The Issue Whether Petitioner's application for licensure as a family day care home should be granted.
Findings Of Fact Based on the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Linda Richmond, formerly Linda Cook, applied for a license to operate a family day care at her residence. In connection with Petitioner's licensure application, dated December 17, 2001, the Department conducted a background screening of Petitioner, which included a review of the following: local and state criminal records; Florida Department of Law Enforcement reports; FBI records; records of the Florida Hot Line Information System; employment history; and affidavits of good moral character. Based on information obtained from the Florida Hot Line Information System, the Department denied Petitioner's application to operate a family day care home. According to the Notice of Denial dated June 12, 2002: [Y]our registration to operate a Family Day Care Home is being denied at this time due to the following: (1) Background screening revealed a prior incident of neglect of your children and inadequate supervision. The facts underlying the report demonstrates [sic] an inability to ensure the safety of children in your care to the level necessary to be registered as a Family Day Care Home. The Notice of Denial does not specify which background screening records the Department relied on in reaching its decision to deny Petitioner's application. However, in light of the evidence presented by the Department, the denial was apparently based on information included in a 1990 Abuse Report and/or a 1995 Abuse Report. The 1990 Abuse Report noted that Petitioner admitted using crack cocaine and having people come to her home for the purpose of using crack, but denied that she used drugs in her children's presence. Also, the 1990 Abuse Report indicated that one of Petitioner's minor children had been fondled by a man who was at the home for several days and that Petitioner "reported being in the home at the time of the alleged incident." Furthermore, according to the 1990 Abuse Report, the house in which Petitioner, her then husband, and her children lived was not clean and did not have electricity. The 1990 Abuse Report concluded that Petitioner had neglected her children. Based on the investigation, on or about October 25, 1990, the report was closed as "confirmed for conditions hazardous to health and all other maltreatments are indicated." The 1990 Abuse Report noted that "due to the condition of the home and the crack usage in the home by the parents," the children were placed in the home of their maternal grandmother. Finally, as to the disposition of the case and the services to be provided, the report stated that the risk and severity of harm to the children was low "in the grandparental home," that protective service supervision was needed, and that the case was referred to protective services for ongoing supervision. Petitioner admits that at the time of the 1990 Abuse Report and investigation related thereto, she was addicted to crack cocaine. However, Petitioner's credible testimony was that she never used crack or any illegal drug in her children's presence. Moreover, at the time one of her minor children was fondled by a man temporarily staying at the house in which the children lived with their father, Petitioner was estranged from her then husband, was not staying with him and the children, and was not aware of that incident until some time after the incident occurred. Notwithstanding the findings and conclusions in the 1990 Abuse Report, there is no evidence that Petitioner neglected or failed to supervise her children, as alleged by the Department. In late 1995 or early 1996, a second abuse report, the 1995 Abuse Report, was generated following an investigation into allegations that the maternal grandfather of Petitioner's children was physically abusing them. As a result of an investigation, the 1995 Abuse Report found that the maternal grandfather, with whom the Petitioner's children were living, had used excessive corporal punishment on them. The report was closed with a finding of verified maltreatment of the children by their maternal grandfather. During the time period covered by the 1995 Abuse Report and the maltreatment of Petitioner's children by their maternal grandfather, the children were not living with Petitioner. They were living with and in the custody of their maternal grandparents, having been placed with them by the State as a result of the findings and conclusions in the 1990 Abuse Report. As accurately noted in the 1995 Abuse Report, Petitioner's role at the time covered by the report was that of "parent not in home." Nothing in the 1995 Abuse Report indicates that Petitioner neglected or failed to supervise her children. Rather, it was Petitioner who called the Abuse Hot Line on December 19, 1995, after she observed her father hit one of her children so hard that the child fell to the ground. This incident occurred December 19, 1995, while Petitioner was at her parents' house to visit her children and give them Christmas gifts. The reason Petitioner called the Abuse Hot Line to report the December 19, 1995, incident described in paragraph 12 was that she cared about her children and perceived her father's action to be physical abuse of one of her children. Although Petitioner reported the December 19, 1995, incident the day it occurred, no one came out to investigate the matter. The following day, Petitioner reported the incident to her counselor at the Center for Drug Free Living, who then telephoned the Abuse Hot Line. The Notice of Denial fails to state any facts from either the 1990 Abuse Report or the 1995 Abuse Report which establish that Petitioner neglected or failed to adequately supervise her children. Moreover, neither the 1990 Abuse Report nor the 