STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES W. LEVERSON, SR., )

)

Petitioner, )

)

vs. ) Case No. 98-0985

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 14, 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 252A

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 January 12, 1998, when Respondent,

Department of Children and Family Services, issued a letter advising Petitioner, Charles W. Leverson, Sr., that his "request for exemption, pursuant to Laws of Florida governing background screening" had been denied. The basis for the denial was that in 1993 Petitioner had entered a plea of nolo contendere to the offense of battery and had been found guilty of another offense of battery. 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 March 2, 1998, with a request that an Administrative Law Judge be assigned to conduct a formal hearing.

By Notice of Hearing dated March 23, 1998, a final hearing was scheduled on May 14, 1998, in Quincy, Florida. At final hearing, Petitioner testified on his own behalf and presented the testimony of Hugh Fain, a unit treatment rehabilitation specialist senior supervisor at Florida State Hospital; Eugene Rittman, a unit treatment rehabilitation specialist supervisor I at Florida State Hospital; Rollean F. Lloyd, a unit treatment rehabilitation specialist supervisor I at Florida State Hospital; Clinton McWhite, Jr., a unit treatment rehabilitation specialist supervisor II at Florida State Hospital; Annie D. Jackson, a unit treatment rehabilitation specialist senior supervisor II at Florida State Hospital; Lilly D. McCall, a linen specialist supervisor at Florida State Hospital; Karen D. Carter, an

employee at Florida State Hospital; Willie Mitchell, a unit treatment rehabilitation specialist senior supervisor at Florida State Hospital; William E. Moore, a unit treatment rehabilitation specialist supervisor I at Florida State Hospital; Roger A. Pollette, a registered nurse at Florida State Hospital; and Shirler Leverson, his wife. Also, he offered Petitioner's Exhibits 1-7. All exhibits were received in evidence.

Respondent presented the testimony of Ola M. Beckwith, a retired former supervisor at Florida State Hospital; Steven Brown, a linen department employee at Florida State Hospital; Ray Henley, a vocational instructor at Florida State Hospital; and Christine LeClair, an agency district screening coordinator. Also, it offered Respondent's Exhibits 1-6. All exhibits were received in evidence. Finally, the parties offered Joint Exhibits 1 and 2 which were received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by Petitioner on May 21, 1998, and they have been considered by the undersigned in the preparation of this Recommended Order. None were filed by Respondent.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. This case involves a request by Petitioner, Charles W. Leverson, Sr., 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 principally on the ground that Petitioner had minimized or denied the gravity of his disqualifying offenses.

2. Petitioner is now barred from doing such work because of disqualifying offenses which occurred on December 16, 1990, and March 24, 1992. On the first date, Petitioner was arrested for the offense of aggrevated battery on his wife, a misdemeanor under Section 784.04, Florida Statutes (1990). On the second date, Petitioner was again arrested for five offenses, including battery on his wife in violation of Section 784.03, Florida Statutes (1991).

3. As to the first charge, on January 26, 1993, Petitioner entered a plea of nolo contendere to the charge of battery and was placed on one year's supervised probation. He was also required to "[s]pend 15 weekends in the county jail." In addition, Petitioner was ordered "not [to] possess or consume any alcohol during the term of [his] probation," and to "[c]ontinue with counseling" (of an undisclosed nature). As to the second

   charge, Petitioner was found guilty by a jury on July 24, 1992, of committing battery on his wife in violation of Section 784.03, Florida Statutes. A "not guilty" verdict was entered as to the remaining four charges. The record does not indicate the sentence, if any, that he received for this offense.

4. Petitioner successfully completed all terms of his probation. Since his arrest in March 1992, he has not consumed any alcoholic beverages. This is an important consideration since both disqualifying offenses occurred when he was intoxicated.

5. Petitioner began working at FSH on September 26, 1979. He was first employed as a support service aide but was eventually promoted to the position of unit treatment rehabilitation specialist, a position involving supervision of developmentally disabled adults. Because of a background screening which occurred in 1997, Petitioner's disqualifying offenses were discovered, and he was forced to resign effective February 12, 1998. He has requested an exemption so that he can return to his employment. Since being forced to resign some four months ago, he has not been employed.

