01-004260 Angela Harris | A. H. vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, March 13, 2002.

Summary: Considers whether cited Statutes create grounds for discharge that can be proven extrinsically or whether employee can be discharged on showing that injunction for act of domestic violence has been entered against employee. Held: injunction must be shown.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELA HARRIS, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4260

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in the above - styled cause was begun

pursuant to notice by Stephen F. Dean, assigned Administrative

Law Judge of the Division of Administrative Hearings, on

January 18, 2002, in Tallahassee, Florida. The hearing was

recessed to compel the attendance of one of the witnesses who

did not respond to subpoena. The hearing was concluded on

February 11, 2002.

APPEARANCES

For Petitioner: Ben R. Patterson, Esquire

Patterson & Traynham

315 B eard Street

Post Office Box 4289

Tallahassee, Florida 32315

For Respondent: John R. Perry, Esquire

Department of Children

and Family Services

2639 North Monroe Street

Tallahassee, Florida 32399 - 2949

STATEMENT OF THE ISSUE

Whether Petitioner is disqualified for employment, and, if

so, should she be granted an exemption.

PRELIMINARY STATEMENT

Petiti oner was a career service employee of Respondent at

the Florida State Hospital. She was terminated from her

position on July 30, 2001, because Respondent determined that

her plea of nolo contendere to the offense of simple battery

charge was a disqualifyi ng offense under the provisions of

Chapter 435, Florida Statutes. Petitioner was also notified

that Respondent had determined that it would not grant her an

exemption and of her right to request a formal hearing on that

determination. She requested a hea ring on Respondent’s denial

of an exemption and raised as an issue the initial determination

whether she was subject to disqualification.

The matter was forwarded to the Division of Administrative

Hearings where it was set for formal hearing and heard, as

noticed. At the initial hearing, the parties stipulated to

certain facts. Petitioner testified in her own behalf and

presented the testimony of Jimmy Butler; Beverly Ann Dixon;

Kenneth Jackson; Raymond Baker; Curtis Green; and J.W. Hodges.

Petitioner ent ered into the record Petitioner's Exhibits 1 - 3

and 5. Respondent introduced Respondent’s Exhibits 1 - 6, of

which 1, 3, 4, 5 and 6 were received into evidence.

Respondent’s Exhibit 2 was objected to and the objection

sustained.

Petitioner’s witness, Mr. Frank L. Martin, did not attend.

The hearing was recessed to compel his attendance. The hearing

was reconvened on February 11, 2002, and Mr. Martin’s testimony

was received together with Petitioner’s Exhibit 5. Respondent

presented the testimony of Off icer David Sims of the Tallahassee

Police Department and the hearing concluded.

After the hearing, both parties submitted proposed findings

that were read and considered.

FINDINGS OF FACT

1. Petitioner, Angela Harris, is a 39 - year - old divorced

black woman who is the mother of two children, including a

16 - year - old daughter who remains dependent upon her.

2. Petitioner is a high school graduate who is a certified

nursing assistant.

3. Petitioner was employed by Respondent at Florida State

Hospital on June 29, 1990, as a Human Services Worker I - F/C, a

career service position. She worked continuously for Respondent

until she was dismissed on July 30, 2001.

4. Petitioner attained permanent status in the Career

Service System as a Human Servi ce Worker I, Human Services

Worker II, and Unit Treatment Rehabilitation Specialist.

She was working as a unit treatment rehabilitation specialist at

the time of the termination.

5. Petitioner’s duties as a unit treatment rehabilitation

specialist invo lved the supervision of residents or patients as

they did their laundry and monitoring patients engaged in

classes and physical exercise groups. The patients were

ambulatory adults who were being treated at the Florida State

Hospital. She did this for mo re than fours hours each day.

6. Subsequent to her discharge, Ms. Harris has been

employed as a dishwasher for the Cracker Barrel Restaurant.

7. Petitioner was terminated from her employment on

July 30, 2001, because the Department determined that th e plea

of nolo contendere that she had entered to simple battery was a

disqualifying offense under the provisions of Chapter 435,

Florida Statutes.

8. The court withheld adjudication of guilt when it

accepted Petitioner’s plea. The court noted that it was

unlikely that she would engage in a criminal conduct in the

future.

9. The alleged victim of the battery to which Ms. Harris

plead was Frank Martin. Mr. Martin was born in 1950. He is not

a minor.

10. Mr. Martin testified in this proceeding. On the

morning of August 11, 2000, Ms. Harris took Mr. Martin in her

vehicle to an employment training class held by Kirby Vacuum

Cleaners in Tallahassee. The two had an argument during the

trip. After Petitioner dropped him off in the vicinity of his

c lass, Mr. Martin went to a McDonald's Restaurant that was

across the street from Kirby's.

