STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES C. FUCE, )

)

Petitioner, )

)

vs. ) Case No. 00-3249

)

DEPARTMENT OF JUVENILE )

JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed-fact hearing on November 15, 2000, in Gainesville, Florida, before the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Ella Jane P. Davis.

APPEARANCES

For Petitioner: Natalia Kalishman, Esquire

Haile Professional Center 5208 Southwest 91st Drive Gainesville, Florida 32608

For Respondent: Lynne T. Winston, Esquire

Department of Juvenile Justice Office of the Inspector General 2737 Centerview Drive, Suite 300

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to an exemption from employment disqualification upon clear and convincing evidence of good moral character.

PRELIMINARY STATEMENT

On December 29, 1999, a criminal history check conducted on Petitioner by the Background Screening Unit (BSU) of the Office of the Inspector General (IG) of the Department of Juvenile Justice (DJJ) revealed the disqualifying offense of domestic battery in addition to numerous non-disqualifying offenses primarily related to worthless checks.

Upon receiving notification of the results of the background screening check, Petitioner requested an exemption.

After reviewing Petitioner's background screening file, certified copies of arrest reports, judicial dispositions, and other documentation submitted by Petitioner, the IG denied Petitioner's request for an exemption on May 16, 2000.

Petitioner was notified of the denial in a letter dated May 20, 2000.

In a letter dated June 5, 2000, Petitioner requested an administrative hearing to challenge the denial of his exemption request.

The cause was referred to the Division of Administrative Hearings on or about August 7, 2000.

At hearing on November 15, 2000, Petitioner testified on his own behalf and presented the oral testimony of Lily Lattimore, Barbara Wilcox, Leonard Cummings, Kenneth Moore, Carnell Grayer, Clovis Watson, Jr., Howard Jernigan, and LaTeju Lane Fuce.

Petitioner had three exhibits admitted in evidence. Respondent presented the oral testimony of Perry Turner and had 12 exhibits admitted in evidence.

The Joint Pre-hearing Stipulation was admitted as a Joint Exhibit. Its stipulated facts have been utilized in this Recommended Order as necessary, but not verbatim, and not where irrelevant or contrary to the evidence or law.

A Transcript was filed on December 14, 2000. Only Respondent timely filed a Proposed Recommended Order which has

been considered.

FINDINGS OF FACT

1. On May 6, 1983, Petitioner was arrested for two counts of fraud--insufficient funds check. On June 22, 1983, Petitioner was arrested for two counts of fraud--insufficient funds check. On June 29, 1983, Petitioner was arrested for a probation violation. On July 15, 1983, Petitioner was arrested for obtaining property in return for a worthless check. On June 28, 1985, Petitioner was arrested for fraud--insufficient funds check. On May 14, 1990, Petitioner was arrested for fraud--insufficient funds check. Arrests have no significance for statutory disqualification purposes.

2. On September 6, 1983, Petitioner pled guilty to three counts of passing worthless checks. Adjudication of guilt was

   withheld. He was ordered to pay $150.00 in court costs. (Case #83-1051-CF-A).

3. On August 2, 1983, Petitioner entered a plea of nolo contendere to the charge of obtaining property in return for a worthless check. Adjudication of guilt and imposition of sentence were withheld. Petitioner was ordered to pay court costs in the amount of $147.50. (Case #83-395-CF).

4. On May 25, 1983, Petitioner entered a plea of nolo contendere to the charge of obtaining property in return for a

   worthless check. He was sentenced to 30 days of county probation and ordered to pay $35.00 in court costs. (Case #83-569).

5. Petitioner entered a plea of guilty to the charge of obtaining property in return for a worthless check (a third degree felony), on June 28, 1985. Petitioner was adjudicated guilty, and sentenced to two years' imprisonment (Department of Corrections), to be followed by one year of probation. He was also ordered to pay restitution in the amount of $102.93.