1995 Abuse Report supports the Department's allegations that Petitioner neglected or failed to supervise her children. Finally, the Department presented no evidence to support its allegations or to demonstrate Petitioner's "inability to ensure the safety of children in [her] care to the level necessary to be registered as a Family Day Care Home." Petitioner successfully refuted the Department's allegations that she neglected and failed to adequately supervise her children, even though she admitted that in 1990, she was addicted to crack cocaine. However, this admission by Petitioner, standing alone, does not establish the Department's allegations. After the 1990 Abuse Report was issued and prior to issuance of the 1995 Abuse Report, Petitioner faced her addiction and took action to turn her life around so that she could regain custody of her children. As part of Petitioner's rehabilitative process, she successfully completed a drug treatment program as evidenced by the fact that she has been "drug free" since September 15, 1995, or for more than seven years. In addition to the drug treatment program, Petitioner also participated in and completed a parenting class. After completing the drug treatment program and the parenting class, Petitioner regained custody of and was reunited with her children. In March 1996, Petitioner was awarded "supervised" custody of her children. Six months later, Petitioner was awarded permanent custody of her children. There is no indication that Petitioner neglected, abused, mistreated, or failed to supervise her children either prior to or after March 1996, when she regained custody of the children. Since successfully completing the drug treatment program and parenting class and regaining custody of her children, Petitioner has had a stable work history, has remarried, and has become an active member of a church in her community. From 1996 through 1999, Petitioner was employed as a housekeeper by Disney World. After leaving Disney World, Petitioner was employed at Sophie's Kids Learning Center, as a child care provider or "teacher" of toddlers. Petitioner is currently employed at Sophie's Kids Learning Center and has been employed there since 1999, except for a six-month period when she took leave to care for her daughter and grandchild. In letters of support, Petitioner is described as a good employee, one of the center's best instructors who is doing "excellent work with children of all ages." Petitioner is an active member of Salem Gospel Baptist Church and has been for the past two years. Petitioner attends church services regularly, is a member of the church choir, and teaches a children's Sunday School Class. Letters of support from the pastor of the church and a church member indicate that Petitioner is a committed member of the church who works with the children in the church. These letters also state that Petitioner has gained and enjoys the respect of the parents in the church as well as those not in the church.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for licensure to operate a family day care home. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 13th day of December, 2002. COPIES FURNISHED: Richard B. Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Linda Richmond 25 West 14th Street Apopka, Florida 32703 Paul Flounlacker, 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
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Question 7 Question 7 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 1 as the answer to this question. The vendor who prepared the examination for the Department determined that No. 4 was the correct answer. Because she did not have No. 4 as her answer, Petitioner was not given any credit for Question 7. While No. 4 is a correct answer to Question 7, so is No. 1, the answer selected by Petitioner. Compared to preadolescents, the moral judgments of adolescents are more susceptible to "prestige suggestion," Petitioner should therefore receive credit for her answer to Question 7. Question 30 Question 30 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 4 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as her answer, Petitioner was not given any credit for Question 30. Petitioner was properly denied credit for this answer. Of the symptoms/traits listed, the one she selected is not the one most characteristic of chronic drug abuse. Those described in No. 3, as well as in No. 2, are more common. Question 68 Question 68 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 2 as the answer to this question. The vendor determined that No. 1 was the correct answer. Because she did not have No. 1 as her answer, Petitioner was not given any credit for Question 68. Petitioner was properly denied credit for this answer. Of the choices given, the one selected by Petitioner does not represent the most useful way for a counselor to handle the prejudice referenced in the question stem. A counselor may encounter clients whose morals, customs, and/or behavior arouse prejudice in the counselor, notwithstanding that there are no cultural differences between these clients and the counselor. Accordingly, learning as much as possible about various cultures will not be helpful to the counselor in handling such prejudice. The correct answer to Question 68 is No. 1. Self-awareness on the part of the counselor is essential to effective counseling. It is imperative that a counselor remain objective and not respond to the client on the basis of bias or prejudice. Question 69 Question 69 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 4 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as her answer, Petitioner was not given any credit for Question 69. While No. 3 is a correct answer to Question 69, so is No. 4, the answer selected by Petitioner in counseling drug abusers, limit setting, or