STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

J. D., )

)

Petitioner, )

)

vs. ) CASE NO. 95-5091

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was held on February 7, 1996, in Jacksonville, Florida, pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J.D., pro se

(address of record)

For Respondent: Roger L. D. Williams, Esquire

Department of Health and Rehabilitative Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's request for exemption for disqualification should be approved.

PRELIMINARY STATEMENT

J.D. was notified, by letter of August 11, 1995 by the Department of Health and Rehabilitative Services, that she was disqualified from continuing employment as a "caretaker" at Living Centers Devcon Point West Cluster, a development services facility. The disqualification was based upon J.D.'s failure to meet the minimum requirements for good moral character due to a conviction for cocaine possession on August 16, 1990.

On August 21, 1995, J.D. was notified that she was scheduled for a hearing on exemption from disqualification and that hearing was held on September 6, 1995, in Jacksonville, Florida. On September 13, 1995, J.D. was notified that her request for exemption from disqualification was denied and that she could appeal the agency's decision. Petitioner requested an administrative hearing in response to the denial letter.

At the formal hearing, Petitioner testified on her own behalf and introduced 13 exhibits, which were admitted into evidence. Respondent's five exhibits were admitted into evidence. The record was left open to allow the Petitioner time to provide documentation for her substance abuse treatment, and Petitioner filed a certificate of completion from Northeast Florida Safety Council, Inc.

A transcript of the hearing was not filed. The Respondent filed proposed findings of fact, which were read, considered, and adopted without meaningful change.

FINDINGS OF FACT

1. Upon completion of high school, J.D. was employed at Walt Disney World in the theme park.

   
   

2. It was during her employment at Disney World that J.D. was arrested on April 13, 1990 and charged with possession of a baggie containing 1.5 grams of crack cocaine with intent to sell.

   
   

3. J.D. pled nolo contendere to the charges and was placed on two-years probation during which she had to attend a drug treatment program.

   
   

4. Having already completed high school, J.D. started going to school while on probation and while she was employed with Red Lobster as a cook and coordinator at night. J.D. held the job with Red Lobster from 1990 to 1993, when she relocated to Jacksonville, Florida.

   
   

5. J.D. attended classes at the Orlando Vocational-Technical Center and was awarded a certificate for 56 hours of home health aide in March 1991 and an AIDS four-hour seminar.

   
   

6. On March 13, 1992, J.D. was awarded a certificate for completion of care of the Alzheimers client; and on March 17, 1992, J.D. was awarded a certificate of completion of care for the stroke patient.

   
   

7. J.D. also successfully completed the basic rescue course in CPR from the American Heart Association issued on March 21, 1992 and March 24, 1992; First Aid, Level 1 from the National Safety Council Orlando Vocational Tech on March 12, 1992; and satisfactorily completed on March 27, 1991 a 72-hour course for the home health aide with competency performance testing.

   
   

8. By letter of February 1, 1992, J.D. was informed that she had successfully completed her substance abuse counseling with a discharge diagnosis of cocaine abuse in remission, prognosis fair, provided she follows recommendations; and the recommendations were (1) abstain from all mood-altering substances and (2) attend AA/NA meetings.

   
   

9. On May 16, 1994, J.D. was arrested by the Orlando Police Department for possession of cannabis.

   
   

10. On June 6, 1994, J.D. appeared before the court, waived her right to counsel, pled nolo contendere to the charge of possession, and was adjudged guilty.

11. As stated above, J.D. relocated to Jacksonville, and a year later was hired on June 1, 1995, as a home health care aide by Living Centers Devcon Point West Cluster, a developmental services facility.

    
    

12. J.D. worked with clients who were in need of assistance in their daily living activities, ranging in age from minors to adults.

    
    

13. J.D.'s cared for eight clients who were physically disabled and unable to care for themselves.

    
    

14. J.D. worked a shift from 2 p.m. to 10 p.m.; and her specific job duties included bathing, feeding, lifting clients from their beds and chairs, and assisting with toiletries, such as combing hair.

    
    

15. J.D. received letters of support from her supervisors and co-workers. Mercedes Joyner, Program Supervisor, found J.D. to be a superb worker who demonstrated herself to be a loving, caring, sincere, and motivated individual, who has carried out all of her duties as a responsible person and conducted herself in a professional and respectful manner toward her co-workers and superiors. Sue Fleischmann, Facility Coordinator, found J.D. to be punctual, responsible, considerate and caring with the Developmentally Disabled Clients, and who worked well with her co-workers. Patricia Welch, a co-worker, found

    J.D. to be a reliable and compassionate person with whom it was outstanding to work.

    
    

16. On October 17, 1995, the Petitioner completed a substance abuse course sponsored by Northeast Florida Safety Council, Inc.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes.