6. None of the foregoing pleas or convictions were, or are, statutorily disqualifying offenses, but at hearing Petitioner offered the incredible explanation for them that his checkbook had been stolen by drug-affected relatives who actually wrote the worthless checks. He offered no explanation

   why he had pled guilty to crime(s) he claimed not to have committed.

7. In the juvenile justice system, the Alachua Regional Juvenile Detention Center (ARJDC) is the equivalent of a county jail in the adult system. Juveniles charged with delinquent acts or crimes or for whom there is sufficient probable cause to warrant their arrest and detention are housed there for a minimum of 21 days, during which time they receive a preliminary hearing and/or commitment hearing. Petitioner claimed to have been employed in this facility from October 1985 to

   October 1997.

   
   

8. How it could be possible for Petitioner to have been employed at ARJDC in October 1985, when he had been sentenced in June 1985, to two years' imprisonment was never explained, but his testimony to this effect was not refuted. Also, DJJ stipulated that ARJDC had employed Petitioner from October 1985 to October 1997, and there was evidence from several witnesses that Petitioner had worked at ARJDC while the facility was administered by DJJ, after 1995.

9. In October 1985, ARJDC was administered by the Department of Health and Rehabilitative Services (HRS), which was/is a social service agency. Sometime before October 1997, when Petitioner resigned, ARJDC began to be administered by DJJ. DJJ is a criminal justice agency created in 1994. DJJ views its

   mission as "reducing juvenile crime." Neither HRS nor DJJ is a law enforcement agency or a correctional agency.

10. While employed at ARJDC, Petitioner was, in sequential order, an OPS Transporter, OPS Detention Care Worker, and a full-time, career service Detention Care Worker I.

11. On July 12, 1995, while he was employed in career service by DJJ at ARJDC, Petitioner was arrested for "domestic battery." The circumstances of the domestic battery of July 12, 1995, are fairly classic. The woman Petitioner was then living with, LeTeju Lane, had placed several phone calls to Petitioner at his workplace. When he returned from transporting juveniles, Petitioner only got word that LeTeju had called and left no specific messages. He got permission to go home early. Petitioner found a strange car in the driveway of the home he shared with LeTeju and then listened at the back door. Having heard sounds of "sexual commotion" inside, Petitioner went to the front door, kicked it in, and observed a man having sex with LeTeju. A fight ensued between the two men when Petitioner asked the man to "get off" LeTeju. This record is silent as to any harm done by Petitioner to either LeTeju or the male interloper.

12. On September 11, 1995, Petitioner pled nolo contendere to the offense of "domestic battery," no statute specified. Based on the statutory scheme and the documentary evidence, it

    appears that Petitioner pled to a first degree misdemeanor.1/ Adjudication of guilt was withheld, and Petitioner was placed on non-reporting probation for one year. Court costs were waived, but on October 16, 1995, Petitioner was ordered to pay $100.00 in restitution to LaTeju. This money was for the repair of the door Petitioner had kicked in and damaged during the domestic battery incident.

13. Petitioner testified that he reported the circumstances of the domestic battery to his immediate DJJ supervisors even before he was released from the initial arrest and that he kept them advised of the progress of his case; that ultimately they told him that if he were not convicted of a felony, he could keep working for DJJ; and that they allowed him to keep working in his position of special trust at ARJDC until he voluntarily resigned two years later.

14. Mr. Turner, DJJ's current IG, has been with DJJ since 1994 but only became IG sometime in 1996. He testified that in 1995, Petitioner's immediate supervisors had a duty to report the domestic battery offense to the IG's office for investigation re disqualification exemption, and they did not. Mr. Turner inferred from this information that Petitioner actually never told his superiors about the domestic battery.

15. Petitioner continued to work for DJJ at ARJDC until October 1997, when he voluntarily resigned due to orthopedic problems with his knee.

