STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
VERONICA HARRIS, )
)
Petitioner, )
)
vs. ) Case No. 00-2824
)
DEPARTMENT OF CHILDREN AND )
FAMILY SERVICES, )
)
Respondent. )
)
CORRECTED RECOMMENDED ORDER
This Corrected Recommended Order is entered sua sponte and
solely for the sake of clarity.
Upon due notice, a disputed-fact hearing was held in this case on September 15, 2000, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Ella Jane P. Davis.
APPEARANCES
For Petitioner: Yelene Goin, Esquire
Law Offices of Robert C. Apgar
320 Johnston Street Tallahassee, Florida 32303
For Respondent: John R. Perry, Esquire
Department of Children and Family Services
2639 North Monroe Street Tallahassee, Florida 32399-2949
STATEMENT OF THE ISSUES
Was Petitioner properly disqualified from working in a position of special trust pursuant to Section 435.04, Florida Statutes, on the basis of a July 21, 1996, incident?
If Petitioner was properly disqualified as a result of the July 21, 1996, incident, has she been sufficiently rehabilitated so as to be eligible for an exemption to work in a position of special trust, pursuant to Section 435.07(3),
Florida Statutes?
PRELIMINARY STATEMENT
On March 21, 2000, the Department of Children and Family Services (DCF) notified Petitioner that she was disqualified from working in a position of special trust due to a "domestic battery" which had occurred on July 21, 1996.
Petitioner timely requested an exemption for the 1996 incident and simultaneously filed a Request to Contest Accuracy of the Record, which Request asserted that Petitioner's 1996 battery conviction did not constitute "domestic battery" and that Petitioner should not be disqualified from positions of special trust as a result thereof.
Informal agency procedures were exhausted, and DCF denied the exemption request. Petitioner timely requested a disputed- fact hearing pursuant to Section 120.57(1), Florida Statutes.
The case was referred to the Division of Administrative Hearings on or about July 14, 2000.
At the September 15, 2000, disputed-fact hearing, Petitioner presented the oral testimony of Keisha Harris, Versee Hoffman, Cecily Brantley, and Katherine Schmidt. Petitioner testified on her own behalf and had nine exhibits admitted in evidence.
Respondent presented the oral testimony of Ed Forsberg and Christiane LeClair and had two exhibits admitted in evidence.
Subsequent to the hearing, Respondent's unopposed Motion for Enlargement of Time Within Which to File Proposed Recommended Order was granted, as was Petitioner's unopposed Motion to Supplement the Record. Petitioner's five supplemental exhibits were admitted and have been considered.
No transcript was provided.
The parties' respective timely-filed Proposed Recommended Orders have been considered.
FINDINGS OF FACT
Petitioner is a high school graduate. She was schooled and certified in New York as a nurse technician. She is certified as a home health aide in Florida.
Petitioner was licensed through Leon County as a family home day care provider in 1995. Since 1996, she has been
operating her family day care home pursuant to an exemption from disqualification by a 1973 disqualifying felony (manslaughter).
When she sought to renew her day care license in 2000, Petitioner was required to sign an Affidavit of Good Moral Character. The 2000 Affidavit of Good Moral Character read:
By signing this form, I am swearing that I have not been found guilty or entered a plea of guilty of nolo contendere (no contest), regardless of the adjudication, to any of the following charges under the provisions of the Florida Statutes or under any similar statute of another jurisdiction. I also attest that I do not have a delinquency record that is similar to any of these offenses.
I understand I must acknowledge the existence of criminal records relating to the following list regardless of whether or not those records have been sealed or expunged. I understand that I am also obligated to notify my employer of any possible disqualifying offenses that may occur while employed in a position subject to background screening under Chapter 435, Florida Statutes.
The 2000 Affidavit then listed a number of offenses and the corresponding statute numbers. Among the offenses listed were:
Sections 741.30 domestic violence and injunction for protection.
784.03 battery, if the victim was a minor.
The 2000 Affidavit is DCF's attempt to paraphrase Section 435.04, Florida Statutes, listing disqualifying
offenses. It is flawed and could be misleading because domestic violence can occur without an injunction for protection.
Petitioner signed the 2000 Affidavit on January 25, 2000, in the portion declaring herself free of any disqualifying statutory violations and also signed the Affidavit in the
portion stating, "To the best of my knowledge and belief, my record may contain one or more of the foregoing disqualifying acts or offenses."
Petitioner's day care license was renewed, despite Petitioner's contradictory declarations on her 2000 Affidavit. She was notified of her disqualification when the five-year background screening turned-up an offense that had occurred on July 21, 1996.
