STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT MALLAN, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2904

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on August 19, 1996, (by televised conference hearing), September 12, 1996 and September 29, 1996, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Elizabeth M. Hapner, Esquire

101 S. Franklin Street, Suite 100 Tampa, Florida 33602

For Respondent: Josefina M. Tamayo, Esquire

Jenifer S. Lima, Esquire Department of Health and

Rehabilitative Services

400 West Dr. M.L. King, Jr. Boulevard Tampa, Florida 33614

STATEMENT OF THE ISSUE

The issue for consideration in this matter is whether Petitioner should be granted an exemption from disqualification to serve as a foster parent because of the matters alleged in the Department's letter of denial dated June 7, 1996.

PRELIMINARY STATEMENT

By letter dated June 7, 1996, Charles Taylor, District Administrator of District 6, Department of Health and Rehabilitative Services, advised Mr. Mallan that his request for exemption from disqualification had been reconsidered and the original decision to deny exemption confirmed because Mr. Mallan had failed to provide clear and convincing evidence of rehabilitation. Mr. Mallan requested formal hearing to contest the d enial and this hearing ensued.

Over a hearing which took two days at different times to complete, Petitioner testified in his own behalf and presented the testimony of Jenifer Mallan, his wife; Detective Curtis Cook, Hillsborough County Sheriff's Office; the Honorable James Moody, Hillsborough County Circuit Judge; Henry Blanton, a

real estate broker and Center Boy Scout Committee chairman; Emma Turner, a School Community Specialist with the Hillsborough County Schools; Fred and Janet Landry, husband and wife members of Petitioner's church who took marital counseling with Petitioner; Dwight Woods, Sr., an assistant principal with the Hillsborough County Schools; Ivette Gonzales and dawn Hayes, school teachers; Ida Walker, administrative assistant to thew Chief, Tampa Police Department; Randy White, Senior Pastor at the South Tampa Christian Center; Paul Hollis, director of counselling at the Center; Sarah Cummins, guardian ad litem for the foster children in issue; Amy Bierns-Rainey, an employee of the Department of Health and Rehabilitative Services; Arlene Freed-Vest, an employee of the Department of Corrections; Jose A and Dorcas Rodriguez, husband and wife both attending MAPS training and familiar with Petitioner; Sandra Paloma, employed by the Department's foster care office; Susan Morgan, an employee of Children's Home Service and counselor of children for the Department; Johnie M. Roye, natural mother of the boys in question; and Noel Perez, who attended MAP training with Petitioner. Petitioner also introduced Petitioner's Exhibits 1 and 2, which included the deposition of Katherine Moers, formerly a chldren and youth counselor for the Department. In addition, the undersigned received numerous communications from individuals familiar with Petitioner's work with youth and children trhough his involvement with the youth program of the South Tampa Christian Center. Though these testimonials were not given under oath and were not authenticated by counsel, they were read and noted by the undersigned in the preparation of this Recommended Order.

Respondent presented the testimony of Olga S. Williams, executive director of the Family Enrichment Center, (FEC), a private child placement agency in Hillsbosrough County; Delores L. Davis, a training coordinator for FEC; Stephen Cribb, a corporal with the Hillsborough County Sheriff's Office; Alicia M. Miller, a licensing counselor for FEC; James E. Thomas, a screening coordinator for the Department's District 6; Harrietyt L. Scott, assistant program manager for District 6; and Charles Taylor, the Department's District 6 Administrator. By deposition filed after hearing, the Department also presented the testimony by deposition of Jack Hubman, at the time in issue a deputy sherrif in Leon County, and portions of a deposition taken of Joy Lynn Lillie, co-actor with Petitioner in the misconduct for which he was tried and convicted and which forms the basis for his disqualification. Respondent also introduced Respondent's Exhibit A.

No transcript of the proceedings was furnished. Subsequent to the hearing only counsel for the Respondent submitted Proposed Findings of Fact. By Motion For extension of time filed on November 12, 1996, counsel for Petitioner sought additional time to the end of November, 1996 to file closing arguments. Over opposition by counsel for the Department, the time was granted, but no further sumittal from counsel for Petitioner has been forthcoming as of the date of this Recommended Order. Petitioner has, as late as December 6, 1996, inquired as to when this Recommended Order would be issued. From that it is concluded that no further material will be submitted by counsel for Petitioner. Any matters submitted by either counsel were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times relevant to the issues herein, the Department of Health and Rehabilitative Services was the state agency responsible for the licensing of, inter alia, foster homes and foster parents in Florida, and for the granting of expemptions from disqualification for licensing for persons who otherwise would net be eligible for licesning due to prior misconduct.

