STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THAISER TAYLOR,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 01-4175

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RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on January 3, 2002, in Tavares, Florida, and conducted by

Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Candace A. Hawthorne, Esquire

319 East Main Street Tavares, Florida 32778

For Respondent: Ralph McMurphy, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158

STATEMENT OF THE ISSUE

Is Petitioner lawfully entitled to work in a position of trust in an assisted living facility licensed by the State of Florida.

PRELIMINARY STATEMENT

Petitioner worked for a short time, during the year 2000, in Ms. Weaver's licensed assisted living facility, which provided care for developmentally disabled and physically handicapped persons. Prior to July 5, 2001, the Department of Children and Family Services (Department) informed Petitioner that he was not qualified to continue his employment because he entered a plea of nolo contendere on a felony charge in 1994.

Petitioner applied for an exemption sometime in 2001. The Department, in a letter dated July 5, 2001, informed Petitioner that it was denying his application.

By petition dated July 26, 2001, Petitioner requested an administrative hearing in order to contest this denial. This request was denied with leave to amend. By an amended petition dated September 4, 2001, Petitioner again requested an administrative hearing. In a letter dated October 23, 2001, the Department forwarded the petition to the Division of Administrative Hearings. The case was set for final hearing on January 3, 2002, and was heard as scheduled.

Petitioner presented the testimony of one witness and testified in his own behalf. Petitioner offered five exhibits which were admitted into evidence. The Department offered the

testimony of one witness and offered four exhibits, of which three were admitted for limited purposes.

On January 23, 2002, a transcript was filed. Neither party filed a proposed recommended order. References are to Florida Statutes (2001) unless otherwise stated.

FINDINGS OF FACT

1. The Department is the state agency responsible for receiving, evaluating, and approving or denying applications for exemptions from disqualification to hold a position of trust, with regard to certain assisted living facilities.

2. Petitioner worked in one of Ms. Weaver's assisted living facilities for a short period in late 2000. Ms. Weaver's facilities were licensed by the Department. Petitioner was required to undergo Level 2 screening pursuant to Section 435.04, Florida Statutes, in order to hold a position of trust in the facility.

3. The screening revealed, among other things, that Petitioner entered a plea of nolo contendere on October 17, 1994, to theft of a firearm, pursuant to Section 812.014(2)(c)3 (1993), Florida Statutes, and carrying a concealed firearm, pursuant to Section 790.01, Florida Statutes. Both of these offenses are third degree felonies. Adjudication was withheld and he was sentenced to three years probation.

4. On March 7, 1996, Petitioner was arrested on a charge of aggravated battery with a firearm and discharge of a firearm within the city limits, in violation of a city ordinance. These allegations were not prosecuted.

5. Petitioner asserted that the incident of March 7, 1996, occurred as a result of a dispute with his brother and stated that he did not assault anyone. Petitioner further stated that it was not he who discharged a firearm within the city limits. Petitioner's version of the events of March 7, 1996, was not rebutted and his testimony in this regard is considered to be factual.

6. Petitioner entered a plea of nolo contendere, on December 23, 1996, to domestic battery, a felony, pursuant to Section 784.03(2), Florida Statutes. He was adjudicated guilty. Petitioner's previously imposed probation was extended for a year as a result.

7. Petitioner asserted that the incident which occurred on December 23, 1996, was occasioned as the result of a dispute with the mother of his children. The dispute concerned his children. He is not married to the mother of his children. Petitioner stated that he was angry and that he grabbed the woman's arm but that he did not hurt her. He stated that the woman complained to the law enforcement authorities with the result that he was thereafter arrested. This version of the

   events which transpired were not rebutted and his testimony in this regard is considered to be factual.

8. Petitioner successfully completed his probation.

   
   

   During his probation he attended an anger management class. Pursuant to an invitation by Ms. Ware, his probation officer, he gave a presentation on anger management to a class in Tampa.

9. During the time Petitioner worked in Ms. Weaver's facility he was in charge of bookkeeping and helped with the clients of the facility. He helped clients learn skills such as tying their shoes. The clients with whom he interacted were classified from level one to level six. Those that are classified as level four to level six are severely retarded. Those classified as level one to level three are less retarded.

10. Petitioner enjoyed working with the facility's clients. He noted that they appreciated the attention that he gave to them.

