STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTOR RENALDO DAYS, )

)

Petitioner, )

)

vs. ) Case No. 98-1290

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on July 22, 1998, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569(1) and 120.57(1), Florida Statutes. The hearing location was the Bay County Courthouse, Panama City, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Victor Renaldo Days, pro se

1003 McKenzie Avenue Panama City, Florida 32401

For Respondent: John R. Perry, Esquire

Department of Children and Family Services

Suite 100A

2639 North Monroe Street Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUES

Is Petitioner entitled to an exemption from disqualification, to have direct contact with unmarried minor

clients or clients who are developmentally disabled, having been

disqualified from direct contact with those persons by virtue of an offense related to drug abuse prevention and control,

Chapter 893, Florida Statutes?

PRELIMINARY STATEMENT

Petitioner was notified of his disqualification to have direct contact with unmarried minor clients and clients who are developmentally disabled in association with his employment.

Petitioner requested the Respondent grant an exemption from disqualification. On February 27, 1998, Respondent denied that request, with leave for Petitioner to request a hearing pursuant to Chapter 120, Florida Statutes, to contest the preliminary decision denying the exemption. On March 6, 1998, Petitioner sought that hearing. On March 16, 1998, the case was forwarded to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a hearing to resolve the question of the entitlement to exemption from disqualification. That hearing took place on the aforementioned date.

Petitioner testified in support of his request to be granted an exemption from disqualification. He also presented the testimony of Mary Cruel, his great-aunt. Petitioner's Exhibits 1-4 were admitted. Respondent's counsel examined Petitioner and his witness. Respondent's Exhibit 1 was admitted.

A transcript of the hearing was not prepared. The parties were granted until August 3, 1998, to file proposed recommended orders addressing the case. Respondent's counsel filed a proposed recommended order. Petitioner did not submit a proposed

recommended order. The proposed recommended order by the Respondent has been considered in preparing the recommended order.

FINDINGS OF FACT

1. In State of Florida v. Victor Days, in the Circuit Court of the 11th Judicial Circuit, in and for Dade County, Florida, Case No. 93-33378, Petitioner entered a plea of nolo contendere to the offense of cocaine possession. This case was in relation to a criminal law offense prohibited by Chapter 893, Florida Statutes. Adjudication was withheld. Petitioner received a

   one year probation based upon the order of the court entered October 22, 1993.

2. Following the entry of his plea to the offense of possession of cocaine, Petitioner went through a drug screening to be evaluated concerning response to his use of drugs. The result of that screening was a recommendation that Petitioner receive out-patient treatment for his use of cocaine. Petitioner did not participate in an out-patient program. Eventually he enrolled in an in-patient program to address his drug abuse.

3. Although Petitioner offered his plea to the offense of possession of cocaine and accepted the disposition, at the hearing in the present case Petitioner contended that he had not committed the offense for which he stood accused and entered his plea. But the plea entered contemplates a lack of agreement with the truth of the charges. Petitioner also complained in the administrative hearing that he had not received adequate advice

   
   

   from his attorney in the criminal law case. Petitioner does concede that he had a problem with the abuse of crack cocaine that existed before and beyond his arrest for the charge of possession of cocaine. Additionally, Petitioner admits that during this time he abused alcohol.

4. Petitioner describes that he did not "drop" the cocaine that he was arrested for, and that charging him for that offense was an "injustice." Petitioner describes the circumstances of his arrest as a "wake-up call," concerning the fact that he was involved with crack cocaine, if not on the occasion of his arrest, at other times.

5. Petitioner describes his use of crack cocaine as being associated with binges in which he would have $100 and spend it on the crack cocaine. He can recall at least eight occasions in which he would "binge" on crack cocaine. In his testimony at the administrative hearing, Petitioner describes his use of crack cocaine in that period of time as constituting an addiction.

6. Petitioner acknowledges that in the period 1993 through 1994, he suffered from addiction, to the extent that he had a co- dependency for crack cocaine and alcohol.

7. In the years 1992 through 1994, Petitioner had worked for Jackson Memorial Hospital in Dade County, Florida, in the Environmental Services Department. This employment did not include direct contact with patients.

8. Following the disposition of Circuit Court Case No. 93- 33378, roughly a year later, on November 15, 1994, Petitioner

   
   

   entered a residential program for drug abusers, referred to as Faith Farm Ministries in Fort Lauderdale, Florida. Specifically, it was a program to benefit adults with drug abuse problems. The program was administered by Fort Lauderdale Rescue Tabernacle, Inc., Alpha Ministry. The program was designed to help the participants deal with their drug dependency and to reorder their lives for the better. Petitioner successfully completed the program as evidenced by a certificate issued to the Petitioner on May 1, 1995.