Petitioner testified in the instant case that she did not divulge the July 21, 1996, incident on her 2000 Affidavit because she did not think it constituted domestic violence, but why she signed contradictory statements was not explained.
The Year 2000 background screening results which DCF received from the Florida Department of Law Enforcement indicated that Petitioner had been found guilty of "battery," on the basis of the July 21, 1996, incident. The Department's Background Screening Coordinator then obtained additional documentation from the file of the Leon County Court. Based on the information in the court file, the Department's District II
Office concluded that Petitioner was disqualified from child care because of a "domestic battery" offense.
Petitioner exhausted informal procedures and timely requested an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes (2000). The instant case followed.
The instant case is the second occasion Petitioner has appeared before the Division of Administrative Hearings requesting an exemption from disqualification to work in a position of special trust.
The first occasion Petitioner appeared before the Division occurred in September 1996, when she sought an exemption because she had been disqualified due to her 1973 felony manslaughter conviction in New York. (See Findings of Fact 2.) Petitioner had failed to disclose the 1973 felony conviction on her 1995 affidavit when she first applied to be a child care worker.1 That disqualifying offense showed-up in the initial screening procedures applicable to such applicants.
Petitioner was granted an exemption for the 1973 manslaughter conviction in Harris v. Department of Health and
Rehabilitative Services, DOAH Case No. 96-2010 (Recommended Order entered September 10, 1996; Final Order entered
October 30, 1996), as more fully described below in Findings of Fact 34-36. She has been a licensed day care provider ever since.
In 1996, Petitioner and Frank Fields had a romantic involvement bounded by Mr. Fields' keeping most of his belongings at his sister's apartment and merely sleeping over at Petitioner's home which she shared with her eight-year-old daughter, two to three nights per week, on a sporadic basis.2 On these occasions, he brought with him, and occasionally left in Petitioner's home, only his underwear and some music CDs.
At all times material, Frank Fields was an adult male.
Although younger than Petitioner, he was not a minor.
On July 21, 1996, Petitioner, who was then 47 years old, was two months' pregnant with Frank Fields' child. She testified that at that time she was very upset and confused because of her pregnancy; because Mr. Fields was not helping with household expenses; and because she had heard that Mr. Fields was moving from his sister's apartment to an apartment of his own.
On July 21, 1996, Petitioner was driving her car on Blountstown Highway. She noticed Mr. Fields' van and also noticed that there was a female in the passenger's seat of the van. Apparently, Petitioner believed that Mr. Fields was romantically involved with his female passenger.
Petitioner had one adult daughter; the adult daughter's three children, all under the age of nine years, and her own eight-year-old daughter with her in her car. According
to Petitioner's testimony, none of the four children in her car were young enough to require a car seat and none of her day care children were in her car. According to the police officer who later arrested Petitioner, there were six "children" in the back seat of Petitioner's car, not six people in the whole car.
Regardless of this discrepancy in testimony, it is undisputed that there were no car seats and insufficient car safety belts for the number of passengers in Petitioner's car on July 21, 1996.
Without approving either Petitioner's motivation or her reasoning, I find credible her testimony that she would not have taken her next actions had there been any day care children in her car because if day care parents found out about it, Petitioner could be "put in jeopardy"; she "could be in a lot of trouble"; and she would not have had day care children with her over a weekend. July 21, 1996 was, in fact, a Sunday.
In making the immediately foregoing Finding of Fact, I have not overlooked Ms. Brantley's testimony that on occasion Petitioner has kept Ms. Brantley's children in Petitioner's home on nights and weekends while Ms. Brantley traveled. However, even assuming arguendo, but not ruling, that six rather than four children were in Petitioner's car on July 21, 1996, there is no direct evidence that any of them were also day care clients.
Petitioner drove her car, filled with passengers, following Mr. Fields' van. Mr. Fields turned onto Nekoma Lane and pulled over to the side of the road. Petitioner pulled over and intentionally bumped her car into the back of Mr. Fields' van.
Petitioner and Mr. Fields exited their respective vehicles, and Petitioner demanded to know who Mr. Fields' female passenger was, even though Petitioner knew the passenger was named "Melissa." Some screaming ensued, and Petitioner and Mr. Fields "tussled," hitting and scratching each other. Petitioner and her adult daughter testified that they did not know who struck the first blow. The non-hearsay evidence is insufficient to establish that on this occasion Petitioner left a bite mark on Mr. Fields' arm. When Mr. Fields began to wield a stick he had picked up from the side of the road, Petitioner's adult daughter got between him and her mother.
