STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY WYATT, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5054

)

DEPARTMENT OF CHILDREN )

AND FAMILIES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding before P. Michael Ruff Administrative Law Judge of the Division of Administrative Hearings, on February 4, 1997, in Marianna, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Thayer Marts, Esquire

Post Office Box 761 Marianna, Florida 32447

For Respondent: John R. Perry, Esquire

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

STATEMENT OF THE ISSUE

Whether the Petitioner is entitled to an exemption from disqualification from employment in a position as a “caregiver?”

PRELIMINARY STATEMENT

This matter arose when, on or about August 21, 1995, Mr.

Wyatt, the Petitioner, pled guilty to “domestic violence,” (assault) “resisting arrest without violence” and “violating an injunction.” Through the screening process for employees such as Mr. Wyatt who work with minors or the developmentally disabled in positions of special trust, conducted by the Department of Health and Rehabilitative Services, now the Department of Children and Families (Department, DCF), the Petitioner was disqualified from his position of employment as a Vocational Instructor II at Sunland Center. He was moved to another position with that employer where he would not work with the developmentally disabled, at a lower rate of pay, on the grounds maintenance crew. He availed himself of the right to this proceeding to seek an exemption from disqualification from employment in his position as a vocational instructor.

The cause was assigned to the undersigned Administrative Law Judge upon its referral to the Division of Administrative Hearings by the Department. The cause came on for hearing as noticed. At the hearing the Petitioner presented five witnesses and had one exhibit admitted into evidence. The Respondent presented two witnesses and its five exhibits were admitted into evidence. Subsequent to the hearing the parties submitted proposed recommended orders which have considered in the rendition of this recommended order.

FINDINGS OF FACT

1. The Sunland Center in Marianna, Florida is a residential facility operated by the Department of Children and Families (DCF), serving developmentally disabled adults.

2. The Petitioner, Larry Wyatt, worked at Sunland Center as a Vocational Instructor II, supervising and training a group of developmentally disabled clients. After he got involved in the events which lead to his disqualification from such a position of special trust he was demoted, but is still employed at Sunland Center in a position where he does not have client contact.

3. The Respondent is an Agency of the state of Florida charged, in pertinent part, with screening the criminal and adult abuse records of persons employed in positions of special trust, such as the supervision of a group of developmentally disabled clients. Upon learning of an altercation involving the arrest of the Petitioner for assault (domestic violence) the department disqualified him from employment in a position of special trust working with children or developmentally disabled clients under relevant law.

4. On the evening of August 18, 1995, the Petitioner became embroiled in an argument with his wife. The Petitioner had in his possession a six-pack of beer and had consumed two cans of beer, leaving four unopened. At some point during the course of the argument Mrs. Wyatt attempted to leave their home and go to her mother’s home in her car. Mr. Wyatt remonstrated with her to

   try to get her not to leave and when she refused to stay he got into his vehicle and bumped her car slightly with his vehicle. He did not actually ram her car with any great degree of force,

   but merely slightly bumped her car at a very slow speed, with not enough force to cause any damage or injury. Both protagonists were angry and shouting at each other. No blows or physical touching occurred. In an angry state of mind, Mrs. Wyatt telephoned the Jackson County Sheriff’s Department who dispatched Deputy David Edmundson to the scene.

5. On arriving at the scene, Deputy Edmundson spoke to Mrs. Wyatt, who asked him to stay with her until she left the premises or else to require Mr. Wyatt to leave. She specifically asked that he not be arrested. Mr. Wyatt began again yelling at Ms. Wyatt whereupon the Deputy told him to desist. He started yelling and arguing with the Deputy and the Deputy determined that it was best to place him under arrest and remove him from the scene. He placed him under arrest for “domestic violence” and “resisting arrest without violence.” He took the Petitioner to the Jackson County Jail.

6. Several hours later Deputy Edmundson visited Mr. Wyatt in the holding cell at the jail. Mr. Wyatt then apologized to the Deputy for his conduct at the scene of the incident and the Deputy explained to Mr. Wyatt that, at that point, he was under an injunction and prohibited from returning to his home, unless the injunction was removed by the court. Mr. Wyatt then inquired

   if he could retrieve his belongings from his home and the Deputy explained he could make one trip home for that purpose but would need to be accompanied by a law enforcement officer and that he would need to make arrangements with the Jackson County Sheriff’s Department in order to do so.

