STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. W.,

   
   

   Petitioner,

   
   

   vs.

   
   

   DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

   
   

   Respondent.

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   ) Case No. 04-4359

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   RECOMMENDED ORDER

   
   

   Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing in this proceeding, on February 11, 2005, in Lakeland, Florida, on behalf of the Division of Administrative Hearings (DOAH).

   APPEARANCES

   
   

   For Petitioner: L. W., pro se

   (Address of record)

   
   

   For Respondent: Jack Emory Farley, Esquire

   Department of Children and Family Services

   4720 Old Highway 37

   Lakeland, Florida 33813-2030 STATEMENT OF THE ISSUES

   The issues are whether Respondent should grant Petitioner an exemption from disqualification to be licensed to operate a family day care home pursuant to Subsection 402.310(1)(a), Florida Statutes (2004).

   PRELIMINARY STATEMENT

   
   

   By letter dated September 14, 2004, Respondent denied Petitioner's request for exemption from disqualification for a license to operate a family day care home. Petitioner timely requested an administrative hearing, and Respondent referred the matter to DOAH to conduct the hearing.

   At the hearing, Petitioner testified in her own behalf and submitted no exhibits for admission into evidence. Respondent called two witnesses and submitted four exhibits.

   The identity of the witnesses and exhibits, and any attendant rulings, are reported in the record of the hearing. Neither party requested the record to be published in a transcript. Petitioner did not file a proposed recommended order (PRO). Respondent filed its PRO on February 17, 2005.

   FINDINGS OF FACT

   
   

   1. Respondent is the agency responsible for licensing and regulating day care homes in the state. Petitioner seeks a license to operate a family day care home.

   2. Respondent is statutorily required to complete a background screening clearance for Petitioner as a condition of license approval. The background screening revealed an arrest on September 19, 1997, for a misdemeanor charge of simple battery defined in Section 784.03, Florida Statutes (1997).

   3. The arrest arose from an incident of domestic violence in which Petitioner struck her partner (spouse) with a wet floor mop. The solution included bleach. No serious injury resulted from the incident.

   4. The county court withheld adjudication and fined Petitioner $193. Petitioner eventually paid the fine.

      CONCLUSIONS OF LAW

      
      

   5. DOAH has jurisdiction over the parties and subject matter of this case. §§ 120.569 and 120.57(1), Fla. Stat. (2004). DOAH provided the parties with adequate notice of the administrative hearing.

   6. Respondent's statutory authority to deny a request for exemption is limited to those offenses enumerated in

      Section 435.04, Florida Statutes (2004). Respondent may grant an exemption to any "employee otherwise disqualified from employment." § 435.07, Fla. Stat. (2004) (otherwise disqualified), but Respondent has no statutory authority to grant or deny an offense not enumerated in the statute.

   7. The offense for which the court withheld adjudication is a violation of Section 784.03, Florida Statutes (1997). The offense is not a disqualifying offense unless the "victim of the offense was a minor." § 435.04(2)(j), Fla. Stat. (2004). It is undisputed that Petitioner's spouse, the victim of the offense, was not a minor at the time of the offense.

   8. The offense for which the court withheld adjudication is not an "act that constitutes domestic violence as defined in s. 741.30." § 435.04(4)(b), Fla. Stat. (2004). Section 741.30, Florida Statutes (2004), is expressly limited to offenses involving the violation of a court-ordered injunction. It is undisputed that Petitioner did not violate a court-ordered injunction. Section 435.04, Florida Statutes (2004), does not enumerate any other type of domestic violence as a disqualifying offense.

   9. The maxim expressio unius est exclusio alterius

suggests the enumeration of the statute pertaining to injunctions for domestic violence excludes those acts of domestic violence not enumerated. McFadden v. State, 737 So. 2d 1073 (Fla. 1999); Thayer v. State, 335 So. 2d 815 (Fla. 1976).

Respondent has only that power which is expressly or by necessary implication granted by legislative enactment. Lewis Oil Co, Inc. v. Alachua County, 496 So. 2d 184, 189 (Fla. 1st DCA 1986); Department of Highway Safety & Motor Vehicles v.

German, 451 So. 2d 1013 (Fla. 3d DCA 1984); State, Department of Environmental Regulation v. Falls Chase Special Taxing District,

424 So. 2d 787, 793 (Fla. 1st DCA 1982). Any reasonable doubt as to the lawful exercise of a particular power should be resolved in favor of arresting the further exercise of that power. Edgerton v. International Company, 89 So. 2d 488 (Fla.

1956); State v. Atlantic Coast Line R. Co., 47 So. 969 (Fla. 1908); Fraternal Order of Police, Miami Lodge v. City of Miami, 492 So. 2d 1122, 1124 (Fla. 3d DCA 1986).

RECOMMENDATION

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

RECOMMENDED that Respondent enter a final order withdrawing the disqualification of Petitioner and proceed with the application for license.

DONE AND ENTERED this 14th day of March, 2005, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 14th day of March, 2005.

COPIES FURNISHED:

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

L. W.

(Address of record)

Agency Clerk

Department of Children and Family Services

Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tamayo, 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: 04-004359

Orders for Case No: 04-004359