02-001417 James Jones, Jr. | J. J., Sr. vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, July 18, 2002.

Summary: Examination or Section 435.07, Florida Statutes, and its predecessor, Section 393.0655, Florida Statutes, reveals Petitioner did not commit disqualifying offense. Recommend grant exemption from disqualification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES JONES, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1417

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

_______________ _______________)

RECOMMENDED ORDER

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

on June 12, 2002, by telephone in Tallahassee, Florida, before

the Division of Administrative Hearings, by its designated

Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Linda Barge - Miles, Esquire

American Federation of State,

County and Municipal Employees

111 North Gadsden Street

Tallahassee, Florida 32301

For Respondent: John R. Perry, Esquire

Depa rtment of Children

and Family Services

2639 North Monroe Street

Tallahassee, Florida 32399 - 2949

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner's

request for an exemption from disqualification from employme nt

in a position of trust or responsibility should be granted.

PRELIMINARY STATEMENT

By letter dated February 12, 2002, the Department of

Children and Family Services (Department) informed Petitioner,

James Jones, that his request for exemption from

disqu alification pursuant to the laws governing background

screening had been denied.

Petitioner disputed the denial of exemption from

disqualification and requested an administrative hearing. The

request for hearing was forwarded to the Division of

Administr ative Hearings on or about April 10, 2002. A formal

hearing was scheduled for June 12, 2002. Prior to the hearing,

the parties stipulated that neither party intended to call any

witnesses and that a live hearing was not requested or

necessary.

At hear ing, the parties' Joint Exhibit numbered 1 was

admitted into evidence. Official recognition was taken of

Chapter 95 - 228, Laws of Florida.

The hearing was not transcribed. The parties requested more

than 10 days in which to file proposed recommended order s. That

request was granted and the due date for submission of proposed

recommended orders was established as June 28, 2002. Respondent

and Petitioner filed Proposed Recommended Orders on June 24 and

28, 2002, respectively, which have been considered in the

preparation of this Recommended Order.

Respondent filed a Motion to Strike Petitioner's Proposed

Recommended Order asserting that it had been filed untimely and

that the due date had been established as June 24, 2002.

Petitioner filed a response objec ting to the motion.

Respondent's assertion that the proposed recommended orders were

due June 24, 2002, is incorrect. The Motion to Strike is

denied.

FINDINGS OF FACT

1. Petitioner has been employed in a position of trust and

seeks an exemption from disqualification.

2. On February 19, 1985, Petitioner entered a plea of

guilty to the offense of battery, Case No. 85 - MM - 137 - A, in the

County Court of Gadsden County, Florida. Adjudication was

withheld and the court placed Pe titioner on probation and

ordered Petitioner to make restitution for hospital bills and

pay court costs.

3. This offense involved Petitioner and Jenean Stewart,

with whom Petitioner had lived and with whom Petitioner had

resided together in the past as if a family. There was no

evidence presented or assertion made that Petitioner and

Ms. Stewart were married at the time of the offense or at any

other time.

4. The parties stipulated to the admission of the court

documents which describe the incident. The Complaint charged

Petitioner with a violation of Section 784.03, Florida Statutes,

which is described in both the 1983 and 1985 Florida Statutes as

battery, a misdemeanor of the first degree. The Summary of

Offense and Probable Cause Affidavit reveals th at Petitioner and

Ms. Stewart got into a fight and that Petitioner kicked, hit,

and choked her and made several threats to do bodily harm to her

with a shotgun. It additionally reveals that Ms. Stewart

advised the arresting officer that she was pregnant a nd that

Petitioner had struck her in the stomach causing her pain. The

Summary of Offense and Probable Cause Affidavit also reveals

that no physical marks or injury was found on Ms. Stewart by the

officer who signed the affidavit. 1

5. No evid ence was presented that Ms. Stewart was a minor

at the time of the offense.

6. Other than this incident, no evidence was presented to

indicate that Petitioner has ever been charged with any other

crime.

7. No evidence was presented as to any rehabilitati on of

Petitioner.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

9. The Department of Children and Family Services is the

agency charged with the responsibility of licensing child care

facilities in the state of Florida. Chapter 402, Florida

Statutes.

10. Section 435.04, Florida Statutes (2001), sets forth

disqualifying offenses for persons employed in positions of

trust o r responsibility. Section 435.07, Florida Statutes

(2001), sets forth the basis for exemptions from

disqualification. Petitioner argues that the law that created

this statute, Chapter 95 - 228, Laws of Florida, is inapplicable

because the effective date of the law was 10 years after the

offense cited by Respondent as the disqualifying event. The

Department, however, asserts that the screening requirements set

forth in Chapter 95 - 228, Laws of Florida, did not originate in

that legislation. To resolve the d ispute, it is necessary to

consider pertinent statutory provisions.

11. In 1995, the legislature comprehensively amended the

statutes which govern those persons seeking to work with

children or the developmentally disabled. See Chapter 95 - 228,

Laws of Fl orida. Among other things, Chapter 95 - 228 created

Chapter 435, Florida Statutes. Section 64 of Chapter 95 - 228

provides that the effective date of the law was October 1, 1995,

"and shall apply to offenses committed on or after that date."

12. However, T he predecessor to current Sections 435.04

and 435.07, Florida Statutes, was Section 393.0655, Florida

Statutes, which was created by Chapter 85 - 54, Laws of Florida.