2. Petitioner, Robert Mallan, was convicted in Circuit Court in Hillsborough County of kidnapping and grand theft - 3rd degree, on November 12, 1991. The kidnapping related to the ten year old son of the boyfriend of a female friend of the Petitioner, Ms. Lilly. While admitting his participation and liability for the incident, Petitioner contends that the boy was taken by the young lady in an effort to exact revenge against her lover, the boy's father, for abusing her and to scare him so he would not touch her aqain. Petitioner's part, he asserts, was to rent the motel room where the child was taken for the woman and her accomplice sister, and when the plot began to fall apart, the two women implicated him. Ms. Lilly's testimony in a deposition given in August, 1991, prior to the criminal trial, paint a far more sinister participation by the Petitioner. Regardless of the motive for the act, Petitioner was found guilty of the offenses alleged, including the grand theft charge, and because some members of the jury hearing his case recommended clemency, he was sentenced as a youthful offender and was incarcerated for approximately eighteen months as a result thereof.

   
   

3. Petitioner's wife, Jennifer Mallan, met and developed a relationship with two children in February, 1992. These children, the two S. boys, were the natural children of Johnnie Marie Roye, whose parental rights have been terminated. Desiring to take care of the children, Ms. Mallan undertook training as a foster parent through the Family Enrichment Center in Hillsborough County which trains, educates and assesses potential operators of foster homes for licensure. Ms. Mallan's home was subsequently licensed as a foster home in October 1994, prior to her marriage to the Petitioner, and became the foster home to the two S. boys. Petitioner met the children in August 1992, well before he and Jennifer were married, and he developed a good relationship with them.

   
   

4. Once Ms. Mallan married the Petitioner, it becamae necessary for him to receive the foster parent training as well in order for the two S. boys to remain in the Mallan home. Therefore, as a part of the paper work incidental to his licensure, which, according to Ms. Wiliams, the Executive Director of the FEC, consisted of approximately twenty separate documents, Mr. Mallan filled out the form to initiate a background check. This check when completed in December 1994, revealed no record of any conviction. For some reason, however, a second background check, to include fingerprints, was required in the latter part of 1995. Incidental to that check, Petitioner filled out an Affidavit of Good Moral Character in September 5, 1995 on which, under penalty of perjury, he attested that he had not been found guilty of any of the criminal violations listed thereon, including kidnapping under Section 784.01, Florida Statutes.

   
   

5. This affidavit is generally prepared by the trainee, under the supervision of the trainer, Ms. Davis, in conjunction with a training session. In this case, because Mr. Mallan had indicated he would not be available to attend training sessions on Thursdays, (one half the course), Ms. Williams cannot be sure whether he receive the standard verbal instructions given to applicants that they shyould not try to hide anything in their backgrounds. However, both Ms. Williams and Ms. Davis gave all the trainees their home phone numbers and offered to help in the prepartion of the documents after hours. Neither lady was contacted by Respondent with questions about any of the documents.

   
   

6. Petitioner signed the affidavit at the spot provided therefore on the back of the form where someone had placed an "X". The form is self-explanatory and easy to read. Alicia Miller, the licensing worker at the Family Enrichment

   Center,who helped Ms. Mallan obtain her foster care license, and who was also helping Petitioner to obtain his, claims she explained the contents of the affidavit to him during the one and a hours she spent at his place of employment going over the forms with him, and he did not request an explanation of the affidavit form. Others who took the FEC's foster parent training, including Steven Link and Noel Perez, filled out the same affidavit and neither had any trouble comprehending the language on the form. Mr. Link indicates they were given many forms to fill out, some of which were read by the teacher. Others were self-explanatory. Not all the forms were given out on the same night.

   
   

7. The results of the second background investigation revealed Petitioner had a conviction for kidnapping. This information was discovered by James Thomas, the background screening unit coordinator for the Department, who in turn informed Alicia Miller of the fact and that that conviction disqualified Petitioner from obtaining clearance as a caretaker for children. Ms. Miller passed this information on to Mr. Mallan who requested an exemption.