6. The two disqualifying offenses involve battery on Petitioner's long-time wife, Shirler. In both cases, she suffered injuries serious enough to require treatment at a local hospital. Shirler says, however, that Petitioner has "changed" since his 1992 arrest, and he no longer drinks, is communicative

   with her and the three children, and is a good father.

   
   

7. Petitioner attends church, is a member of a lodge in Quincy, Florida, and has a much better attitude since he stopped drinking. He has received good work evaluations during his most recent years of employment at FSH. Former co-workers and supervisors attested to the fact that Petitioner has good rapport with his co-workers and residents, and he performs his stressful job with a "cheerful" and "pleasant" attitude. He was also described as one of the "better" employees in the forensic unit.

8. In March 1987, or more than eleven years ago, Petitioner received a five-day suspension because of an altercation with an inmate in the FSH forensic section laundry room. The suspension was meted out after Petitioner became involved in an argument with an inmate and drew an opened knive in a threatening fashion. Although Petitioner denied that the blade was exposed, testimony by a co-worker established that it was exposed in a threatening fashion. The altercation was resolved, however, before any violence occurred. In mitigation, it was established that Petitioner's possession of a knive in the laundry room was not unlawful since it was necessary for him to use a knive to open the sealed buckets of detergents.

9. On October 13, 1993, Petitioner received a written reprimand for "Abusive and/or Threatening Language." On that occasion, Petitioner was instructed by his supervisor to help fold some laundry in the laundry room. Petitioner replied that he would not and told him "to get off my fucking back." Petitioner also pointed his fist at the supervisor in a threatening manner and "threatened to kick his butt."

10. On June 27, 1994, Petitioner was suspended for fifteen work days effective July 8, 1994, for using threatening and/or abusive language towards a supervisor. This disciplinary action was taken after Petitioner had again refused to comply with instructions by his supervisor. On that occasion, he became "real mad," called her a "motherfucker," shook his fist at her,

    and threatened to "get her." Although the supervisor stood her ground against Petitioner, she was "afraid" for her safety.

    
    

11. Petitioner was less than candid in describing the incidents which led to him receiving disciplinary action by his employer in 1987, 1993, and 1994. He has, however, expressed remorse for striking his wife in 1990 and 1992, and he regrets the embarrassment he caused his wife and children. For the last four years, Petitioner has had a blemish-free record at FSH, including good evaluations from his supervisors and a reputation as one of the "better" employees in his section. Given these considerations, it is found that Petitioner has sufficiently rehabilitated himself since the disqualifying incidents, and that he will pose no threat to the FSH clients and inmates.

    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. Petitioner's insubordinate conduct towards his supervisors in 1993 and 1994 is a troublesome aspect of this case. This conduct is reprehensible and should not be condoned. However, the process under Section 435.07, Florida Statutes, concerns a balancing of all relevant facts and a determination of whether the applicant will "present a danger [to the residents and inmates] if continued employment is allowed." With this in mind, the undersigned concludes that by evidence which meets the appropriate evidentiary standard, Petitioner has demonstrated "sufficient evidence of rehabilitation" to justify granting the exemption. This conclusion is based on the established facts that more than six years have elapsed since the disqualifying offenses, and Petitioner has had no subsequent brushes with the law. Since 1994, he has had good evaluations at FSH, and he is considered one of the "better" employees in the forensic section. The evidence also establishes that Petitioner has expressed regret for striking his wife, he now abstains from alcohol, and he will pose no threat to FSH clients and inmates. Therefore, Petitioner's request for an exemption should be approved.

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 granting Petitioner's request for an exemption from disqualification for employment in a position of

special trust.

DONE AND ENTERED this 4th day of June, 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 4th day of June, 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

John S. Slye, 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: 98-000985

Orders for Case No: 98-000985