STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIE FRANK CARODINE, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 96-4685

)

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 Administrative Law Judge, Donald R. Alexander, on October 28, 1996, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Willie Frank Carodine, Jr., pro se

3168 Altamont Avenue

Jacksonville, Florida 32208

For Respondent: Roger L. D. 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 September 3, 1996, when respondent, Department of Health and Rehabilitative Services, issued a letter denying a request by petitioner, Willie Frank Carodine, Jr., for "exemption from disqualification under the background screening." The disqualification was "based on offenses of battery and domestic violence on January 16, 1992, March 6, 1992, March 8, 1993,

November 3, 1993, and June 20, 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 October 2, 1996, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated October 10, 1996, a final hearing was scheduled on October 28, 1996, in Jacksonville, Florida.

At final hearing, petitioner testified on his own behalf and offered petitioner's exhibit 1 which was received in evidence. Respondent offered respondent's exhibits 1-11. All exhibits were received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by respondent on November 5, 1996, and have been considered by the undersigned in the preparation of this 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, Willie Frank Carodine, Jr., for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner would be entitled to work with children. Respondent, Department of Health and Rehabilitative Services (HRS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on September 3, 1996, an HRS committee denied the request.

   
   

2. Petitioner is now barred from doing such work because of disqualifying offenses which occurred on January 16 and March 6, 1992, March 8 and November 3, 1993, and June 20, 1994. On each of those occasions, petitioner pled nolo contendere to the offense of battery, a misdemeanor under Section 784.03(1)(a), Florida Statutes. Since the victim in each case was a person with whom petitioner was then residing, the offenses constituted domestic violence as defined by Section 741.28, Florida Statutes.

   
   

3. At hearing, petitioner candidly acknowledged each of the foregoing arrests. All incidents involved the same female, a person whom petitioner described as being jealous, unstable and heavily involved with drugs and alcohol. Petitioner also abused alcohol during that period of his life. Although petitioner says the charges were generally untrue or even fabricated by his girlfriend, and there were witnesses present at each incident who could confirm his version of events, on the advice of his public defender, he pled nolo contendere in each case.

   
   

4. Petitioner is engaged to be married in March 1997 to a foster parent who lives with four foster children and her own natural child. Because of his disqualifying offenses, petitioner's fiancee cannot remain a foster parent if she marries him and they share the same household. For this reason, petitioner seeks an exemption.

   
   

5. Petitioner no longer uses alcohol and has terminated the tempestuous relationship with his former girlfriend. Indeed, there are no blemishes on his record since the last incident in June 1994, or almost thirty months ago. Since that time, he has been active in his church and steadily employed. Most recently, he has worked as a plasterer with a Jacksonville construction firm.

   It is fair to infer from the evidence that petitioner has been rehabilitated since the incidents and his life is now stablilized.

   
   

6. Petitioner's testimony and supporting evidence is deemed to be credible. Accordingly, it is found that petitioner has proven he is "of good character," he has presented sufficient evidence of "rehabilitation" since the disqualifying incidents, and he will pose no threat to the safety or well-being of children. This being so, the exemption should be granted.

   CONCLUSIONS OF LAW

   
   

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

   
   

8. In 1995, the legislature comprehensively amended the statutes which govern those persons seeking to work in child care programs. See Chapter 95- 228, Laws of Florida. In this proceeding, the disqualifying offenses, domestic violence, occurred on or before June 20, 1994, and therefore the provisions of Section 409.175(4)(a)8.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 409.175, 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."

   
   

9. Section 409.175(4)(a)8.b., Florida Statutes (Supp. 1994), reads as follows:

   
   

   (c)2. In order to grant an exemption to a person, the department shall 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.

   
   

10. By evidence which meets the appropriate evidentiary standard, petitioner has demonstrated that he is "of good character," is sufficiently rehabilitated since his last arrest in June 1994, and will not "present a danger to the safety or well-being of (his clients)." Petitioner having satisfied the statutory requirements, 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 18th day of November, 1996, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 18th day of November, 1996.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 2, Room 204X 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard E. Doran, Esquire Department of Health and

Rehabilitative Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Willie Frank Carodine, Jr. 3168 Altamont Avenue

Jacksonville, Florida 32208

Roger L. D. Williams, Esquire Post Office Box 2417 Jacksonville, Florida 32231-0083

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order.

Docket for Case No: 96-004685

Orders for Case No: 96-004685