    
    

18. J.D. was employed at Point West Cluster, a developmental services facility which took care of disabled clients; and pursuant to Section 393.0655, Florida Statutes, J.D. was required to meet the minimum standards as to good moral character, based upon screening, for caretakers who are unrelated to their clients. See Section 393.0655(1)(y), Florida Statutes, which was amended. See Section 393.0655(1), Minimum Standards, Florida Statutes (1995), and Section 435.04(2)(z), Florida Statutes (1995), Level 2 Screening Standards, in which J.D.'s felony possession of cocaine conviction in August of 1990 brought her into the jurisdiction of the statute.

    
    

19. Pursuant to Section 435.07(1)(a), Florida Statutes, the agency can grant an exemption from disqualification for felonies committed more than three years prior to the date of disqualification. In this case, J.D. was disqualified from employment in August of 1995, which is beyond the three years of her cocaine conviction in August of 1990 and making her eligible for exemption from disqualification which she requested from the agency.

    
    

20. The burden was on J.D., pursuant to Sections 409.175(8)(b), Florida Statutes (1993), and 435.07(3), Florida Statutes (1995), to demonstrate by clear and convincing evidence that she should not be disqualified from employment by 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

    the 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 the continued employment is allowed.

    
    

21. J.D. has shown considerable change in her life since the arrest and conviction for cocaine possession. She had the initiative to attend school at the Orlando Vocational-Technical Center and to take the necessary training to improve her abilities in her chosen field of work by her attendance at the vocational center and continuing education in AIDS, awareness, cardiopulmonary resuscitation basic course, care of the stroke patient, care of the Alzheimers client, and her certification as a home health aide.

    
    

22. J.D. maintained employment working nights at Red Lobster during her probation from 1990 to 1993. J.D. completed her drug treatment program with the ACT Center and their AA/NA sessions.

    
    

23. However, there is cause for concern because of J.D.'s arrest and conviction on the marijuana charge in 1994, which, although not a disqualifying offense, impacts on J.D.'s rehabilitation. J.D. provided evidence that she had completed a second substance abuse program, but admitted she has not regularly attended AA/NA meetings since moving to Jacksonville because of the change in her environment since moving to Jacksonville. She does attend occasionally AA/NA meetings when she feels the need.

    
    

24. The good reports she has received from those who have observed her work mitigates her subsequent less severe involvement with a controlled substance.

    
    

25. Based upon the foregoing, it would be appropriate to grant J.D. an exemption.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Petitioner be granted the exemption.

DONE and ENTERED this 29th day of February, 1996, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 1996.

COPIES FURNISHED:

J.D.

(address of record)

Roger L. D. Williams, Esquire Department of Health and

Rehabilitative Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Sandy Coulter, Acting Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

J. D.,

Petitioner,

vs. CASE NO. 95-5091

RENDITION NO. HRS-96-128-FOF-RCD

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

The cause is before me for the entry of a Final Order.

On August 11, 1995, J.D. was advised by the department that she was disqualified from continuing employment as a caretaker at the Living Center's Devcon Point West Cluster, based upon failure to meet the minimum requirements for good moral character. J.D. had been convicted for cocaine possession on August 16, 1990. In a handwritten letter dated September 13, 1995, received by the agency on September 25, 1995, J.D. requested an appeal from that decision and ultimately an administrative hearing was held on February 7, 1996, before a hearing officer from the Division of Administrative Hearings. A Recommended Order dated February 29, 1996, resulted, recommending that Petitioner be granted the exemption. For the reasons set out below, that recommendation is rejected and Petitioner's request for an exemption is denied.

FINDINGS OF FACT

Neither exceptions nor a transcript were filed in this cause and therefore, the agency has no choice but to adopt the Findings of Fact made by the Hearing Officer in the Recommended Order. Those findings are hereby adopted by the agency as if fully set out in this Order. It is appropriate to briefly summarize those findings here by way of background.

Upon completion of high school, J.D. was employed at Walt Disney World in Orlando, when on April 13, 1990, she was arrested and charged with possession of crack cocaine with intent to sell. She pled no contest to the charges and was placed on probation for two years. As a condition of her probation, she was required to attend a drug treatment program.

Plaintiff introduced her successful discharge summary from the Act Center, signed by her substance abuse counselor, Raphael Aponte. The discharge summary revealed that J.D. attended that program from October 29, 1991, through January 28, 1992, when her prognosis for the future was listed by her counselor as "fair, provided she follows recommendations." Aponte's recommendations included that J.D. should abstain from all mood altering substances and that J.D. attend AA/NA meetings.