what is commonly known as "tough love," is generally more effective than approaching the client with sympathy and gentleness. Petitioner should therefore receive credit for her answer to Question 69. Question 85 Question 85 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 2 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as her answer, Petitioner was not given any credit for Question 85. Petitioner was properly denied credit for this answer. A counseling session may be effective even though the client is upset upon leaving. The correct answer to Question 85 is No. 3. The mark of a skillful counselor is the ability to recognize the significance of minor or subtle changes in the client's conduct during the counseling session. Question 94 Question 94 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 4 as the answer to this question. The vendor determined that No. 2 was, the correct answer. Because she did not have No. 2 as her answer, Petitioner was not given any credit for Question 94. While No. 2 is a correct answer to Question 94, so is No. 4, the answer selected by Petitioner. Indeed, No. 4 is essentially the same answer as No. 2. They are simply worded differently. Petitioner should therefore receive credit for her answer to Question Question 99 Question 99 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 1 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as answer, Petitioner was not given any credit for Question 99. Petitioner was properly denied credit for this answer. A couple that has been referred to a counselor for sexual problems should not be referred to a physician for medical work-ups before the counselor has met with the couple to find out more about the nature of the couples's difficulties. Accordingly, the correct answer to Question 99 is not No. 1, but No. 3.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling sustain Petitioner's challenge to the grading of her answers to Questions 7, 69 and 94 on Part II of the April, 1990, Mental Health Counseling Examination, reject her challenge to the grading of the remaining questions at issue, and modify her score on the examination accordingly. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of November, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO 91-0650 The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact To the extent that it states that Petitioner's answers to Questions 7, 69 and 94 are correct and that she therefore should receive credit for these answers, this proposed finding has been accepted and incorporated in substance in this Recommended Order. To the extent that it states that her answers to Questions 30, 68, 85 and 99 are correct and that she therefore should receive credit for these answers, this proposed finding has been rejected because it is contrary to the greater weight of the evidence. Rejected because it is not supported by persuasive competent substantial evidence. Respondent's Proposed Findings of Fact 1-17. Accepted and incorporated in substance. 18-19. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted and incorporated in substance. Rejected because it constitutes, not a finding of fact, but a statement of the opposing party's position regarding Question 30. 22-24. Accepted and incorporated in substance. 25-26. Rejected because they are contrary to the greater weight of the evidence. The preponderance of the evidence establishes that the concept of "prestige suggestion" incorporates the notion of peer identity and influence. 27. Rejected because it is irrelevant and immaterial. It matters not why an applicant selected a answer, if that answer is correct. 28-29. Rejected because they are contrary to the greater weight of the evidence. 30-33. Accepted and incorporated in substance. COPIES FURNISHED: Diane M. Kirigin, Esquire 2428 Broadway P.O. Box 9936 Riviera Beach, Florida 33419 Roberta L. Fenner, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Diane Orcutt Executive Director Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue The issue in the case is whether the allegations of the Administrative Complaint (as limited by the Notice of Limitation of Issues dated June 15, 2004) are correct, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed mental health counselor, holding Florida license number ME 5853. In approximately July 2001, the Respondent began to counsel a five-year-old female, allegedly the victim of sexual abuse by an uncle, the brother of the child's mother. The Respondent believed, based on information provided by the father, that the uncle resided with the child's mother. The child's father had custody of the child, and the mother had some type of visitation rights. In approximately November of 2001, the Respondent began counseling the child's father and his girlfriend for various family-related issues. Towards the end of 2001 or early 2002, the father and his girlfriend married. Although the Respondent testified at the hearing that the couple "seemed to have plenty of money to do certain things," including personal care and entertainment expenses, she apparently believed, based on what she was told by the couple, that they had financial difficulties. The couple resided in a home owned by the child's father. Apparently based solely on the couple's representations, the Respondent believed that the father was in arrears on house payments. One of the issues addressed in counseling was the father's concern that, were he to lose his house, the child would be returned to the mother's custody, where the uncle resided. Also apparently based solely on the couple's representations, the Respondent believed that the couple wanted to purchase a new house and that they needed $7,000 to buy the house. In March of 2002, the Respondent loaned the couple $7,000. The couple repaid within a few weeks a total of $9,000 