16. Three professional care witnesses who had worked with Petitioner at ARJDC testified. All three described Petitioner as caring, responsible, honest, effective, and the type of person who worked well with juveniles. A supervisor noted that Petitioner was truthful about his paperwork; had willingly worked overtime; and, on occasion, had voluntarily worked without pay when OPS funds ran out. None of these witnesses knew about Petitioner's criminal record.

17. Petitioner married LaTeju Lane about three months after the domestic violence event in 1995. Thus far, it has been a successful marriage, producing two children. On November 16, 1998, the Circuit Court in and for Alachua County granted Petitioner full custody of two of his children from a prior marriage. Petitioner and LeTeju have successfully integrated these children into their household. LaTeju's child by a prior mate also resides with them. Observers describe

    Petitioner as a concerned and loving father and describe all the children as "well-mannered." Petitioner has three other children by his first wife. Petitioner supports all of his minor children.

18. LaTeju described Petitioner's behavior toward her ever since their marriage as "lovely." She further described him as being nonviolent, self-controlled, and good with the children.

19. Petitioner described himself currently as a self- controlled, civic-minded, hard-working church-going professional.

20. Petitioner is currently employed as a lieutenant- supervisor of security guards for the Barkley Security Agency, working at Gainesville Regional Utilities.

21. Prior to that, Petitioner worked in mortuary science at a funeral home.

22. On February 24, 2000, Petitioner received a certificate of recognition from the Alachua County School Board for preventing a middle school student from getting on a school bus armed with a snub-nosed pistol.

23. On other occasions, Petitioner has been publicly commended for reporting four escaped juveniles to the Putnam County Sheriff's Department and for summoning authorities to intercept a three-year-old child who had wandered onto the green spaces of I-75.

24. On November 6, 2000, Petitioner completed the course for certification as a Class D security officer with a score of

    97 out of a possible 100 points.

25. For approximately three years, Petitioner has been qualified as a "documented source" by the Florida Department of Law Enforcement. This means that his criminal background has been checked for anything that might discourage law enforcement officials from using him for intelligence work. Even so, law enforcement agencies frequently employ minor criminals, paid informants, and potential co-defendants for the same or similar services as Petitioner performs for them.

26. According to Kenneth Moore, Special Agent of the Florida Department of Law Enforcement; Carnell Grayer, retired Lieutenant of the Palatka Police Department; Clovis Watson, Assistant Chief of Police of Alachua, Florida; and Robert Jernigan, Chief of Police of Alachua, Florida, Petitioner has a history spanning approximately ten years of intermittent paid civilian "intelligence work" for various police departments and sheriffs' offices. In each instance, he has done whatever was asked of him in a timely manner, and all the information he has provided has checked out as true. He regularly provides information which results in arrests and clears cases.

27. Each officer testified favorably about Petitioner's intelligence, truthfulness, and reliability. Each testified that Petitioner was "professional" and able to control his emotions and remain non-violent under stress, even when his own children were at risk.

28. Most of the law enforcement witnesses were unaware of Petitioner's criminal record. Some were aware of it. When made aware of his criminal record, most law enforcement witnesses felt that neither Petitioner's worthless check history nor the domestic violence offense would affect their high opinion of Petitioner, but that a false statement under oath probably would prevent their trusting him.

29. In 1999, Petitioner submitted job applications for caretaker positions with Eckerd Youth Alternatives and Marion Regional Juvenile Detention Center, and submitted an Affidavit of Good Moral Character. Both potential employers submitted background screening requests on Petitioner to DJJ's BSU.

30. Petitioner claimed that he had told the DJJ employees who had accepted his 1999 employment applications and affidavit all about his past criminal record and offered to provide further information, and that they had told him to turn in the applications and affidavit described below and wait to see what BSU said. Without corroboration, this assertion does not excuse Petitioner from making the disclosures required by the written instructions on the affidavit and applications.

