STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK R. DAVIS, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4686

)

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, k/n/a ) DEPARTMENT OF CHILDREN AND )

FAMILIES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Susan B. Kirkland, held a formal hearing in this case on January 8, 1997, in Miami, Florida.

APPEARANCES

For Petitioner: No appearance.

For Respondent: William E. Stacey, Jr., Esquire

Department of Health and Rehabilitative Services, n/k/a

Department of Children and Families

401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128

STATEMENT OF THE ISSUES

Whether Petitioner should be granted an exemption from background screening and disqualification pursuant to Section 435.07, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner, Mark R. Davis, was denied an exemption from background screening and disqualification pursuant to Section 435.07, Florida Statutes. Petitioner requested an administrative hearing on the denial. The case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge on October 2, 1996. The case was originally assigned to Administrative Law Judge Michael Parrish, but was transferred to Administrative Law Judge Susan B. Kirkland for final hearing.

Prior to the final hearing the name of the Respondent was changed to the Department of Children and Families and the caption in this case has been amended to reflect the new name of the Respondent.

At the final hearing Petitioner failed to appear.

FINDINGS OF FACT

1. Petitioner Mark R. Davis was denied an exemption from the background screening required by Section 393.0655, Florida Statutes.

   
   

2. Petitioner requested an administrative hearing concerning the denial of an exemption. The case was forwarded to the Division of Administrative Hearing and the final hearing was scheduled for January 8, 1997. Petitioner was sent a Notice of the Hearing on December 13, 1996.

   
   

3. The final hearing was scheduled to commence at 8:45 a.m. in Miami, Florida. The Petitioner failed to appear at the appointed time.

   
   

4. Counsel for Respondent, Department of Children and Families, attempted to contact Petitioner by telephone but Petitioner's telephone had been disconnected.

   
   

5. The Administrative Law Judge and Counsel for Respondent waited until 9:30 a.m. and Petitioner did not appear. The hearing was commenced at 9:30 a.m. and no evidence was presented on behalf of Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Section 393.0655(1), Florida Statutes, states that the Respondent shall require employment screening for direct service providers who are unrelated to their clients. Section 393.0655(2), Florida Statutes, states that the department may grant an exemption from disqualification from working with children or the developmentally disabled as provided in Section 435.07, Florida Statutes.

   
   

8. Section 435.07(3), Florida Statutes, provides:

   
   

   In order for a licensing department 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 the 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 caused to the victim, and the history of the employee since the incident, or any evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. . . .

   
   

9. Not having presented any evidence, Petitioner has failed to demonstrate by clear and convincing evidence that he should be granted an exemption.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's request for

an exemption from background screening and dismissing his petition for an administrative hearing.

DONE AND ENTERED this 9th day of January, 1997, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 9th day of January, 1997.

COPIES FURNISHED:

William E. Stacey, Jr.

Assistant District Legal Counsel District Eleven

Department of Children and Families

401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128

Mr. Mark R. Davis

22100 Southwest 114th Avenue Miami, Florida 33170

Gregory D. Venz, Agency Clerk Department of Children and Families 1317 Winewood Boulevard, Building 7 Suite 728, Room 204-X

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: 96-004686

Orders for Case No: 96-004686