7. The following day, on August 19, 1995, Mr. Wyatt went to his home in the company of his father, without the assistance or accompaniment of a law enforcement officer and without making arrangements with the sheriff’s department for the trip. He committed no improper behavior when he arrived at home, retrieved his belongings and left. Upon the discovery by the authorities that he had made the trip without proper authorization the Petitioner was again placed under arrest. On August 21, 1995, he pled guilty to “domestic violence” (presumably assault), “resisting arrest without violence” and “violating an injunction.” As a result of that guilty plea he was disqualified from his employment as a Vocational Instructor II at Sunland Center. The court did not adjudicate him guilty. Rather adjudication was withheld and he was placed on probation with conditions. A condition of his probation was that he attend Alcoholics Anonymous meetings and that he and his wife attend marriage counseling sessions.

8. Mr. and Ms. Wyatt attended the marriage counseling sessions for twenty-seven weeks. They both testified that the therapy was very helpful to them. They learned how to control

   their anger and how to resolve disputes without destructive argument. Mr. Wyatt attended Alcoholics Anonymous meetings as well and found them helpful. His unrefuted testimony indicates that as to the Alcoholics Anonymous therapy and the marriage counseling sessions that both efforts were helpful in helping him to understand the role his failure to control anger and use of alcohol combined to harm the stability of his marriage and his relations with his wife. In summary, both Mr. and Mrs. Wyatt testified in a believable way, without refutation, that their marriage had greatly improved as a result of the catharsis engendered by Mr. Wyatt’s arrest under the above-found circumstances and the resultant marriage counseling therapy and his attendance at Alcoholics Anonymous counseling sessions. They have observed that they do not argue as they once did, that their children seem to respect them more, and they get along better among themselves as well. Their family life is strengthened and more stable as a result of their experience.

9. Leon Hussey, the Petitioner’s immediate supervisor at Sunland Center, Mr. Fears, his father-in-law and co-worker, and Tracy Clemmons, the Superintendent of Sunland, all testified to the effect that the Petitioner had been an exemplary employee with a flawless record for sixteen years. He was classified as an above average employee by his supervisor and the superintendent. They noted that he was particularly skilled at handling difficult clients at Sunland in his work as a vocational

   therapist and that clients felt respect and great affection for him. They have even asked on occasion when he would “be back” to occupy his old position in working with them. Tracy Clemmons and Leon Hussey both testified that the Petitioner was an excellent employee and his return they regarded as essential in order to adequately deal with difficult clients and that it would be “a shame” if he were not permitted to return to the duties he performed so well in dealing with the developmentally disabled clients in question.

10. In summary, although the incident occurring between Mr. Wyatt and his wife may be classified as assault (“domestic violence”), he testified, as did she, without refutation, that he never struck her and that the car bumping incident in their yard was the result of his insufficiently controlled anger at her but, fortunately, was not of a nature to cause any injury to his wife or the other vehicle, and was not so intended. Under the totality of the circumstances, considering especially the efforts Mr. Wyatt has made, with his wife’s cooperation, to rehabilitate himself and to learn to control his anger and other impulsive behavior and the lack of any similar altercations since the one in question, it is found that the Petitioner has adequately rehabilitated himself in order to justify the grant of an exemption.

11. This finding is corroborated and supported by the testimony of the witnesses from his employment life who uniformly

    described his exemplary record as a skilled, caring, compassionate trainer of the developmentally disabled persons in his charge. They desire his return to his former position immediately, even with knowledge of the circumstances of his recent disqualification. The testimony adduced by the department did not establish a lack of rehabilitation on the part of Mr.

    Wyatt. The testimony adduced by the Department at most can be characterized as a conclusory statement of position that, given the circumstances of the incident between Mr. Wyatt and his wife, a similar incident between them some two years previously, and another incident involving a driving violation concerning an expired tag, drivers license and “leaving the scene of an accident,” to which a guilty plea was entered, that Mr. Wyatt has not shown adequate rehabilitation. That testimony is rejected as not being as substantial as that in support of the above findings of fact establishing the Petitioner’s adequate rehabilitation.

