STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARLENE RENFROE, )

)

Petitioner, )

)

vs. ) Case No. 99-4396

) DEPARTMENT OF JUVENILE JUSTICE, )

)

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 November 18, 1999, in Miami, Florida.

APPEARANCES

For Petitioner: Darlene Renfroe, pro se

3751 Northwest 175th Street Miami, Florida 33055

For Respondent: Lynne T. Winston, Esquire

Department of Juvenile Justice Inspector General's Office 2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

By letter of August 1, 1999, Respondent, Department of Juvenile Justice (Department), advised Petitioner that her request for exemption from employment disqualification pursuant to Section 435.07, Florida Statutes, had been denied, and that such denial rendered her ineligible for employment in a direct/caretaker's position with the Department or a provider facility. The letter further advised Petitioner of her right to request a hearing pursuant to Section 120.57, Florida Statutes, to challenge the denial of her request for exemption.

Petitioner filed such a request and, consequently, the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the hearing she had requested.

At hearing, Petitioner testified on her own behalf and called Gloria Jackson as a witness. Petitioner's Exhibits numbered 1-3 were received into evidence. Respondent called Perry Turner, Inspector General of the Department of Juvenile Justice, as a witness, and Respondent's Exhibits numbered 1-11 were received into evidence.

The transcript of hearing was filed December 9, 1999, and the parties were accorded 10 days from that date 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 April 1999, Petitioner, Darlene Renfroe, submitted a State of Florida Employment Application to Respondent, Department of Juvenile Justice (Department), for employment as a group treatment leader, a caretaker/direct contact position. Among the information sought on the application was a response to the question "[h]ave you ever been convicted of a felony or a first degree misdemeanor?"

   Petitioner respondent "yes" to the question and elaborated that she had been convicted of "Possession of Control[led] Substance" in Miami, Florida, on April 1, 1986. Accompanying the application was a copy of the Indictment filed in the United States District Court, Southern District of Florida (Case No.

   85-937CR-Scott) which charged that on or about November 23, 1985, at Miami International Airport, Dade County, Florida, Petitioner knowingly and intentionally imported into the United States (Count I), and knowingly and intentionally possessed with intent to distribute (Count II), at least one kilogram of cocaine, a Schedule II narcotic controlled substance, in violation of Title 21, United States Code, Sections 952(a) and 960(a)(1), as to Count I, and Title 21, United State Code, Section 841(a)(1), as to Count II. The application was also accompanied by a three-page handwritten letter signed by

   Petitioner which offered her explanation of the events leading to her conviction.

2. The position for which Petitioner applied, group treatment leader, is a position of special trust which requires, as a condition of employment, a successful background screening process to exclude the possibility that Petitioner was ever found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to certain enumerated disqualifying

   offenses under Florida law or similar offenses in another jurisdiction. If the screening process reveals a disqualifying offense, the applicant is not qualified for employment unless a request for exemption (pursuant to Section 435.07, Florida Statutes) is approved. Notably, among the disqualifying offenses is a violation of "Chapter 893 relating to drug abuse prevention and control if the offense was a felony . . . (. . . includ[ing] charges of possession of controlled substances, the sale of controlled substances, intent to sell controlled substances, trafficking in controlled substances, and possession of drug paraphernalia, etc.)," an offense for which Petitioner (as disclosed by her application) had been convicted.

3. To complete the Department's background screening, Petitioner also completed and submitted three additional documents: a Request for Preliminary FCIC/NCIC and DHSMV

   Screening Check form; a Consent to Background Screening form; and an Affidavit of Good Moral Character.1

4. On May 27, 1999, the Department completed its background screening process. That process revealed (consistent with Petitioner's disclosure) that on April 1, 1986, Petitioner pled guilty to and was adjudicated guilty of the offense of "knowingly and intentionally import[ing] into the United States from a place outside thereof, a Schedule II controlled narcotic substance, that is a quantity of cocaine, at least one kilogram, in violation of Title 21, United States Code, Sections 952(a) and 960(a)(1), as charged in Count I of the Indictment. Count II of the Indictment was dismissed upon motion of the United States attorney. As a penalty for such offense, Petitioner was committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of three years and six months. Petitioner served a two-year term of confinement at Women's Federal Correctional Institute, Lexington, Kentucky (released April 1, 1988), followed by a six- month term at a half-way house and then was discharged.

5. Upon completion of its background screening, the Department concluded that (based on her conviction for importation of cocaine) Petitioner was disqualified from working in a position of trust; however, by letter of June 7, 1999, the Department accorded Petitioner an opportunity to request an

   exemption pursuant to Section 435.07, Florida Statutes. That letter reasonably advised Petitioner of her obligation to demonstrate by clear and convincing evidence that she had been rehabilitated and that she would not present a danger if accorded employment in a position of special trust. Among the items requested for Department review (in passing on a request for exemption) were the following:2

   A detailed, written and notarized description of the circumstances leading up to and surrounding the disqualifying criminal offense. The time period which has elapsed since the offense. Whether there was any harm caused to victims and the nature of that harm. Your personal history since the offense (work, education, civic, religious history, etc.). And, such other circumstances as shall be sufficient to indicate that you will not present a danger to the safety or well-being of juveniles.

