STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMASINA BARNES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5339

)

DEPARTMENT OF HEALTH AND )

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings, held a formal hearing in this case by Video Teleconference on March 5, 1997.

The Administrative Law Judge was located in Tallahassee, Florida. The parties and all witnesses were located in Jacksonville, Florida.

APPEARANCES

For Petitioner: Thomasina Barnes, Pro Se

4818 Foxboro Road

Jacksonville, Florida 32208

For Respondent: Roger L. D. Williams, Esquire

Department of Children and Families Post Office Box 2417

Jacksonville, Florida 32217

STATEMENT OF THE ISSUE

The issue is whether Petitioner Thomasina Barnes should be

granted an exemption from disqualification from employment pursuant to Section 435.07, Florida Statutes.

PRELIMINARY STATEMENT

By letter dated September 19, 1996 Respondent Department of Health and Rehabilitative Services (now known as Department of Children and Families) (Respondent) denied Petitioner Thomasina Barnes (Petitioner) an exemption from disqualification under the background screening statutes. Petitioner requested a formal administrative hearing by letter dated October 15, 1996.

Respondent referred Petitioner’s request to the Division of Administrative Hearings on November 12, 1996.

The undersigned issued a Notice of Video Hearing and Order of Instruction scheduling this matter for hearing on March 5, 1997. During the hearing, Petitioner testified on her own behalf, presented the testimony of one witness and offered one composite exhibit which was accepted into evidence. Respondent presented no witnesses and offered eight exhibits which were accepted into evidence.

Neither party filed a transcript of the proceeding with the Division of Administrative Hearings. Respondent filed a proposed recommended order on March 13, 1997.

FINDINGS OF FACT

1. In January of 1976, Petitioner was caught shoplifting merchandise from a retail clothing store. The police recovered the stolen property in the parking lot where they arrested

   Petitioner. As a result of that incident, Petitioner pled guilty to a charge of Grand Larceny, a third degree felony on May 5, 1976.

2. On December 14, 1988 Petitioner pled no contest to a misdemeanor charge of Offering for the Purpose of Prostitution.

3. Petitioner was suffering from an addiction to alcohol and/or illegal drugs when she committed the above referenced crimes.

4. After her last arrest in 1988, Petitioner continued to be drug dependent but was able to hold down temporary jobs. She worked as a cook at Popeye’s Restaurant, a mail clerk at Southern Bell, and a data processor for Respondent.

5. Petitioner finally realized she needed help to live a drug free life. She checked herself into a drug detoxification program in March of 1993. After completing the medical detoxification program, Petitioner voluntarily entered a residential drug treatment program where she remained until July of 1993. Petitioner then became a resident of an extended care drug treatment program up through December 7, 1993. When Petitioner completed the residential treatment program, she was actively participating in the Alcoholics Anonymous (AA) and Narcotics Anonymous (NA)twelve step programs.

6. Petitioner lived a drug free life for twenty months after being discharged from the residential drug treatment program. She had one relapse in 1995. However, Petitioner

   immediately returned to NA treatment and continued working her twelve step program.

7. Petitioner has not abused any substance in two years. She has maintained a close relationship with her NA sponsor during that time. Her involvement with NA activities has progressed over time. She now serves as a sponsor for other members of NA. She is an officer in her NA home group.

8. Petitioner has become an active member of her church. She sings in the choir, serves as choir secretary, leads devotions, and acts as program leader.

9. Petitioner is also active in her community. One activity she particularly enjoys is helping with her nephew’s little league baseball team.

10. Petitioner currently is employed as an intake coordinator/receptionist at the I.M. Salzbacher Center for the Homeless.

11. Sometime prior to August 23, 1996, Petitioner began working a second job in the evenings at Vannie Edwards Foster Group Home as a cook and house cleaner for six disabled male clients. The clients have mental and physical disabilities and are unable to function independently. In addition to her cooking and cleaning duties, Petitioner also served as a companion and mother figure to the clients. She would sometimes stay at the group home overnight but her normal work hours were from 4:00

    p.m. to 9:00 p.m. Petitioner considered this position as an additional means to make “living amends.”

12. On or about August 23, 1996, Respondent advised Petitioner that she was disqualified from continuing employment as a caretaker in a developmental services facility such as the Vannie Edwards Foster Group Home.

13. Petitioner filed a request for exemption from disqualification on or about September 5, 1996. Respondent scheduled an Exemption Hearing for September 18, 1996.

14. After the Exemption Hearing, Respondent denied Petitioner’s request for exemption from disqualification by letter dated September 19, 1996.

    CONCLUSIONS OF LAW

    
    

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

16. Petitioner seeks to resume her employment as a direct service provider in a group home facility as defined in Section 393.063(25), Florida Statutes. Direct service providers in such facilities occupy a position of trust. They must undergo level 2 employment screening. Section 393.0655, Florida Statutes.

17. Level 2 employment screening disqualified Petitioner from employment in the Vannie Edwards Foster Group Home due to her 1976 felony conviction for a crime related to theft and her

    1988 misdemeanor conviction for a crime related to prostitution. Sections 435.04 (2)(n) and 435.04(2)(r), Florida Statutes.

18. Respondent has discretion to grant Petitioner an exemption from disqualification from employment because her first disqualifying conviction was a felony which occurred more than three years prior to the date of disqualification and her second disqualifying conviction was a misdemeanor. Section 435.07(1), Florida Statutes.

19. Petitioner has the burden of showing by clear and convincing evidence that she should not be disqualified from employment. Section 435.07(3), Florida Statutes, states in pertinent part:

    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 other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. . . .

20. The evidence here establishes that Petitioner’s disqualifying convictions were the direct result of her substance abuse problem as opposed to an inherent character flaw. She is committed to lifelong recovery and on-going participation in twelve-step programs. She has assumed a position of leadership in her NA home group. She is now making “living amends” through her involvement with her family, church, and community.

    Petitioner presented sufficient evidence of rehabilitation since her last arrest over nine years ago to meet her burden of proof in this case.

21. Petitioner has provided clear and convincing evidence to support a reasonable belief that she is of good moral character so as to justify an exemption from disqualification from employment in a position of trust and responsibility.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered granting Petitioner an exemption from disqualification from employment as a caretaker in a developmental services facility.

DONE and ENTERED this 19th day of March, 1997 in Tallahassee, Florida.

SUZANNE F. HOOD

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 19th day of March, 1997.

COPIES FURNISHED:

Roger L.D. Williams, Esquire Department of Children and Families Post Office Box 2417

Jacksonville, FL 32231-0083

Thomasina Barnes 4818 Foxboro Road

Jacksonville, FL 32208

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

1317 Winewood Boulevard

Tallahassee, FL 32388-0700

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

1317 Winewood Boulevard

Tallahassee, FL 32388-0700

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: 96-005339

Orders for Case No: 96-005339