STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUTUMN NICHOLS, )

)

Petitioner, )

)

vs. ) Case No. 98-2865

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held before the Division of Administrative Hearings by Daniel M. Kilbride, Administrative Law Judge, on October 1, 1998, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Autumn Nichols

513 Teakwood Drive

Altamonte Springs, Florida 32714

For Respondent: Carmen Sierra, Esquire

Department of Children and Family Services

400 West Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether the Petitioner has presented clear and convincing evidence that she is of good moral character so as to receive an exemption from disqualification from employment with children or adults who are severely developmentally disabled, pursuant to Section 435.07(7), Florida Statutes (1997).

PRELIMINARY STATEMENT

This proceeding is the result of Petitioner's request for an exemption from disqualification which was denied by the Respondent, by letter dated June 4, 1998. Thereafter, Petitioner requested a formal hearing before the Division. The disqualification is the result of Petitioner's adjudication of delinquency for domestic violence-battery. Petitioner is seeking an exemption so that she may be approved by Respondent for the purpose of working in a child care facility.

This matter was referred to the Division of Administrative Hearings and set for hearing. At the hearing Petitioner testified in her own behalf and presented the testimony of Judy Nichols, her mother. A psychological evaluation was marked for identification. Respondent objected to the exhibit as hearsay and the objection was sustained. Respondent cross-examined the witnesses, presented no additional witnesses, and offered a composite exhibit of the arrest and disposition record of the Petitioner in evidence.

The transcript of the hearing was not prepared. Respondent filed proposed findings of fact and conclusions of law on October 14, 1998, and an Addendum to the proposed order on October 26, 1998. Petitioner has not filed a proposed order as of the date of this order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Autumn Nichols is a 20 year-old woman living in her mother's home. She dropped out of school at age 16, and is currently studying to obtain a high school equivalency diploma (GED).

2. Petitioner was arrested and charged with domestic violence-battery in October 1995. She was subsequently adjudicated delinquent in the circuit court (juvenile division) and was placed on community control for a year, attended a law awareness class and a jail tour, performed 25 hours of community service and participated in an anger management class. Petitioner successfully completed her sanctions.

3. On or about October 10, 1995, Petitioner became involved in a verbal argument with her brother. The argument escalated into a physical fight. Petitioner made threats to kill her brother and attempted to get a knife. The police arrested her and she was placed in the Juvenile Detention Center. Two days later, Petitioner was hospitalized due to severe emotional problems. Following the hospitalization, Petitioner was in residential treatment at Devereaux treatment center. She remained at Devereaux for six months and then attended the out- patient program.

4. The episode with her brother, when she was 17, was her last episode of violence. Petitioner no longer verbalizes her anger. Petitioner has never had violent episodes outside the

   home.

5. Petitioner was diagnosed with bi-polar disorder. She has been hospitalized at least five times. Two of those hospitalizations were involuntary commitments (Baker Act). Petitioner, as recently as six months ago, checked herself into a residential treatment facility for depression.

6. Petitioner's job experience has been limited due to her age. She worked for her mother caring for children in her mother's family daycare for one to two years in her early teens. When Petitioner was 18, she worked a summer job for her father in a restaurant, and at 19, Petitioner worked for three months as a telemarketer.

7. In January 1998, Petitioner was hired by Tutor Time daycare center. She worked at the daycare for three months until she was disqualified from employment.

8. Although Petitioner has demonstrated a sincere desire to work with children, she has failed to prove by clear and convincing evidence that she is rehabilitated. Insufficient time has elapsed since the incident, her mental health issues are too extensive and her work history is inadequate to show that she no longer presents a danger to children.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Sections 120.569, 120.57(1) and 435.07(3), Florida Statutes.

10. Persons subject to background screening pursuant to Section 435.04, Florida Statutes, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any of a series of offenses, including an act that constitutes domestic violence as defined in Section

    741.30. Conviction or adjudication of such an offense is a bar to employment in positions of trust of responsibility. Section 402.305, Florida Statutes.

11. A finding of delinquency of a disqualifying offense, regardless of adjudication, results in a disqualification from employment. The statute is clear that the security background check includes a check of past juvenile records to determine whether the applicant is disqualified from employment. The statute states in part:

    . . . security background investigations shall include, but not be limited to, employment history checks, fingerprinting for all purposes and checks in this subsection, statewide criminal and juvenile records checks through the Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation. . .

    Section 435.04, Florida Statutes.

    
    

12. Pursuant to Subsection 435.07(1)(d), Florida Statutes, the appropriate licensing agency may grant any employee an exemption from disqualification from findings of delinquency.

13. The plain language of Section 435.04, Florida Statutes, requires that the screening process reveal whether an individual

    has committed any of the enumerated crimes, both felonies and misdemeanors, regardless of adjudication. In granting exemptions on these disqualifying criteria, however, Section 435.07(1), Florida Statutes, gives discretion to the licensing agency to give individuals an exemption for the enumerated acts. Attorney General Advisory Opinion 98-02, January 21, 1998, does not address the issue of whether one can be disqualified for a delinquent act. However, the opinion assumes that the disqualification is proper and goes on to state that an individual who has been found delinquent for felony acts does not have to wait three years to be eligible for an exemption.

14. Petitioner committed a delinquent act, i.e., battery, when she was 17 years old. The victim was a family member and the charge is considered domestic violence as defined in Section 741.28(1), Florida Statutes. Therefore, the offense is disqualifying.

15. The licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification from working with children or disabled adults under the following conditions:

    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 the 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.

    
    

    Section 435.07(3), Florida Statutes.

    
    

16. Working in a daycare, as Petitioner seeks to do, is a highly stressful position that requires substantial self-control and patience. The Petitioner has clearly demonstrated insight into her mental health problems and past violent behavior. However, insight alone is not clear and convincing evidence that Petitioner has been rehabilitated sufficiently to recommend an exemption. The evidence was inadequate to show that she no longer presents a danger to children. Petitioner must take additional steps, such as on-going therapy and active participation in a support group, to demonstrate that past violent behavior is behind her and that she has stable mental health before an exemption can be recommended.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that Petitioner's request for exemption from disqualification for employment in a child care facility be DENIED.

DONE AND ENTERED this 3rd day of November, 1998, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 3rd day of November, 1998.

COPIES FURNISHED:

Carmen Sierra, Esquire Department of Children and

Family Services

400 West Robinson Street Orlando, Florida 32801

Autumn Nichols

513 Teakwood Drive

Altamonte Springs, Florida 32714

Gregory D. Venz, Agency Clerk

Department of Children and Family Services 1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

Richard Doran, General Counsel

Department of Children and Family Services 1317 Winewood Boulevard, Room 204

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: 98-002865

Orders for Case No: 98-002865