The Issue The issue in this case is whether Petitioner should be exempt from disqualification for employment pursuant to Section 435.07(3), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner seeks an exemption for employment in a position for which an exemption is required pursuant to Sections 435.06 and 436.07(1). Petitioner seeks the exemption to operate a day care service out of her home. Petitioner is an employer and an employee within the meaning of Sections 435.02(1) and (2). Petitioner operates an unlicensed day care center from her home and employs at least one other person to assist her in providing day care for an undetermined number of children. Respondent is the licensing agency defined in Section 435.02(3). Petitioner has provided day care services for parents in the neighborhood on an intermittent basis from 1979 through the present. Petitioner has provided day care services to some parents gratuitously while other parents have paid for day care services. Parents who have paid for day care services have paid according to their means. No evidence established a fee schedule for day care services. Petitioner knows she is required to obtain a license in order to operate a day care business. In 1987, Petitioner obtained such a license but allowed that license to expire. On October 27, 1993, the Orange County Sheriff's Office charged Petitioner with aggravated child abuse in violation of Section 827.03, Florida Statutes (1993) ("Section 827.03"). Violation of Section 827.03 is a felony which disqualifies Petitioner from employment pursuant to Sections 435.03(2)(x) and 435.04(2)(x). The state attorney reduced the charges against Petitioner to a first degree misdemeanor charge of child abuse. Petitioner entered a plea of nolo contendere to the misdemeanor charge in Case Number MO 93-17467. The court withheld adjudication of guilt, placed Petitioner on supervised probation for six months, required Petitioner to pay fines and costs of $115, and required Petitioner to complete a parenting program. Petitioner satisfied the terms of her probation, although Petitioner did not do so in a timely manner. Petitioner missed at least one meeting with her probation officer and required additional time to pay the fine and court costs. Sometime in February 1999, Petitioner applied for a license from Respondent to operate her existing day care service. Respondent denied the application on the basis of the 1993 misdemeanor charge. On February 25, 1999, Petitioner requested an exemption from disqualification. Respondent denied the request for exemption, and Petitioner requested this hearing. Sufficient time has elapsed since the incident within the meaning of Section 435.07(3). Approximately six years have elapsed since the incident. The nature of the harm caused to the victim was significant. On October 17, 1993, Petitioner administered corporal punishment to her eight-year-old biological grandson using a telephone cord. The punishment left two open wounds above and below the left knee and a raised looped bruise on the leg. The wounds and bruises were visible to the arresting officer on October 27, 1993. The nature of the harm to the victim was not life threatening and did not require medical treatment. School officials observed the injuries to the victim and reported them to the Sheriff's Office. Petitioner denies that the open wounds observed by the arresting officer were caused by the incident. Petitioner claims the open wounds were caused during an accident at play. However, resolution of that factual issue is not necessary in order to determine whether Petitioner is entitled to an exemption. A more important issue is whether the incident was a single isolated incident or a common practice by Petitioner. On that issue, there is conflicting evidence. The Charging Affidavit alleges that the victim claimed Petitioner routinely "whipped" the victim, his brother, and his sister with a telephone cord. Petitioner denies she disciplined any of her grandchildren with anything but her hand other than the one incident at issue in this proceeding. Petitioner claims that the incident arose from her frustration over recurring teacher complaints to Petitioner that the victim was disrupting classes and not performing in school and over Petitioner's inability to correct the victim's misbehavior after repeated attempts to address the situation without spanking the victim. The factual issue is resolved by the testimony of the mother of the victim and the testimony of other mothers who entrust the care of their children to Petitioner. The mother of the victim is the mother of the victim's brother and the victim's sister and also is Petitioner's biological daughter. The mother testified at the hearing that the incident in 1993 was the only time Petitioner had disciplined her children with anything but a minor hand slapping. The mother's testimony was credible and persuasive and consistent with the testimony of other mothers who have entrusted, and continue to entrust, the care of their children to Petitioner. There is no evidence that Petitioner has ever disciplined any child unrelated to Petitioner. Petitioner demonstrated sufficient evidence of rehabilitation since the incident in 1993. After Petitioner completed the parenting course required by the terms of her probation, Petitioner continued her education in child care. She completed three courses given by Respondent and earned 33 credit hours. Petitioner completed courses in "Fundamentals of Child Care," "Developmentally Appropriate Practices for Young Children," and "Introductory Child Care Training Courses." Petitioner demonstrated sincere remorse for the 1993 incident. Petitioner also demonstrated an awareness of the emotional harm caused, her importance to young children in her care, and an adequate awareness of appropriate parenting for children while they are in her care. Petitioner continued to care for the victim after 1993 without further incident. The mother of the victim and the mothers of other children continued to entrust the care of their children to Petitioner after the incident. The testimony of these mothers was consistent, credible, and persuasive. Petitioner has repaired her relationship with the victim. Both have learned to accept responsibility for their actions. The victim is now a well-adjusted young man who loves his grandmother and enjoys spending time with her. Counsel for Respondent exposed several inconsistencies in Petitioner's testimony with the intent to discredit Petitioner's testimony. Those instances are a matter of record and not addressed individually in this Recommended Order. After hearing the testimony of the mothers at the hearing, it is unlikely that Petitioner intended misrepresent the facts. It is more consistent with the testimony of the mothers at the hearing to find that the discrepancies in Petitioner's testimony resulted from Petitioner's lack of knowledge and business acumen rather than from her lack of good faith. Counsel for Respondent made much of the fact that Petitioner has operated, and continues to operate, an unlicensed day care center out of her home. Counsel noted in the record that the letter denying Petitioner's application for a license provides Petitioner with notice that the operation of an unlicensed day care business is a misdemeanor. Petitioner acknowledges this fact but claims that the day care center is her only means of financial support and the only affordable alternative for working parents who utilize her service. The issue of whether Petitioner currently operates an unlicensed day care center must be addressed in a separate proceeding if Respondent chooses to do so. Respondent must separately charge Petitioner with operating an unlicensed day care center, give Petitioner adequate notice of the charge, give Petitioner a point of entry, and provide Petitioner with a reasonable opportunity to defend the charge. Respondent cannot raise that charge for the first time in this proceeding as a ground for denying the exemption requested pursuant to Section 435.07(3) and effectively transfer the burden of proof to Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's request for exemption. DONE AND ENTERED this 20th day of December, 1999, in Tallahassee, Leon County, Florida. 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 20th day of December, 1999. COPIES FURNISHED: John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Samuel C. Chavers, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Carmen Sierra, Esquire Department of Children and Family Services 400 West Robinson Street Orlando, Florida 32801-1782 Annie Bell 2218 Nantes Court Orlando, Florida 32808