11. While inside the dining room, he observed that

Ms. Harris had not left and was in her car in the parking lot of

McDonald’s. When he exited McDonald's, Ms. Harr is drove around

the block and approached him in her vehicle. As they met, they

were headed in opposite directions. Mr. Martin did not stop to

talk to Petitioner but continued to walk in the direction he had

been going opposite from the direction the vehi cle was heading.

To continue the conversation, Petitioner backed up her car. To

avoid further conversation, Mr. Martin crossed behind her

vehicle as it was backing up and his foot was touched by the

rear tire. There is conflicting evidence regarding whi ch side

of the car, passenger or driver, struck Mr. Martin.

12. Mr. Martin suffered no injury and his clothing was

unsoiled and reflected no contact with the vehicle. He did,

however, call the police and reported that Ms. Harris had hit

him with her ve hicle. This led to criminal charges being filed

against Ms. Harris.

13. David Sims, an officer with the Tallahassee Police

Department, interviewed Mr. Martin. Based upon the information

obtained from Mr. Martin, Officer Sims prepared an offense

report . This report indicates the victim, Mr. Martin, was not a

minor and that he lived with the Petitioner, who was his

girlfriend. There was no evidence presented that the employer

had this record when it disqualified the Petitioner, because it

would not be a document generated by screening. The parties

stipulated to this relationship.

14. After Mr. Martin spoke to a police officer, Mr. Martin

proceeded to attend the full and complete training session at

Kirby's.

15. As Petitioner and Mr. Martin had previously agreed,

Petitioner arrived to pick up Mr. Martin when his training

session ended at approximately 4:30 p.m. It was raining and

Mr. Martin and another person loaded a vacuum cleaner into the

back seat of Petitioner's car. From there, Petitioner drove

Mr. Martin to the home of Mr. Martin’s sister in Tallahassee.

16. At no time did Mr. Martin tell Ms. Harris that he had

called the police and reported to them that she had purposely

hit him with her car.

17. Subsequent to August 11, 2000, and be fore Ms. Harris

was notified of any pending criminal charges, Mr. Martin

attempted to withdraw his complaint. The authorities decided to

prosecute anyway, and Ms. Harris was notified on or about

September 11, 2000, of the charges.

18. Thereafter she re tained an attorney to represent her

and paid $1,000 to Ms. Gardner to serve as her attorney. The

agreement that she had with Ms. Gardner required her to pay an

additional $1000 if the case was tried.

19. October 1, 2000, Mr. Martin executed an Affidavi t in

which he states, "Ms. Angela Harris accidentally bumped into my

foot with her car. I was not injured during this accident and

do not wish to pursue any criminal charges against Ms. Harris."

At hearing Mr. Martin explained that their argument had

inf luenced his initial conclusion that Petitioner struck him on

purpose. Upon reflection, he felt it was an accident and not an

intentional act. Petitioner also testified she did not

intentionally strike Mr. Martin.

20. In May 2001, Ms. Gardner informed Petitioner of a plea

bargain offer. If Petitioner agreed to a plea of no contest to

a simple battery charge, she would be placed on probation for a

year and there would be no adjudication of guilt. Ms. Gardner

represented to Petitioner that there would b e no consequences to

her employment from the plea.

21. Petitioner also understood that she would not have to

pay an additional $1000 to Ms. Gardner to represent her at

trial.

22. Petitioner chose to enter a plea of no contest to a

charge of simple batt ery.

23. Petitioner is a friendly person who performed her job

duties satisfactorily and related well to both staff and fellow

employees. She attends church regularly and is liked and

respected in her community.

24. Her employment record shows some mi nor infractions;

however, there is no indication that she ever has been abusive

to any patient or suspected of any abusive treatment.

25. There is no evidence that an injunction pursuant to

Section 741.30, Florida Statutes, was ever entered against

Petit ioner.

26. There was and is no reasonable cause for the employer

to believe there were grounds to disqualify Petitioner from

employment based upon Sections 435.04(2) or 435.04(4), Florida

Statutes.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this cause.

This Recommended Order is entered pursuant to Section 120.57,

Florida Statutes.

28. This case arises under the provisions of Chapter 435,

Florida Statu tes, governing employment screening. The process

contemplated by the chapter is based upon background screening

of persons holding critical positions as a basis to eliminate

them from those positions.

