STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. M., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 95-5617

   ) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on February 13, 1996, in Marianna, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: S. M., pro se

   Address of Record

   
   

   For Respondent: John R. Perry, Esquire

   Department of Health and Rehabilitative Services

   2639 North Monroe Street, Suite 252-A Tallahassee, Florida 32399-2949

   
   

   STATEMENT OF THE ISSUE

   
   

   The issue to be resolved in this proceeding concerns whether the Petitioner is entitled to an exemption from disqualification from employment in a position of special trust and responsibility as a "direct care provider." More specifically, it must be determined whether appropriate circumstances and adequate rehabilitation have occurred since the criminal offense which engendered this proceeding so as to justify qualification by exemption of the Petitioner for such an employment position.

   
   

   PRELIMINARY STATEMENT

   
   

   This cause arose upon the Petitioner receiving a notice in October of 1995 of his disqualification to work in a caregiver's role at Sunland Center in Marianna, Florida, a residential facility for persons with developmental disabilities. The disqualification resulted from the Respondent becoming aware of the criminal offense on the Petitioner's record. Approximately four years prior to hearing, he was determined guilty of possession of drug paraphernalia and the sale of cannabis. The Petitioner elected to contest that initial decision by the Respondent and sought a Section 120.57(1), Florida Statutes, hearing before the Division of Administrative Hearings.

   The cause was duly assigned to the undersigned Hearing Officer and came on for hearing as noticed. At the hearing, the Petitioner appeared pro se and presented his own testimony and the testimony of three other witnesses. The Respondent presented the testimony of one witness, Human Services Program Specialist, Lynda Hanson. Each party presented one exhibit, which were admitted into evidence. The Petitioner, in essence, maintains that although the criminal incident occurred, it was an isolated incident in his life. He had never been in such an altercation with the legal authorities before or since. Although a rather brief period of time has elapsed since that occurrence, he has rehabilitated himself, through his religious conversion and strenuous efforts to better himself, both in his character development and in his chosen career.

   
   

   The Respondent, in essence, takes the position that the brief period of time that has elapsed since the incident and the evidence of immature judgment and emotional instability on the part of the Petitioner belie granting an exemption at this time. It contends that more time should elapse during which the Petitioner can demonstrate that he has established sufficient emotional stability and judgmental maturity to justify allowing him once again to work with developmentally-disabled persons.

   
   

   Upon concluding the proceeding, the parties elected to avail themselves of the right to submit Proposed Recommended Orders containing proposed findings of fact and conclusions of law. Those pleadings were timely submitted on or before February 26, 1996. The proposed findings contained therein have been addressed in this Recommended Order and once again by specific ruling in the Appendix attached hereto and incorporated by reference herein.

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner, S.M., was charged with possession and sale of cannabis some four years prior to the hearing in this matter. He pled guilty to that charge and adjudication of guilt was withheld, as was the case concerning a charge of possession of drug paraphernalia, apparently lodged against him some two years previously. Because of his youth and the overall circumstances of those criminal cases and, inferentially, because the Petitioner had already embarked on a program of drug rehabilitation counseling before the criminal incidents occurred and was attempting to better his lifestyle, the court elected not to enter a conviction but withheld adjudication of guilt as to both charges. Nevertheless, the matters came to the attention of the Respondent and on August 8, 1995, the Respondent informed his employer, the Sunland Center, of the charges. It was determined that they were grounds for disqualification from his employment position, which ultimately engendered this proceeding.

      
      

   2. The Petitioner, before and after the criminal incidents, was undergoing counseling concerning drug use and manic depression, or bipolar disorder. His disorder is under control through counseling and medication and, indeed, medication has been unnecessary for the last two years. Thus, the Petitioner exhibited a desire and initiated active steps designed to improve his emotional condition and his lifestyle, even before he was involved in the criminal incidents in question and since that time, as well.

      
      

   3. The Petitioner moved from the St. Petersburg area to Jackson County, Florida, after the criminal incidents occurred and secured employment at the Sunland Center, as a direct caregiver for developmentally-disabled persons. He has had an exemplary record in that employment, until he was forced to leave because of the disqualification referenced above. Uniformly, his co-workers and supervisors have praised his performance and his attitude, including his

      emotional stability and interest in and care for the patients under his charge. His supervisors desire him to come back to work in that capacity once again.

      Additionally, since the criminal incidents in question, he has experienced a strong religious conversion and has returned to a Christian-oriented way of life. He has, thus, done mission work in Honduras and has been involved in Christian youth ministries and radio ministries for his church.

      
      

   4. The Reverend Jack Hollis of Marianna, Florida, is the Petitioner's minister. He supervises the Petitioner in the Petitioner's work as a youth and radio ministry leader in their church. The undersigned notes that Reverend Hollis gave testimony which was of a very positive and thoughtful nature and was not merely that of a partisan character reference. He described the Petitioner's positive, mature attitude about the loss of his job due to the subject disqualification. He states that the Petitioner immediately underwent training and obtained a new job in a new field, although the Petitioner still earnestly desires to go back to his job at the Sunland Center. Reverend Hollis described the various ministries of his church which the Petitioner is involved with. The Petitioner's church supervisors all love and respect him, as do the youth who were placed in his charge. Reverend Hollis and the supervisors of the Petitioner in the Petitioner's church work all uniformly trust him, based upon the performance and good character example he has shown them.

