STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERONICA SMITH,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 01-1115

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Jeff B. Clark, held a formal hearing in this case on May 9, 2001, in Sanford, Florida.

APPEARANCES

For Petitioner: Veronica Smith, pro se

500 Sunrise Drive Casselberry, Florida 32707

For Respondent: Eric D. Dunlap, Esquire

Department of Children and Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782 STATEMENT OF THE ISSUE

The issue is whether Petitioner is eligible for exemption from disqualification from working as a caretaker for children under Subsection 435.07(3), Florida Statutes.

PRELIMINARY STATEMENT

On January 31, 2001, Respondent advised Petitioner that her request for exemption pursuant to Chapter 435, Florida Statutes, had been denied. On the February 5, 2001, Petitioner requested an administrative hearing on the denial of her request for exemption pursuant to Chapter 435, Florida Statutes.

On March 20, 2001, Respondent requested the Division of Administrative Hearings to set an administrative hearing to resolve the disputed facts. On March 27, 2001, a Notice of Hearing was entered setting the final hearing for May 9, 2001, in Sanford, Florida.

At the final hearing, Petitioner testified on her own behalf and presented her husband as an additional witness. She offered eleven exhibits which were received in evidence.

Respondent presented two witnesses and offered one exhibit which was received in evidence.

No transcript was ordered. The parties were instructed of their opportunity to submit proposed recommended orders within ten days following the final hearing. Respondent submitted a Proposed Recommended Order.

FINDINGS OF FACTS

1. Under Subsection 402.305(1), Florida Statutes, Department of Children and Family Services is the agency

   responsible for establishing licensing standards for child care facilities and child care personnel.

2. Petitioner applied to Respondent to be licensed as a family day care facility.

3. As a result of Petitioner's application, Respondent conducted a Level 2 background screening to determine if Petitioner qualified as a person of "good moral character" as required by the licensing minimum standards.

4. The background screening and Petitioner's testimony determined the following:

   1. In 1990, in Bergen County, New Jersey, the Petitioner was charged with possession of cocaine and pled guilty; she was sentenced to three years probation which she successfully completed.

      
      

   2. In 1993, in Osceola County, Florida, Petitioner was charged with petty theft, which charge was dismissed.

      
      

   3. In 1995, in Orange County, Florida, Petitioner pled nolo contendere to felony possession of cocaine. She served one day in jail and one year probation which she successfully completed.

      
      

   4. In 1997, in Orange County, Florida, the Petitioner was charged with domestic battery; the charge was dismissed.

      
      

5. Petitioner acknowledged that she had a "drug problem" from 1994 to 1996. She successfully completed a drug treatment program in 1997 and has been drug-free ever since.

6. Petitioner married her present husband, Ivan, in 1997 and has a two-year-old son from this marriage. She is the custodial parent of a 14-year-old daughter. Petitioner's

   19-year-old son attends college.

   
   

7. As required by law, as a part of her background screening, Petitioner filed an Affidavit of Good Moral Character in which she asserted that she had "not been found guilty, or entered a plea of guilty or nolo contendere (no contest), regardless of adjudication, to any of the following charges. . . . Chapter 893 drug abuse prevention and controls only if the offense was a felony or if any other person involved in the offense was a minor."

8. The statement immediately above Petitioner's signature on the Affidavit of Good Moral Character reads:

   Under the penalty of perjury, which is a first degree misdemeanor, punishable by a definite term of imprisonment, not exceeding one year and/or a fine not exceeding $1,000 pursuant to ss. 837.012, or 775.082, or 775.083, Florida Statutes, I attest that I have read the foregoing, and I am eligible to meet the standards of good moral character for this caretaker position.

   
   

9. The statement contained in the Affidavit of Good Moral Character was untrue and Petitioner's explanation for having filed the false affidavit was not persuasive and reflects her refusal or inability to understand the importance of this

   document, having sworn to the truth of the inaccurate statements contained in the document.

10. When she was advised that she had been disqualified from working as a caretaker for children and, as a result, her application for a registered family day care facility had been denied, she requested an exemption as provided in Section 435.07, Florida Statutes.

11. Michael Ingram, District 7 Screening Coordinator, convened a three-person Exemption Review Committee which considered the circumstances surrounding the disqualifying criminal incident(s), nature of harm to victim(s), amount of time since the last criminal incident, and the applicant's general history. The Exemption Review Committee relies on the applicant to provide information on rehabilitation.

12. The Exemption Review Committee denied Petitioner's exemption request based, in part, on the fact that not enough time had elapsed since the 1997 felony conviction and that there was little evidence of rehabilitation. This denial was a proper exercise of the authority vested in the Exemption Review Committee.

13. Petitioner has made a good start on a self-structured rehabilitation program. Apparently, she has a good marriage and a supportive husband. On February 27, 2001, she completed a

    30-hour Family Child Care Training Course. She completed a

    pediatric basic first-aid course on January 16, 2001. She is enrolled in a GED high school equivalency program. She has letters of support from friends and neighbors. Some of the very positive indicators of rehabilitation have occurred since she appeared before the Exemption Review Committee.

14. Although Petitioner has provided evidence indicating a positive direction in her life, she has failed to provide clear and convincing evidence of rehabilitation at this time.

    CONCLUSIONS OF LAW

    
    

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

16. The Department of Children and Family Services establishes licensing standards for child care facilities and child care personnel. Section 402.305, Florida Statutes.

17. Child care personnel in family day care facilities are subject to the applicable screening provisions of Chapter 435, Florida Statutes.

18. If an applicant suffers disqualification, the applicant may request an exemption from the licensing agency. This discretionary exemption from disqualification is limited to specific criminal acts and shall not be used unless coupled with clear and convincing evidence from the applicant of rehabilitation. Subsection 435.07(3), Florida Statutes.

19. The "clear and convincing" evidence standard requires:

    
    

    [T]hat the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; and the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz vs. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

20. The disqualifying criminal offense adjudicated on January 30, 1996, while beyond the three-year limit in Subsection 435.07(1)(a), Florida Statutes, drug rehabilitation in 1997 and the false affidavit of November 9, 2000, are uncomfortably close in proximity to the more recent indices of rehabilitation and denigrate a "clear and convincing" demonstration of rehabilitation.

21. The Exemption Review Committee appropriately considered the criteria for an exemption set forth in Subsection 435.07(3), Florida Statutes, and the committee's recommendation of denial was an appropriate exercise of the discretion vested in a licensing agency.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner, Veronica Smith, an exemption from disqualification from employment as a caretaker for children.

DONE AND ENTERED this 25th day of May, 2001, in Tallahassee, Leon County, Florida.

JEFF B. CLARK

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 25th day of May, 2001.

COPIES FURNISHED:

Eric D. Dunlap, Esquire Department of Children and

Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782

Veronica Smith

500 Sunrise Drive Casselberry, Florida 32707

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 204B 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: 01-001115

Orders for Case No: 01-001115