to the Respondent. At the time of the $7,000 loan, the clients owed to the Respondent a balance of approximately $3,200 in unpaid professional fees related to therapeutic services provided to them by the Respondent. The Petitioner asserts that the $9,000 repaid to the Respondent included interest charges of $2,000. Petitioner's Exhibit number one is a copy of a document dated March 20, 2002, and apparently notarized on March 21, 2002. The document appears to require that the couple repay to the Respondent by not later than May 16, 2002, a principal amount of $7,000 plus $2,000 in "interest" for a total of $9,000. The genesis of the document is unclear. At the hearing, the wife testified that the document memorialized the agreement between the Respondent and the couple. The Respondent testified that she did not require preparation or execution of any loan documentation. The Respondent testified that the funds received from the couple included repayment of the loan plus payment of $2,000 towards the unpaid professional fees. Based on the candor and demeanor of the witnesses at the hearing, the Respondent's testimony as to the basis for the payment of the $2,000 is credited. Subsequent to the loan and repayment transactions, the therapeutic situation deteriorated between the Respondent and the couple, particularly as to the wife, who began to believe that the Respondent was romantically involved with the husband. The therapeutic relationship between the couple and the Respondent dissolved acrimoniously within a few months after the loan. At the hearing, the Petitioner presented the expert testimony of Dr. Owen Wunderman, a Florida-licensed mental health counselor, and Dr. Andrew Wenger, a Florida-licensed psychologist. Both testified as to the Florida Statutes and as to ethical standards adopted by the American Counseling Association (ACA) applicable to the fact situation at issue in this proceeding. The Respondent presented the expert testimony Dr. Barbara Herlihy, a professor at the University of New Orleans and a licensed professional counselor in Louisiana and Texas. Dr. Herlihy has been involved with the adoption of the existing ACA standards and has written texts related to the issue of dual relationships in counseling situations. As identified during the hearing, the ACA standards address the issue of dual relationships as follows: Avoid when possible. Counselors are aware of their influential positions with respect to clients and they avoid exploiting the trust and dependency of clients. Counselors make every effort to avoid dual relationships with clients that could impair professional judgment or increase the risk of harm to clients. (Examples of such relationships include, but are not limited to, familial, social, financial, business, or other close personal relationships with clients.) When a dual relationship cannot be avoided, counselors take appropriate professional precautions such as informed consent, consultation, supervision, and documentation to ensure that judgment is not impaired and no exploitation occurs. Both Dr. Wunderman and Dr. Wenger testified that by making the $7,000 loan to her clients, the Respondent entered into a dual relationship (counselor and creditor) with the couple, and that in doing so, the Respondent failed to meet minimum standards of performance in professional activities when measured against generally prevailing peer performance, as well as violated the ACA standards. Dr. Wunderman testified that there was a meaningful risk of non-repayment of the $7,000 loan, given that the clients were several thousand dollars in arrears in paying professional fees, thereby increasing the likelihood that the therapist/creditor would have to take legal action against the clients for repayment, an action likely to impair professional judgment or increase the potential risk of harm to the clients, whether or not legal action was actually initiated. Dr. Herlihy testified that she did not regard the fact situation at issue in this case as a dual relationship because she viewed it as a "one-time" short-term loan and that there was no evidence that the counseling relationship between the parties was harmed. Dr. Herlihy testified that she viewed the situation as a "boundary crossing." Dr. Herlihy acknowledged that short of loaning a client a small sum for cab fare, she was unaware of any mental health counselor making a loan to a client such as occurred in this case. She also acknowledged that she was not familiar with professional performance standards as specifically applied to Florida practitioners. The weight of the evidence establishes that Drs. Wunderman and Wenger are more familiar with the minimum standards of professional performance as measured against generally prevailing peer performance within the State of Florida. The testimony of Dr. Wunderman and Dr. Wenger is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding the Respondent has violated Subsection 491.009(1)(r), Florida Statutes (2002), and imposing a fine of $1,000, a reprimand, and a one-year period of probation. DONE AND ENTERED this 13th day of January, 2005, in Tallahassee, Leon County, Florida. S 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 13th day of January, 2005. COPIES FURNISHED: Ellen M. Simon, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 William N. Swift, Esquire William N. Swift, Attorney at Law 901 Southwest Martin Downs Boulevard Suite 208 Palm City, Florida 34990 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy & Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C-08 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Quincy Page, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue The issue is whether Petitioner should be granted an exemption from employment disqualification pursuant to Section 435.07(3), Florida Statutes.
