STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY C. CORNELIUS, )

)

Petitioner, )

)

vs. ) Case No. 99-1520

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly-designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on

July 14, 1999, by video teleconference, with sites in Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: No appearance at hearing For Respondent: Colleen Farnsworth, Esquire

Department of Children and Family Services

111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Petitioner's request for exemption from employment disqualification should be approved.

PRELIMINARY STATEMENT

By letter of January 29, 1999, Respondent denied Petitioner's request for an exemption from employment disqualifiction in a position of special trust (working with children or the developmentally disabled), and Petitioner filed a timely request for formal hearing to challenge Respondent's decision. Consequently, the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

At hearing, neither Petitioner nor anyone on his behalf appeared and, consequently, no evidence was offered on his behalf. Respondent called Daniel Ganzal, Susan Barton, and Laura Williams as witnesses, and Respondent's Exhibits numbered 1, 2A, 2B, 3, and 4 were received into evidence.

The transcript of the hearing was not ordered. Therefore, at the conclusion of the hearing, it was announced that the parties were accorded 10 days from the date of hearing to file proposed recommended orders. Respondent elected to file such a proposal and it has been duly-considered.

FINDINGS OF FACT

1. In or about December 1998, the Department of Children and Family Services (Department) initiated an employment screening pursuant to Chapter 435, Florida Statutes, incident to Petitioner's application for employment at a child day care

   center in Delray Beach, Florida. That screening revealed that on September 28, 1998, Petitioner was arrested for exposure of sexual organs, a violation of Section 800.03, Florida Statutes, and unnatural and lascivious acts, a violation of Section 800.02, Florida Statutes. The screening further revealed that on

   October 20, 1998, Respondent entered a plea of guilty to the charges; adjudication was withheld; and Respondent was placed on probation for a term of 6 months.

2. Given the screening results, the Department notified Respondent by letter of December 14, 1998, that he was ineligible for continued employment in a position of special trust (working with children or the developmentally disabled), and accorded him an opportunity to request an exemption under the provisions of Section 435.07, Florida Statutes. Petitioner requested such an exemption, and the Department duly-convened a hearing to consider Petitioner's request. Subsequently, the Department advised Petitioner by letter of January 29, 1999, that his request for exemption was denied, and these proceedings ensued at Petitioner's request to challenge the Department's decision.

3. As observed in the preliminary statement, neither Petitioner nor anyone on his behalf appeared at hearing, and no proof was offered to support his claim for exemption. Such failing is dispositive of the case.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 437.07(3), Florida Statutes.

5. Section 435.07, Florida Statutes, establishes the requirements which must be satisfied to grant an exemption. Pertinent to this case, Section 435.07(3) provides:

   (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 indicent, 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.

6. Here, by failing to appear or offer any proof at hearing, Petitioner failed to carry his burden to demonstrate "by clear and convincing evidence that . . . [he] should not be disqualified from employment." Section 435.07(3), Florida Statutes. Consequently, Petitioner's request for exemption must be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered denying Petitioner's request for exemption from employment disqualification.

DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1999.

COPIES FURNISHED:

Henry C. Cornelius

2315 Southwest 22nd Avenue Boynton Beach, Florida 33445

Colleen Farnsworth, Esquire

Department of Children and Family Services

111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401

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, 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: 99-001520

Orders for Case No: 99-001520