   
   

   A statement as to whether you have been involved in any other criminal offenses either prior or subsequent to the commission of the disqualifying offense.

   
   

   * * *

   
   

   Letters of support/recommendation from others indicating that you are of good moral character.

   
   

   If you were placed on probation/community control, certified documentation of successful completion of probation/community control.

   
   

   A statement as to what you believe you have to offer to juveniles and why you want to work with the Department of Juvenile Justice or a Provider Facility.

   
   

6. Petitioner duly requested an exemption from disqualification and submitted the requested documentation to the Department. Upon review, Petitioner's request for exemption was denied. The Department's expressed rationale was stated in its Inspector General's letter of August 1, 1999, as follows:

   In order to reach a decision on your request, I have reviewed your criminal history and the supporting documentation you submitted. Based upon a careful review of all documentation, compelling evidence does not exist which would lead me to grant you an exemption. Therefore, your request is denied. As a criminal justice agency, this department has to exercise great care and caution in selecting those persons who are allowed to work with the juveniles entrusted to our care and custody.

   
   

   The letter further advised Petitioner of her right to request an administrative hearing pursuant to Section 120.57, Florida Statutes, to challenge the denial of her request for exemption. Petitioner filed a timely request for such a hearing and these proceedings duly-followed.

7. Consistent with the Inspector General's conclusion that Petitioner had failed to convincingly demonstrate her entitlement to the requested exemption, the proof at hearing demonstrated that the crime to which Petitioner pled guilty and for which she was convicted ("knowingly and intentionally importing . . . a Schedule II controlled substance, that is a quantity of cocaine, at least one kilogram") gravely violated

   moral sentiment or accepted moral standards of the community, such that it could reasonably be said that Petitioner committed a crime of gravity involving moral turpitude.3 It may also be said, consistent with the Inspector General's observation, that Petitioner's explanation of the circumstances surrounding the criminal incident (as set forth in her letter of May 25, 1999, contained in Respondent's Exhibit number 1) appears, at best, fanciful. Finally, given the nature of the offense and Petitioner's age at the time (28 years), her conduct can hardly be characterized as youthful intemperance.

8. Contrasted with the negative impression to be gleaned from the foregoing facts, the proof also provided some positive information. In this regard, the proof demonstrated that Petitioner successfully completed (with apparent good behavior) her term of incarceration; that she committed no other transgression; and that she has been continuously employed since her release (most recently by the State of Florida, Landmark Learning Center, as a behavior program associate, assisting and training mentally retarded children). Moreover, since January 1997, Petitioner has been licensed by the State of Florida, Department of Children and Family Services, to operate a foster home and currently has four children (two boys and two girls) under her care. Finally, among those who know her, Petitioner is considered truly remorseful for her misconduct, is believed

   to present a good role model for the youths she services, and is considered a reliable and trustworthy member of her community.

9. While there are certainly accomplishments in Petitioner's life since her conviction which weigh favorably, it must be concluded (as urged by the Department) that the gravity of her offense, as well as her lack of candor regarding the circumstances surrounding the criminal incident, do not permit a conclusion to be drawn, with the requisite degree of certainty, that Petitioner stands rehabilitated. Stated differently, it must be concluded that Petitioner has failed to demonstrate, by clear and convincing evidence, that she is currently rehabilitated and will not pose a danger or risk (if allowed employment) to the social, emotional, and intellectual development of the juveniles in her charge.

   CONCLUSIONS OF LAW

   
   

10. 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 435.07(3), Florida Statutes.

11. Pertinent to this case, Section 985.01, Florida Statutes, provides:

    1. The purposes of this chapter are:

       
       

       * * *

       (b) To provide for the care, safety, and protection of children in an environment that fosters healthy social, emotional, intellectual, and physical development; to ensure secure and safe custody; and to promote the health and well-being of all children under the state's care.

       
       

       * * *

       
       

       (d) To preserve and strengthen the child's family ties whenever possible, by providing for removal of the child from parental custody only when his or her welfare or the safety and protection of the public cannot be adequately safeguarded without such removal; and, when the child is removed from his or her own family, to secure custody, care, and discipline for the child as nearly as possible equivalent to that which should have been given by the parents; and to assure, in all cases in which a child must be permanently removed from parental custody, that the child be placed in an approved family home, adoptive home, independent living program, or other placement that provides the most stable and permanent living arrangement for the child, as determined by the court.

       
       

       * * *

       
       

    2. The Department of Juvenile Justice or the Department of Children and Family Services, as appropriate, may contract with the Federal Government, other state departments and agencies, county and municipal governments and agencies, public and private agencies, and private individuals and corporations in carrying out the purposes of, and the responsibilities established in, this chapter.