Petitioner then drove her car, still containing its passengers, so as to follow Melissa, who had walked around the corner. Petitioner then "had a conversation" with Melissa.
There is no evidence that the children were anywhere except inside Petitioner's car during either her confrontation with Mr. Fields or with Melissa.
When the police arrived on the scene, Petitioner was arrested for battery and for driving with a suspended driver's license.
The suspended license charge arose because, when questioned by the police, Petitioner gave her name as "Veronica
L. Wynn." Petitioner's legal name was, in fact, "Veronica Harris." Petitioner also told the officer that her date of birth was September 19, 1959, and that she lived at 2106 Monday Street. Petitioner's true date of birth is September 19, 1949, and her true address was 1229 Elberta Street. When the officer could not find a driver's license record for "Veronica L. Wynn," Petitioner told him that the name on her license might be "Veronica Lee Harris Wynn." After she gave him the name "Veronica Lee Harris Wynn," the officer found Petitioner's driver's license record and learned that her driver's license had been suspended. Petitioner had recently been divorced and had "gone back" to her maiden name, but she testified herein that on July 21, 1996, she deliberately gave incorrect information to the police because she knew her driver's license was suspended and the police were going to check on it.
Mr. Fields was provided with a pamphlet explaining his right to request domestic abuse protection and prosecution. Apparently, he did nothing about it.
Petitioner was charged, in an Information which recited the statutory language of both Subsections 784.03(1) (a) and (b), Florida Statutes (1995), with "battery (M1)," meaning "first degree misdemeanor battery." The Information cited only "Section 784.03, Florida Statutes," for that offense. The Information also charged Petitioner with "driving while license suspended or revoked (M2)" also a misdemeanor, under Section 322.34(1), Florida Statutes (1995). On August 28, 2000, Petitioner entered a "no contest" plea to both charges.
Petitioner was adjudicated guilty of misdemeanor battery and was ordered to serve 12 months of probation with the following conditions: (1) no contact with Frank Fields; (2)
$155.00 court costs; and (3) $100.00 fine. She was also required to pay a monthly supervision fee while on probation and a fee for the services of the public defender.
There was no charge, plea, or sentence stating "domestic violence" or citing a domestic violence statute.
Petitioner was not required to attend a batterers' intervention program, pursuant to Section 741.281, Florida Statutes. No evidence was presented to show that the sentencing court had made written, factual findings that attendance at a batterers' intervention program would be an inappropriate condition for her probation.
Petitioner's probation was terminated in December 1997.
Petitioner miscarried her child conceived of Frank Fields before a live birth.
Petitioner's emotional connection with Mr. Fields seems to have terminated with the July 21, 1996, incident.
At the September 9, 1996, formal exemption hearing in Harris v. Department of Health and Rehabilitative Services, DOAH
Case No. 96-2010 (see Finding of Fact Nos. 11-12) Petitioner and her witnesses did not divulge that six weeks earlier, on
July 21, 1996, Petitioner had been arrested for her altercation with Frank Fields or that less than two weeks earlier, on August 28, 1996, Petitioner had pled "no contest" to battery of Frank Fields.
Petitioner testified in the instant case that she did not divulge the July 21, 1996, incident during the 1996 formal exemption proceeding before the Division because "it was not part of my day care home and had nothing to do with day care children."3
The Recommended Order in DOAH Case No. 96-2010 observed that "Petitioner, now a grandmother, testified tearfully to her errant behavior at the age of 21, over 24 years ago in New York. Petitioner has never been charged with any legal violation since that time, with the exception of traffic
tickets . . . since the [1973] incident, . . . Petitioner has lived an exemplary life . . . ." That Order recommended granting an exemption. The outcome of the Final Order, entered October 26, 1996, was that Petitioner was exempted from the 1973 felony disqualification.4
Petitioner contends that she never committed "domestic violence" and even if she did, she has been "rehabilitated" since July 21, 1996. She feels that she should be granted an exemption because she is sorry for what she did; because if she had been thinking, she would not have done it; and because she loves her day care children.
Since 1996, Petitioner has operated her family day care home and has pursued her goal of becoming a Master Provider of day care.
In order to become a Master Provider, one must have taken the Second Helping Course (a refresher course for experienced day care providers); have either a Child Development Associate Certificate or national accreditation; and have five years' experience. Currently, there are only two Master Providers in Leon County.
In 1998, Petitioner received a $500.00 Caring for Kids Mini-Grant which she used to purchase day care toys.