31. The State of Florida employment application which Petitioner signed on September 17, 1999, and submitted to Marion Regional Juvenile Detention Center (R-12), indicated that Petitioner had been a "state correctional officer" with DJJ from

    1985 to 1997. This representation of being a "correctional officer" is a technical impossibility, since neither DJJ nor its predecessor agency HRS operated/operates correctional facilities. (See Finding of Fact 9) Petitioner admitted under cross-examination that he had been a Detention Care Worker I when he resigned from DJJ in 1997. He explained his answer on the 1999 job application as being the result of information he had received from his former DJJ superiors while he was still working for DJJ.

32. Petitioner also stated on the September 17, 1999, application that he had been a "Communication Officer I" with the Clay County Sheriff's Office from September 1983 to April 1984. He did, in fact, hold that position, which constituted being a dispatcher.

33. On the job application, Petitioner also checked "yes" to the question, "Are you a current or former law enforcement officer, other employee or spouse or child of one who is exempt from public records disclosure under Section 119.07 (3)(k), Florida Statutes?" The application form explains "other employee" to include, among others, correctional officers. It does not list police dispatchers. It then refers the applicant to the named statute for further explanation. Petitioner testified that he knew that to be a "law enforcement officer," one had to be a "certified police officer," which he had never

    been. Petitioner testified that he had checked the "yes" for exemption from public records requests on his application because when he was a law enforcement dispatcher and when he worked for DJJ, his superiors had told him this was a way to keep the criminal element from locating his home to hurt him or his family.

34. A section of the September 17, 1999, job application required that Petitioner reveal convictions, nolo contendere or guilty pleas, and adjudications withheld of any felonies or first degree misdemeanors. Petitioner only admitted to "worthless check in Clay County, on July 14, 1983." This date did not match any of his worthless check pleas, convictions, or adjudications withheld and gave DJJ the impression that Petitioner was admitting to only one worthless check charge. Petitioner also did not disclose his plea of nolo contendere or that adjudication had been withheld on the 1995 domestic battery charge, a first degree misdemeanor.

35. The job application, which Petitioner signed, authorized a search of his background and clearly stated that he was aware that any omissions might disqualify him from consideration for the employment position applied-for.

36. In conjunction with his applications for employment and his background screening packages, Petitioner completed and signed an Affidavit of Good Moral Character, dated and notarized

    on September 20, 1999 (R-3), in which he swore that his criminal record did not contain any disqualifying offenses. That affidavit did not require him to list his worthless bank check charges or convictions as disqualifying offenses, but it did specifically list as a disqualifying offense, "741--relating to domestic violence as defined in Sections 741.28 and 741.30

    (any crime of violence against a family/household member, including assault and battery)."

37. Petitioner's explanations of his failure to disclose the domestic battery on the affidavit were that he believed the inquiries thereon only applied to his good character after 1995; he did not read the affidavit carefully; and he assumed the affidavit was the same as the one he had signed 14 years previously. None of these explanations is worthy of belief, especially since he ultimately admitted that the old affidavit and the 1999 one did not look the same.

38. Petitioner's assertion that he did not think he was required to disclose the domestic battery at all because he believed that it would not count against him since his former DJJ superiors had allowed him to work for two years after it occurred is not corroborated, but is credible within the confines described in the following Conclusions of Law.

    CONCLUSIONS OF LAW

    
    

39. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569 and 120.57, Florida Statutes.

40. Section 435.07(3), Florida Statutes (2000), sets out the burden of proof and duty to go forward which is upon Respondent:

    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. . . .

    
    

41. DJJ has operated on the assumption that Petitioner is disqualified from employment on the basis of Section 435.04 (3)(b), Florida Statutes, which, since 1995, has read;

    (3) Standards must also ensure that the person:

    (b) Has not committed an act that constitutes domestic violence as defined in s. 741.30.

    
    

42. The combination of Petitioner's admission of kicking LeTeju's door down and his plea of nolo contendere to "domestic

    battery," foreclose Petitioner from contesting a description of the July 12, 1995, event as "domestic violence." Therefore, it is concluded that the July 12, 1995, incident involving Petitioner, LeTeju, and the male interloper falls in the category of an act of domestic violence as defined in Sections

    741.28 and/or 741.30, Florida Statutes.

