STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LETTA HOLCOMB, )

)

Petitioner, )

)

vs. ) Case No. 98-1301

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on May 13, 1998, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Letta Holcomb, pro se

15455 Southwest 288th Street, No. E-3 Leisure City, Florida 33033

For Respondent: Leah M. Pollard, Esquire

Department of Children and Family Services

401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128

STATEMENT OF THE ISSUES

Whether Petitioner should be granted the exemption from disqualification from employment that she is seeking.

PRELIMINARY STATEMENT

By letter dated February 2, 1998, the Department of Children

and Family Services (Department) notified Petitioner of its intent to deny her "request for exemption pursuant to laws of Florida governing background screening." Petitioner thereafter requested a Section 120.57(1) hearing on the Department's proposed action. On March 17, 1998, the matter was referred to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the hearing Respondent had requested.

As noted above, the hearing was held on May 13, 1998. At the hearing, two witnesses testified. Petitioner testified on her own behalf. Kathleen Lyn, a background screening analyst with the Department, testified for the Department. In addition to Petitioner's and Lyn's testimony, seven exhibits (Petitioner's Exhibits 1 through 3 and Respondent's Exhibits 1 through 4) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the undersigned inquired of the parties whether they intended to file proposed recommended orders. In response to the undersigned's inquiry, Petitioner indicated that she would be waiving her right to file a proposed recommended order. Counsel for the Department, on the other hand, indicated that she would be filing a proposed recommended order on behalf of the Department. The undersigned thereupon, on the record, announced that the Department's proposed recommended order had to be filed no later than 30 days from the date of the Division's receipt of

the transcript of the hearing. The Department timely filed its proposed recommended order on July 21, 1997. In making the recommendation contained in this Recommended Order, the

undersigned has given careful consideration to the Department's proposed recommended order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

1. On November 27, 1993, Petitioner was living in an apartment in Florida City.

2. She shared the apartment with her boyfriend.

   
   

3. Some time that day (November 27, 1993), Petitioner's boyfriend became intoxicated and physically removed Petitioner from their apartment against her will. He then locked the doors and would not allow Petitioner to reenter the apartment.

4. Her boyfriend's actions, understandably, angered Petitioner.

5. Seeking revenge, she obtained a pair of pliers and a screwdriver and used them to break the windows of her boyfriend's vehicle.

6. The police were called to the scene.

   
   

7. When the police arrived, Petitioner still had possession of the pliers and screwdriver. She was holding them in her right hand.

8. One of the police officers who arrived on the scene approached Petitioner and placed a handcuff around her left wrist. As the officer attempted to place the other cuff around Petitioner's right wrist, Petitioner pulled her right hand (in

   which she held the pliers and screwdriver) away from the officer and moved it above her head. Petitioner's uncooperative and threatening conduct prompted the officer and his partner to use physical force against Petitioner and a scuffle ensued.

9. The officers ultimately placed Petitioner under arrest.

   
   

10. As a result of the incident, Petitioner was charged with the felonies of aggravated assault on a police officer and resisting an officer with violence. She was also charged with disorderly conduct, a misdemeanor.

11. Petitioner did not believe that, if she contested the charges against her, she would prevail. Therefore, acting upon the advice of her appointed attorney, she pled nolo contendre to the charges.

12. On January 21, 1994, Petitioner's plea was accepted, adjudication of guilt was withheld, and she was placed on probation for a period of one year.

13. During the time that she was on probation, Petitioner attended anger control classes. By her own admission, she did not benefit from attending these classes.

14. On July 21, 1994, Petitioner's probation officer, in writing, informed the court that Petitioner had "complied with the rules and regulations of probation and [was] no longer in need of probation supervision." She therefore recommended that Petitioner be discharged from probation.

15. That same day, July 21, 1994, the court entered an order following the probation officer's recommendation and discharging Petitioner from probation.

16. On March 5, 1995, Petitioner was living with a man who, like her former boyfriend, had a drinking problem.

17. On this particular day (March 5, 1995), the man was verbally harassing Petitioner while she was laying down on the couch and trying to sleep. Annoyed by these antics, Petitioner took off one of the sandals she was wearing and threw it at the man. The sandal hit the man in the area of his eye.

18. The man reported the incident to police and Petitioner was arrested.

19. Petitioner was charged with misdemeanor battery, but the charge was subsequently dismissed.

20. On February 3, 1997, Petitioner was involved in another incident that led to her arrest.

21. On that date, Petitioner's 23-year old son and one of her neighbors became involved in a physical altercation. Petitioner intervened on her son's behalf and slapped the neighbor. The neighbor's wife, who was pregnant at the time, thereupon entered the fray and started to physically attack Petitioner. In attempting to defend herself during the melee, Petitioner shoved the neighbor's pregnant wife.

