STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TITESHIA SHERMAN, )

)

Petitioner, )

)

vs. ) Case No. 97-2940

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Quincy, Florida before the Division of Administrative Hearings by its duly designated Administrative Law Judge, Diane Cleavinger, on January 6, 1998.

APPEARANCES

For Petitioner: Titesheia Sherman, pro se

Post Office Box 567 Quincy, Florida 32351

For Respondent: Charles A. Finkel, Esquire

Department of Children and Family Services

2639 North Monroe Street, Suite 200A Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

The issue at the hearing was whether Petitioner is entitled to an exemption from disqualification of employment as a person who has direct contact with aged or disabled adults.

PRELIMINARY STATEMENT

By letter, Respondent informed Petitioner that, after reviewing its records, it was denying Petitioner's request for an exemption from disqualification from employment. Petitioner requested a formal hearing on Respondent's denial. Petitioner's request was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in her own behalf, but did not offer any exhibits into evidence. Respondent presented the testimony of one witness and offered one exhibit into evidence.

Neither party filed Proposed Recommended Orders.

FINDINGS OF FACT

1. In 1991 Petitioner was 18 years old. She and her family lived in a very violent area of Gretna, Florida. Until the incident which is involved here, Petitioner had managed to stay out of trouble and avoid becoming mean and violent like many of her neighbors.

2. Sometime in 1996, Petitioner was employed by the Cerebral Palsey Foundation to care for its disabled clients. Petitioner's duties included direct contact with the clients of the Cerebral Palsey Center.

3. The background screen revealed that on June 19, 1991, Petitioner was arrested for aggravated assault. The arrest was the result of a verbal altercation between a young woman who lived down the street from Petitioner, and Petitioner, and members of Petitioner’s family.

4. The young woman was a vicious bully, known to be violent and to carry a knife which she would readily use on those she victimized. Petitioner had personally witnessed several times that the woman cut other people she was fighting with her knife.

5. After an exchange of words, the young woman chased Petitioner home, threatening serious bodily harm. Petitioner believed she had her knife with her. She was terrified and knew that if she did not stand up to this woman, she would not be safe from her.

6. After Petitioner got home, she got her brother’s shotgun and went back outside to the street with the weapon. Petitioner did not point the weapon at the woman, even though the woman was taunting her to “go ahead and shoot her.” Petitioner simply stood with the weapon in her hands. Petitioner was scared, not thinking clearly, and only wanted the woman to go away.

7. The police arrived within a short time after Petitioner exited her home. She obeyed the commands of the officer when he told her to put the weapon down. The officer arrested everyone involved in the altercation, including the woman who had chased Petitioner.

8. Petitioner plead no contest to one count of aggravated battery, a felony.

9. As a consequence of the plea, Petitioner was fined the minimum amount and sentenced to two years probation. Adjudication of guilt was withheld.

10. Petitioner successfully completed her sentence during which she received counseling for anger control.

11. The anger control counseling was terminated by the counselor after two sessions because Petitioner did not have poor anger control but was young and scared when the incident occurred.

12. This incident was the one and only time Petitioner had been in trouble. She has been a good citizen since.

13. Petitioner has since matured greatly and has had a child. She has managed to educate herself and gain the necessary skills to become an aide in an adult facility. She is also on her way to finishing her degree to become a licensed practical nurse.

14. The greater weight of the evidence and the more remarkable evidence in this case, is that Petitioner did not succumb to the violent neighborhood in which she lived. This incident occurred because she was young and very scared of a person most people would be and should be scared of. When she was able, she moved out, received an education and has continued to make herself a better person. These qualities say more good things about Petitioner’s character than one anomalous violent incident to which she reacted. In short, Petitioner’s history shows that she is of good character and is not a violent person.

15. Moreover, through her education, she has received training on how to deal with an aged or disabled adult who might

    be violent. The setting and aggression of an aged or disabled adult is simply not the same as the setting and intentionally malicious, bullying violence with which Petitioner was confronted when she was 18 years old. Her reaction then at 18 is not indicative of her reaction now.

16. Based on the record in this case, Petitioner has established by clear and convincing evidence that (a) her plea of no contest to aggravated assault was not the type of incident which would absolutely preclude her from working with disabled or elderly persons; (b) that the aggravated assault was the result of self-defense from a person of violent character and understandable fear of that person; (c) that she will not be and is not a danger to disabled or elderly persons with which she might come into contact; and (d) that she was never a person lacking in moral character and was never a danger to such disabled or elderly persons. The Petitioner is therefore entitled to an exemption from disqualification from employment.

    CONCLUSIONS OF LAW

    
    

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

18. The Petitioner has the burden of proof to establish by clear and convincing evidence that she has been rehabilitated to the extent that she will not present a danger to the safety or well-being of the aged or disabled adults entrusted to her care.

