STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERONICA HARRIS, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2010

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, a Hearing Officer for the Division of Administrative Hearings, held a final hearing in the above-styled case on September 9, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Marc Taps, Esquire

Legal Services of North Florida 2119 Delta Boulevard

Tallahassee, Florida 32303

For Respondent: John Perry, Esquire

District 2 Legal Office Department of Health and

Rehabilitative Services 2639 North Monroe Street

Tallahassee, Florida 32399-2949 STATEMENT OF THE ISSUE

Should Petitioner be granted an exemption from disqualification in providing child care services or certain adult care services?

PRELIMINARY STATEMENT

By request filed on March 6, 1996, Petitioner's counsel requested formal proceedings in response to Respondent's prior denial of Petitioner's request for exemption from disqualification of employment in providing care for children or developmentally disabled adults.

On April 30, 1996, the matter was referred to the Division of Administrative Hearings for further administrative proceedings.

At the final hearing, Respondent presented one exhibit and testimony of one witness. Petitioner presented testimony of five witnesses and four exhibits.

No transcript of the final hearing was provided. Both parties also waived submission of proposed findings of fact.

FINDINGS OF FACT

1. On November 13, 1995, Respondent preliminarily established that Petitioner was disqualified to hold a caretaker position providing care or training to children or developmentally disabled individuals. The denial was based upon Petitioner's failure to meet minimum screening requirements specified by Section 435.04(2)(b), Florida Statutes, which seeks to prevent the employment in positions of trust and responsibility of those individuals found guilty of violation of Section 782.04, Florida Statutes, relating to murder.

   
   

2. By indictment on March 29, 1973, Petitioner was charged with second degree murder in the Supreme Court, Bronx County, New York. Petitioner subsequently pled guilty to the offense of manslaughter, and, on October 26, 1973, she was sentenced to an indeterminate sentence not to exceed four years.

   
   

3. A model prisoner, Petitioner served 14 months of her sentence and was paroled. She reported regularly thereafter to her parole officer until the conclusion of her four year sentence.

   
   

4. Facts of the incident leading to the charge against Petitioner and her subsequent sentence were established at the final hearing by the candid and direct testimony of Petitioner. A female in a relationship with Petitioner's brother attacked the Petitioner who resorted to use of a handgun, killing her attacker. Petitioner had earlier sought and received a restraining order against the individual which "worked for a year" before the individual sought again to confront Petitioner.

   
   

5. 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.

   
   

6. Petitioner, a high school graduate, was also schooled and certified as a nurse technician in New York in 1980. She moved to Florida in the late 1980's and was certified in Florida in 1989 as a nursing assistant. She was certified as a home health aide in 1990 in the State of Florida.

   
   

7. Petitioner is a devout member of her church, attending services several times each week. Her adult children regularly employ her services to care for their children. She has six grandchildren, as well as an eight year old of her own. She also cares for two retired individuals.

   
   

8. Prior to Respondent's determination of her disqualification, Petitioner provided child care services out of her home. Arlene Marcellus is the mother of one of those children. Marcellus testified at the final hearing that she has known the Petitioner for more than a year. Petitioner provided care for Marcellus' three year old daughter on a regular basis, eight hours per day, for approximately three months prior to Respondent's determination. Marcellus was well pleased with Petitioner's services and had planned that Petitioner would care for Marcellus' unborn twins. Unfortunately the twins were stillborn.

   
   

9. Petitioner desires to continue her work in the area of child care. Since the licensure process required that Petitioner undergo background screening, Respondent made its initial determination to deny exemption.

   Respondent's representative at the final hearing in this cause testified that facts concerning Petitioner, as presented at this hearing, could have resulted in a different initial determination by Respondent if presented to Respondent prior to that determination.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

11. Since Petitioner's potential licensure and employment in the child care industry results in her denomination as an individual in a position of special trust or responsibility, background screening was required. The basis for screening Petitioner to determine her "[g]ood moral character" is found in Section 402.305(2)(a), Florida Statutes.

    
    

12. As established by the evidence presented, the offense which allegedly disqualifies Petitioner took place prior to October 1, 1995. Such date is prior to the beginning date for which the current provisions of Section 435.04(2), Florida Statutes, as enacted by Chapter 95-228, Section 64, Laws of Florida, may be applied. Accordingly, minimum standards applicable to personnel to be employed in delivering services to children contained in the current screening provisions set forth in Section 435.04(2), Florida Statutes, are not applicable. Thus, the preceding law for screening personnel must be applied.

    
    

13. Section 402.305(2)(a)1. and 2., Florida Statutes (1994 Supp.), disqualifies a person from providing services in the instance where the individual has committed any violation of Section 782.04, Florida Statutes, relating to murder; or Section 782.07, Florida Statutes, relating to manslaughter.

    
    

14. In view of the evidence presented in this matter, Petitioner is disqualified for licensure by Section 402.305(2)(a)1. and 2., Florida Statutes (1994 Supp.), absent her qualification for exemption.

    
    

15. In accordance with Section 402.305(2)(c)1.a., Florida Statutes (1994 Supp.), Petitioner may obtain an exemption from disqualification if she complies with Section 402.305(2)(c)2., Florida Statutes (1994 Supp.), which states:

    
    

    In order to grant an exemption to a person, the department must have clear and convincing evidence to support a reasonable belief that the person is of good character so as to justify an exemption. The person shall bear the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circum- stances surrounding the incident, the time period that has elapsed since the incident, the nature of the harm occasioned to the victim, and the history of the person since the incident, or such other circumstances that shall by the aforementioned standards indicate that the person will not present a danger to the safety or well-being of children. The decision of the department regarding an exemption may be contested

    through the hearing procedures set forth in chapter 120.

    
    

16. Petitioner bears the burden of proof in this proceeding. Fla. DOT v.

    J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA, 1981).

    
    

17. In the instant case, the proof establishes that an aggressor died as the result of an altercation with Petitioner, who had sought legal recourse earlier to prevent future confrontation; that the disqualifying incident occurred 24 years ago; that even though harm to the aggressor was egregious and resulted in death, there is no evidence to indicate that Petitioner intentionally sought the aggressor's death; and that since the incident, Petitioner has paid her debt to society, obtained further education, and lived an exemplary life, inclusive of commitment to church and family.

    
    

18. Petitioner has provided clear and convincing evidence to support a reasonable belief that she is of good character so as to justify an exemption from disqualification for licensure in a position of special trust and responsibility.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered granting Petitioner an exemption from disqualification.

DONE and ENTERED this 10th day of September, 1996, in Tallahassee, Leon County, Florida.

DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1996.

COPIES FURNISHED:

Marc Taps, Esquire

Legal Services of North Florida 2119 Delta Boulevard

Tallahassee, Florida 32303

John Perry, Esquire District 2 Legal Office Department of Health and

Rehabilitative Services 2639 North Monroe Street

Tallahassee, Florida 32399-2949

Veronica Lee Harris 1229 Elberta Drive

Tallahassee, Florida 32304

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 7, Suite 204-X 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran, Esquire Department of Health and

Rehabilitative Services Building 7, Suite 204

1317 Winewood Boulevard

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.

Docket for Case No: 96-002010

Orders for Case No: 96-002010