STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. D., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 96-0576

   ) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Upon due notice, this cause came on for formal hearing on March 12, 1996, in Jacksonville, Florida, before Ella Jane P. Davis, a duly-assigned Hearing Officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioner: W. D. pro se

   (Address of Record)

   
   

   For Respondent: Roger L. D. Williams, Esquire

   Department of Health and Rehabilitative Services

   District 4 Legal Office 5920 Arlington Expressway

   Jacksonville, Florida 32231-0083 STATEMENT OF THE ISSUE

   Whether or not Petitioner is entitled to an exemption to work in a position of special trust upon clear and convincing evidence of good moral character, as required by Section 435.07(3) F.S. [1995], subsequent to pleading guilty to two misdemeanors under Section 784.03 F.S.

   
   

   PRELIMINARY STATEMENT

   
   

   At formal hearing, Petitioner presented the oral testimony of his present wife and Dorothy Powell and testified on his own behalf. He had a fifteen-page composite exhibit admitted in evidence.

   
   

   Respondent presented no oral testimony and had four exhibits admitted in evidence.

   
   

   The filing of a transcript and proposed recommended orders was waived by both parties.

   FINDINGS OF FACT

   
   

   1. On October 12, 1990, Petitioner got in a fight with his live-in girlfriend. Petitioner had been drinking. Petitioner was arrested for hitting the girlfriend and putting her in a "headlock" when she was two months pregnant with his child. He told the police at the time that he did not know she was pregnant; and at formal hearing herein, he denied that she was pregnant at the time of the incident.

      
      

   2. Petitioner was charged with the felony of "aggravated battery". The public defender was appointed to represent him. Petitioner could not make bail; therefore, he served 17 days in jail. At his first appearance in court, he pled guilty to a misdemeanor "battery" under Section 784.03 F.S., no subsection specified, and was released for time served. At formal hearing herein, Petitioner asserted that he had pled guilty solely to avoid further incarceration until a later trial date, which might have caused him to lose his job.

      
      

   3. On October 27, 1992, Petitioner was living with the same woman, whom he has referred to at least once as his "wife", and her one-year-old child. It is not clear from the record whether this woman's child was the result of her alleged pregnancy in 1990. It is also not clear whether Petitioner acknowledges this child to be his. There is no evidence that this woman ever lost an unborn child.

      
      

   4. On that date, Petitioner was arrested again for hitting the woman. He had been drinking prior to his arrest. He gave no details at formal hearing herein as to what events lead up to his arrest for hitting the woman, except to say that the victim/girlfriend/wife reached the police station before he and the arresting officers did and that she withdrew the felony charges before he was booked. Therefore, on October 27, 1992, Petitioner was charged only with "misdemeanor battery/domestic violence" on the word of the police officers and the one-year-old child. Petitioner claimed that the child was not in the house at the time of his altercation with the victim.

      
      

   5. The public defender was again appointed to represent Petitioner. Petitioner could not make bail; therefore, he served 28 days in jail. When his case was called, he pled guilty to "misdemeanor battery/domestic violence" under Section 784.03(1)(a) F.S. At formal hearing herein, Petitioner asserted that he had pled guilty solely to avoid further incarceration until a later trial date, which might have caused him to lose his job. He was released for time served.

      
      

   6. Petitioner and his present wife have been married approximately three years, since April, 1993. The wife has been involved in day-care for approximately eight years. This case arises because the Respondent has issued a letter to Petitioner's present wife threatening her with a fine or criminal penalties if she allows Petitioner to have direct contact with any children in her family day-care home.

      
      

   7. Petitioner's present wife trusts Petitioner around her own child and other children. In her opinion, he has no "strong attitude," that is, he evidences no aggressive or intimidating nature or behavior and is a good husband and father.

      
      

   8. Petitioner has undertaken the care and support of his infirm mother-in- law in the marital home and has behaved toward her in a very loving way.

