ANTHONY L. THOMAS, )
vs. ) Case No. 02-4538
Respondent. )
Pursuant to notice, a formal hearing was held in this case on January 30, 2003, by video teleconference, with the parties appearing in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.
For Petitioner: William E. Stacey, Jr., Esquire
For Respondent: Richard D. Davison, Esquire
Whether the Respondent should grant the Petitioner an exemption from disqualification from employment in positions of special trust.
In a letter dated September 3, 2002, the Department of Juvenile Justice ("Department") notified Anthony L. Thomas that his request for an exemption from employment disqualification was denied and that he was ineligible for employment in a direct contact/caretaker's position with the Department. Mr. Thomas timely requested an administrative hearing, and the Department forwarded the matter to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, the final hearing was conducted on January 30, 2003.
At the hearing, Mr. Thomas testified in his own behalf and presented the testimony of Francia Thomas, his wife; Todd Speight, Program Director of the Everglades Youth Development Center; Theodore McGill, an employee of the Department of Corrections; Aileen Phelan, Director of Clinical Services at the Hope Center; and David Chiverton, Director of Operations at the Hope Center. Petitioner's Exhibits 1 through 7 were offered and received into evidence; Petitioner's Exhibit 5 was received over a hearsay objection. The Department presented the testimony of Lynne T. Winston, the Department's Inspector General, and Respondent's Exhibits 1 through 20 were received into evidence pursuant to the stipulation of the parties.
On February 11, 2003, Mr. Thomas filed with the Division of Administrative Hearings a copy of a letter from Lonnette Frazier
dated March 17, 1997. In a Notice of Filing that accompanied the letter, Mr. Thomas's attorney stated that, though it was not marked, the letter had been offered into evidence at the hearing and that, in light of a hearsay objection interposed by the Department's counsel, the undersigned had reserved ruling on the admissibility of the letter. The undersigned does not recall the events recited in the Notice of Filing, and such is not reflected in the notes the undersigned took during the hearing. Nonetheless, because the Department has not filed an objection to the filing of the letter, the letter will be received into evidence as Petitioner's Exhibit 7. It should be noted, however, that this letter cannot form the basis for a finding of fact because it is hearsay and would not be admissible over objection in a civil action. See Section 120.57(1)(c), Florida Statutes (2002); Rule 28-106.213(3), Florida Administrative Code.
No transcript was filed with the Division of Administrative Hearings, and the parties timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
Mr. Thomas seeks employment at the Everglades Youth Development Center, which is a 102-bed residential treatment facility for high-risk male juvenile offenders aged 13 to 18 years.
Because of Mr. Thomas's criminal background, he is disqualified from working in positions of trust with the Department and can only work in such positions if he is granted an exemption from the disqualification.
Criminal History
Mr. Thomas was arrested in August 1987 and charged with lewd and lascivious behavior with a minor.
In an Information dated October 7, 1987, issued by the State Attorney for the Sixth Judicial Circuit in Pinellas County, Florida, Mr. Thomas was charged with three counts of handling and fondling two girls under the age of 16 years in or about July or August 1987, in violation of Section 800.04(1), Florida Statutes (1987).1 At the time, Mr. Thomas was known as Anthony Lee Sanders, "Sanders" being his father's surname.
Count I of the Information named Carolyn Coston, a/k/a Carolyn Gordon, as an alleged victim, and Counts II and III of the Information named Lonnette Frazier as an alleged victim.
Mr. Thomas first met Ms. Frazier when he played basketball at Gibbs High School in St. Petersburg, Florida; she used to attend the games. Mr. Thomas also knew Ms. Frazier's parents.
At the times set forth in the Information, Mr. Thomas was a counselor in the summer recreation program of the Police Athletic League, where he was responsible for supervising and working with children enrolled in the program. Ms. Coston and Ms. Frazier were enrolled in the program and under Mr. Thomas's supervision.
Mr. Thomas and Ms. Frazier had dated more than six months before the incident in August 1987 that resulted in his arrest. At the time, Ms. Frazier was 14 or 15 years of age; Mr. Thomas was 19 years of age and a student at Manatee Junior College. Mr. Thomas admits that he and Ms. Frazier had one encounter of a sexual nature in August 1987, but he denies that he and Ms. Frazier had a second such encounter.
Mr. Thomas knew Ms. Coston only as a client in the Police Athletic League summer recreation program. He denies ever having had an encounter of a sexual nature with her.
