STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAISY BELL BILLINS,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-1557

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RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on

June 7, 2002, in Tallahassee, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jaisy Bell Billins, pro se

424 Line Street, Apartment D-5 Chattahoochee, Florida 32324

For Respondent: John R. Perry, Esquire

Department of Children and Family Services

2639 North Monroe Street Building A, Suite 104 Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

Whether Petitioner is lawfully entitled to work in a position designated by law as a position of trust or responsibility.

PRELIMINARY STATEMENT

Petitioner requested, in a pleading filed with the Department of Children and Family Services (Department) that she be approved to work in child care and with developmentally disabled adults. The Department denied Petitioner's request.

Subsequently she asked for an exemption and that request was denied by a letter she received on February 13, 2002. On February 28, 2002, Petitioner petitioned for an administrative hearing. By Order filed March 18, 2002, the Department rejected her petition with leave to amend. On April 8, 2002, Petitioner submitted a petition which was filed. The Department forwarded the matter to the Division of Administrative Hearings which filed it April 17, 2002.

The matter was set for hearing on June 7, 2002, and was heard as scheduled. Petitioner offered five exhibits which were received into evidence. Petitioner testified in her own behalf and called no other witnesses. The Department offered three exhibits which were received into evidence. The Department presented the testimony of one witness.

No Transcript was filed. Proposed Recommended Orders were filed by both parties and considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a twenty-five year old woman who resides in Chattahoochee, Florida.

2. The Department is the state agency responsible for receiving, evaluating, and approving or denying applications for exemptions from disqualification to hold a position of trust, with regard to child care and developmentally disabled adults.

3. The Department must screen persons working in child care and with developmentally disabled adults. When Petitioner was screened it was determined that she had committed three serious felonies when she was subject to the jurisdiction of the juvenile court.

4. The evidence of record indicated that Petitioner committed the following offenses when a juvenile:

   1. On May 12, 1992, Petitioner was charged with an aggravated battery. She was accused of attacking another juvenile with a broken Coca Cola bottle. On June 26, 1992, she admitted the allegation. The court did not adjudicate Petitioner a delinquent but did place her in the "JASP" program and required school attendance and 20 hours of community service.

   2. On May 11, 1994, Petitioner was charged with another aggravated battery. She was accused of attacking an individual with a razor box cutter. She pled nolo contendere in juvenile

      court and was ordered to commit no further violations, attend school, and keep away from weapons.

   3. On June 8, 1994, Petitioner was charged in juvenile court with grand theft. This charge arose out of the theft of more than $300 from the premises of a Wal-Mart store. She again pled nolo contendere in juvenile court and once more was ordered to commit no further violations, attend school, and keep away from weapons.

5. Petitioner presented a letter from Jerome Bryant, of Quincy, Florida, who is Petitioner's uncle. He noted that Petitioner has overcome her prior problems and is on the right track. Petitioner also completed a home health aide course on December 18, 1996; a child care training course given by Early Childhood Services, Inc. on May 17, 1997; a Parenting Young Children Program given by the Florida Cooperative Extension Service on May 21, 2002; and attended 12 sessions of the New Hope Intervention Program for Domestic Violence ending on

   May 28, 2002.

   
   

   CONCLUSIONS OF LAW

   
   

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

7. Section 435.07(3), Florida Statutes, provides that an employee who has been denied an exemption must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment.

8. Subsection 435.04(1), Florida Statutes, provides that all employees in positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment or continued employment.

9. Section 402.305, Florida Statutes, provides as follows:

   
   

   402.305 Licensing standards; child care facilities.--

   
   

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

      
      

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      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.

   
   

10. Section 393.0655(1), Florida Statutes, provides as

    
    

    follows:

    
    

    393.0655 Screening of direct service providers.--

    
    

    1. MINIMUM STANDARDS.--The department shall require employment screening pursuant to chapter 435, using the level 2 standards for screening set forth in that chapter, for direct service providers who are unrelated to their clients.

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

    
    

11. Subsection 435.04, Florida Statutes, provides in pertinent part the following:

    1. The security background investigations under this section must ensure that no persons subject to the provisions of this section have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty, to any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:

       
       

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       1. Section 784.045, relating to aggravated battery

    
    

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    (w) Chapter 812, relating to theft, robbery, and related crimes, if the offense is a felony.

    
    

12. Section 435.07, Florida Statutes, provides as follows:

    
    

    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;

    
    

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    (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.

    
    

13. Petitioner met the requirement of Section 435.07(1)(a), Florida Statutes. It has been more than eight years since she committed a felony. However, she has not met the requirements of Section 435.07(3), Florida Statutes, because she failed to present sufficient evidence demonstrating rehabilitation.

RECOMMENDATION

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

is

RECOMMENDED:

That a final order be entered which dismisses Petitioner's

Petition.

DONE AND ENTERED this 18th day of June, 2002, in Tallahassee, Leon County, Florida.

HARRY L. HOOPER

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 18th day of June, 2002.

COPIES FURNISHED:

Jaisy Bell Billins

424 Line Street, Apartment D-5 Chattahoochee, Florida 32324

John R. Perry, Esquire

Department of Children and Family Services 2639 North Monroe Street

Building A, Suite 104 Tallahassee, Florida 32399-2949

Katherine A. Kearney, Secretary Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 202

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 204

Tallahassee, Florida 32399-0700

Peggy Sanford, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B 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: 02-001557

Orders for Case No: 02-001557