9. For approximately eight months beyond his graduation from the drug abuse program, Petitioner served as a peer counselor for other adults enrolled in the program.

10. During his probation, Petitioner's probation officer referred Petitioner to the court for having violated probation. Petitioner was not found in violation of his probation. When

Petitioner was not found in violation of his probation, Petitioner had already attended the residential drug treatment program.

1l. Following the completion of his drug abuse program, Petitioner worked at a K-Mart in Miramar, Florida, for approximately six months in 1995, as a salesperson.

1. Later Petitioner took a position with Chemical Addictions Recovery Effort, Inc. (Chemical Additions Recovery), in Panama City, Florida, as a Human Service worker, with direct contact with minors who are 13 to 17 years old. More specifically, those youngsters are part of a program referred to as Starting Over Straight (S.O.S.), within the umbrella of Chemical Addictions Recovery. In this position, Petitioner assisted the juveniles who had drug-related problems. This position was held for approximately three months. Petitioner then took a position with a program within the Chemical Addictions Recovery, referred to as Detox. That program, in which he had direct contact with the clients, was in association with adults and children suffering with problems related to alcohol and drugs. Petitioner held that position for approximately three months.

2. During Petitioner's affiliation with Chemical Addictions Recovery, Petitioner was required to undergo a background check, based upon his holding a position of trust and

   responsibility, as an employee with direct contact with minor clients.

3. When the screening was completed, it revealed Petitioner's criminal law case associated with the possession of cocaine. This disqualified the Petitioner from continuing to have direct contact with unmarried minor clients or clients who are developmentally disabled.

4. Petitioner has an interest in continuing employment involving direct contact with unmarried minors, such as the children who were participants in the S.O.S. For this reason Petitioner has pursued his request for exemption from disqualification.

5. At the time of the hearing Petitioner was employed as a floor-care worker with Bay Genesis Eldercare in Panama City, Florida. He had held that position for approximately three months.

6. On the date of hearing Petitioner was 36 years old.

   
   

7. Petitioner believes that his life has changed following participation in the residential drug treatment program. Petitioner in his day-to day life works to tell people that drugs and alcohol are a waste of time. That was the motivation Petitioner had for working as a Human Service worker at Chemical Addictions Recovery.

8. Petitioner does not sense any difficulty in dealing with children. He believes that children look up to him.

9. At present Petitioner does not use alcohol or drugs.

   
   

10. Petitioner attends church.

    
    

11. Mary Cruel, Petitioner's great-aunt, is a supervisor at

    
    

    S.O.S. She describes that program as a residential program for children who have a problem with substance abuse. Ms. Cruel is familiar with the Detox program associated with Chemical Addictions Recovery. That program, as Ms. Cruel describes it, is a crisis intervention program for adult women and some children.

12. Ms. Cruel recalls that Petitioner had a problem with drugs and alcohol, as part of overall life problems. In response, Ms. Cruel helped to place the Petitioner in the Faith Farm Ministries program.

13. As Ms. Cruel describes it, Petitioner's participation in the Faith Farm Ministries program was voluntary. Participation in that program was felt to be the better choice, in that it had a spiritual emphasis.

14. Ms. Cruel communicated with the Petitioner while he was participating in the drug rehabilitation program. She observed that the Petitioner was passionate about getting well, and that he quit blaming others for his difficulties.

15. Now Ms. Cruel sees the Petitioner about three times a week. Ms. Cruel observes that her husband is close to the Petitioner. Ms. Cruel's husband does not abuse drugs. Ms. Cruel has observed the Petitioner trying to encourage other persons, who have problems with drugs to get into treatment and in

    conversation with others, Petitioner refers to his life experience. Ms. Cruel notes that Petitioner wants to work in a substance abuse program. Ms. Cruel is aware that Petitioner earns more money at his present employment than he did in the position that he was dismissed from with Chemical Addictions Recovery. Finally, Ms. Cruel observes that Petitioner lives a more regular life than he did before dealing with his addictions, and that Petitioner stays clean and sober one day at a time without being seen to have regressed.

16. Rosemary G. Balkcom, R.N., C.D., a nursing services supervisor at Chemical Addictions Recovery, in correspondence, notes that Petitioner in working in the Detox program related well with clientele and that his overall attitude toward the persons participating in the program was one of genuine concern and empathy. Further, Ms. Balkcom notes in her remarks that Petitioner enjoys being able to assist and provide guidance for the clientele in the program. Finally, Ms. Balkcom notes that if Petitioner were allowed to continue to work in the program, and gained required education and training, Petitioner would present a positive role model for others.