After his arrest, Mr. Thomas was jailed for two weeks, then released on his own recognizance. He was represented by a
public defender, who advised him and his mother that, if he were convicted of any one of the charges, he could be sent to prison for 25 years.
Mr. Thomas was afraid of being sentenced to prison, and he agreed to accept a plea bargain offered by the State Attorney's office. It was his understanding that his attorney tried to convince the State Attorney to dismiss the count in the Information involving Carolyn Coston but was unsuccessful. As a result, Mr. Thomas pleaded guilty to all three counts of the Information, although he insists that he was actually guilty of engaging in only one sexual encounter with Ms. Frazier and that he never had a sexual encounter with Ms. Coston.
In an Order Withholding Adjudication of Guilt and Placing Defendant on Probation, dated January 15, 1988, the court found that Mr. Thomas was "not likely again to engage in a criminal course of conduct, and that the ends of justice and the welfare of society do not require that [he] should presently be adjudged guilty and suffer the penalty authorized by law." Accordingly, the court withheld adjudication of guilt and placed Mr. Thomas on two years of community control and five years of probation. Mr. Thomas was permitted to continue attending classes and athletic games and practices, and he was allowed to travel with his athletic team. He was also required to pay for
the duration of his community service and probation $12.00 per year to First Step, Inc., an organization whose function is not explained in the order.
In an order entered May 12, 1988, the court modified the terms of Mr. Thomas's community control by changing the remainder of the community-control period to probation, with the sentence of five years of probation previously imposed to follow. Supervision of Mr. Thomas's probation was transferred to Sioux City, Iowa, where Mr. Thomas had received a scholarship to attend Morningside College. The May 12, 1988, order further provided that, "upon the Defendant's arrival in Sioux City, Iowa, he shall be evaluated to determine whether counseling as a sex offender is needed and, if needed, sex offender counseling shall be made a condition of Defendant's probation."
Mr. Thomas did not graduate from Morningside College, but transferred to Bethune Cookman in Dayton Beach, Florida.
In an undated affidavit prepared on or around August 25, 1992, Mr. Thomas's Florida probation officer stated that Mr. Thomas had violated the terms of his probation in the following respects:
Violation of Condition (8) which states: "You will promptly and truthfully answer all inquiries directed to you by the Court or the Probation Officer, and allow the Officer to visit your home, at your employment site or elsewhere, and you will comply with all instructions he may give you."
In That, the aforesaid has violated this condition by willfully refusing to attend and successfully complete a Sexual Offender Treatment Program as instructed by his Probation Officer throughout his probation and as ordered by Judge Crockett Farnell on 5-12-88.[2]
Violation of Condition (9) which states: "You will pay to First Step, Inc. the sum of Twelve Dollars ($12) per year for each year of probation ordered, on or before ninety days from the date of this order."
In That, the aforesaid has violated this condition by willfully refusing to pay to First Step, Inc. the sum of $84 or $12 per year as evidenced by a balance of $84.00 as of 8-12-92.
Mr. Thomas was at the time attending Bethune Cookman College. He did not enroll in sex offender counseling because he could not afford the fee; he did not make the payments to First Step, Inc., because he believed that these payments were waived because all of the other fees related to his probation had been waived.
Mr. Thomas sold his car, paid the monies owing First Step, Inc., and enrolled in the counseling program.
On November 6, 1992, Mr. Thomas entered a plea of guilty to the charges that he had violated the terms of his probation. An order was entered in which Judge Grable Stoutamire accepted the plea, continued Mr. Thomas on probation, and imposed the conditions that Mr. Thomas would "[s]uccessfully
complete sex offender counseling now enrolled in" and that Mr. Thomas's "[f]our years DOC [Department of Corrections] suspended sentence is reinstated and will be imposed if defendant deliberately fails to complete sex offender course."
Mr. Thomas successfully completed counseling, and he was granted early termination of probation on July 26, 1994. Employment history since 1994.
Todd Speight, who is currently the Program Director of the Everglades Youth Development Center, has known Mr. Thomas since they met in 1989, when they both attended Morningside College in Iowa. Mr. Speight observed Mr. Thomas work with children when he was in college, and, in 1994, Mr. Speight recruited Mr. Thomas to work as a youth care worker at the Victor Cullen Academy, which is a residential treatment facility for high risk juveniles located in Maryland.