In March 2000, Petitioner received a scholarship from the T.E.A.C.H. Early Childhood Project, which she had planned to
use to take classes at Tallahassee Community Hospital towards her Child Development Associate certification. Petitioner has put this project on "hold" during the pendancy of the instant case.
In May 2000, Petitioner completed the Second Helping Course. In Leon County, only approximately 20 family home day care providers have taken this course.
In 2000, Petitioner received a $275.00 Caring for Kids Mini-Grant which she used to help pay for her Second Helping Course.
Petitioner was selected to receive a Kids Incorporated Infant/Toddler Initiative Grant of $3,000, which she intended to use to purchase toys and equipment for her day care home. Petitioner was hand-picked by Kids Incorporated because of her genuine love and concern for the children and because Kids Incorporated felt that Petitioner only needed additional toys and equipment in order to improve her day care home. However, because of the instant case, Kids Incorporated has not yet disbursed this money to Petitioner. Kids Incorporated wants to be assured the money will go to someone who will be a day care provider for the long-term.
Petitioner has volunteered for the school readiness program sponsored by Kids Incorporated, which has resulted in
additional visits and evaluations of her day care home. Her day care children have all scored "above average" in the program.
Katherine Schmidt, a Family Child Care Specialist with Kids Incorporated, testified that she has evaluated and assessed Petitioner's day care home in her capacity with Kids Incorporated and during the period she was helping Petitioner obtain the grants mentioned above. Ms. Schmidt believes Petitioner is an excellent day care provider and would not be a danger to the children in her care. Ms. Schmidt also believes Petitioner would be a benefit to the children and their families.
The Leon County Home Day Care Providers Association and Support Group meets monthly, and Petitioner regularly attends. Two day care providers wrote letters in support of Petitioner.
Cicely Brantley is a professional music education teacher in Leon County's public school system. Ms. Brantley's two children attend Petitioner's family day care home. She has seen Petitioner briefly at least five days per week for the last two years. Ms. Brantley's older child is two and one-half years old and has been in Petitioner's day care home since he was nine months' old. Her younger child is 15 months old and has been in Petitioner's day care home since she was eight weeks old.
Ms. Brantley testified that she trusts Petitioner with her
children and that she trusts and values Petitioner's judgment when it comes to the children. Ms. Brantley often asks Petitioner's advice about parenting, discipline, and health issues involving her children. Ms. Brantley testified that other than her husband, Petitioner is the person she trusts the most with her children and that Petitioner goes above and beyond what most day care providers would do, both in education and care. Ms. Brantley was aware of the battery incident that occurred between Petitioner and Mr. Fields, but it did not change her opinion of Petitioner. She does not believe that Petitioner would ever be a danger to her children. Ms. Brantley really does not want to have to find other child care if Petitioner is unsuccessful in getting an exemption, and it is apparent that this concern has influenced her testimony.
Versee Hoffman is a Pioneer with the Jehovah's Witnesses. This means that she has committed to serving 70 hours per month with her ministry. Ms. Hoffman met Petitioner approximately five years ago through church. Ms. Hoffman and Petitioner studied the Bible together periodically. At that time, Ms. Hoffman felt that Petitioner was not really committed to the church or its moral standards, and their studies ended. Thereafter, Ms. Hoffman did not see Petitioner for approximately two years. In early 1999, Petitioner approached Ms. Hoffman and told Ms. Hoffman that she wanted to renew their Bible studies.
Ms. Hoffman agreed, and they have been studying the Bible together weekly ever since.
Ms. Hoffman testified that the Jehovah's Witnesses expect their members to attend five weekly meetings and that Petitioner consistently attends those meetings. Ms. Hoffman testified that Petitioner has grown spiritually and personally since Ms. Hoffman first met her five years ago. Ms. Hoffman believes that Petitioner is truly committed to leading a spiritual life and to meeting the Jehovah's Witnesses' moral standards against violence. Ms. Hoffman believes that Petitioner will continue to meet these standards.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this cause, pursuant to Section 120.57(1), Florida Statutes.
Petitioner contends (1) that she is not disqualified from holding a position of special trust, pursuant to Section 435.04, Florida Statutes, because she fits none of the disqualifying categories of Section 435.04, Florida Statutes, and that (2) even if it is determined that she is disqualified, she should be granted an exemption, pursuant to Section 435.07, Florida Statutes, because she has demonstrated rehabilitation.
The statutes in effect on July 21, 1996, govern the first issue. No subsequent amendments are of significance.
