STATE OF FLORIDA DEPARTMENT OF JUVENILE JUSTICE

DARNELL SHELLMAN,

Petitioner,

Vs. DOAH Case No. 98-0390

DEPARTMENT OF JUVENILE JUSTICE,

Respondent.

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FINAL ORDER

This matter is now before the undersigned for the issuance of final agency action in regard to the Recommended Order entered in the above styled case. Following notice to all parties, a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, was conducted before the Honorable Daniel M. Kilbride, Administrative law Judge of the Division of Administrative Hearings on April 29, 1998. The Recommended Order, which was entered on June 2, 1998, is attached to this Final Order. No exceptions have been filed by either party.

FINDINGS OF FACT

The Department of Juvenile Justice hereby adopts and incorporates the Findings of Fact as stated in the Recommended Order in this Final Order.

CONCLUSIONS OF LAW

The Department of Juvenile Justice hereby adopts Conclusions of Law numbers 15 through 22. However, the Department of Juvenile Justice would note that conclusions 16 and 17 incorrectly reference Section 984.01(2), Florida Statutes, where the reference should be made to Section 985.01(2), Florida Statutes. The Department of Juvenile Justice also adopts Conclusions of Law numbers 25 and 26 to the extent that they are consistent with the remaining conclusions of law substituted by the department.

The Department of Juvenile Justice hereby rejects Conclusions of Law 23, 24, and 27, 28 and 29 of the Recommended

Order and substitutes the following conclusions 23 through 28 in their place.

1. In this matter the Petitioner had the burden of proving by clear and convincing evidence that he should not be disqualified from employment, despite his 1995 plea and sentence for an act of domestic violence, specifically an assault upon his wife.

   
   

2. The factual findings of the Administrative Law Judge should be given great weight. However, as the Secretary of the agency that is charged by statute with the authority to grant the exemption from disqualification sought by the Petitioner, it is my responsibility to review the Administrative Law Judge's findings to ascertain whether they establish the Petitioner's rehabilitation by clear and convincing evidence. Accord, In Re: McAllister, 646 So. 2d 173 (Fla. 1994).

   
   

3. Clear and convincing evidence is more than a preponderance of the evidence, but less than beyond a reasonable doubt. This intermediate level of proof entails, but less than beyond a reasonable doubt. This intermediate level of proof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witness must be clear and without confusion; and the sum total of the evidence must be sufficient weight to convince the trier of fact without hesitancy. In Re: Davey, 645 So. 2d 398 (Fla. 1994), Solomowitz vs. Walker, So. 2d 797 (Fla. 4th DCA 1983). Applying this standard to this case, I cannot agree with the Administrative Law Judge's conclusion that the Petitioner has met his burden in attempting to establish his rehabilitation.

26 Credibility of the Petitioner's testimony, particularly in a case such as this, is a cornerstone in establishing his rehabilitation by clear and convincing evidence. In Finding of Fact number 5 the Administrative Law Judge found that the Petitioner's version of the events which ultimately lead to his plea of nolo contendre to a charge of assault which constituted an act of domestic violence was not credible. In his Conclusion of Law number 26, the Administrative Law Judge was not convinced without hesitancy that the Petitioner's version of the circumstances surrounding the criminal incident for which the exemption sought was truthful. Given that the version of events giving rise to the criminal charge is specifically included in establishing the Petitioner's rehabilitation pursuant to Section 435.07(3), Florida Statutes, I cannot agree with the Administrative Law Judge's earlier conclusion that the Petitioner has clearly and convincingly demonstrated that this agency should grant the exemption.

1. In Conclusions of Law numbers 26 through 29, the Administrative Law Judge focuses on future propensity of the Petitioner for violence. While it is important that a person in the position sought by the Petitioner not possess a propensity for violent behavior, as the Administrative Law Judge correctly states in Conclusion of Law number 26, it is important to note that the disqualification for employment is for an act of domestic violence as defined by Section 741.28, Florida Statutes. If the legislature's only concern were a propensity toward violence, then it would have simply listed the criminal sections for the crimes enumerated in Section 741.28, Florida Statutes and there would be no need to restrict disqualifying offenses to domestic violence. Therefore, I must conclude, particularly where the exemption is sought to work toward the rehabilitation of juvenile offenders, the rehabilitation involves more than a showing that the Petitioner would not be violent. Specifically, I must find that truthfulness in dealing with this important issue is as much a part of rehabilitation as demonstrating that the Petitioner is no longer violent.

2. The Administrative Law Judge also appears to place significant weight on the period of time that has elapsed. However, I cannot agree that a period of two and a half to three years having elapsed is a significant period of time to establish rehabilitation, particularly when the Petitioner's version of events has been found not to be credible. Further, it appears from the exhibits received that many of the Petitioner's degrees and awards were actually received prior to the incident in 1995. Therefore, I cannot find that this evidence is of sufficient weight to assuage my concerns regarding the finding of the Administrative Law Judge regarding Petitioner's credibility.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law it is,

ORDERED:

The Petitioner's request for an exemption qualification is DENIED.

DONE AND ORDERED this 26th day of August, 1998, in Tallahassee, Leon County, Florida.

CALVIN ROSS SECRETARY

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this Final Order has been provided by Certified U.S. mail to Timothy W. Terry, Attorney for Petitioner, at 1407 East Robinson Street, Orlando, Florida 32801, and to Lynne T. Winston, Attorney for Respondent, at 2737 Centerview Drive, Tallahassee, Florida 32399- 3100, this 27th day of August, 1998.

(signature unreadable) for Lilly Crocket, Indexing Clerk

Docket for Case No: 98-000390

Orders for Case No: 98-000390