STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT KENT SAUNDERS, )

)

Petitioner, )

) CASE NO: 96-4311

vs. )

)

DEPARTMENT OF CHILDREN )

AND FAMILIES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before William A. Buzzett, Administrative Law Judge with the Division of Administrative Hearings, on January 14, 1997, in Panama City, Florida.

APPEARANCES

For Petitioner: Robert Kent Saunders

542-B East 4th Street Panama City, Florida 32401

For Respondent: John R. Perry, Esquire

Department of Children and Families 2639 North Monroe Street, Suite 252-A Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

Whether the Petitioner’s request for an exemption pursuant to Chapter 435, Florida Statutes, should be granted.

PRELIMINARY STATEMENT

By letter dated August 8, 1996, the Respondent, the Department of Children and Families (the Department), advised the

Petitioner, Robert Kent Saunders, that he was ineligible to hold a position of special trust. Mr. Saunders timely requested a formal administrative hearing pursuant to Section 120.57, Florida Statutes. This cause was later assigned to the undersigned administrative law judge for adjudication.

At the hearing, Mr. Saunders testified on his own behalf, and he called no witnesses. One composite exhibit was accepted, without objection, into evidence.1 At the hearing, the Department cross-examined Mr. Saunders, called one witness, Christiane LeClair, and submitted three exhibits that were entered into evidence without objection.2

The parties elected not to transcribe the proceedings. At the hearing, the parties requested the right to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders by February 3, 1997. The Department filed a proposed recommended order, and it was read and considered by the undersigned. Mr. Saunders did not file a proposed recommended order.

FINDINGS OF FACT

1. Mr. Saunders seeks an exemption for employment in a position for which a security background check is required pursuant to Sections 397.451 and 435.04, Florida Statutes.

2. Presently, Mr. Saunders is employed as an intern human service worker at Reliance House, an adult residential facility located in Panama City, Bay County, Florida. In addition to

   working at Reliance House, Mr. Saunders is enrolled at Gulf Coast Community College working toward a degree as a Certified Addition Associate Professional.

3. Mr. Saunders sought this exemption so that he could work with children receiving substance abuse services.

4. In 1990, Mr. Saunders was charged with and plead nolo contendere to the charges of burglary, possession of burglary tools, and carrying a concealed weapon. Mr. Saunders was placed on two years' probation.

5. In 1991, Mr. Saunders pled guilty to the charges of burglary of a structure, attempted burglary of a structure, grand theft, criminal mischief, and burglary of a business.

6. In 1992, Mr. Saunders was charged with burglary of a liquor store. Mr. Saunders testified that the burglary charge was reduced to a charge of criminal trespass and that he remained under court supervised probation until October, 1996.

7. Mr. Saunders expressed remorse for his criminal behavior and accepted complete responsibility. He also believes that he shares some of the same problems that are exhibited by the residents of Reliance House and that he would be a good role model because he is attempting to correct his life.

8. Christiane LeClair is a background screening coordinator employed by the Department of Children and Families. As part of her duties, Ms. LeClair reviews employment applications to determine if an applicant is worthy of a position of special

   trust. Ms. LeClair determined that Mr. Saunders was not qualified because of his conviction of grand theft. She also noted that Mr. Saunders has been released from supervision of the courts for only three months and that it is too early to determine if he has been rehabilitated.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. The parties were duly noticed for the formal hearing.

10. Section 397.451(3), Florida Statutes, relates to substance abuse services providers and states that “the Department shall require employment screening pursuant to Chapter 435, using level 2 standards for screening set forth in that chapter, of service provider personnel who have direct contact with unmarried clients under the age of 18 years or with clients who are developmentally disabled.” Mr. Saunders is employed at a residential facility that offers chemical addiction treatment, and because he seeks approval to care for children undergoing treatment for chemical addiction, he falls within the requirements of chapter 435, Florida Statutes.

11. Section 435.04, Florida Statutes, provides the level 2 screening standards for employees designated by law as holding positions of trust or responsibility. The statute provides that persons subject to the requisite security check are not eligible

    for employment if they have been found guilty of violating, among other statutes, Chapter 812 (theft, robbery, and related crimes).

12. Mr. Saunders was convicted of the felony of grand theft. As a result of his conviction, he is not eligible for employment caring for children without receiving an exemption from the Department.

13. Section 435.07, Florida Statutes, provides that the appropriate licensing agency (the Department) may grant to any employees otherwise disqualified from employment an exemption for

    (1) felonies committed more than 3 years prior to the date of disqualification and (2) misdemeanors.

14. Based on the requirements of Section 435.07, Florida Statutes, Mr. Saunders is eligible for consideration for an exemption from disqualification because his conviction date for grand theft was August 26, 1991 - more than three years ago.

15. The requirements of Section 435.07, however, are permissive. Section 435.07(3) provides that the Petitioner has the burden, by clear and convincing evidence, to demonstrate that he should not be disqualified from employment. The section further provides that the Petitioner must show sufficient evidence of rehabilitation including:

    . . . the circumstances surrounding the criminal incident . . . ,the time period that has elapsed since the incident, the nature of the harm caused 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.

16. Mr. Saunders has not met his burden under Section 435.07, Florida Statutes. With regard to “the time period that has elapsed since the incident,” insufficient time has passed. Specifically, while his grand theft conviction was in 1991, the record is clear the Mr. Saunders has been under court ordered supervision and probation up until October, 1996 - only four months ago. For similar reasons, Mr. Saunders cannot satisfy the “rehabilitation” requirement of the statute. Particularly, probation is a deterrent and has a chilling effect on one’s behavior and it is uncertain whether he has been rehabilitated. It appears that only the passage of time will reveal if Mr. Saunders has been rehabilitated.

17. Based on the recent nature of Mr. Saunders’ criminal behavior, the Department acted prudently in rejecting Mr. Saunders’ request for an exemption. The Department should be commended for encouraging Mr. Saunders to continue to rehabilitate himself and for encouraging him to apply in the future once he has built a credible record of rehabilitation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department enter a Final Order and therein DENY Mr. Saunders’ request for an exemption.

DONE and ENTERED this 12th day of March, 1997, at Tallahassee, Florida.

WILLIAM A. BUZZETT

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 12th day of March, 1997.

ENDNOTES

1 Petitioner’s Composite Exhibit 1 consists of a series of letters generally attesting to Mr. Saunders’ character.

2 Respondent’s Exhibit 1 represents an order of community control relating to Mr. Saunders’ 1991 conviction of burglary of a structure, attempted burglary of a structure, grand theft, criminal mischief, burglary of a business, and criminal mischief. Respondent’s Exhibit 2 represents a 1990 judgment of guilt for the offenses of burglary, possession of burglary tools, and carrying a concealed weapon. Respondent’s Exhibit 3 represents the disposition of a 1992 charge of attempted burglary and possession of burglary tools.

COPIES FURNISHED:

Robert Kent Saunders 542-B East 4th Street

Panama City, Florida 32401

John R. Perry, Esquire

Department of Children and Families 2639 North Monroe Street

Suite 252A

Tallahassee, Florida 32399-2949

Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

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: 96-004311

Orders for Case No: 96-004311