STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VIOLA D. GRADY,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 01-4857

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RECOMMENDED ORDER

On February 14, 2002, a formal administrative hearing in this case was held by teleconference in Orlando and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Viola D. Grady, pro se

1907 Leisure Drive

Orlando, Florida 32808

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 in the case is whether the Petitioner’s request for exemption from employment disqualification should be approved.

PRELIMINARY STATEMENT

By letter dated November 13, 2001, the Department of Children and Family Services notified Viola D. Grady of the denial of her request for exemption from employment disqualification. Ms. Grady filed a request for formal hearing. The request was forwarded to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of two witnesses, testified on her own behalf and had Exhibits numbered 1-7 admitted into evidence. The Department presented the testimony of one witness and had Exhibits numbered A, B, D, E and H admitted into evidence.

No transcript of the hearing was filed. The Petitioner filed a Proposed Recommended Order that was considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. In May of 1979, Viola D. Grady (Petitioner) was 26 years of age, six months pregnant, residing at an apartment complex, and the mother of at least one elementary-school-age daughter.

2. On May 21, 1979, the Petitioner was walking a daughter to the school bus stop. Another female resident of the complex made a derogatory comment about the Petitioner as

   they walked by and stuck her foot out, tripping the Petitioner and causing her to fall to the ground.

3. The Petitioner responded by raising herself from the sidewalk, picking up a piece of broken glass, and slashing the other resident’s arm. The other resident was transported to a medical facility for treatment of the cut. A law enforcement officer investigated the event and filed a report. Based on the incident, the Petitioner was arrested and charged with one count of aggravated battery.

4. The Petitioner subsequently entered a plea of nolo contendere to battery. She was placed on probation for one year. There being no evidence to the contrary, it is presumed that she completed her probation without further incident.

5. At the hearing, the Petitioner testified that she acted in order to defend herself and her daughter from the other resident. She testified that she did not know the other woman and does not know why the other woman instigated the incident.

6. Other than the incident on May 21, 1979, there is no evidence that the Petitioner has ever been involved in any illegal behavior.

7. Subsequent to the incident, the Petitioner moved out of the apartment complex and eventually into a house. The Petitioner has been married since 1984, has other children and

   grandchildren, and attends church with regularity. She has taken courses at a local community college.

8. The Petitioner has been employed in various retail and food service positions since the 1979 incident. There is no evidence that her job performance has been unsatisfactory.

9. There is no evidence that the Petitioner has ever acted in any manner harmful to, or presented a danger to, children.

   CONCLUSIONS OF LAW

   
   

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

11. The Petitioner has applied for licensure to operate a registered Family Day Care Home. Child care personnel in family day care homes are subject to the applicable screening provisions contained in Section 402.305(2), Florida Statutes. Section 402.313(3), Florida Statutes.

12. Section 402.305(2)(a), Florida Statutes, provides that, at a minimum, child care personnel must demonstrate “[g]ood moral character based upon screening.” Such screening is conducted as provided in chapter 435, Florida Statutes.

13. The department may grant exemptions from disqualification from working with children or the

    developmentally disabled as provided in Section 435.07, Florida Statutes. Section 402.305(2)(b), Florida Statutes.

14. The Petitioner has the burden to establish by clear and convincing evidence that she should not be disqualified from employment. Section 435.07(3), Florida Statutes, sets forth the applicable considerations governing a request for an exemption from employment disqualification, and provides that the Petitioner must establish "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." In this case, the burden has been met.

15. The circumstances surrounding the incident were adequately explained by the Petitioner’s testimony. Without warning or apparent reason, another female residing in the Petitioner’s apartment complex tripped the Petitioner. The Petitioner’s reaction was intended to protect her daughter and her unborn child from injury.

16. There is no evidence that the Petitioner exhibited such behavior prior to the 1979 incident. There is no

    evidence that during the 23 years since the incident, the Petitioner has acted in any manner harmful to herself or any other person. There is no evidence that the Petitioner has ever exhibited any behavior causing harm or which could cause harm to a child.

17. Although the injury to the woman who tripped the Petitioner required medical attention, there is no evidence that there was any permanent injury resulting from the Petitioner’s act.

18. Since 1979, the Petitioner has married, continued to raise a family, including children and grandchildren, attends church regularly, and has furthered her education. She has been gainfully employed.

19. Based on the evidence and testimony presented during the administrative hearing, the Petitioner’s request for exemption from disqualification as provided by Section 435.07, Florida Statutes, should be granted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services grant the request of Viola D. Grady for exemption from employment disqualification.

DONE AND ENTERED this 21st day of March, 2002, in Tallahassee, Leon County, Florida.

________________________________ WILLIAM F. QUATTLEBAUM

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 21st day of March, 2002.

COPIES FURNISHED:

Eric D. Dunlap, Esquire Department of Children and

Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782

Viola D. Grady 1907 Leisure Drive

Orlando, Florida 32808

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

Peggy Sanford, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B

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: 01-004857

Orders for Case No: 01-004857