29. Section 435.01, Florida Statutes, provides gener ally

that Chapter 435, Florida Statutes, will apply when background

screening for employment is required by law. Section 435.03,

Florida Statutes, provides the criteria for Level 1 screening

and Section 435.04, Florida Statutes, provides the criteria for

Level 2 screening.

30. Section 435.06(1), Florida Statutes, provides for

exclusion from employment for persons in certain positions who

do not pass screening. An employer will provide written notice

to an employee when it has reasonable cause to believ e that

grounds exists for denial or termination of employment when a

specific record indicates noncompliance with the background

standards. This notice accompanies the notice of discharge that

is mandatory. It is the responsibility of the employee to

con test disqualification, and the only basis for contesting

disqualification is mistaken identity.

31. The primary issue in this case is whether Petitioner

is subject to disqualification. This ought to be a simple

determination, but in this case, there ar e several subtexts that

make it more complex. The issues raised by these subtexts will

be discussed in the order they arose.

Disqualification on the Plea to Battery

32. This case commenced when the employer determined that

Petitioner was disqualified an d that it must terminate her based

upon her having entered a plea of nolo contendere to simple

battery. Specifically, the letter of dismissal stated the

grounds as follows:

Offense: Battery

Date of Offense: 08/11/00

State: Florida

County: Leon

33. From the description and the penalty stated in the

plea document, it is clear that the offense to which the plea

was entered was Section 784.03(1)(a)1, Florida Statutes.

Section 784.03, Florida Statutes, provides in pertinent part:

784.03 Battery; felony battery. -

(1)(a) The offense of battery occurs when a

person:

1. Actually and intentionally touches or

strikes another person against the will of

the other; or

2. Intentionally causes bodily harm to

anoth er person.

(b) Except as provided in subsection (2), a

person who commits battery commits a

misdemeanor of the first degree, punishable

as provided in s. 775.082 or s. 775.083.

34. Section 435.04(2)(i), Florida Statutes, limits

disqualification pursuan t to violation of Section 784.03,

Florida Statutes, to battery committed on a minor. There is

nothing in the documents to reveal a minor was involved and, in

fact, a minor was not involved. Therefore, the plea to the

battery was not disqualifying.

Disqua lification Based Upon an Act of Domestic Violence

35. There is nothing in the initial letter of dismissal

and disqualification relating to domestic violence; however, at

some point in the proceedings, the “act of disqualification”

evolved into an “act of domestic violence.” There is nothing in

the screening record, per se , that raises an issue of “domestic

violence” because the plea entered by Petitioner was to “Simple

Battery” as stated above. The only “record” upon which an act

of domestic violence co uld possibly be predicated is the offense

report; however, there is no evidence this was in the hands of

the employer when Petitioner was discharged. Domestic violence,

as mentioned above, was not referenced in the letter of

dismissal.

36. The p ortion of Section 435.04, Florida Statutes,

relating to disqualification for domestic violence provides as

follows:

(4) Standards must also ensure that the

person:

* * *

(b) Has not committed an act that

constitutes domestic violence as defined in

s. 741.30.

37. Section 741.30, Florida Statutes, does not contain a

definition of domestic violence. Section 741.30, Florida

Statutes, creates a cause of action for injunctive relief by a

person who is the victim of any act of domestic violence or has

reasonable cause to believe he or she is in imminent danger of

becoming the victim of any act of domestic violence.

38. The definition of “domestic violence” used in

Section 741.30, Florida Statutes, is contained in

Section 741.28, Florida Statutes, which provides that the

definition is applicable only to Sections 741.28 through 741.31,

Florida Statutes. Therefore, this definition is limited to its

use in the aforementioned sections and cannot be grafted,

per se , into Section 435.04, Florida Statutes.

39. The Legislature is presumed to know its laws.

Therefore, what does the reference to the “wrong” definitional

citation for domestic violence mean? The reference to “an act

that constitutes domestic violence as defined in s. 741.30”

indicates the legislative intent to limit this disqualification

to those situations in which an injunction has been entered for

"an act that constitutes domestic violence" as opposed to an

injunction entered because the person has a reasonable belief

they are in imminent danger.

40. Mindful that Chapter 435, Florida Statutes, is about

screening records, the reference to Section 741.30, Florida

Statutes, provides a court record as "reasonable cause" to

believe that grounds exist for the denial or termination of

employment of an employee as a result of background screening.

This provision is similar to and consistent with the provisions

regarding a court’s findings of guilty and the entry of pleas of

guilty and nolo contendere . See Section 435.04(2), Florida

Statutes.

