STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERIC M. TRUITT, )

)

Petitioner, )

)

vs. ) Case No. 97-5825

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 18, 1998, a formal administrative hearing was held in this case in Largo, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Eric Truitt, pro se

1771 Harbor Drive

Clearwater, Florida 34615

For Respondent: Kathleen Harvey, Esquire

Department of Children and Family Services

11351 Ulmerton Road

Largo, Florida 33778 STATEMENT OF THE ISSUE

Whether Petitioner is eligible for an exemption from disqualification.

PRELIMINARY STATEMENT

By letter dated November 5, 1997, Petitioner, Eric Truitt (Petitioner), was notified by Respondent, Department of Children and Family Services (Respondent), that his request for an

exemption from disqualification had been denied. The denial was based on Respondent's pleading nolo contendre on January 17, 1997, to a charge of battery arising from an incident of domestic violence. According to the letter, there had "not been sufficient opportunity for [Petitioner] to demonstrate rehabilitation." Petitioner challenged the denial and timely filed a request for formal hearing.

At the final hearing, Petitioner called one witness, Lupe Villarreal, a staff supervisor at Volunteers of America, and testified on his own behalf. Petitioner offered no exhibits into evidence. Respondent called two witnesses, Petitioner and George Serbert, Background Screening Coordinator of the Department of Children and Family Services. Respondent had six exhibits admitted into evidence.

The proceeding was recorded but not transcribed. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. By letter dated August 28, 1997, Petitioner's employer, Volunteers of America, notified Petitioner that he was ineligible for continued employment in a position as a caretaker of children, disabled adults or elderly persons. However, the letter advised Petitioner that he could request an exemption from disqualification from the licensing agency.

2. In September 1997, Petitioner requested an exemption from disqualification. Respondent, Department of Children and

   Family Services, denied the exemption based on the fact that on January 9, 1997, Petitioner had been charged with battery. The charge arose from an incident of domestic violence.

3. As a result of the charge, on February 7, 1997, Petitioner entered a plea of nolo contendre to the offense of battery, and was placed on probation for one year. One condition of Petitioner's probation was that he enroll in a domestic violence intervention program.

4. By September 22, 1997, Petitioner had complied with all conditions of his probation. By Order entered October 8, 1997, Petitioner's probation was terminated.

5. The policy of Respondent is to require a one-year time lapse between termination of probation and granting the exemption from disqualification. Petitioner requested an exemption from disqualification in September 1997, and the request was considered by Respondent's Exemption Review Committee (Committee) on October 2, 1997. At the time Petitioner's request was heard by the Committee, Petitioner was still on probation and less than one year had elapsed since he was charged with battery. Even if, at the time of Petitioner's request for exemption from disqualification was heard, more than one-year had elapsed, Petitioner failed to present sufficient evidence to demonstrate his rehabilitation.

6. Numerous letters of support attesting to Petitioner's good character; exemplary work record; and his successful completion of a domestic violence intervention program were presented at hearing. However, most of the letters are based on those individuals' experiences and relationships with Petitioner

   prior to Petitioner's completing his probation.

7. Petitioner appears remorseful about his conduct and sincere in his desire to work with youngsters. Nonetheless, Petitioner presented no evidence of rehabilitation during the five months since his probation was terminated.

   CONCLUSIONS OF LAW

   
   

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

9. Section 435.04(1), Florida Statutes, provides that all employees in positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment or continued employment. The security background investigations must ensure that employees or employers licensed or registered pursuant to Chapter 400, Florida Statutes, have not "committed an act that constitutes domestic violence." Section 435.04(3)(b), Florida Statutes.

10. In the instant case, it is undisputed that Petitioner entered a plea of nolo contendre to the change of battery which arose from an incident of domestic violence. Moreover, this offense is a basis for denying or removing a person from employment in a position of trust or responsibility. Section 435.04(2), Florida Statutes.

11. The caretaker position that Petitioner held at Volunteers of America is deemed a position of trust or responsibility.

12. Notwithstanding, an employee's being disqualified from holding a position of trust or responsibility, the disqualification is not necessarily a permanent bar to employment in positions of trust or responsibility. Section 435.07(1), Florida Statutes, authorizes appropriate licensing agencies to grant any employee otherwise disqualified from employment an exemption from disqualification for certain categories of offenses. Among the categories of offenses for which exemptions may be granted are:

    (e) Commissions of acts of domestic violence as defined in s. 741.30

    
    

13. Petitioner has the burden of demonstrating by clear and convincing evidence that he should not be disqualified from employment in a position of trust. Section 435.07(3), Florida Statutes. That section further provides that:

    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.

    
    

14. The offense to which Petitioner entered a plea of nolo contendere is a serious one and only five months have elapsed since Petitioner completed his probation.

15. Petitioner presented no evidence of employment, or civic or charitable involvement since he entered the plea of nolo contendere or completed his probation that would reflect rehabilitation. Absent such evidence, Petitioner has failed to demonstrate by clear and convincing evidence that he should not be disqualified from employment in a position of trust.

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, Eric Truitt, an exemption from disqualification from employment in a position designated by law as one of trust or responsibility.

DONE AND ENTERED this 6th day of May, 1998, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUMCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1998.

COPIES FURNISHED:

Eric Truitt, pro se 1771 Harbor Drive

Clearwater, Florida 34615

Kathleen Harvey, Esquire Department of Children

and Family Services 11351 Ulmerton Road

Largo, Florida 33778

Gregory A. Venz, Agency Clerk Department of Children

and Family Services 1317 Winewood Boulevard

Building 2, Room 204

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: 97-005825

Orders for Case No: 97-005825