STATE OF FLORIDA

DEPARTMENT OF CHILDREN AND FAMILY SERVICES

JOAN GOLDHAMMER,

Petitioner, CASE NO. 99-2179

RENDITION NO. DCF-00-103-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 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.

By law, disqualification is the result of a 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 a 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 a petitioner to work with children or elderly or disabled adults, he or she must show, by clear and convincing evidence, that the disqualification should be set aside. To show that the disqualification should be set aside, the burden of proof is on a 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.

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

Indeed, in Calvin Phillips v. Department of Juvenile Justice, infra, 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 concerned. 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 PhilliDS v. Department of Juvenile Justice, 736 So2d 118, 119 (Fla. 4th DCA 1999).

In the instant case, the Recommended Order concludes that the petitioner presented sufficient proof of rehabilitation to constitute clear and convincing evidence that the petitioner will not present a danger to the vulnerable population in her charge. I agree with the result but I disagree with certain of the Administrative Law Judge's conclusions of law.

I reject the final two sentences of the conclusion of law contained in paragraph #24, and I reject all of paragraph #25. The first of the two sentences in paragraph #24 suggests that the Department must refute the petitioner's testimony in order to prevail at an exemption hearing. Meanwhile, the final sentence of paragraph #24 and all of paragraph #25 suggest that the Department must present evidence to support its denial of the request for an exemption. Those suggestions are not supported in law. See, Phillips v. Department of Juvenile Justice, supra.

I also respectfully reject paragraph 27. As the Administrative Law Judge said in the first sentence of paragraph 27, there is no evidence to support his conclusion that the Department sanctions a policy against granting exemptions to petitioners on probation. It does not.

Likewise, paragraphs 28 and 29 are rejected. Those paragraphs pertain to the reasons that the district gave for denying an exemption at the local level. Those reasons are immaterial to whether or not the petitioner demonstrates rehabilitation at the de nova administrative hearing. There, as well as here, the petitioner prevailed.

Accordingly, the application for an exemption 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:

William F. Quattlebaum Administrative Law Judge

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, FL 32399-3060

Frank H. Nagatani, Esquire District 5 Legal Office

Department of Children and Family Services 11351 Ulmerton Road

Largo, FL 33778-1630

George Seibert

Background Screening Coordinator District 5 Legal Office

Department of Children and Family Services 11351 Ulmerton Road

Largo, FL 33778-1630

David L. Partlow, P.A. Traneworld Center, Suite 210 4100 West Kennedy Blvd.

Tampa, FL 33609-2244

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: 99-002179

Orders for Case No: 99-002179