22. Petitioner was arrested for aggravated battery on a pregnant person. The matter, however, was not prosecuted.

23. For approximately eight months prior to July of 1997, Respondent was employed at Homestead Nursing Home. She was terminated from her position, effective July 1, 1997, after she was involved in a fist fight with another employee in a hallway at the nursing home. The other employee threw the first blow after Petitioner had verbally confronted her concerning the use of a linen cart that Petitioner needed.

24. On August 25, 1997, Petitioner started working at an intermediate care facility operated by Sunrise Community, Inc. (Sunrise).

25. In the latter part of October of 1997, after a background screening investigation by Sunrise had revealed that she was not qualified to serve in her position because of her "criminal background," Petitioner was terminated from her position.

26. Petitioner has not clearly and convincingly demonstrated that, since the November 27, 1993, incident that led to criminal charges being filed against her (including the charge of aggravated assault on a police officer), she has rehabilitated herself to the extent that that she would not present a danger if her exemption request was granted.

    CONCLUSIONS OF LAW

    
    

27. Petitioner has been advised by the Department that, because she pled nolo contendre to the aforementioned charge of aggravated assault on a police officer,1 she is presently

    disqualified from employment in positions of special trust, like the position she occupied at Sunrise. See Sections 393.06555, 435.04, and 435.06, Florida Statutes.

28. She is seeking from the Department an exemption from such disqualification pursuant to Section 435.07, Florida Statutes, which provides, in pertinent part, as follows:

    Unless otherwise provided by law, the provisions of this section shall apply to exemptions from disqualification.

    
    

    1. The appropriate licensing agency2 may grant to any employee otherwise disqualified from employment an exemption from disqualification for:

       
       

       1. Felonies committed more than 3 years prior to the date of disqualification; . . .

          
          

          For the purposes of this subsection, the term "felonies" means both felonies prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdictions. . . .

          
          

          (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 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 set forth in

          chapter 120. . . .

          
          

29. Petitioner has failed to meet her burden of clearly and convincingly demonstrating that her "history" since the

    November 27, 1993, incident that led to her disqualification from employment reflects that she has fully rehabilitated herself (in terms of acting responsibly and appropriately, particularly when angry or upset) and that therefore granting her an exemption from such disqualification will not endanger any individual that the employment screening and disqualification provisions of Florida Statutes were intended to protect. She has not convinced the undersigned that, if she is granted an exemption and permitted to work at a facility like Sunrise, she will always be able, in her dealings with others at the facility, to control her temper and act in an appropriate and responsible manner that will not pose a threat to the safety of the residents of the facility. While Petitioner may some day (perhaps even in the near future) be able to establish her fitness to occupy a position of special trust, she has not clearly and convincingly demonstrated that, taking into consideration the factors described in Section 435.07(3), Florida Statutes, she qualifies for such employment at the present time.

30. Accordingly, her request for an exemption to allow her to be so employed should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department issue a final order denying the exemption that Petitioner has requested.

DONE AND ENTERED this 4th day of August, 1998, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 August, 1998.

ENDNOTES

1 The mere entry of such a plea results in disqualification, regardless of whether there is sufficient proof that the crime was actually committed. See Kelly v. Department of Health and Rehabilitative Services, 610 So. 2d 1375, 1378 (Fla.2d DCA 1992); Section 435.04(2), Florida Statutes.

2 "Licensing agency," as used in Chapter 435, Florida Statutes, "means any state or county agency which grants licenses or registration permitting the operation of an employer or is itself an employer. When there is no state licensing agency or the county licensing agency chooses not to conduct employment screening, 'licensing agency' means the Department. "

COPIES FURNISHED:

Letta Holcomb, pro se

15455 Southwest 288th Street, No. E-3 Leisure City, Florida 33033

Leah M. Pollard, Esquire

Department of Children and Family Services

401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128

Richard Doran, General Counsel

Department of Children and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory D. Venz, Agency Clerk

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.

1 The mere entry of such a plea results in disqualification, regardless of whether there is sufficient proof that the crime was actually committed. See Kelly v. Department of Health and Rehabilitative Services, 610 So. 2d 1375, 1378 (Fla.2d DCA 1992); Section 435.04(2), Florida Statutes.

2 "Licensing agency," as used in Chapter 435, Florida Statutes, "means any state or county agency which grants licenses or registration permitting the operation of an employer or is itself an employer. When there is no state licensing agency or the county licensing agency chooses not to conduct employment screening, 'licensing agency' means the Department. "

Docket for Case No: 98-001301

Orders for Case No: 98-001301