    
    

43. However, pursuant to Sections 47 and 64 of Chapter 95-228, Laws of Florida, Section 435.04, Florida Statutes, did not become law until October 1, 1995, and even when it became law on that date, it only applied to offenses "committed on or after that date." That being the case, Petitioner cannot be disqualified on the basis of Section 435.04 (3)(b), Florida Statutes, for his act of domestic violence committed before October 1, 1995.

44. On the other hand, Section 39.076 (4)(d), Florida Statutes (Supp. 1994), disqualified from working with juveniles, any person who had committed an act of domestic violence, regardless of adjudication.2/ Subsection (6) provided an exemption procedure identical to this one. However, under Section 39.01, Florida Statutes (1994 Supp.), the "Department" administering juvenile justice was HRS. It also appears that contradictory bills governing various related statutory chapters were passed in the 1994 and 1995 legislative sessions, and when contradictory bills are passed in the same session, the last one

    is to be relied upon. For the foregoing reasons, and due to the prospective language and later effective date of new Section

    435.04 (3)(b), Florida Statutes (1995), it would have been very difficult during this period of time for anyone to determine whether HRS or DJJ was responsible for screening, disqualification, and/or exemption procedures.

45. Therefore, it is concluded that, pursuant to Section

    
    

    39.076 (4)(d), Florida Statutes (Supp. 1994), Petitioner's domestic problems in July 1995, disqualified him from continued employment with juvenile offenders, regardless of the type of plea he entered, the agency employing him, or the disposition of his criminal case.

46. I also conclude that the enactment of Section 435.04, Florida Statutes, with its prospective language and delayed effective date, and the extraordinarily complex legislative activism with regard to related statutes explain why Petitioner's superiors allowed him to continue working in 1995 without reporting his situation to DJJ's IG.

47. On the same basis, I decline to accept DJJ's inference that Petitioner never reported his 1995 situation to his superiors, and accordingly, I do not reach the suggested conclusion that Petitioner lied when he testified that he had reported the 1995 act of domestic violence to his superiors. Furthermore, I find it credible that Petitioner believed that

    because he was not disqualified by his superiors at that time, the 1995 domestic violence incident would not "count against" him for employment purposes.

48. Therefore, applying Section 435.07(3), Florida Statutes (2000), Petitioner's only disqualifying offense is the act of domestic violence. The circumstances surrounding it are regrettable but understandable. The record is silent as to the degree of harm inflicted on either LeTeju or the meretricious domestic interloper. Apparently, it was not sufficient harm to prevent LeTeju from marrying Petitioner. Five years have elapsed since the disqualifying offense, during which time, Petitioner has had no criminal record of any kind. In this interim, Petitioner has lived an exemplary and commendatory life. But for the credibility problems presented by his 1999 employment application and affidavit, the exemption could be granted, because there is no reason to believe Petitioner will present a threat of physical violence if employed in a position of special trust, and physical violence is the "danger" with which Sections 435.04 and 435.07(3), Florida Statutes, are concerned.

49. The worthless check offenses are not disqualifying offenses. They occurred ten or more years before the disqualifying offense of domestic battery and do not impact Petitioner's current moral character for purposes of an

    exemption proceeding, except as described below with regard to his 1999 job application and Affidavit of Good Moral Character.

50. The final issue then is, do Petitioner's 1999 job application and affidavit, together with his partially incredible explanations for his falsehoods and omissions thereon demonstrate a lack of trustworthiness and good moral character sufficient to deny him the exemption applied-for?

51. The Affidavit of Good Moral Character did not require disclosure of any worthless check offenses. Petitioner has not claimed that he was misled by the explanation of domestic violence printed on it, and the only credible part of his incredible list of reasons he signed the affidavit and job application without disclosing the requested information is that he was misled when his DJJ superiors let him continue to work after the domestic violence incident in 1995.

