01-001115 Veronica Smith vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, May 25, 2001.

Summary: Petitioner denied exemption from disqualification from employment as a caretaker for children.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERONICA SMITH, )

)

Petitioner, )

)

vs. ) Case No. 01-1115

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge ,

Jeff B. Clark, held a formal hearing in this case on May 9,

2001, in Sanford, Florida.

APPEARANCES

For Petitioner : Veronica Smith, pro se

500 Sunrise Drive

Casselberry, Florida 32707

For Respondent: Eric D. Dunlap, Esquire

Department of Children and

Family Services

400 West Robinson Street

Suite S-1106

Orlando, Florida 32801-1782

STATEMENT OF THE ISSUE

The issue is whether Petitioner is eligible for exemption

from disqualification from working as a caretaker for children

under Subsection 435.07(3), Florida Statutes.

PRELIMINARY STATEMENT

On January 31, 2001, Respondent advised Petitioner that her

request for exemption pursuant to Chapter 435, Florida Statutes,

had been denied. On the February 5, 2001, Petitioner requested

an administrative hearing on the denial of her request for

exemption pursuant to Chapter 435, Florida Statutes.

On March 20, 2001, Respondent requested the Division of

Administrative Hearings to set an administrative hearing to

resolve the disputed facts. On March 27, 2001, a Notice of

Hearing was entered setting the final hearing for May 9, 2001,

in Sanford, Florida.

At the final hearing, Petitioner testified on her own

behalf and presented her husband as an additional witness. She

offered eleven exhibits which were received in evidence.

Respondent presented two witnesses and offered one exhibit which

was received in evidence.

No transcript was ordered. The parties were instructed of

their opportunity to submit proposed recommended orders within

ten days following the final hearing. Respondent submitted a

Proposed Recommended Order.

FINDINGS OF FACTS

1. Under Subsection 402.305(1), Florida Statutes,

Department of Children and Family Services is the agency

responsible for establishing licensing standards for child care

facilities and child care personnel.

2. Petitioner applied to Respondent to be licensed as a

family day care facility.

3. As a result of Petitioner's application, Respondent

conducted a Level 2 background screening to determine if

Petitioner qualified as a person of "good moral character" as

required by the licensing minimum standards.

4. The background screening and Petitioner's testimony

determined the following:

a. In 1990, in Bergen County, New Jersey,

the Petitioner was charged with possession

of cocaine and pled guilty; she was

sentenced to three years probation which she

successfully completed.

b. In 1993, in Osceola County, Florida,

Petitioner was charged with petty theft,

which charge was dismissed.

c. In 1995, in Orange County, Florida,

Petitioner pled nolo contendere to felony

possession of cocaine. She served one day

in jail and one year probation which she

successfully completed.

d. In 1997, in Orange County, Florida,

the Petitioner was charged with domestic

battery; the charge was dismissed.

5. Petitioner acknowledged that she had a "drug problem"

from 1994 to 1996. She successfully completed a drug treatment

program in 1997 and has been drug-free ever since.

6. Petitioner married her present husband, Ivan, in 1997

and has a two-year-old son from this marriage. She is the

custodial parent of a 14-year-old daughter. Petitioner's

19-year-old son attends college.

7. As required by law, as a part of her background

screening , Petitioner filed an Affidavit of Good Moral

Character in which she asserted that she had "not been found

guilty, or entered a plea of guilty or nolo contendere (no

contest), regardless of adjudication, to any of the following

charges. . . . Chapter 893 drug abuse prevention and controls

only if the offense was a felony or if any other person involved

in the offense was a minor."

8. The statement immediately above Petitioner's signature

on the Affidavit of Good Moral Character reads:

Under the penalty of perjury, which is a

first degree misdemeanor, punishable by a

definite term of imprisonment, not exceeding

one year and/or a fine not exceeding $1,000

pursuant to ss. 837.012, or 775.082, or

775.083, Florida Statutes, I attest that I

have read the foregoing, and I am eligible

to meet the standards of good moral

character for this caretaker position.

9. The statement contained in the Affidavit of Good Moral

Character was untrue and Petitioner's explanation for having

filed the false affidavit was not persuasive and reflects her

refusal or inability to understand the importance of this

document, having sworn to the truth of the inaccurate statements

contained in the document.

10. Wh en she was advised that she had been disqualified

from working as a caretaker for children and, as a result, her

application for a registered family day care facility had been

denied, she requested an exemption as provided in Section

435.07, Florida Statutes.

11. Michael Ingram, District 7 Screening Coordinator,

convened a three-person Exemption Review Committee which

considered the circumstances surrounding the disqualifying

criminal incident(s), nature of harm to victim(s), amount of

time since the last criminal incident, and the applicant's

general history. The Exemption Review Committee relies on the

applicant to provide information on rehabilitation.

12. The Exemption Review Committee denied Petitioner's

exemption request based, in part, on the fact that not enough

time had elapsed since the 1997 felony conviction and that there

was little evidence of rehabilitation. This denial was a proper

exercise of the authority vested in the Exemption Review

Committee.

13. Petitioner has made a good start on a s elf-structured

rehabilitation program. Apparently, she has a good marriage and

a supportive husband. On February 27, 2001, she completed a

30-hour Family Child Care Training Course. She completed a

pediatric basic first-aid course on January 16, 2001. She is

enrolled in a GED high school equivalency program. She has

letters of support from friends and neighbors. Some of the very

positive indicators of rehabilitation have occurred since she

appeared before the Exemption Review Committee.

14. Although Petitioner has provided evidence indicating a

positive direction in her life, she has failed to provide clear

and convincing evidence of rehabilitation at this time.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Subsection 120.57(1), Florida Statutes.

16. The Department of Children and Family Services

establishes licensing standards for child care facilities and

child care personnel. Section 402.305, Florida Statutes.

17. Child care personnel in family day care facilities are

subject to the applicable screening provisions of Chapter 435,

Florida Statutes.

18. If an applicant suffers disqualification, the

applicant may request an exemption from the licensing agency.

This discretionary exemption from disqualification is limited to

specific criminal acts and shall not be used unless coupled with

clear and convincing evidence from the applicant of

rehabilitation. Subsection 435.07(3), Florida Statutes.

19. The "clear and convincing" evidence standard requires:

[T ]hat the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; and

the testimony must be precise and explicit

and the witnesses must be lacking in

confusion as to the facts in issue. The

evidence must be of such weight that it

produces in the mind of the trier of fact a

firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz vs. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

20. The disqualifying criminal offense adjudicated on

January 30, 1996, while beyond the three-year limit in

Subsection 435.07(1)(a), Florida Statutes, drug rehabilitation

in 1997 and the false affidavit of November 9, 2000, are

uncomfortably close in proximity to the more recent indices of

rehabilitation and denigrate a "clear and convincing"

demonstration of rehabilitation.

21. The Exemption Review Committee appropriately

considered the criteria for an exemption set forth in Subsection

435.07(3), Florida Statutes, and the committee's recommendation

of denial was an appropriate exercise of the discretion vested

in a licensing agency.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions

of Law, it is

RECOMMENDED that the Department of Children and Family

Services enter a final order denying Petitioner, Veronica Smith,

an exemption from disqualification from employment as a

caretaker for children.

DONE AND ENTERED this 25th day of May, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of May, 2001.

COPIES FURNISHED :

Eric D. Dunlap, Esquire

Department of Children and

Family Services

400 West Robinson Street

Suite S-1106

Orlando, Florida 32801-1782

Veronica Smith

500 Sunrise Drive

Casselberry, Florida 32707

Virginia A. Daire, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

Building 2, Room 204B

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.