Section 435.04, Florida Statutes (1995), the disqualification statute, reads, in pertinent part, as follows:
435.04 Level 2 screening standards. --
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:
(h) Section 794.03, relating to battery, if the victim of the offense was a minor.
Standards must also ensure that the person:
(b) Has not committed an act that constitutes domestic violence as defined in
s. 741.30. (Emphasis supplied)
Section 741.30, Florida Statutes (1995), did not, in fact, define "domestic violence," but Section 741.28, Florida Statutes (1995), defined "domestic violence" as follows:
"Domestic violence" means any assault, aggravated assault, battery, sexual assault, sexual battery, stalking, aggravated stalking, 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.
"Family or household member" means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have 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.
Section 784.03, Florida Statutes (1995),
provided:
A person commits battery if he:
Actually and intentionally touches or strikes another person against the will of the other; or
Intentionally causes bodily harm to an individual.
Whoever commits battery shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
Section 741.281, Florida Statutes (1995), provided:
Court to order batterers' intervention program attendance.--If a person is found guilty of committing a crime of domestic violence, as defined in s. 741.28, that person shall be ordered by the court to a minimum term of 1 year's probation and the court shall order that the defendant attend a batterers' intervention program as a condition of probation, if a person is admitted to a pretrial diversion program and has been charged with an act of domestic violence, as defined in s. 741.28, the court shall order as a condition of the program that the defendant attend a batterers' intervention program. The court must impose the condition of the batterers' intervention program for a defendant placed on probation or pretrial diversion under this section, unless it makes written factual findings in its judgment or order which are based on competent substantial evidence, stating why a batterers' intervention program would be inappropriate. It is preferred that such programs be certified under s. 741.32. The imposition of probation under this section shall not preclude the court from imposing any sentence of imprisonment authorized by
s. 775.082. (Emphasis supplied)
Petitioner pled "no contest" and was convicted under Section 784.03, Florida Statutes (1995), of the first degree misdemeanor of battery. Her battery was upon Frank Fields, who was not a minor. Therefore, Petitioner cannot be disqualified from employment on the basis of Section 435.04(2)(h), Florida Statutes (1995).
Petitioner is subject to disqualification from employment on the basis of Section 435.04(3)(b), Florida Statutes (1995), if she committed an act which constitutes "domestic violence" as defined in Section 741.30 [sic: Section 741.28], Florida Statutes (1995). It is not necessary to determine that Petitioner was criminally charged or that she pled "no contest" or "guilty," or was "convicted of" a criminal charge of domestic violence.5
However, the fact that Petitioner was not charged with domestic violence nor required to attend a batterer's class in connection with the July 21, 1996, battery is persuasive that neither the battery victim, law enforcement, the State Attorney, nor any Article V Court has viewed the July 21, 1996, incident as "constituting domestic violence." See the requirements placed upon prosecutors and the judiciary, the rights of alleged victims, and the legislative intent expressed in Sections 741.29(1)(b), 741.2901(2), and 741.2902(1), Florida Statutes (1995).6
For purposes of determining if Petitioner has committed an act that constitutes domestic violence, as defined in Section 741.28, Florida Statutes (1995), Subsection (1) may be read, "Domestic violence means any . . . battery resulting in physical injury . . . of one family or household member by another who is or was residing in the same single dwelling unit."
The parties have spent a lot of time discussing the issue of whether or not there was a "physical injury" to Frank Fields by "biting," but biting is immaterial, due to the testimony concerning "scratching." That alone is sufficient evidence to establish that a physical injury to Mr. Fields occurred.7
It must next be determined if the relationship shared by Petitioner and Mr. Fields was contemplated by Section 741.28, Florida Statutes (1995).
Although Section 741.28, Florida Statutes (1995), relating to "domestic violence" has been codified within the statutory, "Title XLII Domestic Relations Chapter 741 Husband and Wife," living arrangements other than spousal relationships may be protected from "domestic violence," provided those relationships are listed in the statute.
Applying the definition of "family or household member," contained in Subsection 741.28(2), Florida Statutes,
Mr. Fields and Petitioner were not spouses, former spouses, or persons related by blood or marriage.
Petitioner and Mr. Fields also did not have "a child in common regardless of whether they had been married or resided together at any time." Only in one place can the undersigned locate a statutory definition of the word, "child."8 That definition, as well as the contexts in which the word "child" is used throughout all Florida's abuse protection statutes, presupposes a live birth. Moreover, in Love v. State, 450 So. 2d 1191 (Fla. 4th DCA 1984), the court held that the word, "person" in the battery statute does not include an unborn fetus. The court noted that the Legislature could amend the statute to protect unborn fetuses from battery but that the existing battery statute did not protect them.
