STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TONYA WASHINGTON,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-0379

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RECOMMENDED ORDER

A formal hearing was conducted in this case on March 28, 2002, by video teleconference between Tallahassee, Florida, and Jacksonville, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Tonya Washington, pro se

2707 Cobblestone Forrest Circle, West Jacksonville, Florida 32225

For Respondent: Robin Whipple-Hunter, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

STATEMENT OF THE ISSUE

The issue is whether Petitioner should be granted an exemption from disqualification from working in a position of special trust pursuant to Section 435.07(3), Florida Statutes.

PRELIMINARY STATEMENT

By letter dated December 13, 2001, Respondent Department of Children and Family Services (Respondent) denied the request of Petitioner Tonya Washington (Petitioner) for an exemption from employment disqualification under the background screening statutes. Petitioner filed a request for a formal hearing on January 14, 2002.

Respondent referred the case to the Division of Administrative Hearings on January 31, 2002. A subsequent Notice of Hearing by Video Teleconference scheduled the case for hearing on March 28, 2002.

During the hearing, Petitioner testified on her own behalf.

She did not offer any exhibits for admission into evidence.

Respondent did not present the testimony of any witnesses.

Respondent offered six exhibits, which were accepted into evidence.

A transcript of the proceeding was not filed with the Division of Administrative Hearings. Additionally, the parties did not file proposed recommended orders.

FINDINGS OF FACT

1. At some point in time, Petitioner married Antonio Sharod Washington. They had two children.

2. In July 1999, a judge in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida,

   entered a Final Judgment of Injunction for Protection Against Domestic Violence (After Notice) against Petitioner pursuant to Section 741.30, Florida Statutes. The injunction states that it shall remain in full force and effect permanently or until further order of the court. The judge entered a similar injunction against Mr. Washington.

3. After the injunctions were issued, Mr. Washington went to visit Petitioner at her apartment. Petitioner understood that Mr. Washington wanted a reconciliation.

4. Based on her conversation with Mr. Washington, Petitioner petitioned the court to dissolve the injunction against Mr. Washington. Petitioner mistakenly believed that Mr. Washington had filed a similar petition to dissolve the injunction against her.

5. On August 14, 1999, Petitioner went to Mr. Washington's apartment. At that time, Petitioner learned that Mr. Washington was living with another woman. Petitioner admitted during the hearing that she became angry and raised her voice but denied that any type of physical violence against another person occurred.

6. A warrant was issued for Petitioner's arrest on September 23, 1999. On October 18, 1999, Petitioner was arrested pursuant to the outstanding warrant.

7. Petitioner was charged with violation of the domestic violence injunction pursuant to Section 741.31, Florida Statutes. Petitioner admitted the following facts: (a) on November 18, 1999, Petitioner pled no contest to the charges against her; (b) the judge withheld adjudication of guilt;

   (c) the judge sentenced Petitioner to four months' probation, requiring her to participate in an anger control program and prohibiting any violent contact.

8. In time Petitioner met a new friend who became her "significant other." The new friend is the father of Petitioner's third child.

9. Petitioner began working as a caretaker of children at a private school in September 2001. Petitioner's new friend provided her with a motor vehicle so that she would have transportation to and from work.

10. In order to maintain her job as a child care worker, Petitioner had to undergo Level 2 background screening. By letter dated November 29, 2001, the school advised Petitioner that she was ineligible for continued employment as a childcare worker due to her conviction for violating the domestic violence injunction and for engaging in criminal mischief.

11. Petitioner continues to work for the school, performing cleaning services at night. She has no other employment.

12. Petitioner regularly attends church. She has not violated the domestic violence injunction since she was

    arrested.

    
    

    CONCLUSIONS OF LAW

    
    

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

14. Section 402.305(2), Florida Statutes (1999), sets forth the following minimum standards for child care personnel, in relevant part:

    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.

       
       

15. Section 435.04, Florida Statutes (1999), states as follows regarding the Level 2 screening standards, in pertinent part:

    (1) All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. . . .

    
    

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    (3) Standards must also ensure that the person:

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

    
    

16. Section 741. 30, Florida Statutes, states as follows in relevant 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.

    
    

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

    1. Restraining the respondent from committing any acts of domestic violence.

    2. Awarding to the petitioner the exclusive use and possession of the dwelling that the parties share or excluding the respondent from the residence of the petitioner.

    3. On the same basis as provided in chapter 61, awarding temporary custody of, or temporary visitation rights with regard to, a minor child or children of the parties.

    4. On the same basis as provided in chapter 61, establishing temporary support for a minor child or children or the petitioner.

    5. Order the respondent to participate in treatment, intervention, or counseling

       services to be paid for by the respondent. . . .

    6. Referring a petitioner to a certified domestic violence center. . . .

    7. Ordering such other relief as the court deems necessary for the protection of a victim of domestic violence, including injunctions or directives to law enforcement agencies, as provided in this section.

    
    

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    (8)(a) The court may enforce a violation of an injunction for protection against domestic violence through a civil or criminal contempt proceeding, or the state attorney may prosecute it as a criminal violation under s. 741.31. . . .

    
    

17. Section 741.31, Florida Statutes, states as follows in relevant part:

    (4)(a) A person who willfully violates an injunction for protection against domestic violence issued pursuant to s. 741.30 . . .

    by:

    1. Refusing to vacate the dwelling that the parties share;

    2. Going to the petitioner's residence, school, place of employment, or a specified place frequented regularly by the petitioner and any named family of household member;

    3. Committing an act of domestic violence against the petitioner.

    4. Committing any other violation of the injunction through an intentional unlawful threat, word, or act to do violence to the petitioner; or

    5. Telephoning, contacting, or otherwise communicating with the petitioner directly or indirectly, unless the injunction specifically allows indirect contact through a third party commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

18. Section 435.07(3), Florida Statutes (1999), states as follows in relevant part:

    (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. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120.

    
    

19. Petitioner's conviction for violating the injunction for protection against domestic violence disqualifies her from working with children. Section 435.04(3)(b), Florida Statutes.

20. Petitioner has presented clear and convincing evidence that she should not be disqualified for several reasons. First, Petitioner went to Mr. Washington's apartment in August 1999 believing that she and Mr. Washington were going to petition the court to dissolve the injunctions. Second, Petitioner completed an anger management program and has not violated the injunction since she was arrested. Finally, it has been two years and

    seven months since Petitioner committed the disqualifying offense.

21. Petitioner has settled down with a significant other and a new baby. She continues to be the primary caretaker of her older two children. Petitioner is attending church and working at night. All of these circumstances indicate that Petitioner will not present a danger if continued employment is allowed.

RECOMMENDATION

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

RECOMMENDED:

That Respondent enter a final order granting Petitioner an exemption from employment disqualification.

DONE AND ENTERED this 10th day of April, 2002, 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 10th day of April, 2002.

COPIES FURNISHED:

Tonya Washington

2707 Cobblestone Forrest Circle, West Jacksonville, Florida 32225

Robin Whipple-Hunter, Esquire Department of Children and

Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Peggy Sanford, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

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: 02-000379

Orders for Case No: 02-000379