STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRENDA PRICE, )

)

Petitioner, )

)

vs. ) Case No. 99-4250

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on February 10, 2000, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge,

Suzanne F. Hood.

APPEARANCES

For Petitioner: Brenda Price, pro se

7555 Blountstown Highway

Lot 640

Tallahassee, Florida 32310

For Respondent: John R. Perry, Esquire

Department of Children and Family Services

2639 North Monroe Street Suite 100A

Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

The issue is whether Respondent should grant Petitioner an exemption from disqualification from working in a position of special trust with developmentally disabled persons.

PRELIMINARY STATEMENT

By letter dated September 24, 1999, Department of Children and Family Services (Respondent) denied Petitioner Brenda Price's (Petitioner) request for exemption from disqualification from working in a position special trust and responsibility pursuant to Section 435.07, Florida Statutes. On September 28, 1999, Petitioner requested an administrative hearing to challenge the denial of her request.

Respondent referred this matter to the Division of Administrative Hearings on October 6, 1999. A Notice of Hearing dated November 2, 1999, scheduled the case for hearing on February 10, 1999.

Petitioner testified on her own behalf at the hearing. She did not offer any exhibits for admission into evidence.

Respondent did not present the testimony of any witnesses. Respondent offered two exhibits which were accepted as evidence.

The parties did not file a copy of the hearing transcript. Respondent filed a Proposed Recommended Order on

February 16, 2000. Petitioner did not file proposed findings of fact or conclusions of law.

FINDINGS OF FACT

1. On April 13, 1987, Petitioner was convicted of a second degree felony in the Circuit Court of Gadsden County, Florida, for selling cocaine, a controlled substance as defined by Section 893.03, Florida Statutes, contrary to Section 893.13, Florida Statutes. Petitioner was sentenced to serve 21 days in jail, with credit for 21 days served. She was placed on two years' probation.

2. Petitioner failed to comply with the terms of her probation. Specifically, she failed to report to her probation officer, she changed her residence to Leon County without the consent of her probation officer, and she failed to pay any of the costs assessed as a result of her April 13, 1987, conviction. The Circuit Judge of Gadsden County issued a warrant for Petitioner's arrest on September 24, 1987.

3. On April 13, 1988, Petitioner was convicted of the following in the Circuit Court of Leon County, Florida:

   (a) selling cocaine, a second degree felony, contrary to Section 893.13, Florida Statues; (b) possession of cocaine, a third degree felony, contrary to Section 893.13(1)(e), Florida Statutes (1987)1; and (c) possession of drug paraphernalia, a first degree misdemeanor, contrary to Section 893.147, Florida Statutes. Petitioner was sentenced to 93 days of time served in the Leon County jail and placed on community control for one

   year to be followed by four years of probation. Petitioner's sentence to community control included commitment to an inpatient drug treatment program. Conditions of her probation required drug counseling and random urinalysis for drug screening.

4. On May 24, 1988, the Circuit Court Judge in Gadsden County revoked Petitioner's probation pursuant to an amended affidavit for violation of probation. The amended affidavit charged Petitioner with failing to remain at liberty without violating any law. Petitioner was subsequently sentenced on her April 13, 1887, conviction to a term of 30 months with a recommendation that she receive drug counseling and treatment.

5. Petitioner received treatment for substance abuse in 1988 while serving her sentences for the above-referenced convictions. She admits that she occasionally continued to use drugs during her subsequent probation. She had a positive urinalysis as late as 1992.

6. Petitioner's probation was terminated in 1993. She has had no urinalysis to test for substance abuse since that time.

7. Petitioner is 35 years old. She has three children, aged 19, 18, and 6. The middle child is developmentally disabled due to spinal meningitis. Petitioner married the father of the youngest child in 1996. She currently lives with

   her husband, her disabled 18 year-old child, and her six year- old child in Leon County, Florida.

8. Petitioner became interested in working with developmentally disabled persons because of her middle child's disability. She received her general education diploma in 1995. She is currently working on an Associate of Arts degree at Kaiser College in two areas: Health Service Administration and Medical Assistance.

