02-000167 Sabra Portwood vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, May 24, 2002.

Summary: For purposes of family day care registration, statute required any family member, which included estranged husband, to pass background screening, even though husband not living in home. Licensure denied because husband committed domestic violence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SABRA PORTWOOD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0167

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

P ursuant to notice, a formal hearing was held in this case

before Diane Cleavinger, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings on April 3,

2002, in Perry, Florida.

APPEARANCES

For Petitioner: Sabra Portwood, pro se

140 Regina Road

Perry, Florida 32348

For Respondent: Steven Wallace, Esquire

Department of Children and

Family Services

2639 North Monroe Street, Suite 104A

Tallahassee, Florida 32399 - 2949

STATEMENT OF THE ISS UE

The issue in this case is whether Petitioner, Sabra

Portwood, is entitled to register her home as a family day care

home under the provisions of Chapters 402 and 435, Florida

Statutes.

PRELIMINARY STATEMENT

Petitioner, Sabra Portwood, applied to the Department of

Children and Family Services to have her home registered as a

family day care home pursuant to the provisions of Chapter 402,

Florida Statutes. Petitioner's application was denied based

upon a history of domestic violence in her home perpetu ated by

her husband on Petitioner. Petitioner requested an

administrative hearing to contest Respondent's decision. The

request was forwarded to the Division of Administrative

Hearings.

At the hearing, Petitioner testified on her own behalf and

introduc ed four exhibits into evidence. Respondent introduced

one exhibit into evidence.

After the hearing, Petitioner and Respondent submitted

Proposed Recommended Orders on April 15, 2002, and April 2,

2002, respectively.

FINDINGS OF FACT

1. On August 10, 20 00, Petitioner was married to Randy

Shoaff. She had two children, twins, by him and is currently

pregnant with another of his children. Although estranged at

present, they remain married. Petitioner is in the preliminary

stages of dissolving the marriag e and intends to complete the

dissolution process.

2. Petitioner and Mr. Shoaff have had a rocky

relationship. On October 4, 2000, less than two months into

their marriage, Mr. Shoaff struck Petitioner several times in

the head from behind. She was pre gnant at the time of the

attack. The incident was reported to law enforcement.

3. On March 12, 2001, Petitioner swore out a Petition for

Injunction for Protection Against Domestic Violence, naming her

husband as Respondent. The essential facts to which she swore

and testified to at hearing were as follows:

On February 23, 2001, at 705 W. Wilcox the

Respondent Randolph Shoaff told me that the

only reason I was still alive was because I

was pregnant and that I have 3 other

children. He said that he wante d to shoot

me & then kill himself. Because of his

actions before I have been afraid of him on

3 or 4 different occasions, and I would just

be quiet & not say anything & wait for him

to go to work. On Oct. 4th (there should be

a police report) there was a dispute between

us & he started hitting me in the head

repeatedly when I was 3 months pregnant &

had only been home for 3 hrs from the doctor

because I was bleeding during pregnancy. I

am afraid because I asked his coworker if

his (Randy's) gun was under the counter & he

said it wasn't there.

4. As a direct result of Petitioner's request for a

domestic violence injunction, the Third Circuit Court issued a

Temporary Injunction. Subsequently, the injunction was

conditionally dissolved. However, Mr. Sho aff was ordered to

have no personal contact with Sabra Portwood at her home. A

third Order was subsequently entered in order to facilitate

visitation with his children, allowing non - hostile contact

between the parties.

5. Mr. Shoaff does not live with P etitioner. However,

Petitioner and Mr. Shoaf are presently married. Therefore,

Mr. Shoaf is currently a member of Petitioner's family and is

required to undergo background screening for Petitioner's

registration. Mr. Shoaff did not pass the backgroun d screening

because of the injunction based on domestic violence entered

against him. No exemption from disqualification was sought.

Because of the failed background screening, Petitioner, who was

the victim of domestic violence and took steps to protect

herself from that violence, was denied registration based on the

actions of her estranged husband.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120 .57, Florida Statutes (2001).

7. Chapter 402, Florida Statutes, governs the licensure

and registration of child care facilities. Section 402.302,

Florida Statutes, states in pertinent part:

(3) "Child care personnel" means all

owners, operators, employ ees, and volunteers

working in a child care facility. The term

does not include persons who work in a child

care facility after hours when children are

not present or parents of children in Head

Start. For purposes of screening, the term

includes any mem ber, 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 m ember 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.

