STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NWEZI A. NONYELU, )

)

Petitioner, )

)

vs. ) Case No. 00-1733

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 9, 2000, in Tampa, Florida, before Carolyn S. Holifield, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Nwezi A. Nonyelu, pro se

6545 Spanish Moss Circle Tampa, Florida 33625

For Respondent: Raymond R. Deckert, Esquire

Department of Children and Family Services 4000 West Dr. Martin Luther King, Jr.

Boulevard, Room 500

Tampa, Florida 33614 STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

Petitioner was denied an exemption to work in a position of special trust by letter from Respondent, the Department of

Children and Family Services (Respondent), dated January 4, 2000. Petitioner challenged the denial and requested a formal hearing. The case was referred to the Division of Administrative Hearings on or about April 28, 2000.

At the formal hearing, Petitioner testified on his own behalf but presented no other testimony and offered no exhibits into evidence. Respondent presented the testimony of Stephanie Ditroia, Petitioner's probation officer; and Jim Thomas, screening coordinator for the Department of Children and Family Services, and offered ten exhibits, each of which was accepted into evidence. The proceeding was recorded but was not transcribed. Petitioner has not filed proposed findings of fact as of the date of this Order. Respondent filed a Proposed Recommended Order on June 16, 2000.

FINDINGS OF FACT

1. In November 1999, Petitioner was employed by Angels Unaware, Inc., as a caretaker of children or the developmentally disabled. Such a position is a position of trust.

2. By letter dated November 29, 1999, Angels Unaware, Inc., notified Petitioner that it had received information that was disqualifying and, thus, he was ineligible for continued employment as a caretaker of children, disabled adults, or elderly persons. However, in the letter, Petitioner was advised of his right to seek an exemption from disqualification from the

   licensing agency. Thereafter, Petitioner requested an exemption from disqualification.

3. At all times, pertinent to this proceeding, Respondent was the state agency responsible for receiving and approving or denying applications for exemptions from disqualification to work in a position of trust.

4. After receiving Petitioner's request for exemption, Respondent conducted the required background screening of Petitioner. The background screening revealed that Petitioner had been arrested and convicted of possession and delivery of cocaine. As a result of Petitioner's conviction, Respondent denied Petitioner's request for exemption.

5. According to the background screening report, Petitioner was convicted of possession and delivery of cocaine on April 2, 1996.

6. The incident that resulted in the conviction occurred on or about January 20, 1995, the day Petitioner was arrested. Following his arrest, Petitioner was charged with possession and delivery of cocaine. On May 1, 1995, Petitioner pled guilty to the aforementioned felony. That same day, the court withheld adjudication and placed Petitioner on probation for one year.

7. Pursuant to condition 7 of Petitioner's probation, he was not to use or possess any drugs or narcotics unless prescribed by a physician. Notwithstanding this proscription, on or about September 24, 1995, November 14, 1995, and March 3,

   1996, Petitioner violated this condition by using cocaine as evidenced by positive urinalysis and his own admission.

8. As a result of Petitioner's repeated use of cocaine, on April 2, 1996, Petitioner was convicted of violating his probation and was adjudged guilty of possession and delivery of cocaine, the charges for which adjudication had been initially withheld on May 1, 1995. Moreover, Petitioner's one-year probation was revoked and he was placed on drug offender probation for two years. One of the special conditions of the drug offender probation was that Petitioner receive drug treatment until he successfully completed such program.

9. On or about May 15, 1997, Petitioner again used and possessed cocaine in violation of the Order of Drug Offender Probation. Following this violation, on July 17, 1997, the court entered an Order of Modification of Probation. Pursuant to that Order, Petitioner's probation continued under the previous terms and conditions but Petitioner's cost for supervision was waived while he was receiving in-patient drug treatment.

10. Petitioner entered a six-month in-patient drug treatment program in June 1997 and successfully completed the program on December 22, 1997.

11. The court terminated Petitioner's probation on April 1, 1998.

12. At the hearing, Petitioner acknowledged that his using cocaine was a "mistake" and stated that he has been drug-free

    since June 1997, when he began the six-month drug treatment program. However, Petitioner presented no other witnesses or evidence of his rehabilitation during the two years since his probation was terminated.

    CONCLUSIONS OF LAW

    
    

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

14. Section 435.04(1), Florida Statutes, provides that all employees in positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment.

15. Section 435.04(2)(mm), Florida Statutes, provides in pertinent part the following:

    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 contendre or guilty, to any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:

    * * *

    
    

    Chapter 893, relating to drug abuse prevention and control, only if the offense was a felony or if any other person involved in the offense was a minor.

    
    

16. In the instant case, it is undisputed that Petitioner was adjudicated guilty of possession and delivery of cocaine. According to Section 893.13(1)(a)1., Florida Statutes, this

    offense is a second degree felony and is, thus, a basis for denying or removing a person from employment in a position of trust or responsibility. Section 435.04(2), Florida Statutes.

17. Notwithstanding a person's being disqualified from holding a position of trust or responsibility, the disqualification is not necessarily a permanent bar to such employment. Section 435.07(1), Florida Statutes, authorizes the licensing agency to grant to any employee otherwise disqualified from employment an exemption from disqualification for certain categories of offenses if the person meets the statutory requirement for being granted such exemption. Among the categories of offenses for which exemptions may be granted are felonies committed more than three years prior to the disqualification. Section 435.07(1)(a), Florida Statutes.

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

19. In this case, the underlying criminal incident which is the basis for Petitioner's felony conviction was committed more than three years ago. Therefore, if Petitioner sets forth sufficient evidence of rehabilitation, using the criterion established in Section 435.07(3), Florida Statutes, he is eligible for an exemption from disqualification. That criterion

    includes the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, and the history of the employee since the incident.

20. Petitioner explained the circumstances surrounding the criminal incident and probation violations that resulted in his being convicted guilty of a felony involving the possession and delivery of cocaine. Also, Petitioner testified that he has not used cocaine since June 1997. However, he presented no evidence to corroborate this contention.

21. Petitioner presented no evidence of his employment history since the criminal incident occurred in 1995, since he completed the drug treatment program in December 1997, or since his probation was terminated in April 1998.

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

RECOMMENDATION

Based upon 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 application for an exemption from his disqualification from employment in positions of trust or responsibility.

DONE AND ENTERED this 18th day of July, 2000, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(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 18th day of July, 2000.

COPIES FURNISHED:

Raymond R. Deckert, Esquire Department of Children and

Family Services

4000 West Dr. Martin Luther King, Jr.

Boulevard, Room 500

Tampa, Florida 33614

Nwezi A. Nonyelu

6545 Spanish Moss Circle Tampa, Florida 33625

Virginia Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, Esquire Department of Children and

Family Services Building 2, Room 204B 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: 00-001733

Orders for Case No: 00-001733