, 1996, a violation report was prepared, charging Petitioner with the commission of a new felony and her

   failure to pay the monetary obligations under her probation for the 1995 offense.

4. Pursuant to a plea of nolo contendere to a charge of domestic battery on May 16, 1996, Petitioner was placed on one-year supervised probation with special conditions.

5. Petitioner ultimately completed a 21-hour Batterer's Intervention Program and her community service hours, which were among the special conditions of her May 16, 1996, plea and probation, but these requirements were not fulfilled timely.

6. Petitioner attributes her prior violent episodes to abusive first and second marriages. She maintains that prayer and the anti-battery classes she attended have changed her attitude and given her the ability to deal with inter-personal conflicts and relationship problems.

7. However, sometime since 1996, which date is unclear from the record, Petitioner also had a violent altercation in her home with a male guest. Apparently, this altercation also resulted in criminal charges against Petitioner, but those charges were dismissed by a Circuit Judge upon grounds of Petitioner's right of self-defense in her own home.

8. Petitioner currently is a single mother who works regularly to support her child and is well thought-of by her employer.

9. Petitioner has recently taken an aptitude test which established that she can complete community college course work

   to become a licensed practical nurse (LPN), but she does not want to pursue such a career goal unless she first receives an exemption.

10. Petitioner desires a "second chance" and lamented how long she has been "punished" by being kept on the disqualification list.

11. Mr. John Mayo has known Petitioner for more than twenty years and considers her "different" from the way she used to be before she took the anti-battery classes. He described her currently as a "hard worker," and one who is attempting to better herself after having gotten out of youthful troubles and abusive relationships.

12. No other witnesses testified on Petitioner's behalf.

    
    

    CONCLUSIONS OF LAW

    
    

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

14. Section 393.0655(2), Florida Statues (Supp. 1998), permits the Respondent Agency to grant exemptions pursuant to Section 435.07, Florida Statutes. Section 435.07(3), Florida Statutes (Supp. 1998), states in pertinent part as follows, and substantially similar language has applied at all times material:

    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, 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 person since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed.

15. Normally, in order to establish rehabilitation, petitioners in this type of proceeding present evidence of their current reputations for truth and veracity, and for "peaceableness" in the communities in which they live and/or work. They also usually present evidence of their current stable employment, their ability to work with others safely, their community or religious involvement, and examples of volatile situations which they have been able to defuse by using the techniques learned at anti-battery classes. This evidence is typically presented through character and reputation witnesses who appear at hearing.

16. In this case, Petitioner has provided only evidence of current stable employment and her own opinion and that of one close friend that "everyone deserves a second chance" and that she "has suffered punishment long enough." There is no clear evidence, indeed, no evidence of any kind, that Petitioner has taken any specific steps to overcome her long-standing history of participatory violence and to ensure that she will not present a

danger to the safety of children or developmentally disabled adults.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's request for exemption from disqualification from working in a position of special trust.

DONE AND ENTERED this 29th day of November, 1999, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 29th day of November, 1999.

COPIES FURNISHED:

Lucy Goddard, Esquire Department of Children and

Family Services

1000 Northeast 16th Avenue Box 3

Gainesville, Florida 32601

Cecilia S. Adams Post Office Box 394

Lake City, Florida 32609

Samuel C. Chavers, Acting Agency Clerk Department of Children and

Family Services Building 2, Room 204B 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: 99-003440

Orders for Case No: 99-003440