STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY GENE WARREN, )

)

Petitioner, )

)

vs. ) Case No. 99-2604

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 29, 1999, in Jacksonville, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Larry Gene Warren, pro se

1006 Player Road

Jacksonville, Florida 32218

For Respondent: Roger L. D. Williams, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

STATEMENT OF THE ISSUE

The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.

PRELIMINARY STATEMENT

This matter began on May 11, 1999, when Respondent, Department of Children and Family Services, issued a letter advising Petitioner, Larry Gene Warren, that he was disqualified from continuing as a family foster parent because of a failure to meet the screening standards specified by statute. More specifically, the disqualification was based on a felony conviction which occurred on July 24, 1986. By letter dated

June 18, 1999, Petitioner requested a formal hearing under Section 120.569, Florida Statutes, to contest the proposed action.

The matter was referred by Respondent to the Division of Administrative Hearings on June 30, 1999, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated July 14, 1999, a final hearing was scheduled on July 29, 1999, in Jacksonville, Florida.

At the final hearing, Petitioner testified on his own behalf and presented the testimony of his wife, Sharon Warren. Also, he offered Petitioner's Composite Exhibit 1 which was received in evidence. Respondent offered Respondent's Exhibits 1-3 which were received in evidence.

There is no transcript of the hearing. The parties waived their right to file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. This case involves a request by Petitioner, Larry Gene Warren, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to continue as a family foster home parent. Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision dated June 7, 1999, a DCFS committee denied the request.

2. Until her marriage to Petitioner on December 18, 1998, Petitioner's wife had served as a foster parent for some eighteen months. After the marriage, a background screening was performed on Petitioner, and it revealed that Petitioner was convicted of a felony in 1986. This resulted in the DCFS issuing a notice that Petitioner was disqualified from serving as a family foster home parent. It also disqualifies his wife, since the two occupy the same household.

3. The basis for the foregoing action stems from Petitioner's arrest on July 8, 1986, for the offense of grand theft of an automobile, a violation of Section 812.014, Florida Statutes. The arresting report indicates that on July 24, 1986, Petitioner pled guilty to the offense, and he was sentenced to one year in the Duval County Jail. However, he was given credit

   for the time already served (sixteen days), and the remainder of the sentence was suspended. There was no probationary period.

4. In explaining the circumstances surrounding the arrest, Petitioner explained that he was merely a passenger in the car when it was stopped by law enforcement officers, and he had no knowledge that it was stolen. He also contended that he pled no contest to the charge rather than guilty, as reflected on the report. In any event, he agreed to the plea and sentence on the advice of his court-appointed counsel because he says he could not get a trial date for at least six to eight months.

5. After his 1986 conviction, Petitioner worked six years as a pipe layer. For the past four and one-half years he has been employed by an underground utilities firm in the Jacksonville area. He has recently purchased a house, married, and seeks to "get his life together." Petitioner regularly attends church with his wife, and he has monitored a ten-week foster care training session. He desires the exemption so that his wife can continue as a foster parent.

6. Since his conviction for grant theft in 1988, Petitioner has been arrested for a string of misdemeanors and one felony. In both 1988 and 1989, he was charged with driving with a suspended license; he paid a fine on the first occasion, and he served two days in jail on the second. In January 1991, he was adjudicated guilty of possession of a firearm, a violation of

   Section 790.23, Florida Statutes, and served fourteen months in a

   state correctional facility. In February and June 1992, February 1993, and June 1994, Petitioner was arrested for driving without a driver's license. On the first occasion, he served two days in jail; on the second, he served ten days in jail followed by sixty days' probation; on the third conviction, he was sentenced to four months' probation and one hundred hours of community service; and he served nineteen days in the Duval County Jail for the last offense. In January 1998, he served two days in jail for resisting a police officer. Finally, Petitioner served five days in jail in September 1998 for resisting arrest without violence and carrying an open container of alcohol in a car.

   These offenses occurred over a ten-year period since the disqualifying offense, the last being less than one year ago, and they support a finding that Petitioner has not rehabilitated himself since the disqualifying offense occurred in 1986.

7. While Petitioner's wife is obviously qualified to be a foster parent, and letters of recommendation received in evidence corroborate this finding, Petitioner has failed to demonstrate by clear and convincing evidence that he should not be disqualified from being a foster parent.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.57 and 120.569, Florida Statutes (Supp. 1998).

9. Section 435.07(3), Florida Statutes (1997), reads as follows:

   (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 incident, the time period that has elapsed since the incident, the nature of the harm occasioned to the victim, and the history of the person since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed.

10. Because Petitioner has failed to demonstrate that he "will not present a danger if continued employment is allowed," and there is "[in]sufficient evidence of rehabilitation" since the disqualifying offense, his request should not be approved. Petitioner is advised, however, that he may reapply for an exemption one year after this proceeding is concluded.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's request for an exemption from disqualification for employment in a position of special trust.

DONE AND ENTERED this 9th day of August, 1999, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 9th day of August, 1999.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 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

Larry Gene Warren 1006 Player Road

Jacksonville, Florida 32218

Roger L. D. Williams, Esquire Department of Children and

Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Department of Children and Family Services.

Docket for Case No: 99-002604

Orders for Case No: 99-002604