17. Amy Shackleford, Petitioner's co-worker, notes in correspondence that Petitioner has a genuine care for juvenile residents, and that Petitioner is active, motivated, honest, and dependable. Ms. Shackleford notes that young residents with low self-esteem have become actively involved with Petitioner.

    Ms. Shackleford notes that Petitioner is a perfect role model, and a positive influence in helping young people grow into productive citizens.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this case in accordance with Sections 120.569(1) and 120.57(1), Florida Statutes.

19. Other than for reasons that do not pertain to this case, Section 397.451, Florida Statutes, requires background checks to be made of service provider personnel who have direct contact with unmarried minor clients or clients who are developmentally disabled. Petitioner in his employment with Chemical Addictions Recovery, or a similar employer, must undergo the background check addressed in that section. Specifically, the background check must be made in accordance with Chapter 435, Florida Statutes, using Level 2 standards for screening. The Level 2 screening standards are set forth in Section 435.04, Florida Statutes. They include consideration of whether Petitioner had been found guilty of, regardless of adjudication, or entered a plea of nolo contendere, to an offense prohibited under Chapter 893, Florida Statutes, related to drug abuse prevention and control, in the instance where the offense was a felony. When Petitioner underwent screening in accordance with these provisions, he was appropriately found to have been disqualified from working in a position of trust or responsibility involving direct contact with unmarried clients

    under the age of 18 years or with the clients who were developmentally disabled.

20. In accordance with Section 397.451(5), Florida Statutes, Respondent may grant Petitioner an exemption from his disqualification as provided in Section 435.07, Florida Statutes, or, given Petitioner's past substance abuse of cocaine, and the possibility that Petitioner would be effective in successful treatment and rehabilitation of substance abuse impaired adolescents, Petitioner may be exempted from disqualification for that reason.

21. Petitioner is entitled to seek exemption from disqualification in accordance with Section 435.07, Florida Statutes, in that the felony offense for which he entered his plea of nolo contendere was committed more than three years prior to the date of his disqualification. To be entitled to the exemption from disqualification, under that provision, Petitioner must meet the requirements in Section 435.07(3), Florida Statutes, which state:

    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 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. The decision of the licensing department regarding an exemption may be contested through the hearing procedures . . . .

    
    

22. With exception of Petitioner's explanation of the circumstances surrounding the criminal incident for which Petitioner entered a plea, Petitioner's explanation of his rehabilitation from drug and alcohol abuse provides sufficient evidence of rehabilitation. Petitioner's denial of the offense and attempt to place responsibility for his choice of plea on his criminal law attorney, with whom he was not satisfied, creates some concern about his rehabilitation, but the nolo plea itself does not concede the details of the offense and the other evidence of rehabilitation overcomes the questions concerning the genuineness of Petitioner's rehabilitation. Of particular significance is Petitioner's participation in the residential drug abuse program, working as a counselor in the program following completion of the program, continued interest in making others aware of the dangers of drug abuse and the observations by his great-aunt that Petitioner is now living an exemplary life day-to-day. Sufficient time has passed to make a judgment concerning Petitioner's rehabilitation. According to the facts, there was no victim in the offense. Petitioner's history since the incident is commendable. No other evidence, or circumstances, indicate that the Petitioner would present a present danger to unmarried minors or developmentally disabled

    persons whom he might have direct contact with as a service provider.

23. In addition, the facts indicate that Petitioner could be effective in the successful treatment and rehabilitation of substance abuse impaired adolescents, given his status as a rehabilitated substance-abuse impaired person who had been involved with an offense recognized in Section 893.13, Florida Statutes.

24. Petitioner has demonstrated by clear and convincing evidence that he should not be disqualified from employment to work in a position of trust and responsibility involving direct contact with unmarried minor clients and clients who are developmentally disabled.

RECOMMENDATION

Upon consideration the of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered exempting Petitioner from disqualification to work in a position of special trust or responsibility that would allow direct contact with unmarried minor clients or clients who are developmentally disabled.

DONE AND ENTERED this 18th day of August, 1998, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 18th day of August, 1998.

COPIES FURNISHED:

John R. Perry, Esquire Department of Children

and Family Services Suite 100A

2639 North Monroe Street Tallahassee, Florida 32399-2949

Victor Renaldo Days 1003 McKenzie Avenue

Panama City, Florida 32401

Gregory D. Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

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: 98-001290

Orders for Case No: 98-001290