STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA ANN TAYLOR, )

)

Petitioner, )

)

vs. ) Case No. 99-1242

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on June 28, 1999, a formal hearing was held in this case. The hearing location was the Yates Building, City Hall Annex, 231 East Forsyth Street, Jacksonville, Florida. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Gloria Ann Taylor, pro se

53 West 23rd Street Jacksonville, Florida 32206

For Respondent: Roger L. D. Williams, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

STATEMENT OF THE ISSUE

Is Petitioner entitled to an exemption from disqualification to act as an owner/operator of a family daycare home?

PRELIMINARY STATEMENT

Petitioner was unsuccessful in her attempt to have Respondent grant an exemption from disqualification as owner/operator of a family daycare home. Petitioner contested that preliminary decision by requesting a hearing in accordance with Chapter 120, Florida Statutes. The case was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge. That assignment was made and the hearing ensued.

At hearing Petitioner testified in her own behalf.

Petitioner's composite Exhibit No. 1 was admitted. Respondent offered no witnesses. Respondent's composite Exhibit No. 1 was admitted.

A hearing transcript was not prepared. The parties chose not to submit proposed recommended orders.

FINDINGS OF FACT

1. Petitioner wishes to own and operate a family daycare home. She was disqualified from that ownership and operation based upon background screening.

2. The disqualifying offense arose from an incident on December 21, 1991. As a consequence, Petitioner was subject to criminal charges in Duval County, Florida, under Case

   No. 92-5218-MM. The initial charges were for aggravated battery under Section 784.045, Florida Statutes, and child abuse under Section 827.03(1), Florida Statutes. That case was disposed of

   on January 31, 1992, by entry of a plea of nolo contendere to the offense of battery as defined at Section 784.03(1), Florida Statutes. That plea was in reference to the battery of a minor. The victim of the offense was Petitioner's son. The disposition of the case by the court involved two days' credit for time served in jail. In pleading to the battery offense Petitioner was not required to serve probation for the offense.

3. The underlying facts of the case for which Petitioner entered her plea began when Petitioner's fifteen-year-old son left home the day before Petitioner's arrest. The son went from his home to the home of his aunt. The aunt had a son of similar age to that of Petitioner's son. While in the aunt's home, Petitioner was led to believe that Petitioner's son was allowed to drink alcohol and to smoke marijuana.

4. Petitioner's son was missing from home for a sufficient period of time so that Petitioner became concerned and sought the assistance of the police in locating her son. In addition, Petitioner went looking for her son. The attempts that Petitioner made to find her son began around midnight on Christmas Eve.

5. At around 8:00 a.m., on Christmas day, the missing son came home and was allowed inside by his thirteen-year-old brother, another son of the Petitioner.

6. Subsequently, on Christmas day, Petitioner questioned her fifteen-year-old son about his whereabouts the night before.

   During this conversation Petitioner detected what she believed to be the smell of marijuana about his person. She observed that her son's eyes were blurry. In conversation, the fifteen-year- old son told Petitioner that he had seen the Petitioner driving around looking for him the night before. Petitioner responded by commenting to the effect that "you mean you saw me and did not acknowledge me."

7. At the time that this conversation was being held, Petitioner had a steak knife in one hand. With the knife still in her hand, Petitioner commented that her son was not going to disrespect her or his home. Petitioner told the son that he was not going anywhere at the moment. The son was wearing a jacket. Petitioner grasped the jacket her son was wearing with both hands as her son was attempting to get by her. The son then ran out the door of their home and got into a car and went to his aunt's house where he had been the night before.

8. Subsequently, Petitioner's sister-in-law, to whose house the fifteen-year-old son had returned, called Petitioner. In the telephone conversation, the sister-in-law told Petitioner that Petitioner's son was bleeding and that law enforcement was coming to get him. When Petitioner went to the hospital to determine her son's condition, she was arrested for the offenses that have been described.

9. Petitioner does not question the fact that her son's injury occurred as a result of Petitioner's actions. Petitioner,

   without contradiction, testified that she did not realize that her son had been injured at the time that the injury took place. Her testimony is credited.

10. As a result of the injuries that the fifteen-year-old son sustained, two or three stitches were required to mend his arm.

11. The incident involving the Petitioner cutting her fifteen-year-old son with a knife did not result in the son's being removed from the home. At present that son lives with Petitioner in her home together with the son's daughter. That son graduated from high school and has been employed over time.