Members of the operator's family or persons

residing with the operator who are between

the ages of 12 years and 18 years shall not

be required to be fingerprinted but shall be

screened for delinquency records. (emphasis

added)

8. Section 402.313, Florida Statutes, governs family day

care homes. Section 402.313(1) and (3), Florida Statutes,

states i n pertinent part:

(1) Family day care homes shall be licensed

under this act if they are presently being

licensed under an existing county licensing

ordinance, if they are participating in the

subsidized child care program, or if the

board of county commi ssioners passes a

resolution that family day care homes be

licensed. If no county authority exists for

the licensing of a family day care home, the

department shall have the authority to

license family day care homes under contract

for the purchase - of - ser vice system in the

subsidized child care program.

* * *

(3) Child care personnel in family day care

homes shall be subject to the applicable

screening provisions contained in ss.

402.305(2) and 402.3055. For purposes of

screening in family day c are homes, the term

includes any member over the age of 12 years

of a family day care home operator's family ,

or persons over the age of 12 years residing

with the operator in the family day care

home. Members of the operator's family, or

persons residing with the operator, who are

between the ages of 12 years and 18 years

shall not be required to be fingerprinted,

but shall be screened for delinquency

records. (emphasis added)

9. In interpreting the language of a statute, it is

incumbent upon the trib unal to give meaning to all the words in

a statute so that no words are discarded as meaningless or

redundant. Chaffee v. Miami Transfer Company , 288 So. 2d 209

(Fla. 1974). Additionally, a specific statute covering a

particular subject controls over a s tatute covering the same and

general subject area. McKendry v. State , 641 So. 2d 45 (Fla.

1994); T.S. v. Clemmons , 770 So. 2d 1971 (Fla. 2d DCA 2000); and

Terrinoni v. Westward Ho! , 418 So. 2d 1143. More importantly,

where terms in one section of a statu te have been omitted in

another part of the same chapter, the statute should not be

interpreted to include the omitted language. See Leisure

Resorts, Inc. v. Frank J. Rooney, Inc. , 654 So. 2d 911 (Fla.

1995). Where the language of a statute is clear, tha t language

should be given its plain meaning. See Rollins v. Pizzarelli ,

761 So. 2d 294 (Fla. 2000); and Klonis v. State Department of

Revenue , 766 So. 2d 1186 (Fla. 1st DCA 2000).

10. A comparison between the language of Section

402.302(3), Florida Sta tutes, the general definition of child

care personnel and Section 402.313(3), Florida Statutes,

demonstrates that the term "child care personnel" for screening

purposes for family day care homes includes any member of the

operators' family regardless of co ntact with the day care's

children or presence in the family home. The general definition

of "child care personnel" includes only family members who have

contact with the day care's children or reside in the home or

close to the day care facility. Langua ge in a specific statute

controls over the language of a general statute. Therefore,

according to the law as it is written, there are two separate

categories of individuals who must be screened for family day

care registration or licensure: (1) any famil y member, or (2)

non - family members who happen to be residing with the family day

care home operator. The language is clear and should be given

its plain meaning.

11. Because Petitioner's husband, irrespective of whether

he presently resides in the home, is by definition a member of

her family, he is subject to applicable Chapter 435, Florida

Statutes, screening standards pursuant to Section 402.305,

Florida Statutes (2001). Chapter 435, Florida Statutes, Level 1

and 2 screening standards disqualify anyo ne who has committed an

act that constitutes domestic violence. Here, Petitioner's own

sworn testimony establishes that her husband has committed acts

of domestic violence upon her in their home. Thus, Petitioner

is not entitled under the applicable stat utes for licensure or

registration as a family day care home.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that a final order be entered by the Department

of Children and Family Services denying Petit ioner's request to

register her home as a family day care home.

DONE AND ENTERED this 24th day of May, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hear ings

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 24th day of May, 2002.

COPIES FURNISHED :

John R. Perry, Esquire

Department of Children and

Family Services

2639 North Monroe Street

Building A, Suite 104

Tallahassee, Florida 32399 - 2949

Sabra Portwood

140 Regina Road

Perry, Florida 32348

John Flounlacker, 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

Tallahas see, 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.