41. This requirement for an encapsulated judicial record

is that Section 435.06, Florida Statutes, permits the employer

to deny or terminate an important right, that of employment,

without a pre - termination proceed ing, and limits the grounds for

contesting the disqualification to proof of mistaken identity.

Clearly, such a process raises significant due process issues.

The Legislature wanted to permit non - criminal domestic violence

to be disqualifying, but wanted to provide some protections for

the employee. By limiting Section 435.04, Florida Statutes, to

injunction cases, the facts of the case have already been

adjudicated by a court.

42. In this case, the agency urges that it can combine the

plea that Petiti oner entered with extrinsic evidence showing the

offense involved her boy friend to prove an "act of domestic

violence." Clearly it does not comport with basic concepts of

due process and fairness to permit the employee to present a

complete case and limi t the employee's defense to mistaken

identity. Although the employer, to its credit, has not sought

to limit Petitioner’s defenses, its actions are not consistent

with Section 435.06, Florida Statutes, limiting the employee’s

defenses. The Legislature di d not intend to create a separate

cause of action for termination that an employer might prove

extrinsically.

43. The investigations in Section 435, Florida Statutes,

are record’s checks by their very definition. Many employers

subject to the act are non - governmental employers and have no

way to "investigate" the circumstances surrounding a plea or

injunction. The disqualifying condition must be evidence from

the judicial record alone. In this case, the Legislature

intended that disqualification for an act of domestic violence

be based upon a record of the entry of an injunction by the

court pursuant to Section 741.30, Florida Statutes. The burden

always lies upon Respondent to show evidence of the

disqualification. In the absence of evidence of the entry of

such an injunction pursuant to Section 741.30, Florida Statutes,

Respondent has failed to show a disqualifying act.

Consideration of the Alternative

44. If one concludes that an employer can consider whether

Petitioner committed an act of d omestic violence de novo , the

initial burden still lies with the employer. The first issue to

be considered is whether there is credible evidence that

Petitioner intentionally struck her boyfriend, Mr. Martin, with

her car. (The personal relationship was admitted by

Petitioner.) Petitioner’s plea was nolo contendere . The plea

of nolo contendere is not an admission of the facts alleged in

the criminal case which are also at issue in this cause, to wit:

Did she intentionally strike her boyfriend with her car?

45. Regarding this critical issue, Petitioner states she

did not intend to strike him. Mr. Martin recanted his original

statement to the police that she intended to strike him and

withdrew his complaint prior to Petitioner’s knowledge of the

compla int. Mr. Martin is sorry that he made the original

complaint because he concluded Petitioner’s act was not

intentional.

46. Given the facts surrounding the event, it was possible

that Petitioner accidentally struck Mr. Martin while she was

backing up to keep up with him and as he crossed behind her car

to avoid further conversation with her.

47. Therefore, even if one concludes that an employer can

prove a disqualifying act de novo , Respondent failed to carry

its burden to prove that Petitioner com mitted an act of domestic

violence by intentionally striking her boyfriend with her car.

Summary

48. Section 435.06, Florida Statutes, creates a process

for denying employment or discharging an employee for a past

action based upon screening of a record that has already been

subject to adjudication, adjudicatory review, or admission by

the individual. The disqualifying event is encapsulated in the

records of the court or registry. In each instance, the

individual has had the opportunity to controvert th e allegations

and has been found guilty, entered a plea of guilty or nolo

contendere , been enjoined, or did not contest the allegations

after notice. The factual issue of what occurred has been

determined. It is in a sense res judicata , which is why summ ary

action can be taken. The employer failed to introduce record of

a civil injunction. However, under either interpretation of the

statute, the employer failed to prove its case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

o f Law set forth herein, it is

RECOMMENDED:

That Respondent failed to establish a factual predicate for

Petitioner’s disqualification. There is no basis for Petitioner

needing an exemption and no impediment to her employment

pursuant to Chapter 435, Florida Statutes.

That Respondent failed to prove Petitioner intentionally

struck her boyfriend with her car. There is no basis for

Petitioner needing an exemption and no impediment to her

employment pursuant to Chapter 435, Florida Statutes.

DONE AND ENTERED this 13th day of March, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3 2399 - 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 March, 2002.

COPIES FURNISHED :

Ben R. Patterson, Esquire

Patterson and Traynham

3 15 Beard Street

Post Office Box 4289

Tallahassee, Florida 32315 - 4289

John R. Perry, Esquire

Department of Children

and Family Services

2639 North Monroe Street, Suite 252A

Tallahassee, Florida 32399 - 2949

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

T allahassee, 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 Recommende d Order should be filed with the agency that

will issue the final order in this case.