STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAMON L. LEE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3476

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on August 19, 1996, in Macclenny, Florida.

APPEARANCES

For Petitioner: Damon L. Lee, pro se

604 South Boulevard West Macclenny, Florida 32063

For Respondent: Roger L. Williams, Esquire

Post Office Box 2417 Jacksonville, Florida 32231-0083

STATEMENT OF THE ISSUE

The issue is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.

PRELIMINARY STATEMENT

This matter began on July 5, 1996, when respondent, Department of Health and Rehabilitative Services, issued a letter denying a request by petitioner, Damon L. Lee, for exemption from disqualification under the background screening statutes. The disqualification was "based on an offense of battery or spouse- domestic violence on July 13, 1994." Petitioner then requested a formal hearing under Section 120.57(1), Florida Statutes, to contest the proposed action.

The matter was referred by respondent to the Division of Administrative Hearings on July 24, 1996, with a request that a Hearing Officer be assigned to conduct a formal hearing. By Notice of Hearing dated July 31, 1996, a final hearing was scheduled on August 19, 1996, in Macclenny, Florida.

At final hearing, petitioner testified on his own behalf and presented the testimony of Kimberly Pender, a former co-worker. Also, he offered petitioner's

exhibits 1-6. All exhibits were received in evidence. Respondent offered respondent's exhibits 1-8 which were received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by respondent on August 23, 1996. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. This case involves a request by petitioner, Damon L. Lee, for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner intends to work in a developmental services facility for retarded persons. Respondent, Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of approving or denying such requests.

   
   

2. Petitioner is now barred from working in such a facility because of a disqualifying offense which occurred on June 1, 1994. On that date, petitioner was arrested for the offense of "battery on spouse, domestic violence," a misdemeanor.

   
   

3. On the evening of June 1, 1994, petitioner went to the residence of his girlfriend in Baldwin, Florida, where he discovered that another male was present. As he started to leave the premises, his girlfriend, who was four months pregnant, followed him outside and an altercation ensued. She took a broom and began smashing the windows of petitioner's vehicle, causing $458.32 in damages. While attempting to stop her, petitioner grabbed his girlfriend and pushed her to the ground. Although not seriously injured, the girlfriend received marks on her body where petitioner grabbed her.

   
   

4. After an investigation was conducted by local law enforcement officials, petitioner was arrested and charged with domestic violence. Whether petitioner pled guilty or nolo contendere to the charge is unclear. In any event, on July 13, 1994, he was given three months supervised probation and was required to enroll in, and complete, an anger control class. Thereafter, he successfully completed all terms of probation and a six-week anger control class. Other than this incident, petitioner has never been charged with any other crime.

   
   

5. After being disqualified from employment, petitioner appeared before a three-person committee composed of local HRS employees seeking an exemption. At that time, he was told that his request was being denied because he had not brought to the hearing proof that he had successfully completed the terms of his probation and the anger control class. This proceeding followed.

   
   

6. When the incident occurred, petitioner was employed by Jacksonville Electric Authority (JEA). Because of his arrest, however, JEA terminated his employment. For the same reason, he was denied employment with AT&T Corporation. He eventually obtained employment as a program assistant with Kincaid Cluster Homes, a facility for retarded persons in Jacksonville, Florida, where he worked for six weeks until the disqualifying offense was discovered.

   He is presently enrolled in a special HRS program known as the Project

   Independence Program for food stamp recipients since he has custody of, and is caring for, two small children.

   
   

7. Petitioner, who is twenty-three years of age, has completed course work at Lake City Junior College and is now enrolled at Florida Junior College in Jacksonville seeking to attain a degree in computer programming. He desires an exemption so that he can work on a part-time basis at Kincaid Cluster Homes, which has promised to rehire him if his request for an exemption is approved. Besides needing the income for college, petitioner also has children who rely upon him for their support.

