STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SERGIO MERCADO,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-3068

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RECOMMENDED ORDER

On September 19, 2002, a formal administrative hearing in this case was held in Largo, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sergio Mercado, pro se

4909 Drift Tide Drive

New Port Richey, Florida 34652

For Respondent: Frank Nagatani, Esquire

Department of Children and Family Services

11351 Ulmerton Road, Suite 314

Largo, Florida 33778-1630 STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner's request for exemption from disqualification should be approved.

PRELIMINARY STATEMENT

The Petitioner's spouse seeks to operate a family day care center, licensure for which requires that the Petitioner pass a criminal background screening. Based on an incident of domestic violence, the Petitioner was notified that the incident was a disqualifying event and that he did not pass the screening process. The Petitioner requested an exemption from the automatic disqualification.

By letter dated July 20, 2002, the Department of Children and Family Services (Respondent) notified Sergio Mercado (Petitioner) that his request for exemption from disqualification was denied. The Petitioner filed a request for formal hearing. The request was forwarded to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of one witness and testified on his own behalf. The Respondent presented the testimony of one witness and had exhibits identified as A and B admitted into evidence.

At the close of the hearing, the parties were granted leave to file additional information referenced but unavailable during the hearing. Subsequent to the hearing, the Petitioner filed a letter with attachments related to a 1991 incident in Massachusetts and the completion of a "Batterer's Intervention

Program" in 1999. The Respondent filed documents related to the incidents in Massachusetts in 1991 and 1993. The Respondent also filed an affidavit correcting testimony given by the Respondent's witness at the hearing (the effect of which is to now support testimony presented during the hearing by the Petitioner which the Respondent asserted was incorrect). All of the late-filed documents are admitted into the record of the hearing, and by this Order, the record is closed.

No transcript of the hearing was filed. The Petitioner filed a letter that has been treated as a Proposed Recommended Order. The Respondent filed a formal Proposed Recommended Orders.

FINDINGS OF FACT

1. The Petitioner's spouse seeks to operate a family day care center. As part of the application process, the Petitioner was subjected to a "level 2" screening process.

2. Based on the screening, the Respondent determined that the Petitioner had been subjected to an arrest on December 6, 1998, for domestic battery against a girlfriend.

3. On February 22, 1999, the Petitioner entered a guilty plea to misdemeanor battery and was placed on one-year probation and ordered to have no further contact with the victim. The probationary period was apparently completed without incident.

   The Petitioner also paid court costs and completed a "Batterer's Intervention Program."

4. The girlfriend who was the victim of the battery is not the Petitioner's spouse. There is no evidence that there has been any further contact with the victim. There is no evidence that there has been any domestic discord between the Petitioner and his spouse.

5. During the background screening process, the Petitioner candidly informed the Respondent of the 1999 incident. The Petitioner also related information about an automobile-related incident in Massachusetts, which lead the Respondent to conduct further inquiry into the Petitioner's history prior to moving to Florida.

6. Upon further inquiry, the Respondent determined that in 1991 the Petitioner had been convicted in Massachusetts of assault with a dangerous weapon and destruction of property with a value in excess of $250. The dangerous weapon employed was apparently an automobile that the Petitioner used to damage the automobile of another man with whom the Petitioner was fighting.

7. The Respondent also determined that in 1993 a domestic violence-related restraining order was entered in Massachusetts against the Petitioner and involving a woman unrelated to the women otherwise referenced herein.

8. After obtaining the information related to the activity in Massachusetts, the Respondent asked the Petitioner to provide an explanation and documentation. The Petitioner complied with the request.

9. Other than completion of the "Batterer's Intervention Program" there is no evidence that the Petitioner has undergone any counseling to address anger issues and related behaviors.

   CONCLUSIONS OF LAW

   
   

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

11. Section 402.313(3), Florida Statutes, provides in relevant part as follows:

    Child care personnel in family day care homes shall be subject to the applicable screening provisions contained in ss.

    402.305(2) and 402.3055. For purposes of screening in family day care homes, the term includes any member over the age of 12 years of a family day care home operator's family, or persons over the age of 12 years residing with the operator in the family day care home. . . .

    
    

12. The Petitioner's spouse seeks to operate a family day care center; therefore, the Petitioner is subject to criminal background screening.

13. Section 402.305(2), Florida Statutes, provides in relevant part as follows:

    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.

       
       

14. Chapter 435.04, Florida Statutes, provides in relevant part as follows:

    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. For the purposes of this subsection, security background investigations shall include, but not be limited to, employment history checks, fingerprinting for all purposes and checks in this subsection, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.

       
       

    2. 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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    (g) Section 784.021, relating to aggravated assault.

    
    

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    (4) 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.

    
    

15. In this case, the Petitioner's offenses constitute an aggravated assault and acts of domestic violence as defined by the cited statutes.

16. Section 435.07(1), Florida Statutes, provides:

    
    

    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;

       2. Misdemeanors prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdictions;

       3. Offenses that were felonies when committed but are now misdemeanors;

       4. Findings of delinquency;

       5. Commissions of acts of domestic violence as defined in s. 741.30; or

       6. Confirmed reports of abuse, neglect, or exploitation of a vulnerable adult.

    
    

17. Section 435.07(3), Florida Statutes, provides

    
    

    (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. (Emphasis supplied).

    
    

18. The Petitioner has the burden of establishing by a preponderance of the evidence, entitlement to the relief sought, Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (1st DCA 1977); Florida Department of Transportation v. JWC Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). The Petitioner has not met the burden.

19. During an exemption review hearing between the Petitioner and the Respondent conducted on May 21, 2002, the Petitioner provided information to the Respondent related to prior drug use that ceased in May 2000. The Petitioner was never arrested for any drug-related activity. Had the Petitioner not candidly disclosed the information to the Respondent, it is unlikely that the Respondent would have obtained the information. The Petitioner asserts that he is no

    longer in drug-related activity and there is no evidence to the contrary. This Order does not rely on the information provided by the Petitioner related to prior drug use.

20. Although the Petitioner is commended on the candor exhibited during the investigative process related to past drug- related activity, the evidence fails to establish that there has been any rehabilitation other than completion of the court- ordered sentence for domestic violence including a "Batterer's Intervention Program."

21. At this time, the evidence fails to establish sufficient evidence of rehabilitation sufficient to warrant granting an exemption from disqualification. While Petitioner's recent behavior has been peaceful and appropriate, it alone is insufficient to resolve concerns related to a history of angry behavior. The totality of the incidents are indicative of a level of inappropriate behavior which may not have been adequately addressed by a single anger management program related to domestic abuse; yet, other than the single court- ordered program, no evidence of rehabilitation was provided.

RECOMMENDATION

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

RECOMMENDED that the Department of Children and Family Services deny the request of Sergio Mercado for exemption from disqualification.

DONE AND ENTERED this 25th day of October, 2002, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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 25th day of October, 2002.

COPIES FURNISHED:

Sergio Mercado

4909 Drift Tide Drive

New Port Richey, Florida 34652

Frank H. Nagatani, Esquire Department of Children

and Family Services

11351 Ulmerton Road, Suite 314

Largo, Florida 33778-1630

Paul F. Flounlacker, Jr., 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

Jerry Regier, Secretary Department of Children

and Family Services 1317 Winewood Boulevard

Building 1, Room 202

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: 02-003068

Orders for Case No: 02-003068