11. During the short time that Petitioner worked at the facility, someone filed an allegation to the effect that a client had been abused. Petitioner stated that Ms. Weaver was having a physical confrontation with a client and that he got involved in order to ensure that neither the client nor

    Ms. Weaver received injuries. Petitioner was not charged as a result of this incident and no evidence was presented which indicated that he engaged in unacceptable conduct.

12. Petitioner currently attends Tallahassee Community College. He has been a student there for a year and a semester. He has not received his grades for the current semester at the time of the hearing but so far he has attained a 3.8 grade point average. He was on the dean's list. He is studying business and psychology. When he completes his associate of arts degree he plans to attend either Florida State University or the University of Central Florida.

13. Petitioner's purpose in studying psychology is to gain the skills he needs to work in Ms. Weaver's assisted living facilities. He wants to eventually run the assisted living facility with Ms. Weaver and to open up more facilities.

14. Petitioner has been licensed as a cosmetologist for five years. He currently works at Clipper's Hair Fashions in Tallahassee and manages a staff of 15 persons.

15. Petitioner testified that he believed that he had been rehabilitated and that he had "learned his lesson."

16. Curtiss D. Robbins, who serves as Chief of Police of Howey-in-the Hills, Florida, stated that he had previously been a deputy sheriff in Lake County and that he had become Petitioner's friend subsequent to the three incidents in which Petitioner ran afoul of law enforcement authorities.

17. Chief Robbins opined that Petitioner was a fine young man. Petitioner had discussed with Chief Robbins his interest

    in working with mentally handicapped persons. Chief Robbins said that Petitioner was a patient person and that he had never observed him become angry. He described Petitioner as being honest, open, and respectful. He said that Petitioner attended church and that he had observed him interact with Petitioner's children and with his own children.

18. Marland Bluhm is employed by the Department. He has a master's degree in psychology and had done post-masters work. He has worked in the field of mental retardation for over 45 years. Mr. Bluhm sat on a three-person committee appointed by the Department to review Petitioner's application for an exemption. Mr. Bluhm stated that the Petitioner appeared before this committee. He stated that he believed that it would be best to administer a Minnesota Multi-phasic Personality Inventory (MMPI) to determine Petitioner's fitness for working in an assisted living facility. However, he joined the rest of the committee in recommending to their superiors that an exemption be granted.

19. Mr. Bluhm also said that working with mentally ill and mentally retarded persons required specific skills. He noted that mentally retarded persons could exhibit aberrant behavior and could try the patience of staff who were charged with taking care of them. He testified that the Petitioner was not a "fit,"

    in his opinion. As noted before, the results of an MMPI could change his opinion.

    CONCLUSIONS OF LAW

    
    

20. 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.

21. Subsection 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 or continued employment.

22. The Department's letter of July 5, 2001, failed to inform Petitioner of the reason his request for exemption from disqualification was denied, as it should have. The only reason adduced at the hearing was the conviction of theft of a firearm pursuant to Section 812.014(2)(c)3, Florida Statutes. A conviction of theft which is a felony is a disqualifying event, according to Section 435.04(2)(w).

23. Subsection 435.04, Florida Statutes, provides in pertinent part the following:

    (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:

    
    

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

    
    

24. Although Petitioner is facially 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 any employee otherwise disqualified from employment an exemption from disqualification for certain categories of offenses if the person otherwise meets the criteria set forth in Subsection 435.07(3), Florida Statutes.

25. Subsection 435.07(3), Florida Statutes, provides in pertinent part the following:

    (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.

26. 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.

27. Petitioner has met that burden. His last disqualifying offense occurred more than five years ago. He is a clean-cut, well-spoken young man who is a successful student and businessman. He is older and undoubtedly more mature than he was during the times he interfaced with the criminal justice system. He has been gainfully employed as a cosmetologist for more than five years. The police chief of a neighboring city vouched for his rehabilitation. The evidence in this case, taken as a whole, demonstrates by clear and convincing evidence that Petitioner has been rehabilitated as that term is described in Section 435.07(3), Florida Statutes.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That a final order be entered finding Petitioner to be

qualified to work in an assisted living facility licensed by Respondent.

DONE AND ENTERED this 6th day of March, 2002, in Tallahassee, Leon County, Florida.

HARRY L. HOOPER

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 6th day of March, 2002.

COPIES FURNISHED:

Candace A. Hawthorne, Esquire

319 East Main Street Tavares, Florida 32778

Ralph McMurphy, Esquire Department of Children and

Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158

Peggy Sanford, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

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: 01-004175

Orders for Case No: 01-004175