Findings Of Fact Petitioner is forty-three years old. His wife, Margaret Bryant, has applied for a license to operate a family day care home. In March 1987, a law enforcement officer detained Petitioner on suspicion of robbery, placed Petitioner in the backseat of a patrol car, and transported him to the police station. Petitioner was the last person to ride in the patrol car before the law enforcement officer found cocaine in a matchbox in the back seat of the patrol car. Subsequently, Petitioner was arrested and charged with robbery and possession of cocaine. In April 1987, Petitioner pled guilty to aggravated assault pursuant to Section 784.021, Florida Statutes, and possession of cocaine pursuant to Section 893.13, Florida Statutes. He was adjudicated guilty of a third-degree felony for aggravated assault and a second-degree felony for possession of cocaine. The court sentenced Petitioner to 24 days, time served. In January 1992, Petitioner was living with a former girlfriend, Gloria Sanderford. Petitioner and Ms. Sanderford had an argument over some marijuana. During the argument, Petitioner hit the wall then left the residence. When he returned to the residence, Petitioner broke a window in an attempt to gain entry. In February 1992, Petitioner was charged with assault pursuant to Section 784.011, Florida Statutes, and with criminal mischief pursuant to Section 806.13, Florida Statutes. After pleading no contest to these charges, Petitioner was adjudicated guilty of a second-degree misdemeanor on both counts. Petitioner was sentenced to 16 days, time served, and 90 days' probation. The court ordered Petitioner to make restitution to Ms. Sanderford in an amount not to exceed $250. During the hearing, Petitioner admitted that he was convicted of burglary in 1994. Petitioner testified that he was sentenced to three years in jail and was eventually released on parole. The record does not reflect any additional details about this conviction. In September 1996, Petitioner and a former girlfriend, Janet McClendon, fought over some money resulting in a bruised lip and eye for Ms. McClendon and a cut on Petitioner's wrist. Petitioner and Ms. McClendon were using drugs at the time of the incident. In October 1996, Petitioner pled no contest and was adjudicated guilty of a first-degree misdemeanor battery pursuant to Section 784.03, Florida Statutes. The court sentenced Petitioner to 45 days in jail with credit for 18 days, time served. Subsequently, Petitioner returned to jail for violation of parole. On August 8, 1998, Petitioner and Margaret Bryant were not married, but were living together; they had an argument during which Petitioner pushed her. Ms. Bryant called the police resulting in Petitioner's arrest for battery pursuant to Section 784.03(1), Florida Statutes. On August 28, 1998, the court adjudicated Petitioner guilty of a first-degree misdemeanor battery for violating Section 784.03(1), Florida Statutes. Based on this conviction, the court sentenced Petitioner to five months' incarceration with credit for 21 days, time served. The court also ordered Petitioner to complete the Door Program and to participate in family counseling. After Petitioner was released from jail the last time, he began attending church. Petitioner continues to be active in his church, serving as the camera person and participating in the on-going family enrichment and marriage counseling program. Petitioner's pastor considers Petitioner to be a church leader, a loving husband, and devoted stepfather to Ms. Bryant's two children. The pastor's opinion of Petitioner is supported by many of the church members. Petitioner's mother confirms that Petitioner has turned his life around since he stopped abusing drugs and alcohol, and he often helps his mother with household chores. According to Petitioner's mother, Petitioner is a good husband and father to his stepchildren and his goddaughter. Ms. Bryant and Petitioner have been married for almost three years, but they have lived together for several years longer. She testified that Petitioner is a loving husband and stepfather. She asserts that as a couple, they have learned how to deal with the challenges of married life. According to Ms. Bryant, she and Petitioner now have the skills to keep their marriage healthy. Petitioner has a general education diploma and is an electrician by trade. He worked for one electric company for about 14 years; he has been employed as an electrician with his current employer for over two years. Petitioner's employer regards him as a hard worker who is trusted with jobsite responsibilities and recommends Petitioner as a person of character. Petitioner admits that his drug and alcohol abuse caused him problems in the past, and he does not deny his criminal history. However, Petitioner stopped using drugs and alcohol after his last incarceration in August 1998. He now has a strong marriage to Ms. Bryant and a commitment to his church and has accepted the responsibility for helping Ms. Bryant raise her children. Petitioner serves as a mentor for other young children. Petitioner's church and family provide him with a solid support system.
