02-001557 Jaisy Bell Billins | J. B. B. vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, June 18, 2002.

Summary: Petitioner attempted to prove that she was rehabilitated and qualified to be employed in a position of trust. Held: Petitioner failed to prove by clear and convincing evidence that she has been rehabilitated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAISY BELL BILLINS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1557

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

No tice was provided, and a formal hearing was held on

June 7, 2002, in Tallahassee, Florida, and conducted by Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jaisy Bell Billins, pro se

424 Line Street, Apartment D - 5

Chattahoochee, Florida 32324

For Respondent: John R. Perry, Esquire

Department of Children and

Family Services

2639 North Monroe Street

Building A, Suite 104

Tallahassee, Florida 3239 9 - 2949

STATEMENT OF THE ISSUE

Whether Petitioner is lawfully entitled to work in a

position designated by law as a position of trust or

responsibility.

PRELIMINARY STATEMENT

Petitioner requested, in a pleading filed with the

Department of Chil dren and Family Services (Department) that she

be approved to work in child care and with developmentally

disabled adults. The Department denied Petitioner's request.

Subsequently she asked for an exemption and that request was

denied by a letter she rec eived on February 13, 2002. On

February 28, 2002, Petitioner petitioned for an administrative

hearing. By Order filed March 18, 2002, the Department rejected

her petition with leave to amend. On April 8, 2002, Petitioner

submitted a petition which was f iled. The Department forwarded

the matter to the Division of Administrative Hearings which

filed it April 17, 2002.

The matter was set for hearing on June 7, 2002, and was

heard as scheduled. Petitioner offered five exhibits which were

received into evidence. Petitioner testified in her own behalf

and called no other witnesses. The Department offered three

exhibits which were received into evidence. The Department

presented the testimony of one witness.

No Transcript was filed. Proposed Reco mmended Orders were

filed by both parties and considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is a twenty - five year old woman who resides

in Chattahoochee, Florida.

2. The Department is the state agency responsible for

receiving, evaluating, and approving or denying applications for

exemptions from disqualification to hold a position of trust,

with regard to child care and developmentally disabled adults.

3. The Department must screen persons worki ng in child

care and with developmentally disabled adults. When Petitioner

was screened it was determined that she had committed three

serious felonies when she was subject to the jurisdiction of the

juvenile court.

4. The evidence of record indicat ed that Petitioner

committed the following offenses when a juvenile:

a. On May 12, 1992, Petitioner was charged with an

aggravated battery. She was accused of attacking another

juvenile with a broken Coca Cola bottle. On June 26, 1992, she

admitt ed the allegation. The court did not adjudicate

Petitioner a delinquent but did place her in the "JASP" program

and required school attendance and 20 hours of community

service.

b. On May 11, 1994, Petitioner was charged with another

aggravated ba ttery. She was accused of attacking an individual

with a razor box cutter. She pled nolo contendere in juvenile

court and was ordered to commit no further violations, attend

school, and keep away from weapons.

c. On June 8, 1994, Petitioner was c harged in juvenile

court with grand theft. This charge arose out of the theft of

more than $300 from the premises of a Wal - Mart store. She again

pled nolo contendere in juvenile court and once more was ordered

to commit no further violations, attend scho ol, and keep away

from weapons.

5. Petitioner presented a letter from Jerome Bryant, of

Quincy, Florida, who is Petitioner's uncle. He noted that

Petitioner has overcome her prior problems and is on the right

track. Petitioner also completed a home health aide course on

December 18, 1996; a child care training course given by Early

Childhood Services, Inc. on May 17, 1997; a Parenting Young

Children Program given by the Florida Cooperative Extension

Service on May 21, 2002; and attended 12 sessions of the New

Hope Intervention Program for Domestic Violence ending on

May 28, 2002.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120. 57(1) and 435.07(3), Florida

Statutes.

7. Section 435.07(3), Florida Statutes, provides that an

employee who has been denied an exemption must demonstrate by

clear and convincing evidence that the employee should not be

disqualified from employment.

8. Subsection 435.04(1), Florida Statutes, provides that

all employees in positions of trust or responsibility shall be

required to undergo security background investigations as a

condition of employment or continued employment.

9. Section 402.305, Florida Statutes, provides as follows:

402.305 Licensing standards; child care

facilities. --

* * *

(2) PERSONNEL. -- Minimum standards for child

care personnel shall include minimum

requirements as to:

* * *

(a) Good moral character based upon

sc reening. This screening shall be

conducted as provided in chapter 435, using

the level 2 standards for screening set

forth in that chapter.

10. Section 393.0655(1), Florida Statutes, provides as

follows:

393.0655 Screening of direct service

provid ers. --

(1) MINIMUM STANDARDS. -- The department

shall require employment screening pursuant

to chapter 435, using the level 2 standards

for screening set forth in that chapter, for

direct service providers who are unrelated

to their clients.

(2) EXEMPTI ONS FROM DISQUALIFICATION. -- The

department may grant exemptions from

disqualification from working with children

or the developmentally disabled as provided

in s. 435.07.

11. Subsection 435.04, Florida Statutes, provides in

pertinent part the foll owing:

(2) The security background investigations

under this section must ensure that no

persons subject to the provisions of this

section have been found guilty of,

regardless of adjudication, or entered a

plea of nolo contendere or guilty, to any

offens e prohibited under any of the

following provisions of the Florida Statutes

or under any similar statute of another

jurisdiction:

* * *

(i) Section 784.045, relating to aggravated

battery

* * *

(w) Chapter 812, relati ng to theft,

robbery, and related crimes, if the offense

is a felony.

12. Section 435.07, Florida Statutes, provides as follows:

435.07 Exemptions from disqualification. --

Unless otherwise provided by law, the

provisions of this section shall apply to

exemptions from disqualification.

(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 disqualif ication;

* * *

(3) In order for a licensing department to

grant 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 ha ve the

burden of setting forth 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 th e 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. The

decision of the licensing department

reg arding an exemption may be contested

through the hearing procedures set forth in

chapter 120.

13. Petitioner met the requirement of Section

435.07(1)(a), Florida Statutes. It has been more than eight

years since she committed a felony. However, she has not met

the requirements of Section 435.07(3), Florida Statutes, because

she failed to present sufficient evidence demonstrating

rehabilitation.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That a final order be entered which dismisses Petitioner's

Petition.

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

Tallahassee, Leon County, Florida.

___________________________________

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative H earings

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 18th day of June, 2002 .

COPIES FURNISHED :

Jaisy Bell Billins

424 Line Street, Apartment D - 5

Chattahoochee, Florida 32324

John R. Perry, Esquire

Department of Children and Family Services

2639 North Monroe Street

Building A, Suite 104

Tallahassee, Florida 32399 - 2949

Ka therine A. Kearney, Secretary

Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 202

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

B uilding 1, 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 parti es 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.