STATE OF FLORIDA

DEPARTMENT OF CHILDREN AND FAMILY SERVICES

KARLIER ROBINSON

Petitioner, CASE NO. 99-0937

RENDITION NO. DCF-00-089-F0

v.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES

Respondent.

/

FINAL ORDER REVERSING CONCLUSION OF LAW REGARDING CLEAR AND CONVINCING EVIDENCE AND DENYING APPLICATION FOR EXEMPTION

THIS CAUSE is before me for entry of a Final Order based on a Recommended Order issued by an Administrative Law Judge assigned by the Division of Administrative Hearings. It concerns a petitioner who is currently disqualified by law from working with children or disabled or elderly adults. The disqualification is the result of the petitioner's past behavior which constituted either a crime or a finding of delinquency or the commission of an act of domestic violence. Alternatively, the disqualification may be the result of the existence of a confirmed report naming the petitioner as the perpetrator of the abuse, neglect or exploitation of a vulnerable adult. See Section 435.07, Florida Statutes.

Pursuant to Section 435.07(3), a person who is disqualified from working with children or disabled or elderly adults may seek an exemption from the disqualification. To secure the exemption, which would allow him to work with children or elderly or disabled adults, the petitioner must show, by clear and convincing evidence, that he should not be disqualified. To show that he should not be disqualified, the burden of proof is on the petitioner to set forth sufficient evidence of rehabilitation.

Such evidence includes, but is not limited to, the circumstances surrounding the event, the time period that has elapsed since the event, the nature of the harm that the petitioner caused to the victim, and the history of the petitioner indicating that the petitioner will not present a danger to the vulnerable population whose welfare and well-being are, by law, in the hands of the Department to protect.

In the instant case, the Recommended Order concludes that the petitioner presented such clear and convincing evidence. I disagree and hereby reject the Recommended Order's findings numbered 3 and 8, both of which address the ultimate decision in the case regarding whether Petitioner has met the standard of proof required to show entitlement to an exemption under Section 435.07(3), Florida Statues.

It is clearly within the Department's discretion whether to grant an exemption. Section 435.07(1), Florida Statutes.

Indeed, in the recently reported case of Calvin Phillips v. Department of Juvenile Justice, the District Court of Appeal for the Fourth District of Florida held that the agency was under no obligation to grant an exemption even if Phillip's presentation constituted clear, convincing and unrefuted evidence of rehabilitation. (Emphasis supplied).

In the Phillips case, Phillips supported his application for an exemption with a written explanation of the disqualifying incidents, letters of recommendation from a variety of organizations and individuals, proof of training that he had received, and a psychological evaluation. The various letters of recommendation agreed that Phillips had changed, that he worked to rehabilitate youth into productive members of society, and that he was loyal, dependable, trustworthy, caring and concern

~d. The psychological evaluation stated that, in terms of violence and aggression, Phillips had "only . . . one" episode of violence in his life, as evidenced by the domestic battery that constituted one disqualifying event, and that he had successfully completed his probation and anger management classes. The report also stated that Phillips had a long-standing history of working with children and was well-respected by his peers and colleagues.

The agency in the Phillips case presented nothing to counter Phillip's evidence. Still, the Court, relying on Thomas v. Department of Juvenile Justice, 730 So.2d 809 (Fla. 3d DCA 1999), ruled that it ". . . may not substitute its judgment for that of the agency on an issue of discretion." Calvin Phillips v. Department of Juvenile Justice, 736 So2d 118, 119 (Fla. 4th DCA 1999).

Given that Calvin Phillips, with all his evidence, was not entitled to an exemption, the fact that the instant petitioner is currently active in his community and church is clearly insufficient to constitute clear and convincing evidence of rehabilitation. In this regard, I agree with consistent findings of other administrative law cases in factually similar circumstances. See, for instance, Andrew C. Greene v. Department of Children and Family Services, Case No. 99-1061; Gaynell Allen v. Department of Children and Family Services,

Accordingly, it is ORDERED that petitioner's application for an exemption from disqualification from employment in a position of trust or responsibility is denied.

DONE and ORDERED this 1st day of March, 2000, in Tallahassee, Leon County, Florida.

KATHLEEN A. KEARNEY, Secretary

Department of Children and Family Services

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Copies furnished to:

Don Davis

Administrative Law Judge

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, FL 32399-3060

Chris LeClair

Background Screening Coordinator District 2 Legal Office Department of Children and Family Services

2639 North Monroe Street Tallahassee, FL 32399-2949

John R. Perry, Esquire District 2 Legal Office Department of Children and Family Services

2639 North Monroe Street Tallahassee, FL 32399-2949

Karlier Robinson 1018 Martin Street

Blountstown, FL 32424

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U. S. Mail or hand delivery to each of the above-named persons this 3, day of March, 2000.

Virginia Daire, Agency Clerk Department of Children and

Family Services 1317 Winewood Blvd.

Tallahassee, FL 32399-0700

(850) 488-2381

Docket for Case No: 99-000937

Orders for Case No: 99-000937