STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOBBY JONES, )

)

Petitioner, )

)

vs. ) Case No. 97-4496

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 3, 1998, in Quincy, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ben R. Patterson, Esquire

Post Office Box 4289 Tallahassee, Florida 32315-4289

For Respondent: John R. Perry, Esquire

2639 North Monroe Street Suite 100A

Tallahassee, Florida 32399-2949 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 July 14, 1997, when Respondent,

Department of Children and Family Services, issued a letter advising Petitioner, Bobby Jones, that he was "ineligible to hold a position of 'special trust'," based on his arrest on June 4, 1989, for the offense of "[b]attery-domestic." After his request for an exemption was denied, Petitioner requested a formal hearing under Section 120.569, Florida Statutes, to contest the proposed action. The matter was referred by Respondent to the Division of Administrative Hearings on September 29, 1997, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated October 14, 1997, a final hearing was scheduled on November 5, 1997, in Quincy, Florida. Petitioner's unopposed request for a continuance was granted, and the matter was rescheduled to February 3, 1998, at the same location.

At final hearing, Petitioner testified on his own behalf and presented the testimony of Jannita Jones-Stallworth, his former wife; Alice L. Kelly, a senior human counselor supervisor at Florida State Hospital; Lillie B. Jennings, a unit treatment rehabilitation senior supervisor at Florida State Hospital; Charlie Williams, a unit treatment rehabilitation specialist at Florida State Hospital; Willie Allen, a unit treatment rehabilitation shift supervisor at Florida State Hospital; Michael Rayburn, a co-worker at Wal-Mart; and Freddie Jeffrey, a unit treatment rehabilitation specialist at Florida State Hospital. Also, he offered Petitioner's Exhibits 1-6. All

exhibits were received in evidence except Exhibit 3. Respondent presented the testimony of Bessie Sims, a unit treatment rehabilitation specialist supervisor II at Florida State Hospital. Also, it offered Respondent's Exhibits 1-7 and 9-31. All exhibits were received in evidence. Finally, the parties offered Joint Exhibits 1-5 which were received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by Petitioner and Respondent on February 16 and 18, 1998, respectively, and they have been considered by the undersigned in the preparation of this Recommended 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, Bobby Jones, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a unit treatment rehabilitation specialist in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on an unknown date, a DCFS committee denied the request.

2. Petitioner is now barred from doing such work because of

   a disqualifying offense which occurred on June 4, 1989. On that date, Petitioner was arrested for the offense of "battery- domestic," a misdemeanor under Section 784.03(1)(a), Florida Statutes (1987). According to Petitioner, the victim in the incident was his former wife. Thus, the offense constituted

   domestic violence as it subsequently became defined in 1994 by Section 741.28, Florida Statutes.

3. Petitioner entered a plea of guilty to the charge of "battery" on August 10, 1989. He was fined $75.00, and he was placed on probation for a period of "up to 9 months." In addition, the court retained jurisdiction "to [o]rder rest[itution]," and Petitioner was required to complete a mental health counseling program.

4. Petitioner successfully completed all terms of his probation, including the counseling course which lasted around "six to nine months."

5. In October 1989, Petitioner began working at FSH as a human services worker in a unit for developmentally disabled adults. Eventually, he attained the position of unit treatment rehabilitation specialist, a position involving supervision of developmentally disabled adults. Due to a change in the law, in 1996, he was required to undergo a background screening. That screening uncovered his 1989 offense, and on July 14, 1997, he was disqualified from working in a position of special trust with developmentally disabled adults. Petitioner was then offered a temporary assignment effective July 24, 1997, without any "direct care duties." Most recently, however, he has been employed at a Wal-Mart store in Tallahassee, Florida. Because of his desire to return to his former position, he has applied for an exemption from disqualification.