52. One would like to believe that an ordinarily prudent person seeing "act of domestic violence" listed on an affidavit in 1999, would make sure he was not disqualified by the 1995 domestic battery incident he clearly knew about before signing an oath that he had no disqualifying offenses. However, that type of carelessness is common, and with Petitioner's explanation concerning his continued employment by DJJ from 1995 to 1997, his non-disclosure of domestic battery on the affidavit alone should not defeat Petitioner's request for exemption.

    Indeed, there often are misunderstandings and extenuating circumstances, and even where a full disclosure is not made, background screening exists to discover prior offenses, at which time an evidentiary hearing will administer the statutory test, weighing the error and/or omission on the affidavit against the applicant's overall current situation.

53. Concerning the flaws in the job application, however, I comprehend that Petitioner feels that he has been "in law enforcement" for the past ten years and that he wants to insulate himself from the criminal element he deals with as an informer/documented source, but that is very different than representing that he has served as a state "law enforcement officer" and "correctional officer." Also, the job application required him to reveal the worthless check felony conviction and any first degree misdemeanors, including the first degree misdemeanor of domestic battery. Petitioner has not claimed that he did not know which offenses constituted a felony or first degree misdemeanor, but even if he did not know whether the domestic battery constituted a felony or first degree misdemeanor, he could have taken the time to determine that before signing and turning in the job application. Petitioner's extensive background in the criminal justice system should have made him aware of the differences in job titles and the seriousness of his omissions of past criminal history. One who

    lies or fails to disclose requested information on a job application is not a trustworthy example for juveniles, and I have some concern that Petitioner's on-going interest in receiving payment from law enforcement officials for information has the potential for tempting and encouraging him to provide law enforcement officials with less than truthful information concerning juveniles committed to his care. Petitioner's job application contains errors and omissions which clearly disqualify him from employment in the position applied-for, without need to rely on the statutory disqualification list.

54. However, the use of the statutory disqualification list should be limited to the purposes for which it was intended, and the denial of an exemption should be related to the violence which caused the listing in the first place. DJJ may have other reasons for not hiring Petitioner, but any residual concerns as a result of "domestic violence," have been purged. The exemption should be granted.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Juvenile Justice enter a final order granting Petitioner's request for an exemption.

DONE AND ENTERED this 1st day of February, 2001, in

Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 1st day of February, 2001.

ENDNOTES

1/ At all times material, "domestic battery" is and was defined at Sections 741.28 and/or 741.30, Florida Statutes, as battery by one household member upon another household member, and Section 784.035, Florida Statutes, provided for an enhanced penalty for a third or subsequent act of domestic battery, raising its status to a third degree felony. At all times material, simple battery has been defined at Section 784.03, Florida Statutes, and has constituted only a misdemeanor of the first degree.

2/ The parties stipulated that, pursuant to Section 435.04(3)(b), Florida Statutes, domestic battery is a disqualifying offense. During the taking of oral stipulations, Petitioner's counsel suggested that an adjudication withheld situation was not disqualifying. (TR 33-35) However, Section 39.076, Florida Statutes, has made "an act of domestic violence" a disqualifying condition at least as early as 1991.

COPIES FURNISHED:

Natalia Kalishman, Esquire Haile Professional Center 5208 southwest 91st Drive Gainesville, Florida 32608

Lynne T. Winston, Esquire Department of Juvenile Justice Office of the Inspector General 2737 Centerview Drive, Suite 300

Tallahassee, Florida 32399-3100

Robert N. Sechen, General Counsel Department of Juvenile Justice Office of the Inspector General

2737 Centerview Drive, Knight Building Tallahassee, Florida 32399-3100

William G. Bankhead, Secretary Department of Juvenile Justice

2737 Centerview Drive, Knight Building 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: 00-003249

Orders for Case No: 00-003249