       1. When the Department of Juvenile Justice or the Department of Children and Family Services contracts with a provider for any program for children, all personnel, including owners, operators, employees, and

          volunteers, in the facility must be of good moral character. A volunteer who assists on an intermittent basis for less than 40 hours per month need not be screened if the volunteer is under direct and constant supervision by persons who meet the screening requirements.

       2. The Department of Juvenile Justice and the Department of Children and Family Services shall require employment screening pursuant to chapter 435, using the level 2 standards set forth in that chapter for personnel in programs for children or youths.

       3. The Department of Juvenile Justice or the Department of Children and Family Services may grant exemptions from disqualification from working with children as provided in s. 435.07.

          
          

12. The level 2 screening standards established by Section 435.04, Florida Statutes, include employment history checks, state and federal criminal record checks, and may include local criminal record checks, for the purpose of ascertaining whether the employee in a position of trust, such as Petitioner, has "been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to" any offense prohibited under various provisions of the Florida Statutes or similar statutes of another jurisdiction. Among the designated offenses is a violation of "Chapter 893, relating to drug abuse prevention and control . . . if the offense was a felony." Section 435.04(2)(mm), Florida Statutes.

13. Where, as here, a proposed employee has been shown to have committed an offense designated under Section 435.04(2),

    Florida Statutes, she is disqualified from employment in a position of trust absent the grant of an exemption. Section 435.06(2), Florida Statutes.

14. 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 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.

    
    

15. Given the gravity of the offense for which Petitioner was convicted, as well as her lack of candor regarding the circumstances surrounding the criminal incident, it cannot be concluded, clearly and convincingly, that she is presently rehabilitated.4 Consequently, it cannot be said that Petitioner has demonstrated she currently possesses the requisite good moral character required for employment in a position of trust,

and would not pose a danger or risk to the youth she would serve or the purposes of Chapter 985, Florida Statutes.

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 14th day of January, 2000, 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 14th day of January, 2000.

ENDNOTES

1/ The Affidavit of Good Moral Character provided as follows:

As an applicant for employment as a caretaker and/or direct contact staff with Department of Juvenile Justice, I affirm that I meet the moral character requirements for employment as caretaker, as required by the Florida Statutes and rules, in that:

* * *

I have not been found guilty, regardless of whether adjudication was imposed or withheld, of any of the offenses listed below, or of any similar offense in another jurisdiction regardless if the record is sealed or expunged.

* * *

The offenses referenced above are the following sections of the Florida Statutes:

* * *

25. 893 relating to drug abuse prevention and control if the offense was a felony or if any other person involved in the offense was a minor (this includes charges of possession of controlled substances, the sale of controlled substances, intent to sell controlled substances, trafficking in controlled substances, and possession of drug paraphernalia, etc.)

The Affidavit afforded Petitioner an option in how to respond as follows:

I attest that I have read the above carefully and state that my attestation here is true and correct that neither my adult nor juvenile record contains any of the listed offenses. I understand that it is my responsibility to obtain clarification on anything contained in this affidavit which I do not understand. I am aware that any omissions, falsifications, misstatements or misrepresentations may disqualify me from employment consideration and, if I am hired, may be grounds for termination at a later date.

(Signed by Darlene Renfroe)

SIGNATURE OF AFFIANT

OR

To the best of my knowledge and belief, my record contains one or more of the disqualifying acts or offenses listed above. (If you have previously been granted an exemption for this disqualifying offense, please attach a copy of letter granting exemption.) (Please circle the offense(s) contained in your record.)

SIGNATURE OF AFFIANT

As noted, Petitioner chose the first option. That choice, as explained by Petitioner, was not designed to mislead the Department or to be less than forthright in her response to the Department's inquiry, but was a misunderstanding (premised on the advice of the Department's agent who received her application).

Here, given the full disclosure apparent from the face of Petitioner's application, her explanation is credited and her failure to acknowledge the application on the correct line is accepted as a mere oversight (which was not intended to mislead and did not mislead the Department), and which does not reflect adversely on Petitioner's moral character.

2/ The letter also requested the following:

If you failed to indicate the disqualifying offense on the notarized Affidavit of Good Moral Character or on any application, you must complete a new Affidavit of Good Moral Character and provide a detailed explanation as to why you were not truthful.

Petitioner competed a new Affidavit of Good Moral Character and explained why she inadvertently selected (and signed) the wrong option. As heretofore noted, at Endnote 1, Petitioner's explanation has been credited and her error in selecting the wrong option does not reflect adversely on her rehabilitation or good moral character.

3/ See Pearl v. Florida Board of Real Estate, 394 So. 2d 189 (Fla. 3d DCA 1981).

4/ Clear and convincing evidence requires that "[t]he evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations [or point] sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

COPIES FURNISHED:

Darlene Renfroe

3751 Northwest 175th Street Miami, Florida 33055

Lynne T. Winston, Esquire Department of Juvenile Justice Inspector General's Office 2737 Centerview Drive

Tallahassee, Florida 32399-3100

William G. "Bill" Bankhead, Secretary Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

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: 99-004396

Orders for Case No: 99-004396