02-000998 Winona E. Coleman vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, June 7, 2002.

Summary: Petitioner has not committed an act that constitutes domestic violence as defined in Section 741.30, Florida Statutes (1999). Recommend rescinding Notice of Disqualification or granting exemption from disqualification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WINONA E. COLEMAN, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0998

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on May 14, 2002, by video teleconference in Tallahassee, and

Jacksonville, Florida, before the Division of Administrative

Hearings, by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Robin Whipple - Hunter, Esquire

Department of Children

and Family Services

Post Office Box 2417

Jacksonville, Florida 32211

For Respondent: Betsy S. Holton, Esquire

816 Broad Street

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner's

request for an exemption from disqualification pursuant to

Section 435.07, Florida Statutes, should be granted.

PRELIMINARY STATEMENT

By let ter dated January 11, 2002, the Department of

Children and Family Services (the Department) notified

Ms. Winona Coleman that she was disqualified from continuing

employment as "child care personnel" in a child care facility

based upon failure to mee t the screening standards specified by

Section 435.04(2), Florida Statutes (1999). As grounds

therefore the Department alleged that Petitioner's

disqualification status is based on a misdemeanor committed on

November 6, 2000.

Petitioner requested an exem ption hearing before a district

level review committee which took place on or about January 30,

2002. By letter dated February 7, 2002, the Department again

notified Petitioner that the Department denied her request for

exemption based on an offense dated November 6, 2000.

Petitioner disputed the facts upon which the exemption from

disqualification was based and timely requested an

administrative hearing to contest the disqualification. The

request for hearing was forwarded to the Division of

Administrat ive Hearings on or about March 12, 2002. A formal

hearing was scheduled for May 14, 2002, by video teleconference.

At hearing, Petitioner testified on her own behalf and

presented the testimony of one witness, Brenda Rollins.

Petitioner's Exhibit number ed 1 was admitted into evidence.

Respondent presented no oral testimony. Respondent's Exhibits

numbered 1 through 6 were admitted into evidence. Official

Recognition was taken of Sections 402.302, and 435.04, Florida

Statutes (1999).

The hearing was no t transcribed. Petitioner filed a

Proposed Recommended Order on May 24, 2002, which has been

considered in the preparation of this Recommended Order. The

Department did not file a post - hearing submission.

FINDINGS OF FACT

1. At all times material to thi s proceeding, Petitioner

was employed by the City of Jacksonville, Division of Parks and

Recreation (the City). She has been employed there for over 25

years.

2. When first employed by the City, she was a recreation

leader. While in this position, Petit ioner organized and

planned after - school programs for children. When promoted to

senior recreation leader, her contact with children was

diminished somewhat, as her duties became more supervisory. She

was a recreation leader and senior recreation leader for the

first 24 years of her employment with the City.

3. Petitioner currently serves in the capacity of

recreation supervisor. In this position, Petitioner is

responsible for supervising and managing recreation leaders and

other employees. Her direct contact with children is

considerably less then in her previous positions. Her actual

appearance at recreation sites where children are present is

approximately eight hours per work week. Her listed duties in

her job description include, "visits assigned areas to observe

activities and monitor safety and adequacy of facilities;

evaluate effectiveness of activities in assigned program area."

One such program is called "Club Rec" which is an after - school

program located at 13 sites around the City of Jacks onville.

4. In November 2000, Petitioner occasionally spent the

night at Brenda Rollins' home but did not reside there. On

November 5, 2000, Petitioner entered into an altercation with

Ms. Rollins at Ms. Rollins' home. During the altercation,

Petitioner and Ms. Rollins were pulling and pushing each other.

Petitioner grabbed Ms. Rollins' hair and pulled some hair from

Ms. Rollins' head.

5. On November 5, 2000, Petitioner was arrested and

charged with domestic battery as defined in Section 784.03,

Florid a Statutes (1999). At the time of the arrest, Ms. Rollins

informed the arresting police officer that she and Petitioner

were sisters. Although they were close friends and occasionally

referred to each other as sisters, Petitioner and Ms. Rollins

are not related.

6. On November 6, 2000, she entered a plea of no contest

and was adjudicated guilty of domestic battery, a misdemeanor.

She was ordered to serve two days with two days' credit and was

placed on 12 months' probation, with the following conditions :

attend a family violence intervention program, pay court costs,

and discontinue contact with the victim. Petitioner's probation

was terminated early on May 3, 2001.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over th e parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

8. In its letter of January 11, 2002, the Department

notified Petitioner that she was disqualified from continuing

employment as "child care personnel," in a child care facility

as defined in Section 402.302(3), Florida Statutes (1999). The

Department stated that Petitioner's disqualification is based on

her failure to meet the screening standards specified in Section

435.04(2), Florida Statutes. The letter then in formed

Petitioner that her disqualifying status was based on the

November 6, 2000, misdemeanor of domestic battery.

9. Subsections 402.302(2) and (3), Florida Statutes

(1999), read in pertinent part as follows:

(2) "Child care facility" includes any

chil d care center or child care arrangement

which provides child care for more than five

children unrelated to the operator and which

receives a payment, fee, or grant for any of

the children receiving care, wherever

operated, and whether or not operated for

p rofit. The following are not included:

(a) Public schools and nonpublic schools and

their integral programs, except as provided

in s. 402.0325;

(b) Summer camps having children in full -

time residence;

(c) Summer day camps;

(d) Bible schools normal ly conducted during

vacation periods; and

(e) Operators of transient establishments,

as defined in chapter 509, which provide

child care services solely for the guests of

their establishment or resort, provided that

all child care personnel of the establ ishment

are screened according to the level 2

screening requirements of chapter 435.