   
   

8. All foster parents must be screened for violations of the law, some of which may disqualify a person from serving as a caretaker of children or from obtaining a foster caer license. When a person is disqualified because of a particular violation, that individual must seek an exemption from the agency before he or she can be licensed.

   
   

9. A hearing was held on this request on May 10, 1996, In addition to his oral presentation, Mr. Mallan also provided the agency with numerous reference letters from people in the community who have known his through his church involvement. The informal exepmtion hearing of May 10, 1996 was attended by Mr. Thomas, Don McNair, the operations management consultant who specializes in the licensing of shelter and foster homes, Mr. and Mrs. Mallan, Alicia Miller, Randy White and Mark katherin Moers.

   
   

10. As a result of this hearing, on May 20, 1996 the agency advised Mr. Mallan by letter that his request for exemption had been denied. The reason given for the denial was that Mr. Mallan did not show adequate remorse for his actions in kidnapping the child taken nor was he sufficiently forthright in explaining his involvement in the crime. Before recommending denial of Petitioner's request for exemption, Mr. Thomas reviewed the court records relating to the kidn apping charge and concluded that Mr. Mallan's version of the crime at the exemption hearing was not consistent with what was shown in the records. Mr. Mallan's story tended to indicate his involvement in the actual kidnapping was minimal, but an investigator from the Hillsborough County Sheriff's Office, who participated in the investigation of the crime, indicated that was not so.

    
    

11. After the committee which heard Petitioner's request for examption met and recommended denial of the exemption, Mr. Mallan requested a second exemption hearing at which he could present his reasons for granting the exemption.

    Though such a hearing is not normally granted, at the direction of the District Administrator, Mr. Taylor, Mr. Mallan was granted a second exemption hearing at which he could discuss the progress he has made since his imprisonment. At this second hearing, held on May 31, 1996, Petitioner was heard by Harriet Scott, a district program manager; Mr. Thomas; and Mr. McBride, an agency licensing supervisor. The District Administrator, Mr. Taylor, also sat in for a part of the hearing but did not ask any questions of Mr. Mallan.

    
    

12. During this second hearing, Petitioner claimed he was "railroaded" at his criminal trial by the prosecution and his two co-defendants, Ms. Lilly and

    Ms. Parmenter. When asked why he had a gun in his possession at the time of the kidnapping, Mr. Mallan explained he was going to use the gun to committ suicide and denied he used it during the commission of the kidnapping. However, when he was arrested by a Leon County Deputy Sheriff in a Tallahassee motel, he made several inconsistent statements regarding the location of the weapon. At the time of his arrest, he was dressed in a tuxedo and waiting for his girlfriend, now his wife, to pick him up to atten a formal sorority function.

    
    

13. The decision to deny Petitioner's request for edxemption from disqualification was a difficult one for the committee to make. The evidence indicates that the two S. boys have been doing well in the care of Mr. and Mrs. mallan and want to return to their home. However, the initial decision to deny the request was made by Mr. Taylor, the District Administrator. Both members of the first committee appointed to review the case recommended denial of the request, and Mr. Taylor agreed only after reading all materials furnished to him by the committee. Several days after the denial letter was sent out, Mrs. Mallan called Mr. Taylor and before he could respond, Mr. Mallan also called to express his concern over the denial, indicating he did not feel he had been given a chance to present his full story. Based on this, and on the fact that Mr. Taylor had some additional questions to ask of the Petitioner, the second hearing was granted.

    
    

14. Mr. Taylor classifies this case as one of the 4 or 5 most difficult decisions and the most difficult exemption decision he has had to make during his tenure as District Administrator. His concerns, which ultimately culminated in his decision to deny exemption, were:

    
    

    1. He did not feel Petitioner was entirely truthful at his first hearing and was evasive and misleading in the information given to the FEC.

    2. Petitioner did not express any remorse for his actions. During the period Mr. Taylor sat in during the second exemption hearing, Petitioner appeared almost arrogant and defiant in his approach to the committee.

    3. Taylor did not feel Petitioner accepted responmsibility for his actions. Throughout the hearing, Petitioner denied, minimalized and trivialized what he had done and consistently tried to place the blame on others.