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 disqualification. DONE AND ENTERED this 18th 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 18th day of April, 2002. COPIES FURNISHED: Anthony Bryant 960 Ontario Street Jacksonville, Florida 32254 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
The Issue The issue is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by petitioner, Derion Baker, for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner intends to work with retarded children. Respondent, Department of Children and Family Services (DCFS), formerly known as the Department of Health and Rehabilitative Services (HRS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on December 20, 1996, an HRS committee denied the request. As agreed upon by the parties, petitioner is now barred from working with retarded children because of two disqualifying offenses, the first of which occurred on May 13, 1988, or almost nine years ago. On that date, petitioner pled guilty to unlawful possession of a controlled substance, a felony of the third degree. Adjudication of guilt was withheld, and petitioner was placed on three years’ probation. All terms of probation were successfully completed. The foregoing conviction resulted from petitioner’s arrest in August 1987 for possession of one piece of crack cocaine with a street value of $10.00. According to petitioner, the cocaine actually belonged to her boyfriend, with whom she was living. The arrest report alleges that petitioner was arrested while attempting to sell the drug to a confidential informant. On April 23, 1993, petitioner was again arrested for physically battering her common law husband with a cooking pot during an altercation. He suffered a bruised head and scratches on his body. Petitioner, who was intoxicated at the time, was charged with domestic violence. On May 24, 1993, petitioner pled nolo contendere to the charge and was required to pay $125.00 in court costs and serve six months probation. In addition, she was required to attend “S.A.R. counseling - Family Counseling with Life Line.” She successfully completed her counseling sessions. On October 5, 1993, petitioner was arrested for disorderly conduct, a second degree misdemeanor. Petitioner acknowledges that she was intoxicated at the time. On November 1, 1993, she pled nolo contendere to the charge and received the following sentence: “$85-ccw/60 days or 15 days jail.” While disorderly conduct is not a disqualifying offense, it does bear on the issue of petitioner’s rehabilitation and good character. On April 19, 1995, petitioner was again arrested for domestic violence (aggravated child abuse) for striking her daughter with a belt as punishment for skipping school. On May 3, 1995, however, an announcement of no information was filed by the prosecutor. There is no record of any arrests in the last two years. Petitioner has been a certified nursing assistant (CNA) for almost ten years, and she has worked on and off in that field since at least 1989. Most recently, she was employed in a nursing home in Crescent City, Florida, where she was terminated on December 19, 1996, on account of her disqualification, and at a retirement home in Glenwood, Florida, where she was terminated on July 15, 1996, for the same reason. After learning that an exemption might be obtained from such disqualification, she filed this request. If it is approved, she intends to work with retarded children and has a pending job offer in that field. Petitioner’s problems with the law in 1987, 1993 and 1995 appear to stem from alcohol abuse and association with less than desirable companions. In an effort to provide a better environment for herself and her five children, petitioner has relocated from Deland to Pierson, a much smaller community, and she no longer drinks. This was not contradicted. Petitioner admits that she made serious “mistakes” in prior years and regrets her past misconduct. She contends that while working as a CNA, she has been a reliable and trustworthy employee. This was corroborated by letters from her two most recent employers. In fact, one of the employers intends to hire her if the exemption is approved. There is no evidence that she will be a threat to retarded children while working in that field. Neither is there a concern, as suggested at hearing by respondent, that she might drink alcohol in the presence of her clients. Given the four year lapse of time since petitioner’s last disqualifying offense, and her current sobriety and recent work record, it is found that petitioner is sufficiently rehabilitated since the disqualifying events, she is of good character, and she will not present a danger to the safety or well-being of her clients. The request should accordingly be granted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 13th day of March, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1997. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard E. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Derion Baker Post Office Box 454 Pierson, Florida 32180 Daniel T. Medved, Esquire 210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114
