STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHANNA BURKES, )

)

Petitioner, )

)

vs. ) Case No. 98-2131

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 15, 1998, in Largo, Florida, before Lawrence P. Stevenson, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Johanna Burkes, pro se

9702 Eldridge Road

Spring Hill, Florida 34608

For Respondent: Frank H. Nagatani, Esquire

Department of Children and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630 STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether the Petitioner is eligible for an exemption from disqualification to work in a position of special trust pursuant to the terms of Section 435.07, Florida Statutes.

PRELIMINARY STATEMENT

By letter dated February 18, 1998, Petitioner was notified by Respondent that her request for an exemption from disqualification had been denied. The denial was said to be based on an Exemption Review Committee’s examination of the record pertaining to her August 26, 1996, adjudication for domestic battery and improper exhibition of a dangerous weapon. The letter stated that because of “the serious nature of the charges, your recent release from probation, and the fact that you falsified your Affidavit of Good Moral Character, there has not been sufficient opportunity for you to demonstrate rehabilitation.” Petitioner challenged the denial and timely filed a request for formal hearing.

At the formal hearing, Petitioner testified on her own behalf and offered no exhibits. Respondent presented the testimony of George H. Seibert, a Human Services Program Specialist assigned to the Background Screening Unit of the Department of Children and Family Services. Respondent offered two exhibits, which were admitted into evidence without objection.

No transcript was provided. Both parties waived the opportunity to file proposed recommended orders.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:

1. Since December 1997, Petitioner has been employed as a mental health technician at The Harbors, a mental health and behavioral facility in Pinellas County.

2. Petitioner is disqualified from working in a position of special trust as a result of an adjudication regarding battery and improper exhibition of a dangerous weapon.

3. In 1996, Petitioner pled nolo contendere to one count of battery on her spouse, a first degree misdemeanor under Section 784.03(1)(a), Florida Statutes, and to one count of improper exhibition of a dangerous weapon or firearm, a first degree misdemeanor under Section 790.10, Florida Statutes. Adjudication was withheld, and Petitioner received 12 months' probation on the battery charge, commencing August 21, 1996.

4. George H. Seibert, a background screening specialist for the Department of Children and Family Services, testified that Petitioner’s disqualification was premised on her having committed an act of “domestic violence.” See Section 435.04(3)(b), Florida Statutes, authorizing disqualification for having "committed an act that constitutes domestic violence," without reference to having been formally charged with or convicted of "domestic violence."

5. Petitioner testified that her disqualification has not to date affected her job status, but has resulted in her inability to care for children and for elderly or disabled patients. Unlike other mental health technicians, she is not allowed to care for certain patients, even on days when staff is short-handed and her help is needed. Petitioner is thus concerned that at some point her employer may decide to replace

   her with an employee who can be more flexibly assigned.

6. Petitioner applied to Respondent for an exemption. A hearing was held by the Exemption Review Committee on

   December 16, 1997. The Exemption Review Committee recommended to the District Administrator that Petitioner be granted the requested exemption.

7. After reviewing the record and the Exemption Review Committee’s recommendation, the District Administrator denied Petitioner’s request by letter dated February 18, 1998.

8. In his letter, the District Administrator stated that the denial was due to the fact that Petitioner has not had sufficient opportunity to demonstrate rehabilitation, given the serious nature of the charges and her recent release from probation, and due to the fact that she falsified her Affidavit of Good Moral Character.

9. Mr. Seibert testified that other factors considered by the District Administrator in denying the exemption were that Petitioner’s children were present during the incident, and the fact that Petitioner attempted serious bodily harm to her husband.

10. Petitioner’s undisputed testimony was that the incident leading to her arrest was the only time in her life she had run afoul of the law. Petitioner forthrightly described the circumstances. One of her two children was in the hospital. She had just learned she was pregnant with her third child. Then, she found out that her husband had been having an affair with her

    sister. She chased him with a wooden club, which he managed to wrest away from her. She punched him, then went after him armed with a brick. When she couldn’t get to him, she threw bricks at his truck. According to the arrest report, no one was injured during the incident.

11. Petitioner testified that she and her husband have reconciled and currently live together, with their three children. They have received marriage counseling. Petitioner completed her 12-month probation period without incident.

12. Without excusing the actions of Petitioner or minimizing the seriousness of the charges against her, it is found that the District Administrator took insufficient notice of the circumstances surrounding the criminal incident, particularly that this was the only such incident in which Petitioner has ever been involved, that the victim was not a minor, that Petitioner's children were too young to suffer any lasting effects from their presence during the incident, and that no one was injured in the incident.