       
       

15. Many of the concerns expressed by Mr. Taylor were also felt by other committe members such as Ms. Scott. She, too, had the feeling that Petitioner was dissembling and not telling the whole truth. She concluded that the five years which had passed since the conviction was not enough time for Petitioner to be rehabilitated.

    
    

16. Once the second hearing was over, Mr. Taylor had no doubts as to those factors cited in the paragraph next above, but he had great concern for the two children involved. He had to weigh these concerns. Before making his final decision, Mr. Taylor read and accepted as sincere all the letters sent in by Petitioner's friends and supporters. Mr. Taylor has no doubt that Petitioner is recognized as having done considerable good in the community, but all this has a hollow core, and without sincere remorse, the rest does not ring true for him. To Mr. Taylor the issue was not whether the two children in issue had a good

    home or whether Petitioner has done good, but whether Petitioner has been sufficiently rehabilitated, and based on what he has observed, Mr. Taylor concluded Petitioner has not.

    
    

17. None of the staff of the Family Enrichment Center, including Olga Williams, the Director, Delores Davis, a training coordinator and teacher of the the Model Approach to parenting and Pertnership (MAPP) classes, or Alicia Miller, all of whom knew the Mallans through contact at the FEC, were ever informed prior to the marriage that Jennifer was going to marry Petitioner, nor were they informed by either that Petitioner had been convicted of kidnapping.

    
    

18. Mr. Mallan is currently employed by the South Tampa Christian Center, (STCC), where he and his wife are members. He has been involved in community volunteer work since his release from prison. He is an active participant in a church program called "Conquering Force" in which he speaks to inner city children to convince them that the decisions they make today will affect their future. Though in these talks he has admitted to a prior conviction and incarceration, he has never discussed in detail with any audience the nature of his offense and the circumstances surrounding it. In addition to his work at STCC, Mr. Mallan has volunteered and worked at other community organizations which serve children's needs.

    
    

19. It appears from Mrs. Mallan's recounting of the relationship amongst herself, Petitioner and the two S. boys has been quite good. When she and Petitioner decided to marry, and she realized both she and he would have to be liecensed as foster parents, she claims she advised the Department of Petitioner's conviction and also advised her MAPP teacher, asking if it would be worthwhile to continue with the trainin in light thereof. She claims to also have told Ms. Miller who, she relates, also told her the conviction would not be a problem so long as Petitioner has been clean since his release from prison. Once they were married, she contends, they both advised the relevant agency authorities of his conviction.

    
    

20. Ms. Mallan contends that Petitioner should receive an exemption b ecause since he got out of prison he has lived rehabilitation for himself and others. He works with children to help and assist in decision making. He has never shown anything contrary to rehabilitation ahd wants to have a positive influence on youth. To her knowledge, parents of the children with whom he comes into contact are grateful for the time and efforts he has expended in Florida, nationally and internationally.

    
    

21. Mr. Mallan became a Christian two weeks after he went to prison. He immediately worked in the chapel and has never backslid, but has been consistent and committed since he gave his life to the Lord. Mrs. Mallan disagrees with the Department's conclusion that Petitioner is not remorseful over what he did. She has heard him publicly speak about it and he has contacted the victim's father to see that the boy is all right.

    
    

22. Petitioner's good wirk is noted by Henry Blanton who served on a committe for a crime forum for the Boy Scouts which was made up of judges, police officials and others related to law enforcement and at which Petitioner was involved. Mr. Blanton had known Petitioner for several years and saw what he was doing for youth, and asked him to get involved. Mr. Blanton's son has been involved with the petitioner through church activities and feels he knows Petitioner quite well. Mr. Blanton is aware of Petitioner's record from Petitioner's public recounting of it as a part of his ministry, and is shocked by the Department's position that Petitioner has not been rehabilitated.

    Blanton is unequivocally convinced that Petitioner has been rehabilitated and has done much for young people in the community. In Blanton's words, Petitioner "should be commended for what he has done - not castigated and raked over the coals."

    
    

23. Tough he his aware of Petitioner's conviction for kidnapping, Mr. Blanton is not aware of the details. As he recalls, Petitioner has referred to the kidnapping as a "prank." Mr. Blanton knows nothing bad about the Petitioner other than his conviction and is not aware of any drug or grand theft charges. He also was not aware that Petitioner was not honest on his affidavit of good moral character, and feels that lying is not evidence of good moral character.

