STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ETHEL R. DENSON, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1745

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on August 5, 1996, by video teleconferencing between Tallahassee and Jacksonville, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ethel R. Denson, pro se

6951 West Virginia Avenue Jacksonville, Florida 32209

For Respondent: Roger L.D. Williams, Esquire

Department of Health and Rehabilitative Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

STATEMENT OF THE ISSUE

May Petitioner be granted an exemption to work in a position of special trust?

PRELIMINARY STATEMENT

Petitioner was notified February 27, 1996 that she was disqualified from certain employments due to her failure to meet minimum screening requirements based on a misdemeanor battery on April 11, 1992.

Petitioner requested an informal exemption hearing before the Department of Health and Rehabilitative Services. That hearing was held by the Respondent on March 13, 1996. On March 14, 1996, the Petitioner was informed that her request for exemption had been denied.

On March 27, 1996, Petitioner timely filed her request for formal hearing pursuant to Sections 120.57(1) and 435.07(3) F.S.

At formal hearing before the Division of Administrative Hearings on August 5, 1996, held by video teleconferencing, Petitioner testified on her own behalf. Respondent presented no witnesses but had six exhibits admitted in evidence. No transcript was filed. Both parties filed proposed recommended orders, the proposed findings of fact of which have been ruled upon in the appendix hereto, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Petitioner was arrested and charged with battery on a spouse under Section 784.03(1)(a), F.S., on April 11, 1992.

   
   

2. The incident arose when Petitioner's husband approached her in a threatening manner. The two had been having marital problems. Although he had never hit her, Petitioner's husband was threatening to hit her on this occasion. Petitioner was afraid. She attempted to escape and tried to telephone her pastor for advice. In the meantime, while she was telephoning, her husband approached her again and she hit him on the right side of the head with the telephone receiver. There is no evidence to suggest Petitioner's husband was a minor at the time.

   
   

3. Petitioner's husband sustained bruises, and the side of his head was swollen.

   
   

4. Petitioner was arrested and jailed. She spent two weeks in jail because she was unable to post bond. Her husband attempted to withdraw the charges. Adjudication was withheld.

   
   

5. Petitioner was formerly employed by Vistakon, a cleaning service, but she left that employment in 1993 due to disability arising from an arthritic hip.

   
   

6. Petitioner and her husband finally separated February 1, 1996, and there is no reason to believe the 1992 incident will be repeated.

   
   

7. Although she and her husband have remained married, Petitioner has been involved in no further violent incidents since 1992, nor has she had any involvement with law enforcement in that period.

   
   

8. Petitioner presently is taking classes toward completion of her GED certificate.

   
   

9. Petitioner is an active member of the True Way Bible Deliverance Church. She sporadically cares for children of friends and children in Sunday School. She hopes to qualify for a child care license someday.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Due to the April 11, 1992 domestic violence incident being inflicted upon an adult, not a minor, Petitioner probably should not have been barred from employment in the first place. See, Statutory Revision "notes" to Section

    402.305 F.S. on page 402 of Volume II Florida Statutes [1995] and Dixon v. HRS, DOAH Case No. 96-0576 (Recommended Order of Ella Jane P. Davis, entered April 15, 1996).

12. However, Petitioner may be exempted from disqualification for acts of domestic violence if she meets the following statutory standard:

    
    

    435.07(3)--In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence 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, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, or any other evidence

    or circumstances indicating that the employee will not present a danger if continued employment is allowed. . . .

    
    

13. The evidence herein shows that the circumstances surrounding the criminal incident bordered on self-defense, that Petitioner attempted to get counselling even as she resisted her attacker, and that she employed force only as a last resort. The Article V judge saw fit to withhold adjudication. More than four years have passed since the violent incident, during which time Petitioner has continued her education and clung to her religious values, without any involvement in either violence or crime. The evidence of record establishes a reasonable belief that Petitioner's current character is good in most respects.