(3) "Child care personnel" means all

owners, operators, employees, and volunteers

working in a child care facility. The term

does not include persons who work in a chil d

care facility after hours when children are

not present or parents of children in Head

Start. . . .

10. Petitioner argues that her position does not

constitute "child care personnel." Although Petitioner has less

direct contact with the children in th e City's recreation

program now that she is in a supervisory position, Petitioner

still meets the definition of "child care personnel" as set

forth in Section 402.302(3), Florida Statutes (1999).

11. Section 435.04, Florida Statutes (1999), reads in

perti nent part as follows:

(1) All employees in positions designated

by law as positions of trust or

responsibility shall be required to undergo

security background investigations as a

condition of employment and continued

employment. . . .

* * *

(3) St andards must also ensure that the

person:

* * *

(b) Has not committed an act that

constitutes domestic violence as defined in

s. 741.30.

12. Section 741.30, Florida Statutes (1999), does not

contain a definition of domestic violence. Rather, the statute

reads in pertinent part:

(1) There is created a cause of action for

an injunction for protection against

domestic violence.

(a) Any person described in paragraph (e),

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,

has standing in the circuit court to file a

sworn petition for an injunction for

protection against domestic violence.

* * *

(6)(a) Upon notice and hearing, the court

may grant such relief as the court deems

proper, including an injunction:

1. Restraining the respondent from

committing any acts of domestic violence.

2. Awarding to the petitioner the exclusive

use and possession of the dwelling that the

parties share or excluding the respondent

from the residence of the petitioner.

3. On the same basis as provided in chapter

61, awarding temporary custody of, or

temporary visitation rights with regard to,

a minor child or children of the parties.

4. On the same basis as provided in chapter

61, establishing temporary support for a

minor child or children or the petitioner.

5. Ordering the respondent to participate

in treatment, intervention, or counseling

services to be paid for by the

respondent . . . .

6. Referring a petitioner to a certified

domestic violence center. . . .

7. Ordering such other relief as the court

deems necessary for the protection of a

victim of domestic violence, including

injunctions or directives to law enforcement

agenci es, as provided in this section.

13. Section 435.07, Florida Statutes (1999), states in

pertinent part:

435.07 Exemptions from disqualification. --

Unless otherwise provided by law, the

provisions of this section shall apply to

the exemptions from disqu alification.

(1) The appropriate licensing agency may

grant to any employee otherwise disqualified

from employment an exemption from

disqualification for:

(a) Felonies committed more than 3 years

prior to the date of disqualification;

(b) Misdemeanors p rohibited under any of

the Florida Statutes cited in this chapter

or under similar statutes of other

jurisdictions;

* * *

(e) Commissions of acts of domestic

violence as defined in s. 741.30;

* * *

(3) In order for a licensing department to

g rant an exemption to any employee, the

employee must demonstrate by clear and

convincing evidence that the employee should

not be disqualified from employment.

Employees seeking an exemption have the

burden of setting forth sufficient evidence

of rehabili tation, 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 s ince the incident, or any other

evidence or circumstances indicating that

the employee will not present a danger, if

continued employment is allowed. The

decision of the licensing department

regarding an exemption may be contested

through the hearing proc edures set forth in

chapter 120.

14. Petitioner has not committed an act that constitutes

domestic violence as defined in Section 741.30, Florida Statutes

(1999). That section of the law does not apply here because

there is no evidence that a court ev er issued an injunction for

protection against domestic violence against Petitioner or that

Ms. Rollins ever sought an injunction as contemplated by Section

741.30, Florida Statutes (1999).

15. The November 6, 2000, offense of domestic battery was

the onl y offense enumerated in the January 11, 2002, Notice of

Disqualification from Continuing Employment as Child Care

Personnel and in the February 7, 2002, letter to Petitioner

setting forth her rights to request an administrative hearing.

Accordingly, Petit ioner has met her burden of proof as set forth

in Section 435.04(3), Florida Statutes (1999). 1 While that

section enumerates criteria for the Petitioner to prove to

establish rehabilitation, these criteria need not be addressed

since the disqualifying eve nt was not one that is contemplated

by Section 435.07, Florida Statutes (1999).

RECOMMENDATION

Based upon the findings of fact and conclusions of law,

it is

RECOMMENDED:

That the Department of Children and Family Services enter a

final order rescindi ng its Notice of Disqualification from

Continuing Employment as Child Care Personnel or in the

alternative, granting Petitioner an exemption from

disqualification.

DONE AND ENTERED this 7th day of June, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 967 5

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of June , 2002.

ENDNOTE

1/ Petitioner argued that her due process rights were violated

at the dist rict level review committee because the committee

considered offenses from years past which were not referenced in

the notice of disqualification received by Petitioner . However,

the committee's actions resulted in the February 7, 2002, letter

which notif ied Petitioner of her rights to an administrative

hearing and which also only referenced the November 6, 2000,

offense. Moreover, the instant proceeding is de novo , Section

120.57(1)(k), Florida Statutes, the parameters of which are

limited to those offen ses contained in the charging document

giving Petitioner notice of the intended agency action.

COPIES FURNISHED :

Betsy S. Holton, Esquire

816 Broad Street

Jacksonville, Florida 32202

Robin Whipple - Hunter, Esquire

Department of Children and

Family S ervices

Post Office Box 2417

Jacksonville, Florida 32231 - 0083

Paul Flounlacker, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Depar tment of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

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 Rec ommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.