   
   

8. Petitioner was described as a responsible, reliable worker at Kincaid Cluster Homes and is well-liked by the staff and clients. This was not contradicted. He will not present a danger to the safety or well-being of that facility's clients.

   
   

9. Based on petitioner's own testimony, as corroborated by letters from third parties, and the testimony of his former co-worker at Kincaid Cluster Homes, it is found that petitioner has presented sufficient evidence of rehabilitation so as to justify approving the exemption.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. In 1995, the legislature comprehensively amended the statutes which govern those persons seeking to work with children or the developmentally disabled. See Chapter 95-228, Laws of Florida. In this proceeding, the disqualifying offense, domestic violence, occurred in 1994, and therefore the provisions of Section 393.0655(3)(b), Florida Statutes (Supp. 1994), must apply. This is because Section 64, Chapter 95-228, Laws of Florida, provides that the screening standards in Section 393.0655, Florida Statutes (Supp. 1994), apply to offenses occurring before October 1, 1995, while the new screening standards in Section 435.07, Florida Statutes, apply to offenses occurring after that date. See, e.g., W. D. v. Dep't of Health and Rehab. Services, Case No. 96-0860C (DHRS, August 6, 1996). The "old" and "new" screening standards are essentially the same in all material respects except that the new standards no longer require that the applicant demonstrate that he or she has "good character."

    
    

12. Section 393.0655(1)(b), Florida Statutes (Supp. 1994), reads as follows:

    
    

    (b) 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 the exemption. The person shall bear the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circum- stances 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 the children. The

    decision of the department regarding an exemption may be contested through the hearing procedures set forth in chapter 120.

    
    

13. By evidence which meets the appropriate evidentiary standard, petitioner has demonstrated that he is "of good character," is sufficiently rehabilitated since his arrest in 1994, and will not "present a danger to the safety or well-being of (his clients)." This being so, his request for an exemption from disqualification from employment in a position of special trust should be approved.

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 petitioner's request for an exemption from

disqualification for employment in a position of special trust.

DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Florida.

DONALD R. ALEXANDER, 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 27th day of August, 1996.

Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the evidence, unnecessary, subordinate, or a conclusion of law.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Room 200-X Tallahassee, Florida 32399-0700

Richard E. Doran, Esquire Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

Mr. Damon L. Lee

604 South Boulevard West Macclenny, Florida 32063

Roger L. Williams, Esquire Post Office Box 2417

Jacksonville, Florida 32231-0083

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 Department of Health and Rehabilitative Services concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the Department of Health and Rehabilitative Services.

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

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DAMON L. LEE

Petitioner,

v. CASE NO. 96-3476

RENDITION NO. HRS-96-417-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 has demonstrated rehabilitation from a single 1994 incident of misdemeanor battery/domestic violence, such that petitioner is not a threat to children or disabled adults. No exceptions to the Recommended Order have been filed.

The Recommended Order is approved and adopted except for the application of section 393.0655, Florida Statutes (Supp. 1994). It is immaterial in the instant case whether that statute, or chapter 435, Florida Statutes (1995), is applied, and I do not, therefore, reach the issue presented in paragraph 11 of the Recommended Order. 1/

Accordingly, it is ORDERED that petitioner's request for an exemption from disqualification from working with children and the developmentally disabled be and is hereby GRANTED.

DONE and ORDERED this 20th 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

ENDNOTE

1/ To the extent that the order in W. D. v. Dept. of Health and Rehabilitative Services, Case No. 96-0860C (August 6, 1996), suggests that the department has taken a position on this issue, it is hereby receded from.

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:

Donald R. Alexander, Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

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

Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231

Carlton Jones

Background Screening Coordinator Department of Health and

Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231

Damon L. Lee

604 South Blvd. West Macclenny, Florida 32063

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 2nd, day of January , 1997.

Gregory D. Venz Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

(904) 488-2381

Docket for Case No: 96-003476

Orders for Case No: 96-003476