STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH R. BYRD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0741

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings, held a formal hearing in this matter on March 20, 1996, in Bartow, Florida.

APPEARANCES

For Petitioner: Joseph R. Byrd, Pro se

4622 DeVon Avenue

Lakeland, Florida 33803

For Respondent: Roland Reis, Esquire

Department of Health and Rehabilitative Services

District XIV

270 Bartow Municipal Airport Bartow, Florida 32830

STATEMENT OF THE ISSUE

Should Petitioner's request for exemption from disqualification from employment in a position of special trust be granted?

PRELIMINARY STATEMENT

By letter dated January 22, 1996, the Department of Health and Rehabilitative Services (Department) advised Petitioner Joseph R. Byrd that his request for exemption from disqualification from employment in a position of special trust with children had been denied. By letter dated January 27, 1996, Petitioner requested an administrative hearing under Chapter 120, Florida Statutes, on the Department's denial. On February 8, 1996, the Department referred this matter to the Division of Administrative Hearings (Division) for the assignment of a Hearing Officer and the conduct of a hearing.

At the hearing, Petitioner testified on his own behalf but did not present any other witness. Petitioner's exhibits 1 through 3 were received as evidence. The Department did not present any testimony or documentary evidence.

There was no transcript of the proceeding filed with the Division. The Department timely filed its proposed findings of fact and conclusions of law. Petitioner elected not to file any proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact submitted by the Department has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is charged with the responsibility under Chapter 394, Florida Statutes, of conducting a background screening on any individual applying for, or employed in, any position of special trust with children in a mental health facility or a drug and alcohol rehabilitation facility.

   
   

2. The purpose of the background screening is to determine if the individual has committed an offense which would disqualify the individual from working in positions of special trust with children.

   
   

3. At the time of background screening, Petitioner was employed by Central Florida Human Services, Inc. as a counselor and caretaker of children with substance abuse problems.

   
   

4. Because Petitioner was employed in a position of special trust with children at Central Florida Human Services, Inc. he was required to undergo background screening. As a result of the background screening, the Department discovered that Petitioner had been convicted in 1974 of second degree murder, a disqualifying offense. Upon learning of this disqualifying offense, the Department notified Petitioner that he could no longer continue to work in that position without an exemption from disqualification from employment in a position of special trust with children.

   
   

5. Petitioner filed a request for exemption from disqualification from employment in a position of special trust with children with the Department. By letter dated January 22, 1996, the Department denied Petitioner's request for exemption from disqualification from employment in a position of special trust with children. Subsequently, Petitioner requested an administrative hearing under Chapter 120, Florida Statutes.

   
   

6. In October 1973, Petitioner was involved in a shooting in a bar that resulted in another man, a known drug dealer, being killed with his own gun. During the time surrounding the shooting, Petitioner was a drug abuser, using cocaine and marijuana. At the time of the shooting, Petitioner was 26 years of age.

   
   

7. Petitioner does not deny shooting this person. However, Petitioner contends that the person was killed by someone else after Petitioner shot this person. Apparently, there was insufficient evidence to support Petitioner's contention.

   
   

8. Petitioner was tried before a jury in March 1974, and convicted of second degree murder. Petitioner was represented by counsel during this trial.

   
   

9. Petitioner was sentenced by the court in May 1974, to one year in a drug rehabilitation program, followed by five years probation. From the time of

   his arrest in October 1973, until he was sentenced in May 1974, a period of approximately eight months, Petitioner was incarcerated in the county jail.

   
   

10. Petitioner successfully completed both the drug rehabilitation program and the five years probation.

    
    

11. Petitioner earned his GED during the time he was in the drug rehabilitation program.

    
    

12. Also, while undergoing drug rehabilitation, Petitioner developed an interest in counseling and psychology. In furtherance of this interest, Petitioner earned an A. A. degree in Experimental Two-Year Counseling Program from Dade County Community College, Miami, Florida., a B.S. degree in Psychology from Nova University, Fort Lauderdale, Florida and a Master's degree in Mental Health Counseling from Valley State College, Fort Valley, Georgia. Petitioner worked full-time as a social worker while attending school.

    
    

13. Subsequent to his completion of the drug rehabilitation program, excluding the time he has been disqualified, Petitioner has worked in the field of drug rehabilitation and counseling.

    
    

14. Petitioner has not abused drugs or other illegal substances since he began in the drug rehabilitation program in 1974.

    
    

15. Petitioner has never been disciplined for misconduct or poor job performance in his employment since he was sentenced in May 1974.

    
    

16. Although Petitioner was arrested on an alleged shoplifting charge, the charge was dropped without any conditions being imposed.

    
    

17. Petitioner has six children ranging in age from 6 years 31 years. Petitioner has been divorced and remarried. Although he and his first wife share parental responsibility for the children, Petitioner pays child support and is current with his child support payment.

    
    

18. Petitioner has never been investigated by the Department or abuse investigators from any other state for suspected abuse or neglect of his children or any other children.

