STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY ANN THOMAS, )

)

Petitioner, )

)

vs. ) Case No. 99-3227

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 26, 1999, at West Palm Beach, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mary Ann Thomas, pro se

211 Hawthorne Drive

Lake Park, Florida 33403

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

Whether Petitioner is entitled to an exemption from her disqualification to work in positions of special trust.

PRELIMINARY STATEMENT

Petitioner applied to Respondent to operate a children's day care center in her home. As required by statute, Respondent conducted a background screening, which revealed that in 1993 Petitioner had been convicted of multiple felony counts of grand theft. Respondent thereafter notified Petitioner that she "may be" statutorily disqualified from working in positions of special trust, including employment that entails working with children. Petitioner thereafter applied for an exemption to this disqualification pursuant to Section 435.07(1), Florida Statutes. Respondent appointed a three-person committee who investigated the Petitioner's criminal background and conducted an informal hearing at which Petitioner appeared with witnesses. The committee's recommendation that the application for an exemption be denied was adopted, Petitioner requested a formal hearing to challenge the denial, and this proceeding followed.

At the formal hearing, Petitioner testified on her own behalf but presented no other testimony and no exhibits.

Respondent presented the testimony of each member of the screening committee that denied Petitioner's application for an exemption and offered five exhibits, each of which was accepted into evidence.

No transcript of the proceedings was filed. Petitioner and Respondent filed Proposed Recommended Orders, which have been

duly-considered by the undersigned in the preparation of this

Recommended Order. 1/

FINDINGS OF FACT

1. Petitioner applied to Respondent for a license to operate a child care center out of her home.

2. Section 402.305(2), Florida Statutes, provides, in pertinent part, as follows:

   1. Personnel.--Minimum standards for child care personnel shall include minimum requirements as to:

      1. Good moral character based upon screening. This screening shall be conducted as provided in chapter 435, using the level 2 standards for screening set forth in that chapter.

      2. The department may grant exemptions from disqualification from working with children or the developmentally disabled as provided in s. 435.07.

         
         

3. Section 435.04, Florida Statutes, sets the Level 2 screening standards referred to in Section 402.305(2), Florida Statutes, as follows:

   1. All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. For the purposes of this subsection, security background investigations shall include, but not be limited to, employment history checks, fingerprinting for all purposes and checks in this subsection, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal

      Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.

   2. The security background investigations under this section must ensure that no persons subject to the provisions of this section have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:

   
   

   * * *

   
   

   (w) Chapter 812, relating to theft, robbery, and related crimes, if the offense is a felony.

   
   

4. The required background screening revealed that on August 3, 1993, Petitioner was found guilty by a jury of

   15 counts of grand theft. Each of these counts was a third degree felony in violation of Section 812.014(1), Florida Statutes. 2/ For these felony offenses, Petitioner was incarcerated for a period of one year and placed on probation for a period of five years.

5. Respondent notified Petitioner by letter dated May 28, 1999, that she ". . . may be [sic] ineligible for continued employment in a position of special trust working with children . . ." based on her conviction of 15 counts of grand theft.

6. Section 435.07(1)(a), Florida Statutes, provides for the following exemption from the disqualification from employment in positions of special trust:

   1. The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:

      1. Felonies committed more than 3 years prior to the date of disqualification.

   . . .

7. Section 435.07(3), Florida Statutes, places the following burden on the person seeking the exemption from the disqualification:

   (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 incident, 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.

   
   

8. During the course of a lengthy investigation of a burglary ring spanning approximately four years, Petitioner was found to have in her possession at her home 3/ large

   quantities of stolen property from burglaries dating from 1987 to 1993. Petitioner was alleged to have purchased this stolen property, as opposed to having committed the actual burglaries.

9. Respondent's letter dated May 28, 1999, advised Petitioner of her right to seek an exemption from her disqualification from employment in positions of special trust.

10. Petitioner thereafter timely applied for such an exemption.

11. Respondent appointed a three-person committee who investigated the Petitioner's criminal background and conducted an informal hearing on June 15, 1999, at which Petitioner appeared with witnesses. The three members of the screening committee were Susan K. Barton (Respondent's District Screening Coordinator), Laura Williams (a foster parent liaison employed by Respondent), and Laura Cohn (Respondent's District Legal Counsel). The members of the committee did not find Petitioner to be remorseful or forthcoming about her involvement in the criminal conduct that led to her felony convictions.

12. Petitioner has a college degree in early childhood education. At the time of her arrest she was employed by the School Board of Palm Beach County. Because of her felony convictions, she lost that employment and has not been able to find comparable employment.

13. At the formal hearing, Petitioner's only evidence as to her entitlement to an exemption was her own testimony. She presented no other witnesses and no exhibits. Petitioner testified that she was remorseful and that she had responded truthfully to the questions asked at the informal hearing by the members of the committee.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

15. Pursuant to Section 435.07(3), Florida Statutes, Petitioner has the burden to establish by clear and convincing evidence that she is entitled to the exemption she seeks because she has been rehabilitated, based on criteria set forth in the statute.

16. One criteria is the circumstances surrounding the subject criminal incident. The circumstances surrounding the criminal incident for which this exemption is sought reflect an ongoing pattern of criminal behavior over an extended period of time. The nature of Petitioner's criminal behavior and the extended duration thereof evidence greed and a profound lack of respect for the law.

17. Another criteria is the time period that has elapsed since the incident. Although Petitioner's disqualifying

    conviction was in 1993, it should be kept in mind that Petitioner was sentenced to one year in jail on September 22, 1993. She presumably was released from jail in 1994 and thereafter was placed on probation for five years. Presumably, her probation did not end until sometime in 1999. 4/ There was no evidence as to what Petitioner did to rehabilitate herself in jail, while on probation, or after her probation ended.

18. Another criteria is the nature of the harm caused to the victims. Other than the fact that there were fifteen counts of grand theft (purchase of stolen property), there was no evidence as to the nature of the harm caused to the victims.

19. Another criteria is the history of the employee since the incident. There was no evidence as to the history of the Petitioner since the incident, other than the evidence that she has been unable to secure satisfactory employment.

20. Petitioner's self-serving expression of remorse is not persuasive, nor does it establish rehabilitation. There was no other evidence of rehabilitation.

21. Based on the foregoing, it is concluded that Petitioner failed to meet her statutory burden of proof in this proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order

denying Petitioner's application for an exemption from her disqualification from employment in positions of special trust.

DONE AND ENTERED this 28th day of December, 1999, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 28th day of December, 1999.

ENDNOTES

1/ Petitioner attached certain documents to her post-hearing submittal. Those attachments were not introduced at the formal hearing, are not a part of the record of this proceeding, and have not been considered by the undersigned in the preparation of this Recommended Order.

2/ Petitioner was also convicted of certain misdemeanor charges that were not used by Respondent to disqualify her from employment in positions of special trust.

3/ Petitioner wants to use this house for her day care center.

4/ Although the dates and terms of her sentence were established, it was not established whether Petitioner had to serve her full jail term or her full term of probation.

COPIES FURNISHED:

Mary Ann Thomas

211 Hawthorne Drive

Lake Park, Florida 33403

Colleen Farnsworth, Esquire

Department of Children and Family Services

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

Samuel C. Chavers, Acting 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

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: 99-003227

Orders for Case No: 99-003227