That section set forth minimum standards for caretakers of

developmentally disabled person s and stated in pertinent part as

follows:

(1) MINIMUM STANDARDS. - The department shall

establish minimum standards as to good moral

character, based on screening, for

caretakers who are unrelated to their

clients. Such minimum standards for

screening shall ensure that no caretaker

unrelated to his client has been found

guilty of, regardless of adjudication, or

entered a plea of nolo contender or guilty

to, any felony prohibited under any of the

provisions of the Florida Statutes or under

any similar s tatute of another jurisdiction:

* * *

(y) Section 784.03, relating to battery, if

the victim of the offense was a minor.

* * *

Such standards for screening shall also

ensure that the person has not . . .

committed an act whi ch constitutes domestic

violence as defined in Section 741.30 . . .

the Department may grant an exemption from

such a disqualification if the department

has clear and convincing evidence to support

a reasonable belief that the person is of

good moral chara cter as to justify an

exemption.

The person shall bear the burden of setting

forth sufficient evidence of rehabilitation,

including, but not limited to, the

circumstances surrounding the incident, the

time period that has elapsed since the

incident, the nature of the harm occasioned

to the victim, and the history of the person

since the incident or such other

circumstances that shall by the

aforementioned standards indicate that the

person will not present a danger to the

safety or well - being of children .

(emphasis supplied)

13. Section 741.30, Florida Statutes, (1985) contains the

following definitions:

741.30(1) As used in this section, the

term:

(a) "Domestic violence" means any assault,

battery, or sexual battery by a person

aga inst the person's spouse.

(b) "Spouse" means a person to whom another

person has been married or a person to whom

another person has been married and from

whom such person is now separated or

divorced.

14. Thus, in 1985, the offense committed by Petitioner was

not a disqualifying offense as there is no evidence that

Petitioner was nor had been married to the victim.

15. The language of Section 339.0655, Florida Statutes,

was amended over time. Section 393.0655(2)(c), Fl orida Statutes

(1994), which was in effect before Section 435.04, Florida

Statutes, contains a reference to domestic violence which read

as follows: "Has not committed an act which constitutes

domestic violence as defined in s.741.28." This language was

repealed by Section 35, Chapter 95 - 228, Laws of Florida.

16. In relation to the definition of domestic violence

referenced in the prior paragraph, Chapters 94 - 134 and 94 - 135,

Laws of Florida, created definitions of "domestic violence" and

"family or hou sehold member," as follows:

741.28 Domestic violence; definitions. --

As used in ss. 741.28 - 741.31:

(1) "Domestic violence" means any assault,

battery, sexual assault, sexual battery, or

any criminal offense resulting in physical

injury or death of one family or household

member by another who is or was residing in

the same single dwelling unit.

(2) "Family or household member" means

spouses, former spouses, persons related by

blood or marriage, persons who are presently

residing together as if a fam ily or who have

resided together in the past as if a family

and persons who have a child in common

regardless of whether they have been married

or have resided together at any time.

Section 36, Chapter 94 - 134 and Section 36, Chapter 94 - 135, Laws

of Fl orida, provide for applicability of this statutory language

to offenses committed on or after July 1, 1994. Thus, the

expanded definitions of domestic violence and who is considered

a family member for purposes of what constitutes domestic

violence could not apply to Petitioner's offense.

17. Section 393.0655, Florida Statutes (1995) requires

employment screening pursuant to level 2 screening standards set

forth in Chapter 435, Florida Statutes, which was created by the

same act, Chapter 95 - 228, Laws of Florida.

18. Section 435.04, Florida Statutes (1995), sets forth

level 2 screening standards. Subsection (h) continues to

reference Section 784.03 relating to battery if the victim of

the offense was a minor. The 1995 version of the law also

requires the screening standards to ensure that the employee has

not committed an act that constitutes domestic violence as

defined in Section 741.30, Florida Statutes (1995), not Section

741.28, Florida Statutes (1995), which no longer pertained.

19. Section 741.30, Florida Statutes (1995), does not

contain a definition of domestic violence but rather creates a

cause of action for an injunction for protection against

domestic violence. There is no evidence that a court ever

issued an injunction for protectio n against domestic violence as

contemplated by Section 741.30, Florida Statutes (1995).

20. In summary, when the screening law was created in

1985, the offense committed by Petitioner was not a

disqualifying offense. The 1994 amendments to the definiti on of

"domestic violence" and the broader definition of "family or

household member", rather than the more limited definition of

"spouse" that existed in 1985, do not apply to Petitioner.

Finally, the 1995 amendment struck the reference to Section

741.28 which contained those expanded definitions of "domestic

violence" and "family member" which the Department seeks to

apply and instead references 741.30 which specifically deals

with injunctions, which is inapplicable to the circumstances

herein. According ly, Petitioner has not committed a

disqualifying offense.

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 granting Petitioner an exem ption from

disqualification.

DONE AND ENTERED this 18th day of July, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrati ve Hearings

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 th e

Division of Administrative Hearings

this 18th day of July , 2002.

ENDNOTE

1/ The Summary of Offense and Probable Cause Affidavit

indicated there was a second page on the reverse of the first

page. The fact that a page appeared to b e missing was pointed

out to counsel during the hearing and a complete exhibit was to

be filed on or before the due date for the proposed recommended

orders, but no additional page or complete exhibit was ever

filed.

COPIES FURNISHED:

John R. Perry, Esquire

Department of Children

and Family Services

2639 North Monroe Street

Tallahassee, Florida 32399 - 2949

Linda Barge - Miles, Esquire

American Federation of State,

County and Municipal Employees

111 North Gads den Street

Tallahassee, Florida 32301

Paul F. Flounlacker, Jr., Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counse l

Department 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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.