12. Petitioner was involved in an another criminal incident on December 22, 1994, in which she was charged with resisting an officer without violence to her person, an offense under Section 843.02, Florida Statutes. Petitioner entered a plea of nolo contendere to that offense under Citation No. 95-49MM, in a plea entered on February 9, 1995. This offense was also committed in Duval County, Florida. As punishment, Petitioner was given a one-day sentence with one-day's credit for time served and was charged $100.00 in court costs.

13. The facts that underlie the resisting-arrest-without- violence case are in association with the investigation by law enforcement of a fight between two of Petitioner's sons. One of those sons was truant from school at the time. In this second arrest for resisting without violence, it is apparent that

    Petitioner was perceived by law enforcement as interfering with the attempt to arrest the truant son. In particular, Petitioner ran in front of a police patrol car during the pendency of the investigation of the son.

14. In Petitioner's history she has been employed as a Certified Nursing Assistant (CAN) beginning in 1979 and was certified in that capacity in 1985. Petitioner has worked in nursing homes and has acted as a sitter outside the nursing home setting in her capacity as a CNA. Petitioner has been a Practical Registered Nurse (PRN) since 1998.

15. In the past Petitioner has kept foster children in her home over extended periods of time.

16. Petitioner has participated in "Operation Safe Walk," a program in Duval County, Florida, designed to protect the interest of children in neighborhoods in the community.

17. Within Petitioner's Composite Exhibit No. 1 are letters commending Petitioner as an appropriate person to care for children.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

19. In accordance with Section 402.313(3), Florida Statutes, child care personnel in family daycare homes are

    subject to screening provisions that are announced in

    
    

    Section	402.305(2),	Florida Statutes. Within the definition at
    Section	402.302(3),	Florida Statutes, "child care personnel"

    
    

    includes owners and operators. Section 402.305(2), Florida Statutes, makes it incumbent upon owners/operators to undergo screening to establish good moral character. That screening is in view of the requirements set forth in Chapter 435, Florida Statutes, at Level 2.

20. Section 435.04, Florida Statutes, contains the Level 2 screening standards. Within that Section is a provision at Section 435.04(2)(h), Florida Statutes, which disqualifies an owner/operator from working in a position of trust or responsibility if that person has plead nolo contendere to the offense of battery under Section 784.03, Florida Statutes, and if the victim of the offense was a minor. In this case, Petitioner, who is desirous of acting as an owner/operator of a family daycare home, plead nolo contendere to a battery offense under Section 784.03, Florida Statutes, involving her minor son. Thus, she is disqualified from working in a position of trust or responsibility.

21. Petitioner is entitled to overcome that disqualification under terms set forth in Section 435.07, Florida Statutes, related to exemptions from disqualification. That entitlement comes by virtue of exemptions associated with

    misdemeanors committed under Florida Statutes. See Section 435.07(1)(b), Florida Statutes.

22. To earn the exemption, Petitioner must comply with the expectations of the process identified at Section 435.07(3), Florida Statutes, which states:

    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.

    Here, Petitioner must pursue her rights through the formal hearing to contest the preliminary decision by the Respondent to deny the exemption.

23. The circumstances surrounding the criminal incident for which an exemption is sought are serious, but they are not so serious that they may not be overcome. In that context, sufficient time has elapsed since the incident to be comfortable with a decision on the merits. The nature of the harm caused to her son while damaging, was not grave. Beyond the incident

Petitioner and her son have reconciled. Other evidence that was presented about Petitioner acts both to the advantage and the disadvantage of Petitioner. The advantageous evidence points out Petitioner's past involvement with and recommendation for continued involvement in the care of children. Petitioner is formally trained to care for others. On the other hand, Petitioner was shown to have been involved in another criminal act associated with the welfare of her children, the incident involving resisting arrest without violence. On balance, Petitioner has presented clear and convincing evidence that she should not be disqualified from employment and does not present a danger if allowed to serve as the owner/operator, with the expectation that she would have direct contact with children in a family daycare home.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered which grants Petitioner exemption from disqualification to serve as the owner/operator of a family daycare home.

DONE AND ENTERED this 19th day of July, 1999, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 19th day of July, 1999.

COPIES FURNISHED:

Gloria Ann Taylor

53 West 23rd Street Jacksonville, Florida 32206

Roger L. D. Williams, Esquire Department of Children

and Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Gregory D. Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, General Counsel 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: 99-001242

Orders for Case No: 99-001242