STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA FORD, )

)

Petitioner, )

)

vs. ) Case No. 99-3733

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on January 10, 2000, in Tallahassee, Florida, before the Division of Administrative Hearings, by its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Gloria Ford, pro se

Post Office Box 7626 Tallahassee, Florida 32314

For Respondent: Steven Wallace, Esquire

Department of Children and Family Services

Suite 252-A

2639 North Monroe Street Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

The issue is whether Petitioner should be granted an exemption from disqualification to work in a position of trust

or responsibility in a direct care position pursuant to Section 435.07(3), Florida Statutes.

PRELIMINARY STATEMENT

By letter dated July 27, 1999, Respondent Department of Children and Family Services (Respondent) advised Petitioner Gloria Ford (Petitioner) that her request for exemption from disqualification to work in a position of trust or responsibility in a direct care position had been denied.

Petitioner requested a formal administrative hearing to contest this denial on or about August 27, 1999.

Respondent referred this matter to the Division of Administrative Hearings on September 2, 1999. A Notice of Hearing dated September 27, 1999, scheduled the case for formal hearing on January 10, 2000.

At the hearing, Petitioner testified on her own behalf and offered two exhibits, which were accepted into evidence.

Respondent presented no witnesses, but offered five exhibits, which were accepted into evidence.

Neither party filed a transcript of the proceeding.

Respondent filed a Proposed Recommended Order on January 11, 2000.

FINDINGS OF FACT

1. Petitioner is a single mother of five children, including two sets of twins. She is twenty-nine years old and has a tenth-grade high school education.

2. On July 26, 1995, Petitioner drove a car into a Walmart parking lot in Leon County, Florida, and parked illegally directly in front of the store. Petitioner was operating the car while her driving privileges were suspended.

3. After parking the car, Petitioner left her five children unsupervised in the car while she went into Walmart to exchange a shirt. At that time, the older twins were six years old, one child was four years old, and the younger twins were three years old.

4. When Petitioner went into the store, she removed the key from the ignition and left the windows down. The temperature was 93 degrees. Petitioner was in the store for approximately ten minutes.

5. Upon Petitioner's return to the car, a policeman arrested her for the second-degree misdemeanor offense of "negligent treatment of children" under Section 827.05, Florida Statutes (1993). 1/

6. The children were not harmed as a result of being left unattended in the car. They were never removed from

   Petitioner's custody. After her arrest, Petitioner and her children were picked up and taken home by a relative.

7. In September 1995, Petitioner pled nolo contendere to the charge of "negligent treatment of children." The County Judge of Leon County accepted Petitioner's plea, withheld adjudication of guilt, and ordered that Petitioner be placed on probation for six months. One of the conditions of Petitioner's probation was that she attend parenting class.

8. On February 28, 1996, Petitioner was charged with violating her probation related to the charge of "negligent treatment of children." Specifically, she had not provided proof that she had attended the parenting class. Additionally, she had not paid a $100 probation supervision fee or a $150 court fine. Petitioner violated her probation because she did not have funds to pay for the parenting class or the required fee and fine.

9. At the violation of probation hearing on May 10, 1996, Petitioner presented proof that she had attended the parenting class. The County Judge of Leon County terminated Petitioner's probation in open court.

10. On March 5, 1998, Petitioner was charged in Leon County, Florida, with the traffic offense of driving with suspended driving privileges. The County Judge of Leon County

    convicted and adjudicated Petitioner guilty of this offense on March 25, 1998.

11. On September 7, 1998, Petitioner was charged in Leon County, Florida, with the traffic offense of driving with suspended driving privileges. The County Judge of Leon County withheld adjudication of guilt for this offense on October 7, 1998.

12. Petitioner has worked as a dietary aide at Tallahassee Convalescent Home (TCH) for four years. In 1998, she applied for a position with TCH as a certified nurse assistant, a direct care position. The application included Petitioner's request for a Florida Abuse Hotline Information System Background Check. A member of Respondent's staff completed the background check on September 23, 1998, finding no confirmed report of abuse or neglect.

13. On April 16, 1999, Petitioner signed a sworn Affidavit of Good Moral Character as part of the application process to secure a direct care position with Tallahassee Developmental Center. By signing the affidavit, Petitioner swore that she had not been found guilty or entered a plea of guilty or nolo contendere, regardless of the adjudication, to a number of offenses, including "negligent treatment of children." This affirmation was false.