Regrettably, the 1995 Florida Statutes did not define "residence" or "household member," as used in Section 741.28, Florida Statutes.
In assessing whether or not Petitioner and Mr. Fields were persons "presently residing together as if a family or persons who have resided together in the past as if a family," I am aware of a wealth of cases holding that the names of violent visiting boyfriends and girlfriends could not be put on the abuse registry under the pre-1994 statutory definition of "child abuse or neglect." The pre-1994 version of Section 415.503(3),
Florida Statutes, required that in order to be listed as a perpetrator of child abuse, one had to be either a parent or "adult household member," and sporadically visiting girlfriends and boyfriends were not considered "adult household members." See, e.g., Department of Health and Rehabilitative Services v.
M.P. and S.F., DOAH Case Nos. 94-3959C and 94-4614C (Recommended Order entered February 22, 1995).
However, it appears to be the settled law of this state that what constitutes "residency" is a mixed question of law and fact to be determined from the evidence presented in each individual case. See General Guaranty Insurance Company v. Broxsie, 239 So. 2d 595 (Fla. 1st DCA 1970), quoting from
Kiplinger v. Kiplinger, 147 Fla. 243, 2 So. 2d 870, which held:
The residence of a party consists of fact and intention. Warren v. Warren, 73 Fla. 764, 75 So. 35, LRA 1917E, 490. Residence
indicates place of abode, whether permanent or temporary. Minick v. Minick, 111 Fla.
469, 149 So. 483. A resident is one who lives at a place with no present intention of removing therefrom. Tracy v. Tracy, 62
N.J. Eq. 807, 48A, 533. Whether or not a party is a resident is a question of law and fact to be settled or determined from the facts of each particular case.
Considerable research reveals that most Florida cases define either "resident," "residence," "family member," or "household" in terms of a specific insurance policy, which is not helpful in the present circumstances. However, in the
Broxsie case, the appellate court approved the trial judge's
enumeration of certain factors to be considered in determining who is a "relative residing in the same household," without reference to the private insurance policy in that case, as follows:
Whatever else may be embraced in the meaning of the term 'household' there is invariably involved a fixed house or place of abode and the presence of one or more persons who dwell there. When there is more than one person there is the common bond between such persons in the concept of family, that is, that all members of the household have ties of blood, marriage, or adoption among themselves. Those merely dwelling under the same roof does not constitute them members of the same household, but such is the result when they share common bonds of kinship and also share the facilities of the house for living purposes. The three ingredients are (1) close ties of kinship;
(2) a fixed dwelling unit; and (3) enjoyment of each of [sic] part of the living facilities. The main thread of a household or family is the sharing of companionship and of living facilities of the dwelling unit by the members of the household. It is not limited to the family composed of a married couple and minor children or of one parent with a child or children . . . The term 'resident' has been defined as 'one who lives in a place as distinguished from a visitor or transient.' Webster's New 20th Century Dictionary, Second Edition. As has been pointed out in the Robinson case, supra, a person may have a residence in more than one place. What appears to distinguish a person as a resident or nonresident is that the resident is more than a mere visitor or transient, but lives at a place with additional attachments of such
significance as to render that person a more or less consistent part of the
community . . . .
Black's Law Dictionary also gives numerous definitions of "family" and "household," all of which definitions involve at least a collective body of at least two persons living together in one house subject to general management or domestic government by one of them.
Only three Florida cases seem to have addressed who, other than a spouse, may be a perpetrator or victim of "domestic abuse."
In Sharpe v. Sharpe, 695 So. 2d 1302 (Fla. 5th DCA 1997), a sister-in-law sought and received a domestic violence injunction against her deceased husband's brother. Finding blood ties existed because the sister-in-law still had a living child by her deceased husband, the appellate court nonetheless dissolved the injunction because her petition had not claimed that she and her husband's brother had ever resided in the same household. The court held that without such an allegation, statutory domestic violence "had not occurred and could not occur." The court then discussed the case of Evans v. Evans,
599 So. 2d 205 (Fla. 2d DCA 1992), in which, because the adult estranged son of the petitioner's husband had never lived in the same household with the stepmother, the stepmother failed to
qualify as one protected by the domestic violence act then in effect.