    
    

24. Several other responsible individuals were convinced of Petitioner's worth, having heard of his incarceration through their relationship with him. None was advised of the reason for his imprisonment, however. Nevertheless, all, including a marital counselor and a school community specialist, believe Petitioner is committed to a Christian lifestyle and to God.

    
    

25. Mrs. Mallam's uncle, a Hillsborough County Circuit Judge, has known Petitioner for about five years, before the trial and incarceration. He cannot say whether Petitioner has changed because he did not know Petitioner well before his imprisonment. In the Judge's opinion, it is hard to measure rehabilitation, but he seems to have seen a change in the Petitioner's life style which makes him moere committed to the improvement of youth. Petitioner never denied his crime to this Judge nor did he try to minimize them, but he also never brought the subject up and the Judge never questioned Petitioner about it. All of the responsible individuals such as teachers and school administrtors who have been in contact with the two S. boys attest that they have done well living with the Petitioner and his wife.

    
    

26. Pastor Randy White of STCC first met the Petitioner right after Mr. Mallan was released from prison. At that time, Petitioner was dating Ms. Mallan and wanted to attend his church. For over a year therafter, Petitioner did community service for the church as a part of his probation. He told the pastor he had b een convicted of kidnapping and grand theft and appeared to be remourseful, neither denying nor minimalizing his offenses.

    
    

27. After he completed his period of community service, Petitioner came on staff at the church as outreach director. He performed well and was offeded the position of youth pastor in which capacity he is still employed. In the words of Pastor White, Petitioner has done a "tremendous" job. Churches from all over the country have contacted him seeking to hire him. Both pastor White and the church sponsored Petitioner in a one year "Master pastor" intern program which gave him thirty college credits. Petitioner successfully completed the program.

    
    

28. Pastor White has no reservations about Petitioner's rehabilitation or that he is a productive member of society. Petitioner has now beenb ordained as a minister and has all the qualities of a minister. In Pastor White's opinion, Petitioner has a stable marriage to a woman who is involved in his ministry and woulod not turn to crime.

    
    

29. Recognizing that truth is a part of rehabilitation, Pastor White believed also that an intentional misrepresentation is evidence of bad character. He is aware of Petitioner's reference to his misdeed as a "prank", but also contends that Petitioner told him he had told the Department's representatives of his criminal record. Pastor White has no reason to doubt Petitioner on any level.

30. In that regard, Petitioner counselled with Paul Hollis, the Director of Counseling for STCC in the Fall of 1992. Petitioner wanted to make sure thee was nothing in his background to cause a problem for the church. In the course of the counselling, petitioner gave a full account of his criminal conviction and the details involved. He was very open and did not try to conceal anything. As a rsult of their sessions, Mr. Hollis felt that Petitioner was remorseful and anxious to insure that what happened in his past would never happen again. At that time, Mr. Hollis felt Petitioner was already rehabilitated and nothing has occurred since to cause him to have a question as to Petitioner's rehabilitation. In fact, Petitioner is now helping to rehabilitate others.

    
    

31. Arlene Freed-Vest, Petitioner's probation officer for the fourteen months he was on probation after his release from approximately nine months in prison, supervised him closely during the period of community service he performed upon his release. Petitioner had initially been placed on three and a half years of probation, but she recommended early termination of probation based on her satisfaction he was rehabilitated. This determination was based on a review of his entire file from confinement on and she was satisfied he had received all the benefits he could from prob ation and would not benefit from it further. She concluded that Petitioner took responsibility for his actions and has shown continuing remorse. The fact that he has tried to get on with his life does not mean he is not owning up to his offense.

    
    

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

33. The provisions of Section 409.175(4)(a), Florida Statutes, 1995, disqualify personnel employed by child placement agencies, family foster homes, residential child care agencies, summer day camps and summer boarding camps who have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere to, any offense prohibited under Section 787.01, relating to kidnapping.

    
    

34. However, the statute authorizes the Department to grant an exemption from that disqualification if certain factors are met. The primary qualifications for employees of the facilities cited above concern the good moral character of the employee, based upon screening, education, training and experience. The standards to be used are found in Section 435.04, Florida Statutes.

