01-001809 Cathy Ann Ramassar, D/B/A Cathy`s Day Care vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, September 12, 2001.

Summary: Recommend Petitioners` request for exemption from disqualification from working in a child care facility and for renewal of child care license be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BASEDEO RAMASSAR, )

)

Petitioner, )

)

vs. ) Case No. 01-1888

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

CATHY ANN RAMASSAR, d/b/a )

CATHY'S DAY CARE, )

)

Petitioner, )

)

vs. ) Case No. 01-1809

)

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 August 3,

2001, in Sanford, Florida.

APPEARANCES

For Petitioners : George B. Wallace, Esquire

George B. Wallace, Esq., P.A.

700 West First Street

Sanford, Florida 32771

For Respondent : Craig A. McCarthy, 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, Basedeo Ramassar, is

eligible for exemption from disqualification from working in a

registered or licensed family day care center under Subsection

402.302(3), Florida Statutes.

PRELIMINARY STATEMENT

On January 30, 2001, the Department of Children and Family

Services ("Respondent") advised Cathy Ramassar that her Family

Day Care Home Registration had been cancelled because her

husband, Basedeo Ramassar, had been disqualified from working as

a caretaker for children. As a result, Cathy Ramassar requested

an administrative hearing. On May 9, 2001, her request was

forwarded to the Division of Administrative Hearings and

assigned Case No. 01-1809. On March 9, 2001, Petitioner,

Basedeo Ramassar, received notice from Respondent that his

request for exemption pursuant to Section 435.07, Florida

Statutes, had been denied. On March 20, 2001, Basedeo Ramassar

requested an administrative hearing on the denial of his request

for exemption pursuant to Subsection 435.07(3), Florida

Statutes. On May 15, 2001, his request for an administrative

hearing was received by the Division of Administrative Hearings

and assigned Case No. 01-1888.

The cases were scheduled for trial on August 3, 2001, in

Sanford, Florida. As a result of the pre-hearing meeting of

counsel for the parties and preparing the Joint Pre-Hearing

Stipulation, the parties agreed that the disposition of Basedeo

Ramassar's case seeking exemption from disqualification would be

dispositive of both his case and his wife's case. The cases

were then consolidated for trial; however, the consolidated case

was assigned the higher case number because it was the exemption

case number.

At the final hearing, Basedeo Ramassar testified on his own

behalf and presented his wife, Cathy Ramassar, Reverend Bobbie

Stiver, Mark Templeton, Judy Templeton, Dana Sharpe, and Wanda

Wilson as additional witnesses. He offered six exhibits which

were received in evidence as Petitioners' Exhibits B and D-H.

Respondent presented one witness, Michael Ingram, and offered

seven exhibits. Respondent's Exhibits A-F were received in

evidence; Respondent's Exhibit G was not received in evidence

and all testimony regarding Exhibit G was stricken and not

considered by the undersigned Administrative Law Judge.

At the close of the final hearing, the parties were advised

of their opportunity to submit proposed recommended orders. On

August 17, 2001, after the parties jointly decided not to order

a transcript of the proceedings, they jointly requested an

extension to September 4, 2001, for filing proposed recommended

orders. The extension was granted. Both parties timely

submitted Proposed Recommended Orders.

FINDINGS OF FACTS

1. Under Sections 402.301-319, Florida Statutes, the

Department of Children and Family Services is the agency

responsible for establishing licensing standards for child care

facilities and child care personnel.

2. Petitioner, Basedeo Ramassar, is married to Cathy

Ramassar; they both reside at 2707 West Airport Boulevard,

Sanford, Florida.

3. Cathy Ramassar applied to Respondent to renew her

license as a family day care facility at her home at 2707 West

Airport Boulevard, Sanford, Florida.

4. As a result of her application, Respondent conducted a

Level 2 background screening. As a result of the screening, it

was determined that, on March 20, 2000 , Basedeo Ramassar had

pled nolo contendere to the charge of assignation to commit

prostitution, a violation of Section 796.07, Florida Statutes.

5. When Cathy Ramassar was advised that her license would

not be renewed because of her husband's violation of Section

796.07, Florida Statutes, she requested an administrative

hearing and, shortly thereafter, Mr. Ramassar requested an

exemption pursuant to Section 435.07, Florida Statutes.