In Kokoris v. Zipnick, 738 So. 2d 369 (Fla. 4th DCA 1999), the children's aunt moved to dissolve a domestic violence injunction that had been entered against her. The aunt, a blood relative of her nieces, did not prevail because, even though the aunt only temporarily stepped into the shoes of the mother for one week while the mother was hospitalized, the aunt was then acting as a substitute parent while the children lived with her. This presumably created the necessary family unit. In Kokoris the court interpreted Sharpe as follows:
In Sharpe v. Sharpe, 695 So. 2d 1302 (Fla. 5th DCA 1997), the Fifth District stated a two prong test regarding the relationship between the parties before the court can properly issue a statutory domestic violence injunction. . . . The first prong requires that the Petitioner have a familial or domestic relationship with the Respondent within the range of relationships identified in the statute. . . . The second prong requires that the parties either presently reside, or in the past have resided, with each other as a family or household in the same dwelling unit . . . Given the harm the legislature is seeking to avoid by providing a statutory remedy for domestic violence, namely the physical and emotional trauma and turmoil that flows from violence erupting in home environments, it is understandable that the legislature did not put time limits on how long persons must reside together to qualify for an injunction. Whether a living arrangement, however temporary in nature is 'residing in the same single dwelling unit' should be decided on a case-by-case basis.
Weighing the reasoning set out in each of the foregoing cases, it is here concluded that in the absence of the ties of kinship specifically listed in Section 741.28, Florida Statutes (1995), the remaining statutory phrase, "presently residing together as if a family or persons who have resided
together in the past as if a family" (emphasis supplied) requires that there be some type of mutual obligation of support and nurture, some shared social or cultural responsibility, or some commitment to continue to live "as if a family." Something more is required than mere transient visitations for consensual sex.
Petitioner's and Mr. Fields' relationship never met the standard of "residing together as if a family." Their relationship constituted what the common law referred-to as "open concubinage" and what modern, vulgar slang refers to as "shacking-up."
Mr. Fields came and went at his unilateral whim, apparently eschewing all responsibility for the life he had helped to create. There is no evidence he ever provided any support or socialization for Petitioner or her living minor daughter who consistently shared the home that Petitioner -- not Mr. Fields -- provided. There is no evidence Mr. Fields had declared or considered Petitioner's house to be his legal domicile. There is unrefuted evidence that Mr. Fields
maintained a separate residence or household with his sister. At the very most, Mr. Fields sporadically spent 3/7 of his weekly "overnights" in Petitioner's home. There is no evidence that at any time Mr. Fields' next return to Petitioner's home could be predicted. There is no evidence Mr. Fields or Petitioner ever held themselves out to be a family unit,
committed themselves to forming a family unit, or behaved "as if a family". The battery did not take place in the "household" of Petitioner or of Mr. Fields. Therefore, it must be concluded that Petitioner's 1996 battery of Mr. Fields did not constitute an act of domestic violence.
Having determined that Petitioner has not committed an act which constitutes domestic violence, it therefore follows that Petitioner should not have been disqualified to work in a position of special trust. Therefore, she was not required to prove rehabilitation in this proceeding, and the second issue raised herein is moot.
Furthermore, because DCF gave Petitioner the option to timely contest the accuracy of the record or seek an exemption and she has timely requested a hearing on both issues in the alternative, she has never waived her right to contest the accuracy of the record. Having determined the record is inaccurate at least to the extent that DCF considers the battery to be "domestic violence," this proceeding may not go on to
determine the second and alternative issue of rehabilitation vel
non.
That being said, DCF is now aware that Petitioner has
many supporters in the child care provider community and has distinguished herself therein by education, training, and experience over the four years intervening since the 1996 battery. The Agency also is aware that over four years ago, Petitioner was conducting a legally unsanctioned sexual relationship in her home. It is clear also that at that time, Petitioner drove a car, knowing her driver's license was suspended. She drove that car with unbelted child guest passengers in a reckless manner, deliberately bumping Mr.
Fields' car. She then committed an act of violence against the father of the unborn child she carried in her body. Her testimony herein and in prior proceedings, both formal and informal, has been persistently dishonest and/or evasive. She admittedly lied to police officers in the presence of her daughters and grandchildren.
These events and Petitioner's frequent variances from the truth may raise concerns about her credibility in grant applications and concerns about her moral fitness and the quality of her judgment for purposes of re-licensing her as a caretaker of children, but she may not be disqualified, pursuant to Section 435.04(3)(b), Florida Statutes, solely because of her
1996 battery conviction, because that conviction does not constitute domestic violence as defined in Section 741.30, [sic. 741.28] Florida Statutes (1995).
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 determining that Petitioner is not disqualified from working in a position of special trust solely on the basis of her 1996 battery conviction.