    
    

14. The overriding consideration here is whether or not Petitioner will present a danger to the safety or well-being of children if she assumes a position of special trust. Such a consideration is foundational to the granting or withholding of an exemption for employment in a position of special trust. Although the agency asserts that more proof is needed, there is no guarantee that anyone will always and forever be non-violent. Certainly, after four years, Petitioner's chances of continued good moral character are as good as anyone else's.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter

a final order granting Petitioner an exemption to work in a position of special

trust.

DONE and ENTERED this 27th day of September, 1996, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1996.

APPENDIX TO RECOMMENDED ORDER CASE NO. 96-1745

The following constitute specific rulings, pursuant to Section 120.59(2), F.S., upon the Respondent's proposed findings of fact.

Petitioner's three unnumbered paragraphs are accepted in substance, without the argumentation.

Respondent's nine proposed findings of fact are accepted as slightly modified to more accurately reflect the record.

COPIES FURNISHED:

Ethel R. Denson

6951 West Virginia Avenue Jacksonville, Florida 32209

Roger L.D. Williams, Esquire Department of Health and

Rehabilitative Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services

1317 Winewood Blvd., Ste. 204-X Tallahassee, Florida 32399-0700

Richard Doran, General Counsel Department of Health and

Rehabilitative Services 1317 Winewood Blvd., Ste. 204

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF DEPARTMENT OF CHILDREN AND FAMILIES

ETHEL R. DENSON

Petitioner,

vs. CASE NO. 96-1745

RENDITION NO. DCF-97-019-FOF-RCD

DEPARTMENT OF CHILDREN AND FAMILIES

Respondent.

/

FINAL ORDER

THIS CAUSE is before me for entry of a Final Order.

The administrative law judge concluded that the department 1/ should grant petitioner's request for an exemption from disqualification from employment in a position of trust. The facts found by the ALJ establish that petitioner struck her husband with a telephone receiver during a 1992 domestic dispute.

I approve and adopt the Recommended Order except for paragraph 11. I reject the ALJ's legal conclusion that petitioner's conviction did not disqualify her from employment in a position of special trust. Florida law at all times relevant to this proceeding 2/ has provided that a person in a position of special trust must not have committed an act that constitutes domestic violence as defined in section 741.30, Florida Statutes. The facts as found by the ALJ clearly establish that petitioner committed acts that meet the statutory definition of domestic violence.

The facts also demonstrate, however, that petitioner has rehabilitated herself such that she does not pose a threat to children or the developmentally disabled.

Accordingly, it is ORDERED that petitioner's request for an exemption from disqualification from employment in a position of special trust is GRANTED.

DONE and ORDERED this 3rd day of February, 1997, in Tallahassee, Leon County, Florida.

EDWARD A. FEAVER, Secretary Department of Children

and Families

By: SAMARA H. NAVARRO, D.B.A.

Deputy Secretary

ENDNOTES

1/ The Department of Health and Rehabilitative Services became the Department of Children and Families on January 1, 1997. Ch. 96-403, Laws of Fla.

2/ As did the ALJ in paragraph 12 of the Recommended order, T apply chapter 435, Florida Statutes. As to the instant facts, however, section 402.305(2)(b)3., Florida Statutes (Supp. 1994), provides the same disqualifier.

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF DEPARTMENT OF CHILDREN AND FAMILIES, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

Ella Jane P. Davis, Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Roger L. D. Williams, Esquire Department of Children

and Families

Post Office Box 2417 Jacksonville, Florida 32231-0083

Carlton Jones

Background Screening Coordinator Department of Children

and Families

Post Office Box 2417 Jacksonville, Florida 32231-0083

Ethel R. Denson

6951 West Virginia Avenue Jacksonville, Florida 32209

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U.S. Mail or hand delivery to each of the above-named persons this 4th, day of February, 1997.

Gregory D Venz Agency Clerk

Department of Children and Families

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

(904) 488-2381

Docket for Case No: 96-001745

Orders for Case No: 96-001745