13. Mr. Seibert testified that the District Administrator applies a policy that one year should pass after completion of probation before an applicant can be said to have had a sufficient opportunity to demonstrate rehabilitation. Respondent made no demonstration that there is a basis for this policy in statute or rule, or that Petitioner received notice of this policy prior to petitioning for exemption. However, even

    assuming the policy is valid, Petitioner’s probation had been completed for eleven months at the time of hearing in this matter, substantially complying with the District Administrator’s nonrule policy.

14. The Affidavit of Good Moral Character, which Petitioner is alleged to have falsified, contains the following language:

    By signing this form, I am swearing that I have not been found guilty or entered a plea of guilty or nolo contendere (no contest), regardless of the adjudication, to any of the following charges under the provisions of the Florida Statutes or under any similar statute of another jurisdiction. I also attest that I do not have a delinquency record that is similar to any of these offenses.

    
    

    I understand I must acknowledge the existence of any criminal records relating to the following list regardless of whether or not those records have been sealed or expunged.

    I understand that I am also obligated to notify my employer of any possible disqualifying offenses that may occur while employed in a position subject to background screening under Chapter 435, Florida Statutes.

15. The affidavit goes on to list the offenses found in Section 435.04(2), Florida Statutes. Respondent contends that Petitioner failed to disclose her adjudication for battery, a violation of Section 784.03, Florida Statutes. However, both Section 435.04(2)(h), Florida Statutes, and the Affidavit of Good Character itself limit the consideration of battery to situations in which the victim of the offense was a minor.

16. The victim of Respondent’s battery was her husband. The court records entered into evidence by Respondent do not

    indicate the age of Petitioner’s husband. However, the arrest report does indicate that Petitioner was 22 years old at the time of her arrest, and had been married to her husband for two years at the time of the incident. The couple had two small children at the time of Petitioner’s arrest. It is presumed that the victim of Petitioner’s offense was an adult. Respondent presented no evidence that would lead to a finding that the victim was a minor.

17. Petitioner was under no obligation to acknowledge criminal records regarding violations of Section 741.28, Florida Statutes, relating to domestic violence, because Petitioner was never charged with or convicted of a violation of that statute.

18. Petitioner testified that she thought she was not required to acknowledge her battery adjudication because of her mistaken belief that “adjudication withheld” was tantamount to expungement of her record. Petitioner was mistaken as to the legal effect of her adjudication, but is credited with having no intent to falsify her Affidavit of Good Character.

19. In any event, Petitioner’s motive is irrelevant because the plain language of the statute and the affidavit relieved Petitioner of any duty to report the battery. It is found that Petitioner did not falsify her Affidavit of Good Character.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this

    proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

21. This proceeding is governed by Section 435.07, Florida Statutes, subsection (3) of which provides in pertinent part:

    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.

22. Section 435.04(2), Florida Statutes, lists the statutory offenses that merit disqualification. Battery is such an offense, but only "if the victim of the offense was a minor." Respondent thus had no basis to disqualify Petitioner on the basis of her nolo contendere plea to a violation of Section 784.03, Florida Statutes, except as it constituted "domestic violence."

23. Section 435.04(3)(b), Florida Statutes, provides that the screening standards must ensure that the person has not committed an act that constitutes "domestic violence" as defined in Section 741.30, Florida Statutes. Battery is included in the definition of domestic violence, if it results in physical injury to a family or household member by another who is or was residing

    in the same single dwelling unit. See Section 741.28(1), Florida Statutes. It is doubtful whether “physical injury” occurred in the incident leading to Petitioner’s arrest, given that the arrest report expressly stated “no injuries.” However, under all the circumstances, it was not unreasonable for Respondent to find Petitioner disqualified at the outset for having committed domestic violence.

24. However, Petitioner has demonstrated by clear and convincing evidence that there were extenuating circumstances surrounding the criminal incident for which exemption is sought; that sufficient time has passed since the incident to demonstrate rehabilitation, given that the incident was the only such event involving Petitioner before or since it occurred; that no harm was caused to the victim; that her employment record at The Harbors is good; and that she did not falsify her Affidavit of Good Moral Character.

25. Respondent offered no evidence that would lead any reasonable person to suppose that Petitioner presents a danger to anyone. Respondent’s own Exemption Review Committee, which actually met with Petitioner and heard her version of events, recommended that she receive an exemption. The exemption should be granted.

RECOMMENDATION

Upon 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 an exemption to work in a position of special trust.

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

LAWRENCE P. STEVENSON

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:

Johanna Burkes, pro se 9702 Eldridge Road

Spring Hill, Florida 34608

Frank H. Nagatani, Esquire Department of Children

and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

Gregory D. Venz, Agency Clerk

Department of Children and Family Services 1317 Winewood Boulevard

Building Two, 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: 98-002131

Orders for Case No: 98-002131