DONE AND ENTERED this 17th day of November, 2000, 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 17th day of November, 2000.
ENDNOTES
1/ The 1995 Affidavit clearly lists "Section 782.07 manslaughter" and requires disclosure of a plea of guilty or nolo contendere to any listed felony "or under similar statutes
of other jurisdictions." DCF asserted that Petitioner's failure to make full disclosure undermines her credibility in the instant proceeding. More damaging to Petitioner's credibility and assertion of good moral character is the fact that she testified in the instant proceeding that in 1995, she had not disclosed her 1973 New York manslaughter conviction because "it was 23 years ago and I didn't think it applied to my getting my day care license."
2/ Respondent's witness, Ms. LeClair, recalled Petitioner telling her review committee during informal proceedings that Mr. Fields stayed over two to three nights per week, but Ms. LeClair's recollection versus Petitioner's recollection of out- of-court statements is insufficient impeachment of Petitioner's in-court testimony, in light of Petitioner's conceding in that testimony that sometimes Mr. Fields stayed with her three nights in some weeks. This discrepancy, by itself, does not diminish Petitioner's credibility herein.
3/ As disingenuous as Petitioner's testimony was on this point, the evidence falls short of proving that any question was directly posed to Petitioner in the prior case which would elicit whether she had, in fact, had any convictions of any kind since 1973. Cf. Finding of Fact 36 n.4, below.
4/ Reading this Order in light of the evidence adduced in the instant proceeding leaves no doubt that Petitioner intentionally misled the trier of fact in the prior proceeding.
5/ Petitioner's assertion that Anderson v. Department of Health and Rehabilitation, 485 So. 2d 849 (Fla. 1986), precludes such a conclusion is rejected. See discussion in footnote 4 of the Recommended Order in Gunn v. Department of Children and Families, DOAH Case No. 96-2554, entered February 24, 1997 and footnote 1 of the Final Order entered June 7, 1997. Also see Dutton v. Department of Children and Family Services, DOAH Case No. 98-5169 (Recommended Order entered April 6, 1999; Final Order entered August 11, 1999) holding that a plea to simple assault was a disqualifying commission of domestic violence because the surrounding circumstances and admissions of the accused met the statutory definition of "domestic violence."
6/ Section 741.29(1)(b), Florida Statutes (1995), provided for officers to give written material to alleged victims explaining how to file a criminal complaint with the State Attorney. (See Finding of Fact 26).
Section 741.2901(2), Florida Statutes (1995), provided:
It is the intent of the Legislature that domestic violence be treated as a criminal act rather than a private matter.
Section 741.2902(1), Florida Statutes (1995), provided:
It is the intent of the Legislature with respect to domestic violence cases, that at the first appearance the court shall consider the safety of the victim, the victim's children, and any other person who may be in danger if the defendant is released and exercise caution in releasing defendants.
7/ See R.H. v. State, 709 So. 2d 129 (Fla. 4th DCA 1998) and the Final Orders entered October 17, 1996 in Berry v. Department of Children and Families, DOAH Case No. 97-1127, and October 21, 1996, in Moseley v. Department of Children and Families DOAH Case No. 97-0368.
8/ Section 39.01, Florida Statutes, addresses delinquency and dependency matters and states, "child" means an unmarried person under the age of 18 years who has been emancipated by order of the court. . . ." Section 1.01, Florida Statutes, defines "person."
COPIES FURNISHED:
Yelene Goin, Esquire
Law Offices of Robert C. Apgar
320 Johnston Street Tallahassee, Florida 32303
John R. Perry, Esquire Department of Children and
Family Services
2639 North Monroe Street Tallahassee, Florida 32399-2949
Virginia A. Daire, Agency Clerk Department of Children and
Family Services Building 2, Room 204B 1317 Winewood Boulevard
Tallahassee, Florida 32399-0700
Josie Tomayo, 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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 18, 2001 | Agency Final Order | |
| Nov. 17, 2000 | Recommended Order | |
| Nov. 13, 2000 | Recommended Order | Exhaustive discussion of domestic violence outside the home and without kinship; Petitioner is not disqualified from working in a position of special trust solely on the basis of her 1996 battery conviction. |
DEBORAH SCURRY vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 00-002824 (2000)
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MARCIA EDWARDS FAMILY DAY CARE HOME vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 00-002824 (2000)
JACQUELINE BIZZELL vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 00-002824 (2000)
DAVIS FAMILY DAY CARE HOME vs DEPARTMENT OF CHILDREN AND FAMILIES, 00-002824 (2000)
