STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CULTON BLUE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1744

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, conducted the final hearing in Fort Myers, Florida, on June 10, 1996. The parties, attorneys, witnesses, and court reporter attended the hearing in Fort Myers. The hearing officer participated by videoconference from Tallahassee.

APPEARANCES

For Petitioner: Culton Blue, pro se

4822 Dueriamae Drive

Fort Myers, Florida 33908

For Respondent: Deborah Studybaker

District Screening Attorney Department of Health and

Rehabilitative Services Post Office Box 60085

Fort Myers, Florida 33906 STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to an exemption from employment disqualification arising out of his criminal conviction for bank robbery.

PRELIMINARY STATEMENT

By letter dated March 5, 1996, Respondent informed Petitioner that it was denying his request for an exemption. By form filed April 1, 1996, Petitioner demanded a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence

19 exhibits. Respondent called no witnesses, but offered into evidence one exhibit. All exhibits were admitted.

Neither party ordered a transcript or filed a proposed recommended order.

FINDINGS OF FACT

1. On September 14, 1977, a jury in Louisiana found Petitioner guilty of armed robbery of a bank on June 9, 1977. On December 22, 1977, the court sentenced Petitioner to 65 years at hard labor.

   
   

2. After initial incarceration at the county jail, from which he escaped twice, Petitioner was sent to the state prison in Angola. The State of Louisiana added two years to his sentence, to run concurrently with the original sentence.

   
   

3. After serving over 18 years, Petitioner was released from Angola on December 14, 1995. He received a commutation of sentence from Governor Edwin Edwards on December 12, 1995.

   
   

4. Petitioner received 40 disciplinary reports the first three years at Angola, seven the next two to three years, and none the last nine years.

   
   

5. While at Angola, Petitioner earned his GED and a two-year computer tech degree. He took correspondence courses from Louisiana State University and performed quite well. He paid for the college coursework by working in the prison fields.

   
   

6. Seeing prison inmates dying, Petitioner suggested to the prison administration that inmates be trained in CPR. The prison administration agreed to allow six inmates to be trained in CPR so they could train the remainder of the inmates. Petitioner was one of the six inmates so trained, and he later trained persons outside the prison in CPR.

   
   

7. After receiving counseling himself, Petitioner served as the chairman of the substance abuse and AA programs at Angola. Once an abuser of drugs and alcohol, Petitioner has not drunk or used drugs since being released from Angola, nor, presumably, well before his release.

   
   

8. After being released from prison, Petitioner, with the permission of Louisiana and Florida authorities, returned to Fort Myers, which is where he grew up. He has just married a woman he has known since they were in high school.

   
   

9. On returning to Fort Myers, Petitioner submitted 50-60 applications for jobs. He accepts without rancor that his criminal background has made it difficult to find employment. However, he eventually found a job as a painter and began work on February 12, 1996. He later took a nighttime job at a dry cleaners, but quit when he began working overtime as a painter.

   
   

10. He has not yet been able to attend school due to financial reasons. However, Petitioner wants to work with the Ruth Cooper Center as a mental health technician. The Ruth Cooper Center would make available for him various educational opportunities, possibly including in the area of Petitioner's real interest of computer programming.

    
    

11. Petitioner is highly intelligent. Petitioner is 41 years old and was in prison since he was 23 years old. He argues persuasively that, given the amount of time that he has been in prison, he should be allowed to demonstrate his rehabilitation through the leadership roles that he occupied while still in prison.

12. After a rocky start, Petitioner prepared himself well in prison to demonstrate rehabilitation. He took advantage of all available opportunities and created additional opportunities for himself and others. However, clear and convincing evidence of rehabilitation requires, given the seriousness of the original crime, that Petitioner demonstrate for more than five months that he is capable of living productively outside of a prison setting. He has shown that it is more likely than not that he is entitled to the exemption; in a few more months of productive life, he should be able to show by clear and convincing evidence that he is entitled to the exemption.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Sections 120.57(1) and 435.07(5), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

14. Section 394.457(6)(a) directs Respondent to require employment screening, under standards set forth in Chapter 435, for mental health personnel. Section 394.457(6)(b) authorizes Respondent, pursuant to Section 435.06, to grant exemptions from employment disqualification.

    
    

15. Section 435.03(2)(r) identifies felonious "theft, robbery, and related crimes" as listed crimes for which conviction results in employment disqualification.

    
    

16. Section 435.07(3) permits Respondent to grant an exemption from employment disqualification if the employee or prospective employee demonstrates

    
    

    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 incident, the time period that has elapsed since the incident, the nature of the harm occasioned 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 continued employment is allowed. or 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 [sic].

    
    

17. There is no evidence that anyone was harmed in the bank robbery, although armed robbers certainly posed a real threat of harm to innocent persons. Nineteen years have passed since the crime. Petitioner's history since the crime has been good, and it is more likely than not that he would not present a danger if employed as a mental health worker. However, the limited time that Petitioner has been out of prison prevents him--at this time--from proving by clear and convincing evidence that he is entitled to the exemption.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying Petitioner an exemption without prejudice to reapplying at anytime.

ENTERED on July 3, 1996, in Tallahassee, Florida.

ROBERT E. MEALE

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 on July 3, 1996.

COPIES FURNISHED:

Deborah Studybaker

District Screening Attorney Department of Health and

Rehabilitative Services Post Office Box 60085

Fort Myers, Florida 33906

Gregory D. Venz Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Culton Blue

3324 Armstrong Court

Fort Myers, Florida 33916

Culton Blue

4822 Dueriamae Drive

Fort Myers, Florida 33908

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

CULTON BLUE

Petitioner,

v. CASE NO. 96-1744

RENDITION NO. HRS-96-391-FOF-RCD

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

Respondent.

/

FINAL ORDER

THIS CAUSE is before me for entry of a Final Order.

The Recommended Order concludes that petitioner failed to present clear and convincing evidence to establish rehabilitation from a criminal offense which disqualified him from employment in a position of trust as a mental health technician. No exceptions to the Recommended Order have been filed.

The Recommended Order is approved and adopted except for the hearing officer's application of chapter 435, Florida Statutes (1995). I neither adopt nor reject that conclusion of law, and I express no opinion as to whether chapter 435 or section 394.45, Florida Statutes (1993), applies to this case.

The same result would be achieved under either statute.

Accordingly, it is ORDERED that petitioner's application for exemption from disqualification from employment in a position of special trust as a mental health technician is DENIED.

DONE and ORDERED this 5th day of December, 1996, in Tallahassee, Leon County, Florida.

EDWARD A. FEAVER, Secretary Department of Health and

Rehabilitative Services

By: SAMARA H. NAVARRO, D.B.A.

Deputy Secretary

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 RESIDES. 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:

Robert E. Meale, Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Deborah Studybaker, Esquire District 8 Legal Office Department of Health and

Rehabilitative Services Post Office Box 60085

Fort Myers, Florida 33906

Sherry Arnbler

Background Screening Coordinator Department of Health and

Rehabilitative Services Post Office Box 60085

Fort Myers, Florida 33906

Culton Blue

4822 Dueriamae Drive

Fort Myers, Florida 33906

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 10th, day of December, 1996.

Gregory D. Venz Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32399-000

(904) 488-2381

Docket for Case No: 96-001744

Orders for Case No: 96-001744