9. Petitioner worked at Tallahassee Developmental Center as a training instructor from February 1999 through April 1999. Her work included providing personal assistance with bathing and feeding of developmentally disabled clients. Petitioner left this job so that she would be free for her church ministry on Sundays.

10. From April 1999 through September 1999, Petitioner worked in a day care program for developmentally disabled clients at Pyramid, Inc. Her work included collecting data, feeding and changing clients, walking clients, and assisting clients with skill modules. Petitioner was placed on administrative leave from this job because she did not pass the background screening required for direct care providers by Section 393.0655, Florida Statutes. However, Petitioner is eligible to return to her position at Pyramid, Inc., pending

    receipt of exemption from disqualification pursuant to Section 435.07, Florida Statutes.

11. After leaving her job with Pyramid, Inc., Petitioner worked on-call for one month providing in-home personal care for Human Resources Development. She is currently unemployed.

12. Petitioner's career goal is to start her own business working with developmentally disabled persons. She wants to be qualified to manage a professional office like the one at Pyramid, Inc., and to provide direct care to clients on an as- needed basis.

13. Petitioner has been a member of the Holy Community Church for six years. She is now a minister/evangelist for her church having spent one year in the field as a missionary to other churches.

14. Petitioner's work within her church includes founding a program known as Second Chance Outreach Ministry. The purpose of the program is to assist alcoholics and drug addicts. The program currently has about twelve active participants. The program sponsors a food bank and clothes closet for addicts.

15. At the time of the hearing, Petitioner was working on raising money to help participants in the Second Chance Outreach Ministry pay rent. She was also working on a project to feed the homeless on February 19, 2000, at the shelter in Leon

    County, Florida. She hoped to raise enough money through donations to provide the homeless with clothes and blankets.

    CONCLUSIONS OF LAW

    
    

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

17. Section 393.0655, Florida Statutes, requires direct service providers who are unrelated to their clients, and who work with children or the developmentally disabled, to undergo employment screening using the level 2 screening standards as provided in Section 435.04, Florida Statutes.

18. A person who has been convicted of a felony drug abuse offense prohibited under Chapter 893, Florida Statutes, is disqualified from working as a direct care provider for children or developmentally disabled persons. Sections 435.04(2)(cc) and 435.06, Florida Statutes.

19. Section 435.07, Florida Statutes, authorizes Respondent to grant an exemption from disqualification 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 . . .

    * * *

    (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, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. . . .

    
    

20. In this case, Petitioner has presented clear and convincing evidence that she will not present a danger as a direct care provider to developmentally disabled persons. It has been twelve years since her last criminal offense involving substance abuse. There is no evidence that Petitioner has abused drugs or violated any other law since her probation was terminated seven years ago.

21. Petitioner admits that she has made mistakes in her life. She sold controlled substances to support her cocaine/crack addiction. She has worked hard to change her lifestyle and make life better for her family. Petitioner is actively working toward two academic degrees and fulfilling her career goals to work as a professional in the healthcare field.

She is making amends to society by helping other addicts through her church programs and outreach ministry.

RECOMMENDATION

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

RECOMMENDED

That Respondent grant Petitioner an exemption from disqualification from working as a direct care provider with developmentally disabled persons.

DONE AND ENTERED this 9th day of March, 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 March, 2000.

ENDNOTE

1/ Possession of cocaine with intent to sell is currently a second degree felony pursuant to Sections 893.03(2)(a)4. and 893.13(1)(a)1., Florida Statutes (1999), and a first degree felony pursuant to Section 893.13(1)(e), Florida Statutes (1999).

COPIES FURNISHED:

John R. Perry, Esquire Department of Children and

Family Services

2639 North Monroe Street Suite 100A

Tallahassee, Florida 32399-2949

Brenda Price

7555 Blounstown Highway

Lot 640

Tallahassee, Florida 32310

John S. Slye, General Counsel Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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

Family Services Building 2, Room 204B 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: 99-004250

Orders for Case No: 99-004250