6. Michael Ingram, District 7 Screening Coordinator,

convened a three-person Exemption Review Committee which

considered the circumstances surrounding the disqualifying

criminal incident, nature of harm to victim, 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.

7. The Exemption Review Committee denied Mr. Ramassar's

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

time had elapsed since the 1999 offense and the March 20, 2000,

nolo contendere plea and a 1990 domestic battery arrest which

occurred prior to his current marriage. This denial was a

proper exercise of the authority vested in the Exemption Review

Committee.

8. Mr. Ramassar testified that during the afternoon hours

of November 26, 1999, he approached an undercover female police

officer and "offered her $20 for straight sex." This resulted

in his arrest and ultimately, his nolo contendere plea to

assignation to commit prostitution.

9. With the help of a supportive wife and members of their

church, which he regularly attends, Mr. Ramassar has made a good

start on a rehabilitation program. Apparently, he has a good

marriage which has withstood the humiliation of public knowledge

of his infidelity and criminal involvement; each witness

testified to awareness of his criminal involvement.

10. As a part of the exemption process, Subsection

435.07(3), Florida Statutes, requires an assessment of "the

nature of the harm caused to the victim"; the only "victim" in

this case is Mr. Ramassar's wife, who has not only suffered the

public humiliation of her husband's infidelity, but has been

denied a license renewal for her day care facility.

11. Mr. Ramassar is regularly employed as a mason and, as

a result, except on rare occasions, is away from the day care

facility during its normal working hours.

12. Witnesses who had children enrolled in Mr. Ramassar's

wife's day care facility expressed little concern with the

knowledge that Mr. Ramassar had pled nolo contendere to

assignation to commit prostitution.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Subsections 120.57(1) and 435.07(3),

Florida Statutes.

14. The Department of Children and Family Services

establishes licensing standards for child care facilities and

child care personnel. Section 402.305, Florida Statutes.

15. Child care personnel in family day care facilities are

subject to the applicable screening provisions of Chapter 435,

Florida Statutes.

16. Mr. Ramassar is a "child care personnel" as defined in

Subsection 402.302(3), Florida Statutes, which reads, in

pertinent part ,:

"Child care personnel" means all owners,

operators, employees, and volunteers working

in a child care facility . . . . For

purposes of screening, the term includes any

member, over the age of 12 years, of a child

care facility operator's family , or person,

over the age of 12 years, residing with a

child care facility operator if the child

care facility is located in or adjacent to

the home of the operator or if the family;

member of, or person residing with, the

child care facility operator has any direct

contact with the children in the facility

during its hours of operation . . . .

[Emphasis added]

17. If a person suffers disqualification, he or she may

request an exemption from disqualification 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.

18. 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).

19. The disqualifying misdemeanor criminal offense

adjudicated on March 20, 2000, is uncomfortably recent; however,

Mr. Ramassar, through his own testimony, and that of his wife,

his pastor, and friends, has presented clear and convincing

evidence of rehabilitation.

20. While it is easy to determine the causal relationship

between most criminal offenses listed in Subsection 435.04(2),

Florida Statutes, and the potential for harm to children, there

is no such apparent relationship between assignation to commit

prostitution and harm to children. While not intending to

minimize the inappropriateness of Mr. Ramassar's conduct, the

admitted offense as revealed in Mr. Ramassar's testimony

demonstrated no basis for the conclusion that children would

suffer harm as a result of Mr. Ramassar having committed the

offense.

21. There is no "harm caused to the victim" as

contemplated by Subsection 435.07(3), Florida Statutes; the real

victim is Mr. Ramassar's wife who has suffered considerable

humiliation and potential loss of her day care facility license.

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 granting Petitioner, Basedeo

Ramassar, an exemption from disqualification from employment as

a caretaker for children and granting Cathy Ramassar a renewal

of her license.

DONE AND ENTERED this 12th day of September, 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 12th day of September, 2001.

COPIES FURNISHED :

Craig A. McCarthy, Esquire

Department of Children and

Family Services

400 West Robinson Street

Suite S-1106

Orlando, Florida 32801-1782

George B. Wallace, Esquire

George B. Wallace, Esq., PA

700 West First Street

Sanford, Florida 32771

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 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.