6. Since the disqualifying incident in 1989, Petitioner worked continuously at FSH for almost eight years. Since leaving FSH, he has been steadily employed by Wal-Mart. Petitioner was described by a former supervisor at FSH as being "dependable," "very good" with residents, and someone who got along well with other staff. Three former co-workers echoed these comments. A present co-worker at Wal-Mart also described Petitioner as friendly, helpful, and courteous with customers.

7. Except for the fact that a former wife was the victim, the circumstances surrounding the incident for which the exemption is sought are not of record, and the "harm [if any] caused to the victim" is unknown.

8. Despite the glowing comments of other workers, the adverse testimony of a former supervisor at FSH must be taken into account. In December 1995, she found Petitioner engaged in a verbal confrontation with another worker. She then directed that Petitioner report to her office. On the way to the office, he told her that the other employee was "going to make [Petitioner] put a board on his ass." At the ensuing meeting, Petitioner became extremely upset and told the supervisor that he wished she were dead, that she would get killed in a traffic accident on the way home, and that he would "spit on her grave." Petitioner subsequently received a written reprimand for using "Threatening and/or Abusive Language" towards his supervisor.

9. In another incident that occurred on May 22, 1997,

   Petitioner was observed by the supervisor "horseplaying with another employee" in the dining room. When told by the supervisor that such conduct was inappropriate for the workplace, Petitioner stated in a loud, hostile manner, in the presence of both co-workers and clients, that he "would choke the motherfucker out." For this conduct, he received another written reprimand for "Threatening and/or Abusive Language," and he was suspended from work for three days.

10. According to the same supervisor, Petitioner has an "explosive" temper, and she would not want him returning to her unit. Given this testimony, it is found that Petitioner has failed to demonstrate by clear and convincing evidence that he will not present a danger if continued employment is allowed.

11. Besides the disqualifying offense, Petitioner has a long string of misdemeanor convictions beginning in 1979 and continuing through 1992. The specific crimes are described in Respondent's Exhibits 1-7 and 9-31 received in evidence. Petitioner himself acknowledged that he has been convicted of passing worthless bank checks approximately thirty times. Most recently, he was convicted for the offense of disorderly conduct in November 1992. In addition, he was convicted for the offense of simple battery on a former wife in October 1990. These convictions, by themselves, are not disqualifying offenses, and many are so old as to be arguably remote and irrelevant. They do, however, establish a continuing pattern of misconduct,

    especially since Petitioner has at least eight convictions for various misdemeanors since the disqualifying offense in 1989. Given these circumstances, it is found that Petitioner has failed to demonstrate sufficient evidence of rehabilitation since the disqualifying event. This being so, his request for an exemption should be denied.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.569, Florida Statutes (1997).

13. Section 435.07(3), Florida Statutes (1997), reads as follows:

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

14. There is less than clear and convincing evidence that Petitioner "will not present a danger if continued employment is allowed." Further, given the fact that Petitioner has been convicted of eight misdemeanors since the disqualifying offense, including battery, there is less than clear and convincing

    evidence that Petitioner has demonstrated "sufficient evidence of rehabilitation" to justify granting the exemption.

15. At the outset of hearing, Petitioner raised for the first time the contention that because his offense of battery under Section 784.03(1)(a), Florida Statutes (1989), did not constitute "domestic violence" until the term was broadly defined effective July 1, 1994, by the adoption of Section 741.28, Florida Statutes, he should not have been subject to screening and then disqualified under Sections 435.03 and 435.04, Florida Statutes (1997). However, in the absence of any argument or analysis in support of this contention, the undersigned has declined to extend this interpretation to the law.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's request for an exemption from disqualification for employment in a position of special trust.

DONE AND ENTERED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Pete Peterson, Esquire Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Ben R. Patterson, Esquire Post Office Box 4289

Tallahassee, Florida 32315-4289

John R. Perry, Esquire Department of Children and

Family Services

2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Department of Children and Family Services.

Docket for Case No: 97-004496

Orders for Case No: 97-004496