    
    

19. Petitioner has been working in Florida since 1992. Petitioner has also worked in the State of Georgia and the State of New York.

    
    

20. There is competent substantial evidence to establish facts to show that Petitioner has rehabilitated himself such that he will not present a danger to the safety or well being of children and that he is of good moral character so as to justify an exemption from disqualification.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings pursuant to Section 120.57(1), Florida Statutes (1995) and Section 394.457(6)(c)2., Florida Statutes (Supp. 1994).

    
    

22. Section 394.457(6), Florida Statutes (Supp. 1994), was substantially amended during the 1995 legislative session. Under the new law, exemption requests relating to offenses occurring on or after October 1, 1995, are

    governed by the screening standards in Section 435.07, Florida Statutes (1995), while pre-October 1, 1995, offenses continue to be governed by the standards in Section 394.457(6), Florida Statutes (Supp. 1994). See Section 64, Chapter 95- 228, Laws of Florida, and W. D. vs. Department of Health and Rehabilitative Services, DOAH Case No. 96-0860C, dated March 27, 1996. Because Petitioner's offenses occurred in 1973, the "old" standards must necessarily apply.

    
    

23. Sections 394.457(6)(a)1. , (c)1.a. and (c)2., Florida Statutes (Supp. 1994), provide in pertinent part as follows:

    
    

    (6) SCREENING OF MENTAL HEALTH PERSONNEL.--

    (a) The department shall [establish minimum standards as to good moral character], based on screening, for mental health personnel. Such minimum standards for screening shall ensure that no mental health personnel have been found guilty of, regardless of adjudi- cation, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:

    (1) Chapter 782.04, relating to murder.

    * * *

    (c)1. For the following, the department may grant to any person an exemption from disqualification from working with children or the developmentally disabled:

    a. Felonies, [other than specified felonies], prohibited under any of the foregoing Florida Statutes cited in paragraph (a) or under similar statutes of other jurisdictions, [committed more than 3 years previously].

    For the purposes of this sub-subparagraph, ["specified felony" means those felonies in the Florida Statutes enumerated in subpara- graphs (a)1]., . . . or under any similar statute of another jurisdiction;

    * * *

    2. In order to grant an exemption to a person, the department must have clear and convincing evidence to support a reasonable belief that the person is of [good character so as to justify an exemption. The person bears the burden of setting forth sufficient evidence

    of rehabilitation], including, but not limited to, the circumstances surrounding the incident, the time period that has elapsed since the incident, the nature of the harm occasioned

    to the victim, and the history of the person since the incident or such other circumstances that shall by the aforementioned standards [indicate that the person will not present a danger to the safety or well being of children]. The decision of the department regarding an exemption may be contested through a hearing under chapter 120. [Emphasis supplied]

24. Because Petitioner's disqualifying offense is a specified felony under Section 394.457(6)(a)1., Florida Statutes (Supp. 1994), it appears that he would never be eligible for an exemption from disqualification from employment in a position of special trust with children. However, in Fewquay v. Page, Case No. 86-22339 (U.S.D.C. S.D.Fla., dated September 15, 1987), the court concluded that an irrebuttable presumption that a person convicted of a felony is unfit to be placed in a position of special trust was unconstitutional. See J. M. vs. Department of Health and Rehabilitative Services, (Amended Final Order dated April 3, 1991) wherein the Department of Health and Rehabilitative Services acquiesced in that opinion.

    
    

25. Petitioner's disqualifying offense occurred in October, 1973, which is more than three years previous to Petitioner's request for exemption from disqualification. Therefore, the three-year waiting period has been satisfied.

    
    

26. By evidence which meets the appropriate evidentiary standard, Petitioner has established that he is of "good moral character", is sufficiently rehabilitated since his arrest in October 1973, and will not "present a danger to the safety or well-being of children". Having met the standards set forth in Section 394.457(6), Florida Statutes (Supp. 1994), for exemption from disqualification, Petitioner's request for exemption from disqualification from employment in a position of special trust should be granted.

RECOMMENDATION

Based 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 granting Petitioner's request for an exemption from disqualification from employment in a position of special trust.

RECOMMENDED this 24th day of April, 1996, at Tallahassee, Florida.

WILLIAM R. CAVE, 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 24th day of April, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0741C

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case.

Petitioner's Proposed Findings of Fact.

Petitioner elected not to file and proposed findings of fact.

Department's Proposed Findings of Fact.

1. Proposed findings of fact 1, 2, and 4 through 13 are adopted in substance as modified in Findings of Fact 1 through 20.

2. Proposed finding of fact 3 is neither material nor relevant.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Joseph R. Byrd, Pro se 4622 DeVon Avenue

Lakeland, Florida 33803

Roland Reis, Esquire Department of Health and

Rehabilitative Services District XIV

270 Bartow Municipal Airport Bartow, Florida 33830

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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: 96-000741

Orders for Case No: 96-000741