    No adverse incidents have occurred since the one causing this proceeding. The testimony of the Petitioner’s wife and the other witnesses is accepted over that of the Department’s witness, Ms. Hanson. They had more opportunity to observe the Petitioner’s personality and behavior since the incident in question and more of an opportunity to learn of his reputation in the community for behavior since the incident, which is consistent with his rehabilitation, which their testimony establishes, when

    considered in its totality with the other circumstances proved in this case.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over this subject matter of and the parties to this proceeding. Sections 120.569(1), and 120.57(1)(a)Florida Statutes.

13. The Petitioner was disqualified from working in a position as a caregiver or one in direct contact with persons with developmental disabilities, such as those persons in his charge at the Sunland Center at the time he was found to be disqualified from that position. See Sections 393.063(14), 393.0655(1), and 435.04(3)(b), Florida Statutes (Supp. 1996).

14. A person who is disqualified from employment on the basis of an act of “domestic violence” may be granted an exemption from disqualification if that individual establishes by clear and convincing evidence that he should not be disqualified. Such an individual has the burden of presenting sufficient evidence of rehabilitation including, but not limited to, the circumstances surrounding the incident, the time period that has elapsed since the incident, the nature of the harm caused to the victim and the history of the applicant since the incident or any other evidence or circumstances indicating that the employee in question will not present a danger if continued employment in his

    “caregiver” position is allowed. See Section 435.07(1)(e),(3), Florida Statutes.

15. The clear and convincing evidence culminating in the above findings of fact shows that indeed the Petitioner has adequately rehabilitated himself so as to justify the grant of an exemption. Both the incident in question which resulted in his disqualification and the other two incidents, one of which did not involve any question of violence or threatened violence, were sufficiently in the past that, when coupled with the circumstances showing the efforts both the Petitioner and his wife have made to learn to control their anger and to improve their marriage and family life, coupled with the unrefuted consistent testimony of his co-employees and supervisors, shows that the Petitioner under the circumstances presented in this case has sufficiently rehabilitated himself so as to be the proper recipient of an exemption from the subject disqualification. Accordingly, the exemption from such disqualification should be granted.

16. The petitioner has also argued that since the legislative enactment under which authority he was disqualified (Chapter 95-228, Laws of Florida) became law after the date of his act of domestic violence, that it did not apply to disqualify him on the basis of that offense. Specifically the Petitioner quotes the following language:

    
    

    Except as otherwise provided herein, this act shall take effect October 1, 1995, and shall

    apply to offenses committed on or after that date. Section 64, Chapter 95-228, Laws of Florida).

    
    

17. The thrust of the Petitioner’s argument is thus that, according to his interpretation of this provision, no disqualification can occur under Section 435.04, Florida Statutes, if the offense underlying the disqualification occurred before October 1, 1995, the effective date of the above statutory authority.

18. The Petitioner’s position overlooks the fact that Section 64 Chapter 95-228, Laws of Florida does not apply to the listing of offenses for disqualification. The paragraph relied upon by the Petitioner applies, not to the list of disqualifying offenses, but rather to those sections of Chapter 95-228, Laws of Florida which by their own terms create new offenses. Sections

46 and 47 of Chapter 95-228, Laws of Florida, (creating, respectively, Sections 415.51(6) and 435.11, Florida Statutes) create and impose new criminal penalties which did not exist under previous law. It is to these provisions and not the list of disqualifying offenses, that Section 64 applies. In obeisance to the constitutional prohibition against ex post facto laws (Article 1, Section 9, U.S. Constitution) the final section of Chapter 95-228, Laws of Florida mandates that these newly created criminal penalties shall apply only to violations occurring after the effective date of the legislation. Accordingly, for these and the other reasons delineated in the Respondent’s proposed

conclusions of law, which are accepted this argument by the Petitioner is rejected and the offense for which disqualification was rendered against the Petitioner is deemed to be included within the statutory authority cited and is actionable. Be that as it may, the exemption should be granted because of the clear and convincing proof of the circumstances which show that the Petitioner has adequately rehabilitated himself so as to be deserving of the exemption.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witnesses, the evidence of record and the pleadings and arguments of the parties it is therefore,

RECOMMENDED that a final order be entered awarding Larry Wyatt, the Petitioner herein, the requested exemption.

DONE AND ENTERED this 1st day of May, 1997, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF

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 1st day of May, 1997.

COPIES FURNISHED:

Thayer Marts, Esquire Post Office Box 761 Marianna, Florida 32447

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, Esquire 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: 96-005054

Orders for Case No: 96-005054