STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN H. DAVIS, III, )

)

Petitioner, )

)

vs. ) Case No. 99-4532

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative Hearings before Daniel M. Kilbride, Administrative Law Judge, on February 25, 2000, in Viera, Florida.

APPEARANCES

For Petitioner: John H. Davis, III, pro se

5770 Jady Place

Cocoa, Florida 32926

For Respondent: Carmen Sierra, Esquire

Department of Children and Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801 STATEMENT OF THE ISSUE

Whether Petitioner should receive an exemption from disqualification to work with children, pursuant to Section 435.07(1), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner applied to Respondent for a foster home license. As required by state, Respondent conducted a background screening

which revealed that in 1995, an injunction for protection against domestic violence had been issued against Petitioner. Respondent notified Petitioner that he may be disqualified from working with children. Petitioner, thereafter, applied for an exemption to his disqualification. Respondent appointed a three-person committee who investigated Petitioner's background and conducted an informal hearing. The committee's recommendation that the exemption be denied was adopted and Petitioner requested a formal hearing to challenge the denial and this proceeding followed.

At the formal hearing, Petitioner testified on his own behalf but presented no other testimony. Respondent presented the testimony of two members of the screening committee and offered five exhibits, each of which was accepted into evidence. A Transcript of this hearing was prepared and filed on March 23, 2000. Petitioner has not filed proposed findings of fact as of the date of this Order. Respondent filed a Proposed Recommended Order on April 4, 2000.

FINDINGS OF FACT

Based on the evidence, the following facts are determined:

1. Petitioner applied to Respondent for a foster care license in late 1999.

2. The required background screening revealed that on

   
   

   March 15, 1976, the Petitioner was found guilty of petit larceny; and on August 24, 1995, an injunction for protection against

   domestic violence was issued against Petitioner after an evidentiary hearing.

3. Respondent notified Petitioner that he was ineligible to work with children based on the domestic violence injunction issued against him. He was advised of his right to seek an exemption from disqualification.

4. Petitioner, thereafter, timely applied for such an exemption.

5. At the formal hearing, Petitioner's only evidence as to his entitlement to an exemption was his own testimony. He presented no other witnesses and no exhibits. He limited his presentation to a description of himself as the "victim" in an acrimonious divorce proceeding. Petitioner describes his arrest for a violation of the injunction as part of a conspiracy to defraud him of property orchestrated by this former wife.

6. The injunction clearly states that Petitioner would be arrested for coming on the premises where the victim resided or worked, even if invited by the victim. Petitioner admitted he violated the injunction often when it was first issued.

7. The injunction was issued after proper notice and a hearing pursuant to an affidavit filed by his former wife. Several times the Petitioner was asked by counsel for Respondent and by the Administrative Law Judge whether the Petitioner could demonstrate the injunction was no longer in effect. The Petitioner failed to respond.

8. Petitioner did not deny the allegations stated in the Petition for Injunction except to say that he no longer owns a gun. Petitioner did not address the circumstances surrounding the issuance of the injunction.

9. Petitioner testified that he loved children and was good with them. Over the years he has coached a little league baseball team, has raised three children of his own and was an auxiliary policeman for several years in the 1980s.

10. Petitioner did not provide any evidence, other than his own statements, that he is a person of good moral character. Moreover, Petitioner failed to address the issue of the basis for an exemption.

11. Petitioner failed to show why he should be granted an exemption.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of the proceeding pursuant to Section 120.57(1), Florida Statutes.

13. Section 409.175(2), Florida Statutes, provides in pertinent part as follows:

    1. "Personnel" means all owners, operators, employees, and volunteers working in a . . . family foster home . . . For purposes of screening, the term shall include any member, over the age of 12 years, of the family of the owner or operator or any person other than a client, over the age of 12 years, residing with the owner or operator if the agency or family foster home is located in or adjacent to the home of the owner or operator

       or if the family member of, or person residing with, the owner or operator has any direct contact with the children. Members of the family of the owner or operator, or persons residing with the owner or operator, who are between the ages of 12 years and 18 years shall not be required to be fingerprinted, but shall be screened for delinquency records. For purposes of screening, the term "personnel" shall also include owners, operators, employees, and volunteers working in summer day camps, or summer 24-hour camps providing care for children. A volunteer who assists on an intermittent basis for less than 40 hours per month shall not be included in the term "personnel" for the purposes of screening, provided that the volunteer is under direct and constant supervision by persons who meet the personnel requirements of this section.

       * * *

       
       

       (k) "Screening" means the act of assessing the background of personnel and includes, but is not limited to, employment history checks as provided in chapter 435, using the level 2 standards for screening set forth in that chapter. . . .

       
       

14. Section 435.04, Florida Statutes, sets the Level 2 screening standards referred to in Section 409.175, Florida Statutes, as follows:

    (3) Standards must also ensure that the person:

    
    

    * * *

    
    

    (b) Has not committed an act that constitutes domestic violence as defined in s. 741.30.

    
    

15. Section 741.30, Florida Statutes, states in pertinent part:

    1. There is created a cause of action for an injunction for protection against domestic violence.

       1. Any person described in paragraph (e), who is the victim of any act of domestic violence, or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence, has standing in the circuit court to file a sworn petition for an injunction for protection against domestic violence.

    * * *

    
    

    (6)(a) Upon notice and hearing, the court may grant such relief as the court deems proper, including an injunction . . . .

    
    

16. The required background screening revealed that on August 24, 1995, an injunction for protection against domestic violence was issued against Petitioner.

17. Pursuant to Section 435.07, Florida Statutes, Petitioner has the burden to establish, by clear and convincing evidence, that he is entitled to the exemption he seeks, based on criteria set forth in the statute.

18. One criterion is the circumstances surrounding the subject of the incident. Other than the fact that the injunction was issued during a divorce, there was no evidence presented addressing the specific allegations in the Petition for Injunction that resulted in the issuance of the injunction. Petitioner denied having a gun at the time the injunction was issued; he never denied the other allegations.

19. A second criterion is the period of time elapsed since the disqualification. Although the injunction was issued in

    1995, Petitioner did not present evidence that the injunction was no longer in effect. Further, it must be noted that the legal conflict regarding the property settlement dispute continues.

    During the formal hearing, Petitioner displayed great anger toward his former wife to the point that it was difficult to direct his testimony away from the issue of how he was "betrayed" in the divorce.

20. A third criterion is the nature of harm caused to the victim. Other than the fact that an injunction was issued after a hearing took place, there was no evidence as to the nature of harm caused to the former wife.

21. A final criterion is the history of the Petitioner since the incident. There was no evidence as to the history of the Petitioner since the incident, other than the evidence of the divorce proceeding and his remarriage. Petitioner did discuss his involvement with little league, which predated the injunction and his ownership of Cocoa Radiator shop for 30 years.

22. Based on the foregoing, it is concluded that Petitioner failed to meet his statutory burden of proof in this proceeding.

RECOMMENDATION

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

RECOMMENDED that the Respondent enter a final order denying Petitioner's application for exemption from employment in a position of special trust.

DONE AND ENTERED this 22nd day of May, 2000, 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2000.

COPIES FURNISHED:

John H. Davis, III 5770 Jady Place

Cocoa, Florida 32926

Carmen Sierra, Esquire Department of Children and

Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32940

Virginia Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel 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: 99-004532

Orders for Case No: 99-004532