STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN R. ESTEVES, JR., )

)

Petitioner, )

)

vs. ) Case No. 00-0752

)

DEPARTMENT OF JUVENILE )

JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 5, 2000, in Ocala, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John R. Esteves, Jr., pro se

1379 East Tradewind Drive Hernando, Florida 34442

For Respondent: Lynne T. Winston, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100 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 November, 2, 1999, when Respondent, Department of Juvenile Justice, issued a letter advising Petitioner, John R. Esteves, Jr., that his "request for exemption from employment disqualification pursuant to Section 435.07, Florida Statutes, [had] been denied." No reason for the denial was given. By letter filed on January 27, 2000, 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 February 17, 2000, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated March 6, 2000, a final hearing was scheduled on June 5, 2000, in Ocala, Florida. On June 2, 2000, the case was transferred from Administrative Law Judge Suzanne F. Hood to the undersigned.

At the final hearing, Petitioner testified on his own behalf and presented the testimony of his father, John R. Esteves, Sr.

Also, he offered Petitioner's Exhibit 1, which was received in evidence. Respondent presented the testimony of Perry S. Turner, its inspector general. Also, it offered Respondent's Exhibits 1- 27, which were received in evidence.

The Transcript of Hearing was filed on July 10, 2000.

Proposed Findings of Fact and Conclusions of Law were filed by

Respondent on July 20, 2000, and they have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

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

1. This case involves a request by Petitioner, John R. Esteves, Jr., who is twenty-five years old, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work in a position of special trust with Respondent, Department of Juvenile Justice (DJJ). Respondent is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision made on November 2, 1999, a DJJ committee denied the request on the grounds that Petitioner had twice been arrested for similar felonies; his answers to the committee's questions were vague; and he would not accept responsibility for his actions.

2. From November 11, 1998 until October 10, 1999, Petitioner was employed as a youth counselor at Cypress Creek Academy, a contracted DJJ juvenile facility in LeCanto, Florida. Because a juvenile counselor works with persons between the ages of thirteen and twenty, and is considered a position of special trust, a background screening of Petitioner was made.

3. The screening revealed that on November 13, 1992, when he was seventeen years old, Petitioner had been arrested by the

   New York City Police Department on four charges, including armed robbery and criminal possession of stolen property (an automobile) totaling more than $3,000.00. As the result of a plea bargain in which he was found to be a youthful offender, on June 2, 1993, Petitioner was adjudicated guilty of second degree robbery, a felony, and the remaining charges were dismissed. He was placed on five years' probation and required to make restitution, but probation was actually terminated approximately three years later. The case was then sealed.

4. The background check also indicated that Petitioner was arrested in December 1996 in Citrus County, Florida, for attempted armed robbery, a felony. However, after Petitioner successfully completed a pre-trial intervention program, including three months' probation, the felony charge was nolle prossed by the state attorney's office on February 3, 1998.

5. In explaining the circumstances of his first arrest, Petitioner was extremely vague as to the details of the incident, and he would not accept responsibility for his actions. Rather, he placed the blame on other persons riding in the stolen car, and claimed that he did not know that the car was stolen, or that an attempted robbery had occurred.

6. As to the 1996 arrest, Petitioner again was vague as to the nature and disposition of the charges, which stemmed from his attendance at a party, and he claimed that he was mistakenly identified from a photograph by law enforcement officers.

7. Although he was trained as a barber, since being terminated from the juvenile facility, Petitioner has worked at Wal-Mart. He has a six-year-old daughter, is about to be married, and desires to return to work with youthful offenders who he believes can benefit from his life experiences. According to his father, a retired New York City detective who works at the same DJJ facility, Petitioner has a "good rapport" with the kids, is respected by the kids, and is simply trying to "improve himself" if he can be given another opportunity. Eight letters of recommendation from friends, co-workers, and a DJJ program administrator corroborate these assertions.

8. Given the foregoing considerations, it is found that Petitioner poses no threat to juveniles through continued employment at a DJJ facility. However, by Petitioner's being extremely vague regarding the circumstances surrounding his two arrests, refusing to accept responsibility for his actions, and minimizing the seriousness of his offenses, his testimony raises sufficient doubt as to whether he is truly rehabilitated at this time. Accordingly, the evidence is less than clear and convincing that the statutory criteria have been satisfied.

   CONCLUSIONS OF LAW

   
   

9. 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 (1999).

10. Section 435.07(3), Florida Statutes (1999), 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.

11. Had Petitioner fully and accurately acknowledged that he committed a crime, given a full and candid disclosure about the circumstances surrounding his arrests, and shown some remorse, he would arguably qualify for an exemption.

12. Given the foregoing evidentiary shortcomings, it is concluded that there is less than clear and convincing evidence that the statutory criteria have been satisfied. This being so, the request for an exemption should be denied. Such denial, however, is without prejudice to Petitioner's refiling a request at a later time.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Juvenile Justice 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 28th day of July, 2000, 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 28th day of July, 2000.

COPIES FURNISHED:

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

John R. Esteves, Jr. 1379 East Tradewind Drive Hernando, Florida 34442

Lynne T. Winston, Esquire 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: 00-000752

Orders for Case No: 00-000752