14. Petitioner's testimony that she forgot her plea of nolo contendere and subsequent conviction for "negligent treatment of children" or that she never knew the exact nature of her crime is not persuasive.

15. In April 1999, Petitioner was charged with violating her probation related to one of her offenses for "driving while privileges suspended" in Leon County, Florida. Petitioner violated her probation because she did not have funds to pay her traffic fines.

16. Petitioner subsequently entered the Florida Traffic Assistance Program. She completed a corrective driving class on August 14, 1999. The Department of Motor Vehicles issued Petitioner her first driver's license on August 31, 1999. Since October 1999, Petitioner has paid $50 per month on her outstanding traffic fines. She now owes $453 in traffic fines.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

18. Petitioner has the burden of proving by clear and convincing evidence that she is entitled to exemption from disqualification to work in a position of trust and responsibility or in a direct care position. Section 435.07(3), Florida Statutes.

19. Section 400.215, Florida Statutes, states as follows, in pertinent part:

    1. The agency shall require background screening as provided in chapter 435 for all employees or prospective employees of facilities licensed under this part who are expected to, or whose responsibilities may require them to:

       1. Provide personal care or services to residents.

       2. Have access to resident living areas; or

       3. Have access to resident funds or other personal property.

    2. Employers and employees shall comply with the requirements of s. 435.05.

       1. Notwithstanding the provision of s. 435.05(1), facilities must have in their possession evidence the level 1 screening has been completed before allowing an employee to begin working with patients as provided in subsection(1). . . .

          
          

20. Section 393.0655(1), Florida Statues, requires Respondent to use the level 2 standards pursuant to Chapter 435, Florida Statutes, to conduct background screening for direct service providers who are unrelated to their developmentally disabled clients.

21. Section 435.03, Florida Statutes, sets forth the level

    
    

    1 screening standards. Section 435.04, Florida Statutes, sets forth the level 2 screening standards. Both of these statutes disqualify persons from working in direct care positions if they have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to a violation of

    Section 827.05, Florida Statutes, relating to negligent treatment of children. Sections 435.03(2)(z) and 435.04(2)(ee), Florida Statutes 1999).

22. Respondent properly disqualified Petitioner from working in a position of direct care upon learning that she had entered a plea of nolo contendere to a charge of negligent treatment of children. Section 435.06(1), Florida Statutes.

23. Section 435.07, Florida Statutes, states as follows, in pertinent part:

    435.07 Exemptions from disqualification.-- Unless otherwise provided by law, the provisions of this section shall apply to exemptions from disqualification.

    (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 statues of other jurisdictions;

    * * *

    (3) 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. . . .

    
    

24. Petitioner has explained the circumstances under which she left her young children unattended in a car over four years ago. It is undisputed that the children were not harmed. Nevertheless, Petitioner's history since the disqualifying incident indicates that she has not been rehabilitated. Specifically, Petitioner was convicted of operating a motor vehicle while her driving privileges were suspended on two occasions in 1998. Additionally, she signed a false affidavit in 1999 stating that she had never been convicted of negligent treatment of children. This history shows that Petitioner continues to exercise poor judgment and has been unable to conform her behavior to the requirements of the law.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED

That Respondent enter a final order denying Petitioner's request for exemption from disqualification from working in a position of direct care.

DONE AND ENTERED this 9th day of February, 2000, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 9th day of February, 2000.

ENDNOTE

1/ The offense of "negligent treatment of children" was repealed in 1996. See Section 827.05, Florida Statutes (Supp. 1996). At that time, the offense became "neglect of a child" under Section 827.03, Florida Statutes (Supp. 1996), a third- degree felony when, as here, there is no harm to the child.

COPIES FURNISHED:

Gloria Ford

Post Office Box 7626 Tallahassee, Florida 32314

Steven Wallace, Esquire Department of Children and

Family Services Suite 252-A

2639 North Monroe Street Tallahassee, Florida 32399-2949

Samuel C. Chavers, Acting Agency Clerk Department of Children and

Family Services Building 2, Room 204B 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: 99-003733

Orders for Case No: 99-003733