    
    

35. In addition, Section 435.07(3), Florida Statutes, provides:

    
    

    ... in order for a licensing agency 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, 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 cause 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.

    
    

36. Based on the above citation, it is clear that the burden in this case is upon Mr. Mallan to show, by clear and convincing evidence, that he should be granted the exemption he seeks. In that regard, it is equally clear that Mr. Mallan committed a serious crime over five years ago, and the evidence of record indicates it was a calculated and premeditated crime during the commission of which he gave little consideration to the wellbeing of his victim or to the physical or psychological trauma his actions might have cause the victim.

    
    

37. The Department personnel charged with the evaluation of the factors pertinent to the determination of whether an examption should be granted to this applicant admit that the circumstances of this case are difficult and the decision not an easy one. However, they have concluded from the evidence available to them that Mr. Mallong did not indicate any concern for his victim at the time of the commission of the offense and has shown little remorse since that time for the serious implications of his misconduct. They also conclude that he has attempted to minimalize and trivialize the seriousness of his actions, and have determined that, taken together, his conduct demonstrates no real rehabilitation. On that basis, the determination was made to deny him an exemption from disqualification.

    
    

38. The function of this tribunal is not to review the decision made by the Department authorities so as to decide whether that decision was correct or incorrect. This hearing is a de novo proceeding in which an independent Administrative Law Judge is to make a determination of the propriety of granting the requested exemption based on the evidence presented at this hearing.

    
    

39. As was stated in the Preliminary Matters portion of this Recommended Order, little weight was given to the many unsworn letters and testimonials submitted, ex parte, to the Judge by the Petitioner's friends and supporters, simply because the information contained therein was not given under oath and the opposing counsel was not afforded an opportunity to examine the authors.

    
    

40. The other available evidence of record indicates that Petitioner was involved in the commission of a disqualifying crime under circumstances which show an appaling lack of concern for the physical and mental safety of his victim and the victim's family. That being given, the evidence also shows that Petitioner paid society's price for his misdeeds and was released from probation after confinement far in advance of his set termination date.

    
    

41. Since his release from prison, Ms. Mallas indeed has been engaged in good works. While the Department is concerned that he has not, in his many speeches and lectures, in detail, gone into the circumstances of his crime he has, clearly, not tried to hide it and has freely admitted his conviction and imprisonment for a major crime. It cannot be said there is any evidence of his attempt to trivialize his misconduct even though he has, at times, referred to it as a prank.

    
    

42. The Department is equally concerned by what it perceives as Mr. Mallan's lack of honesty and his attempt to conceal his conviction by his signing an Affidavit of Good Moral Character which indicated he had not been

    convicted of the crime of kidnapping. Mr. Mallan contends the execution of that document as it was completed was a mistake and not an intentional attempt to mislead. In resolving that knotty factual issue one must consider the relaltive probabilities and improbabilities of the conflicting positions. It is manifestly improbable that an individual with Mr. Mallan's cunning would seriously think he could conceal a conviction and term of imprisonment at the same time his fingerprints are being taken for a background check.

    
    

43. On the other hand, those who are trained to evaluate rehabilitation, Petitioner's probation officer, his counsellor at the STCC, his pastor, and a Circuit Judge all have concluded that the Petitioner's misdeeds are a thing of the past; that he recognizes his transgressions, and has tried, over the past five years or so, to make amends for them. These individuals agree that Petitioner has been rehabilitated to the extend that, to paraphrase the terms of the statute, "... the [individual] will not present a danger if continued [contact] is allowed." This has been established by clear and convincing evidence.

RECOMMENDATION

Based on 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 Robert Mallan an exemption from disqualification from residing in a licensed foster home.

DONE and ENTERED this 13th day of February, 1996, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1996.

COPIES FURNISHED:

Elizabeth M. Hapner, Esquire

101 South Franklin Street, Suite 100 Tampa, Florida 33602

Josefina M. Tomayo, Esquire Jennifer S. Lima, Esquire Department of Health and

Rehabilitative Services District 6 Legal Office

4000 West Dr. M. L. King, Jr. Boulevard Tampa, Florida 33614

Gergory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services 1317 Winewood boulevard Building 2, Room 204-X

Tallahassee, Florida 32399-07600

Richard Doran General Counsel

Department of Health and Rehabilitative Services

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-002904

Orders for Case No: 96-002904