01-004857 Viola D. Grady vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, March 21, 2002.

Summary: Petitioner entitled to exemption from disqualification based on circumstances surrounding arrest occurring 23 years ago.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VIOLA D. GRADY, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4857

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 14, 2002, a formal administrative hearing in

this case was held by teleconference in Orlando and

Tallahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: V iola D. Grady, pro se

1907 Leisure Drive

Orlando, Florida 32808

For Respondent: Eric D. Dunlap, Esquire

Department of Children and Family

Services

400 West R obinson Street, Suite S - 1106

Orlando, Florida 32801 - 1782

STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner’s request

for exemption from employment disqualification should be

approved.

PRELIMINARY STATEMENT

By lette r dated November 13, 2001, the Department of

Children and Family Services notified Viola D. Grady of the

denial of her request for exemption from employment

disqualification. Ms. Grady filed a request for formal

hearing. The request was forwarded to the Division of

Administrative Hearings, which scheduled and conducted the

proceeding.

At the hearing, the Petitioner presented the testimony of

two witnesses, testified on her own behalf and had Exhibits

numbered 1 - 7 admitted into evidence. The Department presented

the testimony of one witness and had Exhibits numbered A, B,

D, E and H admitted into evidence.

No transcript of the hearing was filed. The Petitioner

filed a Proposed Recommended Order that was considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. In May of 1979, Viola D. Grady (Petitioner) was 26

years of age, six months pregnant, residing at an apartment

complex, and the mother of at least one elementary - school - age

daughter.

2. On May 21, 1979, the Petitioner was walk ing a

daughter to the school bus stop. Another female resident of

the complex made a derogatory comment about the Petitioner as

they walked by and stuck her foot out, tripping the Petitioner

and causing her to fall to the ground.

3. The Petitioner resp onded by raising herself from the

sidewalk, picking up a piece of broken glass, and slashing the

other resident’s arm. The other resident was transported to a

medical facility for treatment of the cut. A law enforcement

officer investigated the event and filed a report. Based on

the incident, the Petitioner was arrested and charged with one

count of aggravated battery.

4. The Petitioner subsequently entered a plea of nolo

contendere to battery. She was placed on probation for one

year. There being no evidence to the contrary, it is presumed

that she completed her probation without further incident.

5. At the hearing, the Petitioner testified that she

acted in order to defend herself and her daughter from the

other resident. She testified that she d id not know the other

woman and does not know why the other woman instigated the

incident.

6. Other than the incident on May 21, 1979, there is no

evidence that the Petitioner has ever been involved in any

illegal behavior.

7. Subsequent to the inciden t, the Petitioner moved out

of the apartment complex and eventually into a house. The

Petitioner has been married since 1984, has other children and

grandchildren, and attends church with regularity. She has

taken courses at a local community college.

8 . The Petitioner has been employed in various retail

and food service positions since the 1979 incident. There is

no evidence that her job performance has been unsatisfactory.

9. There is no evidence that the Petitioner has ever

acted in any manner ha rmful to, or presented a danger to,

children.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

11. The Petitioner has appli ed for licensure to operate

a registered Family Day Care Home. Child care personnel in

family day care homes are subject to the applicable screening

provisions contained in Section 402.305(2), Florida Statutes.

Section 402.313(3), Florida Statutes.

12. Section 402.305(2)(a), Florida Statutes, provides

that, at a minimum, child care personnel must demonstrate

“[g]ood moral character based upon screening.” Such screening

is conducted as provided in chapter 435, Florida Statutes.

13. The department may g rant exemptions from

disqualification from working with children or the

developmentally disabled as provided in Section 435.07,

Florida Statutes. Section 402.305(2)(b), Florida Statutes.

14. The Petitioner has the burden to establish by clear

and convi ncing evidence that she should not be disqualified

from employment. Section 435.07(3), Florida Statutes, sets

forth the applicable considerations governing a request for an

exemption from employment disqualification, and provides that

the Petitioner must establish "sufficient evidence of

rehabilitation, including, but not limited to, the

circumstances surrounding the criminal incident for which an

exemption is sought, the time period that has elapsed since

the incident, the nature of the harm caused to the victim, and

the history of the employee since the incident, or any other

evidence or circumstances indicating that the employee will

not present a danger if continued employment is allowed." In

this case, the burden has been met.

15. The circumstances s urrounding the incident were

adequately explained by the Petitioner’s testimony. Without

warning or apparent reason, another female residing in the

Petitioner’s apartment complex tripped the Petitioner. The

Petitioner’s reaction was intended to protect h er daughter and

her unborn child from injury.

16. There is no evidence that the Petitioner exhibited

such behavior prior to the 1979 incident. There is no

evidence that during the 23 years since the incident, the

Petitioner has acted in any manner harm ful to herself or any

other person. There is no evidence that the Petitioner has

ever exhibited any behavior causing harm or which could cause

harm to a child.

17. Although the injury to the woman who tripped the

Petitioner required medical attention, there is no evidence

that there was any permanent injury resulting from the

Petitioner’s act.

18. Since 1979, the Petitioner has married, continued to

raise a family, including children and grandchildren, attends

church regularly, and has furthered her education. She has

been gainfully employed.

19. Based on the evidence and testimony presented during

the administrative hearing, the Petitioner’s request for

exemption from disqualification as provided by Section 435.07,

Florida Statutes, should be gra nted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Department of Children and

Family Services grant the request of Viola D. Grady for

exemption from employment disqualification.

DONE AND ENT ERED this 21st day of March, 2002, in

Tallahassee, Leon County, Florida.

________________________________

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 21st day of March, 2002.

COPIES FURNISHED :

Eric D. Dunlap, Esquire

Department of Children and

Family Services

400 West Robinson Street

Suite S - 1106

Orlando, Florida 32801 - 1782

Viola D. Grady

1907 Leisure Drive

Orlando, Florida 32808

Josie Tomayo, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevar d

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

Peggy Sanford, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All par ties 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.