   9. Since marrying his present wife, Petitioner has regularly attended church.

      
      

   10. Petitioner has not formally dealt with any alcohol problems or undergone therapy of any kind.

       
       

   11. Without objection, Petitioner presented nine written, but very general, testimonials to his honesty and "niceness" written by neighbors, co- workers, and supervisors. This same general pleasantness and integrity was testified to by his present wife and a long-time friend and neighbor, Dorothy Powell.

       
       

   12. Petitioner has been employed with the same employer since 1989. In January 1995, he earned a service award from this employer. By all accounts, he is an excellent employee and co-worker. Petitioner is not employed in a position of special trust and does not intend to be so employed.

       
       

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1) F.S.

       
       

   14. If it ever was, a conviction under Section 784.03 F.S. currently is not one which precludes Petitioner from employment in a position of special trust, unless the victim is a minor. See Sections 435.03(2)(h) and 435.04(2)(h)

       F.S. [1995]

       
       

   15. Having determined that, there is no reason to proceed further to determine proof vel non of good moral character under Section 435.07(3) F.S.

       
       

   16. Normally, in this type of proceeding, the undersigned has authority only to recommend an exemption. However, it is abundantly clear that the agency has no authority to currently list Petitioner on its registry.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter

a Final Order expunging its report of Petitioner's 1990 and 1992 misdemeanors,

or alternatively, grant him an exemption to work in a position of special trust.

DONE AND ENTERED this 15th day of April, 1996, in Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 15th day of April, 1996.

COPIES FURNISHED:

W. D.

2263 Bradford Street

Jacksonville, Florida 32209

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

Rehabilitative Services District 4 Legal Office 5920 Arlington Expressway

Jacksonville, Florida 32231-0083

Gregory D. Venz, 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 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.

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

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

W. D.

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

Petitioner, CASE NO. 96-0576

RENDITION NO. HRS-96-347-FOF-RCD

v.

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

Respondent.

/

FINAL ORDER

THIS CAUSE is before me for consideration of the hearing officer's April 15, 1996, Recommended Order concluding that the department erred by disqualifying petitioner from employment in a position of special trust based on misdemeanor battery convictions.

I reject the hearing officer's conclusion of law that petitioner's convictions do not disqualify him from employment in a position of special trust. Sections 435.03(3)(b) and 435.04(3)(b), Florida Statutes (1995) 1/ provide that a person in a position of special trust must not have "committed an act that constitutes domestic violence as defined in [section 41.30, Florida Statutes] ." Although not specifically convicted of violating section 41.30, Florida Statutes, the facts as found by the hearing officer clearly establish that petitioner committed acts that meet the statutory definition of domestic violence.

The facts as found by the hearing officer, however, also demonstrate that petitioner has rehabilitated himself such that he does not pose a threat to children or the developmentally disabled.

Accordingly, it is ORDERED that petitioner is hereby granted an exemption from disqualification from employment in a position of special trust.

DONE and ORDERED this 26th day of October, 1996 in Tallahassee, Leon County, Florida.

EDWARD A. FEAVER, Secretary Department of Health and

Rehabilitative Services

By: CHARLES KIMBER

Deputy Secretary for Human Services

ENDNOTE

1/ I assume, without deciding, that chapter 435 applies to this case. In any event, section 402.305(2)(b)3., Florida Statutes (Supp. 1994), provides an identical result on these facts.

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS', AND A SECOND COPY ALONG WITH FILING FEE `AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDE"-. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

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

Rehabilitative Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Carlton Jones

Background Screening Coordinator Department Of Health and

Rehabilitative Services Post Office Box 2417

Jacksonville, Florida 32231-0083

W. D.

2263 Bradford Street

Jacksonville, Florida 32209

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U.S. Mail or hand delivery to each of the above-named persons this 26th, day of October, 1996.

Gregory D Venz Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

(904) 488-2381

Docket for Case No: 96-000576

Orders for Case No: 96-000576