STATE OF FLORIDA

DEPARTMENT OF CHILDREN AND FAMILY SERVICES

JOSE RAMON ARAZO

Petitioner, CASE NO. 99-1824 RENDITION NO. DCF-00100-FO

v.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

/

FINAL ORDER GRANTING EXEMPTION

THIS CAUSE is before me for entry of a Final Order based on a Recommended Order issued by an independent administrative law judge assigned to the case by the Division of Administrative Hearings.

The case involves a husband who wants an exemption from disqualification so that his wife can secure a license to operate a day care center. The husband has a history of criminal behavior, including at least one felony, and multiple violations of probation. The husband's evidence of rehabilitation included his own testimony and the testimony of others in his community, including correctional officers who had witnessed the husband's rehabilitation over the years.

The Administrative Law Judge recommended that the exemption be granted. In doing so, however, he criticized the district for its alleged "policy" of denying exemptions to people still on probation. The criticism was unnecessary. The instant case was not a rule challenge and the issue of whether or not probationers should be excluded from exemption was not before the Administrative Law Judge. At issue was whether, at the de novo hearing before the Administrative Law Judge, the petitioner met his burden of showing sufficient evidence of rehabilitation from the disqualifying offense.

Therefore, I reject the following verbiage at paragraph 23 of the Recommended Order.

However, the cited cases can be distinguished from the instant case in that under the Director's policy there can be no exercise of

discretion. The policy rule removes any application of expertise or possibility of discretion. The policy creates a presumption in a manner condemned by the Second District Court of Appeals in B.R. and W.C. v.

Department of Health and Rehabilitative Services, 558 So.2s 1027, (Fla. 2nd DCA 1989); and R.S.M. v. Department of Health and Rehabilitative Services, 640 So.2d 1126 (Fla. 2nd DCA 1994) (See also George H. McDonald v. Department of Professional Regulation. Board of Pilot Commissioners, 582 So. 2d 660 (Fla. 1st DCA 1991).

The rejection of this verbiage does not change the end result. The exemption is granted because, at hearing, Petitioner presented sufficient evidence of rehabilitation.

Accordingly, it is ORDERED that petitioner's application for an exemption from disqualification from employment in a position of special trust pursuant to Section 435.07, Florida Statutes, is granted.

DONE and ORDERED this 13th 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:

Arnold H. Pollock Administrative Law Judge

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, FL 32399-3060

George Seibert

Background Screening Coordinator District 5 Legal Office

Department of Children and Family Services 11351 Ulmerton Road

Largo, FL 34648

Kathleen R. Harvey, Esquire

Department of Children and Family Services 3151 3rd Avenue, North

Plaza 300 West

St. Petersburg, FL 33713

Jose Ramon Arazo

8737 92nd Terrace, North Seminole, FL 33777

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 20, 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: 99-001824

Orders for Case No: 99-001824