    Sections 435.03 and 435.04, Florida Statutes, provide for employment screening where such screening is required. Section 435.03, Florida Statutes, states in pertinent part:

    1. All employees required by law to be screened shall be required to undergo background screening as a condition of employment and continued employment. . . .

       
       

    2. Any person for whom employment screening is required by statute must not 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:

       
       

       1. Section 415.111, relating to adult abuse, neglect, or exploitation of aged persons or disabled adults.

          
          

       2. Section 782.04, Florida Statutes, relating to murder.

          
          

       3. Section 782.07, Florida Statutes, relating to manslaughter.

          
          

       4. Section 782.071, Florida Statutes, relating to vehicular homicide.

          
          

       5. Section 782.09, Florida Statutes, relating to killing of an unborn child by injury to the mother.

          
          

       6. Section 784.011, relating to assault, if the victim of the offense was a minor.

          
          

       7. Section 784.021, Florida Statutes, relating to aggravated assault.

          
          

       8. Section 784.03, relating to battery, if the victim of the offense was a minor.

          
          

       9. Section 784.045, Florida Statutes, relating to aggravated battery.

       10. Section 787.01, Florida Statutes, relating to kidnapping.

           
           

       11. Section 787.02, Florida Statutes, relating to false imprisonment.

           
           

           (l). Section 794.011, relating to sexual battery.

           
           

           1. Section 794.041, relating to prohibited acts of persons in familial or custodial authority.

              
              

           2. Chapter 796, relating to prostitution.

              
              

           3. Section 798.02, relating to lewd and lascivious behavior.

              
              

           4. Chapter 800, relating to lewdness and indecent exposure.

              
              

           5. Section 806.01, relating to arson.

              
              

           6. Chapter 812, relating to theft, robbery, and related crimes, if the offense was a felony.

              
              

           7. Section 817.563, relating to fraudulent sale of controlled substances, only if the offense was a felony.

              
              

           8. Section 826.04, relating to incest.

              
              

           9. Section 827.03, relating to aggravated child abuse.

              
              

           10. Section 827.04, relating to child abuse.

               
               

           11. Section 827.05, relating to negligent treatment of children.

               
               

           12. Section 827.071, relating to sexual performance by a child.

               
               

           13. Chapter 847, Florida Statutes, relating to obscene literature.

               
               

           14. Chapter 893, Florida Statutes, relating to drug abuse prevention and control, only if

           the offense was a felony or if any other person involved in the offense was a minor.

           
           

    3. Standards for screening shall also ensure that the person:

       
       

       1. For employees and employers licensed or registered pursuant to Chapter 400, does not have a confirmed report of abuse, neglect, or exploitation as defined in Section 415.102(5), which has been uncontested or upheld Section 415.103.

          
          

       2. Has not committed an act which constitutes domestic violence as defined in Section 741.30.

          
          

19. Section 435.04, Florida Statutes, has the same provisions as Section 435.03, Florida Statutes. However, it provides for a broader records search for the background screen.

20. Section 435.07, Florida Statutes, provides for exemption from disqualification from employment. Section 415.07, Florida Statutes, states, in part:

    1. The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:

       
       

       1. Felonies committed more than 3 years prior to the date of disqualification;

          
          

       2. Misdemeanors prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdictions;

          
          

       3. Offenses that were felonies when committed but are now misdemeanors;

          
          

       4. Findings of delinquency;

          
          

       5. Commissions of acts of domestic violence as defined in Section 741.30;

       6. Confirmed reports of abuse, neglect, or exploitation of a vulnerable adult.

          
          

          For purposes of this subsection, the term "felonies" means both felonies prohibited under any Florida Statutes cited in this chapter or under similar statutes of other jurisdictions.

          
          

          * * *

          
          

          1. In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that 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, 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. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in Chapter 120.

          2. Disqualification from employment under subsection (1) shall not be removed from, nor may exemption be granted to, any personnel who is found guilty of, regardless of adjudication, or having entered a plea of nole contendere or guilty to, any felony covered by section 453.03 solely by reason of any pardon, executive clemency, or restoration of civil rights.

21. Based on the evidence presented at the hearing, Petitioner is of good character and is entitled to an exemption from disqualification from employment.

RECOMMENDATION

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 granting Petitioner, Titesheia Sherman, an exemption from disqualification from employment.

DONE AND ENTERED this 24th day of February, 1998, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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

Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1998.

COPIES FURNISHED:

Titesheia Sherman Post Office Box 567

Quincy, Florida 32351

Charles A. Finkel, Esquire Department of Children

and Family Services

2639 North Monroe Street, Suite 200A Tallahassee, Florida 32399-2949

Gregory D. Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, Esquire 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.

Docket for Case No: 97-002940

Orders for Case No: 97-002940