It is true, and it is accepted, that J.D. attended classes at the Orlando Vocational Technical Center. Her certificates of completion were admitted into evidence at the final hearing and are uncontroverted. Less than three years after her discharge, however, J.D. was again arrested by the Orlando Police Department for possession of another controlled substance - cannabis. Again, she waived her right to counsel, pled no contest to the charge of possession, and was adjudged guilty. Not mentioned by the Hearing Officer in his Findings of Fact, but evident within agency exhibit 1, a part of the record in this case, is the Orange County charging affidavit for that offense. It recites that the reason J.D. was initially apprehended on May 16, 1994, was that she was suspected of driving while under the influence.

The Northeast Florida Safety Council release included within this record was apparently the result of the driving while under the influence charge placed against her. That exhibit shows that she completed a driver improvement program, including alcohol/drug safety education. That course was completed in October of 1995, according to certificate number 003712.

In order for an exemption to be granted, Section 435.07(3) requires:

(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 have 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, . . . or any other evidence or circumstances indicating that the employee will not present a danger if continued employ- ment is allowed.

Upon her completion of the Act Center program, it was recommended that J.D. abstain from all mood altering substances. She apparently has not done so. She was detained for driving while under the influence and was arrested for possession of cannabis, a mood altering substance. It was also recommended that she attend AA/NA meetings which, by common knowledge, require regular attendance. Nevertheless, J.D. admitted that she has not regularly attended AA/NA meetings since moving to Jacksonville. Thus, she has violated both recommendations of her 1992 rehabilitation program. Although the Hearing Officer refers to a second substance abuse program in his Conclusions of Law, it appears that the Northeast Florida Safety Council, Inc. program which J.D. attended was a driver improvement program and was not a drug rehabilitation program per se. Even if that program was a drug rehabilitation program, insufficient time has passed since her October 17, 1995, completion date for a determination to be made that she has become rehabilitated.

As described above, the employee has the burden of proving by clear and convincing evidence that she should not be disqualified from employment. The circumstances surrounding the criminal incident for which the exemption is sought must include consideration of her recent conviction for possession of cannabis. The time that has elapsed since the latter incident is only four months. No meaningful conclusions with regard to rehabilitation can be drawn from so short a period. Although J.D. has offered a significant number of recommendations from fellow employees, these employees have only known her for a relatively short period of time.

It is important to recall that the agency may not re-weigh the facts found by the Hearing Officer and by recalling those facts found by him, I do not do so now. I do, however, as a matter of law, conclude that simply taking courses at a vocational school does not constitute rehabilitation. Employment does not constitute rehabilitation, standing alone. This agency shares the Hearing Officer's concern because of J.D.'s arrest and conviction on the marijuana charge in 1994. Although it is not a disqualifying offense, as recognized by the Hearing Officer, such an event certainly has an impact on the determination of whether or not J.D. has been rehabilitated to the point where it can be reasonably be said that she does not constitute a danger if continued employment is allowed.

This agency must, therefore, depart from and does hereby reject Conclusion of Law number 24. Petitioner has not proven by clear and convincing evidence that she has become rehabilitated.

In view of the foregoing, it is hereby ORDERED that the Petition for an exemption in this cause be and the same is hereby DENIED.

DONE and ORDERED this 4th day of April, 1996, at Tallahassee, Leon County, Florida.

EDWARD A. FEAVER, Secretary Department of Health and

Rehabilitative Services

CHARLES M. KIMBER

Deputy Secretary for Human Services

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH, IF DESIRED, MUST BE INSTITUTED BY FILING ONE COPY. OF A NOTICE OF APPEAL WITH THE CLERK OF HRS AND A SECOND COPY, TOGETHER WITH THE APPROPRIATE FILING FEE PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE FIRST APPELLATE DISTRICT OF FLORIDA OR IN THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE A PARTY RESIDES. JUDICIAL REVIEW OF THIS ORDER WILL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THIS ORDER OR THE RIGHT TO JUDICIAL REVIEW WILL BE FOREVER LOST.

COPIES FURNISHED:

J.D.

6479 San Juan Ave. Jacksonville, FL 32210 (By certified mail)

Roger L.D. Williams, Esquire District 4 Legal Office Department of Health and

Rehabilitative Services Post Office Box 2417 Jacksonville, FL 32231-0083

Carlton Jones,

Background Screening Attorney District 4 Legal Office Department of Health and

Rehabilitative Services

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Bldg. 7, Rm. 728

Tallahassee, FL 32399-0700

Richard Doran, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Bldg. 7, Rm. 728

Tallahassee, FL 32399

Stephen Dean, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

Filed with the Clerk of the Agency this 4th day of April, 1996.

Docket for Case No: 95-005091

Orders for Case No: 95-005091