      
      

   5. The Petitioner's father, John Mitchell, testified on the Petitioner's behalf. Mr. Mitchell is a Baptist deacon and has long been an active church member and worker. He, in essence, corroborated Reverend Hollis' testimony and that of the Petitioner, his son. He candidly recounted the fact that the Petitioner, while a teenager, was something of a rebel for a time but since, has come back to a Christian way of life. His family relationship has been excellent, with both of his parents, for the last two years.

      
      

   6. In summary, the Petitioner has established, through his candid testimony in which he acknowledged his past mistakes, immaturity and poor judgment, that since the unfortunate incidents on his record occurred, which were isolated ones, he has constantly striven to improve his character. The Hearing Officer is impressed with the genuineness of his religious conversion and his keen interest in and love for his work with disabled persons and with the youth in his church ministry program.

      
      

   7. The Petitioner's testimony is solidly corroborated by that of Reverend Hollis, who did not merely describe the Petitioner as "perfect in every way", but described occasions where the Petitioner required small corrections in his behavior in the course of his church work, but also that none of his experience with the Petitioner throughout his tenure with the ministry of the church has caused him to have any doubt as to the genuineness of the Petitioner's religious conversion, the rehabilitation of his character, his morality and maturity of judgment.

      
      

   8. In response to that testimony, the Respondent put on the testimony of Ms. Hanson, who, in essence, acknowledged all of the recent exemplary instances of the Petitioner's character rehabilitation, but stated that the Respondent merely was of the view that insufficient time to firmly establish his rehabilitation had occurred. The Hearing Officer is mindful of that position expressed by the Respondent. Under other circumstances, such precaution would be indicated. However, based upon the totality of the evidence and observation of the candor and demeanor and the thoughtful manner in which both the Petitioner, Reverend Hollis, and the Petitioner's father testified concerning their view of the present state of the Petitioner's character, judgment and

      emotional stability, it is found that sufficient time for rehabilitation under the circumstances has elapsed. The Petitioner has established circumstances which show that his character, emotional stability and maturity of judgment have been sufficiently rehabilitated to justify him occupying a position as a direct care provider in a position of special trust.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties hereto pursuant to Section 120.57(1), Florida Statutes.

      
      

   10. The Petitioner's duty at Sunland Center in Marianna, Florida, made him a "direct service provider", as that term is defined in Chapter 393, Florida Statutes. See Section 393.063(14), Florida Statutes. As a direct service provider, the Petitioner was required to undergo employment screening, pursuant to the "level 2 standards" set forth in Chapter 435, Florida Statutes. Under these standards, he was disqualified from working in a position of special trust or responsibility, such as a direct care provider, on the basis of his pleas of guilty to the offenses described in the above Findings of Fact. See Section 435.04(2)(z), Florida Statutes.

       
       

   11. A person disqualified under Section 435.03, Florida Statutes, may be granted an exemption from disqualification if it is demonstrated that the following factors establish that that person should not be disqualified from employment:

       
       

       1. The circumstances surrounding the incident;

       2. The time period that has elapsed since the incident;

       3. The nature of harm caused to the victim;

       4. The history of the employment since the incident;

       5. Any other evidence or circumstances indicating that the applicant would not present a danger if an exemption is granted. Section 435.07(3), Florida Statutes.

          
          

   12. The clear and convincing evidence of record, culminating in the above Findings of Fact, has established that these criteria have been met. Although only three or four years have elapsed since the criminal offenses committed by the Petitioner, the above Findings of Fact demonstrate favorable circumstances concerning the Petitioner's life that have occurred since the incidents in question. These include his employment history, his religious conversion, and his active interest and work in the area of helping the developmentally disabled and the youth in his church ministry program. These circumstances all show that his character, maturity of judgment and emotional stability have been rehabilitated, even in the relatively short period of time that has elapsed. Under the circumstances, adequate assurances of safety for children and disabled adults, if placed in the care of the Petitioner, has been demonstrated. Accordingly, the request for exemption should be granted.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, the evidence of record, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered by the Respondent granting the Petitioner's request for exemption.

DONE AND ENTERED this 29th day of March, 1996, in Tallahassee, Florida.

P. MICHAEL RUFF, 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 March, 1996.

APPENDIX TO RECOMMENDED ORDER CASE NO. 95-5617

Petitioner's Proposed Findings of Fact

The Petitioner, in reality, did not present separately stated findings of fact but, rather, argument concerning the justification for the grant of the exemption in question. Consequently, specific rulings on findings of fact cannot be made as to the Petitioner's post-hearing pleading.

Respondent's Proposed Findings of Fact

1-7. Accepted, but not necessarily as to their purported material import.

8. Accepted, to the extent that this shows the basis for the Department's original free-form decision, although rejected for its purported material import in this proceeding. There is no presumption of correctness concerning the Department's committee's decision and the Department's decision in the free-form stage of this controversy.

COPIES FURNISHED:

S.M.

(Address of Record)

John R. Perry, Esquire Department of Health and

Rehabilitative Services

2639 North Monroe Street, Suite 252-A Tallahassee, FL 32399-2949

Sandy Coulter, Acting Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Richard Doran, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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.

Docket for Case No: 95-005617

Orders for Case No: 95-005617