STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KALVIN T. DAVIS, )

)

Petitioner, )

)

vs. ) Case No. 00-3860

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on January 19, 2001, by video between West Palm Beach and Tallahassee, Florida, before Claude B. Arrington, a duly- designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Kalvin T. Davis, pro se

2100 Northeast Third Court Boynton Beach, Florida 33435

For Respondent: Colleen Farnsworth, Esquire

Department of Children and Family Services

111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Petitioner is disqualified from employment in positions requiring him to work with children or the

developmentally disabled and, if so, whether he is entitled to an exemption from such disqualification.

PRELIMINARY STATEMENT

Petitioner works at a child care facility that is required to check the criminal history of its employees. During a routine screening, Respondent reflected that Petitioner had been arrested multiple times between 1983 and 1997 and that he had been convicted of battery in 1994 and 1997. On June 5, 2000, Respondent advised Petitioner by letter that, because of his criminal history, he may be disqualified from employment with children or the developmentally disabled. This letter explained that he had the right to request a hearing before a committee composed of employees of Respondent within 30 days to request an exemption from the disqualification. Additionally, the letter advised Respondent that he could challenge the accuracy of his reported criminal history by requesting an informal hearing before Respondent or a formal hearing before the Division of Administrative Hearings. Petitioner did not timely respond to the letter.

On August 10, 2000, Respondent advised Petitioner that he was disqualified from working with children or the developmentally disabled. On August 16, 2000, Petitioner requested a hearing on this matter without designating whether he wanted a formal or informal hearing, or whether he wanted to

challenge the accuracy of his criminal record or to challenge the denial of an exemption from the disqualification.

Petitioner asked for the opportunity to explain the circumstances of his criminal convictions. Thereafter the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

Respondent presented its case first to expedite the proceeding. Respondent called Susan K. Barton, its District Screening Coordinator, and offered 5 exhibits, each of which was accepted into evidence. Petitioner testified on his own behalf, but he did not offer any other testimony or exhibit.

No transcript of the proceedings was filed. Respondent filed a Proposed Recommended Order, which has been duly- considered by the undersigned in the preparation of this Recommended Order. Petitioner did not file a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner's employer, Youthland Academy Child Care Facility, is a day care facility that works with children. The employer submitted Petitioner's name to Respondent for a background screening pursuant to Section 402.305(2)(a), Florida Statutes.

2. The background screening reflected that Petitioner had an extensive arrest record between June 1983 and January 1999.

3. The screening also reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on April 25, 1994. The underlying offense was an act of domestic violence against the person of April Cox (the mother of a child by Petitioner) on November 17, 1994.

4. The screening further reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on November 6, 1997. The underlying offense was an act of domestic violence against the person of Tanya Anne Austin (also the mother of a child by Petitioner) on June 15, 1997. A charge of violating an injunction against domestic violence was nolle prossed as part of a plea agreement.

5. On April 21, 2000, Respondent attempted to notify Petitioner in writing that he may be ineligible for continued employment in a position of special trust working with children or the developmentally disabled because of the acts of domestic violence on November 17, 1994, and June 15, 1997. That certified mailing was not picked up by Petitioner. Thereafter, on June 5, 2000, Respondent re-mailed the notification letter to Petitioner at his place of employment. The notification letter advised Petitioner of his rights to an exemption hearing, but required that he request such hearing within 30 days from his receipt of the letter. The notification letter also advised

   Petitioner that he could request a formal or informal hearing to challenge the accuracy of his criminal record.

6. As of August 10, 2000, Petitioner had not responded to Respondent's letter of June 5, 2000. On that date, Ms. Barton advised the director of Youthland Academy that Petitioner had been disqualified from working with children or the developmentally disabled.

7. On August 16, 2000, Petitioner responded to

   
   

   Ms. Barton's letter stating that he had misunderstood the notification letter, that he wanted to explain the circumstances of the two incidents of domestic violence, and that he wanted a hearing.

8. Petitioner did not dispute the accuracy of his criminal record at the final hearing.

9. Although Petitioner presented testimony as to the circumstances involved in each conviction at issue in this proceeding, that evidence merely confirmed that each incident constituted domestic violence. Petitioner failed to establish that he should not be disqualified from working with children or the developmentally disabled, that he has been rehabilitated since his last criminal conviction, and that he would not present a danger if continued employment is allowed.

   CONCLUSIONS OF LAW

   
   

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

11. Section 402.305, Florida Statutes, provides for minimum licensing criteria for child care facilities, in pertinent part, as follows:

    1. PERSONNEL. - Minimum standards for child care personnel shall include minimum requirements as to:

       1. Good moral character based upon screening. This screening shall be conducted as provided in chapter 435, using the level 2 standards for screening set forth in that chapter.

       2. The department may grant exemptions from disqualification from working with children or the developmentally disabled as provided in s. 435.07.

          
          

12. The level 2 screening referenced in Section 402.305(2)(a), Florida Statutes, is found at Section 435.04, Florida Statutes. Pertinent to this proceeding, Section 435.04(3)(b), Florida Statutes, requires that an employee subject to such screening has never committed an act of domestic violence within the meaning of Section 741.30, Florida Statutes.

13. Pursuant to Section 741.28, Florida Statutes, the term "domestic violence" as used in Section 741.30, Florida Statutes, means, in pertinent part, the following:

    1. "Domestic violence" means any . . . battery . . . resulting in physical injury

       . . . of one family or household member by another . . .

    2. "Family or household member" means

       . . . persons who have a child in common regardless of whether they have been married or have resided together at any time.

       
       

14. Petitioner was convicted of batteries that constitute domestic violence as defined by Section 741.28, Florida Statutes, in 1994 and 1997. Consequently, Respondent correctly determined that Petitioner was disqualified from working with children or the developmentally disabled pursuant to Sections 402.305(2)(a) and 435.04, Florida Statutes.

15. Section 435.07, Florida Statutes, provides for exemptions from the disqualification of employment. Section 435.07(3), Florida Statutes, provides as follows:

    1. 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.

16. Petitioner failed to meet the burden set forth in Section 435.07(3), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Petitioner is disqualified from working with children or the disabled. It is further RECOMMENDED that the final order find that Petitioner is not entitled to an exemption from that disqualification.

DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 12th day of February, 2001.

COPIES FURNISHED:

Kalvin T. Davis

2100 Northeast Third Court Boynton Beach, Florida 33435

Colleen Farnsworth, Esquire Department of Children and

Family Services

111 South Sapodilla Avenue Suite 201

West Palm Beach, Florida 33401

Virgina A. 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 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: 00-003860

Orders for Case No: 00-003860