04-004359 Latisha Wilson | L. W. vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, March 14, 2005.

Summary: Domestic violence that does not involve a minor or a violation of an injunction is not a disqualifying offense for which Respondent has statutory authority to grant or deny an exemption.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

L. W., )

)

Petitioner, )

)

vs. ) Case No. 04 - 4359

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Administra tive Law Judge (ALJ) Daniel Manry conducted the

administrative hearing in this proceeding, on February 11, 2005,

in Lakeland, Florida, on behalf of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: L. W., pro se

(Address of record)

For Respondent: Jack Emory Farley, Esquire

Department of Children

and Family Services

4720 Old Highway 37

Lakeland, Florida 33 813 - 2030

STATEMENT OF THE ISSUES

The issues are whether Respondent should grant Petitioner

an exemption from disqualification to be licensed to operate a

family day care home pursuant to Subsection 402.310(1)(a),

Florida Statutes (2004).

P RELIMINARY STATEMENT

By letter dated September 14, 2004, Respondent denied

Petitioner's request for exemption from disqualification for a

license to operate a family day care home. Petitioner timely

requested an administrative hearing, and Respondent referred the

matter to DOAH to conduct the hearing.

At the hearing, Petitioner testified in her own behalf and

submitted no exhibits for admission into evidence. Respondent

called two witnesses and submitted four exhibits.

The identity of the wit nesses and exhibits, and any

attendant rulings, are reported in the record of the hearing.

Neither party requested the record to be published in a

transcript. Petitioner did not file a proposed recommended

order (PRO). Respondent filed its PRO on Februa ry 17, 2005.

FINDINGS OF FACT

1. Respondent is the agency responsible for licensing and

regulating day care homes in the state. Petitioner seeks a

license to operate a family day care home.

2. Respondent is statutorily required to complete a

background screening clearance for Petitioner as a condition of

license approval. The background screening revealed an arrest

on September 19, 1997, for a misdemeanor charge of simple

battery defined in Section 784.03, Florida Statutes (1997).

3. The a rrest arose from an incident of domestic violence

in which Petitioner struck her partner (spouse) with a wet floor

mop. The solution included bleach. No serious injury resulted

from the incident.

4. The county court withheld adjudication and fined

Pe titioner $193. Petitioner eventually paid the fine.

CONCLUSIONS OF LAW

5. DOAH has jurisdiction over the parties and subject

matter of this case. §§ 120.569 and 120.57(1), Fla. Stat.

(2004). DOAH provided the parties with adequate notice of the

ad ministrative hearing.

6. Respondent's statutory authority to deny a request for

exemption is limited to those offenses enumerated in

Section 435.04, Florida Statutes (2004). Respondent may grant

an exemption to any "employee otherwise disqualified from

employment." § 435.07, Fla. Stat. (2004) (otherwise

disqualified), but Respondent has no statutory authority to

grant or deny an offense not enumerated in the statute.

7. The offense for which the court withheld adjudication

is a violation of Section 78 4.03, Florida Statutes (1997). The

offense is not a disqualifying offense unless the "victim of the

offense was a minor." § 435.04(2)(j), Fla. Stat. (2004). It is

undisputed that Petitioner's spouse, the victim of the offense,

was not a minor at the tim e of the offense.

8. The offense for which the court withheld adjudication

is not an "act that constitutes domestic violence as defined in

s. 741.30." § 435.04(4)(b), Fla. Stat. (2004). Section 741.30,

Florida Statutes (2004), is expressly limited to offenses

involving the violation of a court - ordered injunction. It is

undisputed that Petitioner did not violate a court - ordered

injunction. Section 435.04, Florida Statutes (2004), does not

enumerate any other type of domestic violence as a disqualifyi ng

offense.

9. The maxim expressio unius est exclusio alterius

suggests the enumeration of the statute pertaining to

injunctions for domestic violence excludes those acts of

domestic violence not enumerated. McFadden v. State , 737 So. 2d

1073 (Fla. 199 9); Thayer v. State , 335 So. 2d 815 (Fla. 1976).

Respondent has only that power which is expressly or by

necessary implication granted by legislative enactment. Lewis

Oil Co, Inc. v. Alachua County , 496 So. 2d 184, 189 (Fla. 1st

DCA 1986); Department of Highway Safety & Motor Vehicles v.

German , 451 So. 2d 1013 (Fla. 3d DCA 1984); State, Department of

Environmental Regulation v. Falls Chase Special Taxing District ,

424 So. 2d 787, 793 (Fla. 1st DCA 1982). Any reasonable doubt

as to the lawful exercise of a particular power should be

resolved in favor of arresting the further exercise of that

power. Edgerton v. International Company , 89 So. 2d 488 (Fla.

1956); State v. Atlantic Coast Line R. Co. , 47 So. 969 (Fla.

1908); Fraternal Order of Police, Miami Lo dge v. City of Miami ,

492 So. 2d 1122, 1124 (Fla. 3d DCA 1986).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Respondent enter a final order withdrawing

the disqualification of Petitioner a nd proceed with the

application for license.

DONE AND ENTERED this 14th day of March, 2005, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative 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 the

Division of Administrative Hearings

this 14th day of March, 2005.

COPIES FURNISH ED :

Jack Emory Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813 - 2030

L. W.

(Address of record)

Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Bouleva rd

Tallahassee, Florida 32399 - 0700

Josie Tamayo, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

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.