At the time he recommended Mr. Thomas in 1995 for employment at the Victor Cullen Academy, Mr. Speight was aware that Mr. Thomas had pleaded guilty to charges of inappropriate sexual conduct with a girl who was a client of an agency that employed him.3 Mr. Speight was also aware that Mr. Thomas, nonetheless, successfully passed the Maryland employee screening process after he was hired at the Victor Cullen Academy.
Mr. Thomas ended his employment at the Victor Cullen Academy when he moved back to Florida in 1995.
In 1995 and 1996, Mr. Thomas worked briefly for Bridges of America, a drug and alcohol treatment program that was under contract with the Department of Corrections. He left his position with that organization because the Department of Corrections required that employees of the program be released from probation for at least three years.
In the latter part of 1996, Mr. Thomas began working as a residential instructor at the Hope Center, which is a residential center for persons with developmental disabilities that operates under contract with the Department of Children and Families. The Hope Center serves males and females from the age of 12 years to the age of 70 years. Most of the residents are adults, but the Hope Center also serves children. Mr. Thomas disclosed his criminal background when he applied for the job at the Hope Center, and he discussed his background during his employment interview.
Mr. Thomas worked at the Hope Center for a short time but was let go when the background screening done by the Department of Children and Families confirmed his criminal background. Mr. Thomas requested an exemption from disqualification from employment, and the exemption was granted in May 1997. Mr. Thomas was rehired by the Hope Center, where he worked from 1997 until the summer of 2002, when he was laid off due to budget cuts.
At the time of the final hearing in January 2003,
Mr. Thomas was employed at the Bayview Center of Mental Health, a residential program for mentally ill persons aged
18 through 60 years that is funded by the Department of Children and Families. Mr. Thomas was hired as a horticulture assistant, but, after six months of employment, he was promoted to a residential supervisor, effective January 20, 2003.
First request to the Department for an exemption from disqualification from employment.
In 1995, a request was made to the Department for a background check on Mr. Thomas, and, in July 1995, Mr. Thomas submitted to the Department an Affidavit of Good Moral Character in which he failed to disclose his criminal record. The Department learned through its background investigation that Mr. Thomas had pleaded guilty to three counts of lewd and lascivious behavior with two girls under the age of 16 years, offenses that disqualified him from working in positions of trust and responsibility. The Department also determined that Mr. Thomas did not have good moral character based on the submission of the false affidavit. Mr. Thomas did not request an exemption from disqualification.
In 1996, Mr. Thomas was offered a job of trust and responsibility at the Everglades Youth Development Center, and Outreach Broward, Inc., submitted a request to the Department
for a background check of Mr. Thomas. A form entitled Consent to Background Screening that was signed by Mr. Thomas on October 8, 1996, accompanied the request, and Mr. Thomas completed an Affidavit of Good Moral Character on October 8, 1996, in which he disclosed that he had a disqualifying criminal offense.
The screening resulted in a determination that Mr. Thomas had an unfavorable/disqualifying sex offense of fondling a child. Mr. Thomas requested an exemption from
disqualification from employment, and, after he was notified of the Department's intent to deny his request for an exemption, he requested an administrative hearing before an administrative law judge of the Division of Administrative Hearings.
The hearing was conducted on May 5, 1998, and a Recommended Order was entered in which the administrative law judge found that Mr. Thomas had established by clear and convincing evidence that he was entitled to an exemption from disqualification from employment in a position of trust. The administrative law judge accordingly recommended that the Department grant Mr. Thomas an exemption so that he could work at the Everglades Academy with youthful male offenders. The Department entered a Final Order dated July 1998, in which it disagreed with the administrative law judge's recommendation and denied the request for an exemption.
Second request to the Department for an exemption from disqualification from employment.
In or around June 2002, Mr. Thomas wrote to Governor Jeb Bush regarding his efforts to obtain an exemption from disqualification from employment. In a letter dated June 7, 2002, the Secretary of the Department, W.G. Bankhead, responded to Mr. Thomas and advised him that, because more than three years had passed since his 1996 exemption request was denied, he would be allowed "to request an exemption via the desk review process." Secretary Bankhead directed Ray Aldridge, supervisor of the Background Screening Unit, to notify Mr. Thomas in writing of the requirements of the desk review process.
Mr. Thomas was further advised that he would be required to undergo a criminal history background and driver's license screening.
In early July 2002, Mr. Thomas submitted a Request for Desk Review on Disqualification, in which he checked the statement: "I request a Desk Review of my request for an exemption from disqualification based on the fact that I have clear and convincing evidence to support a reasonable belief that I am of good moral character."
As part of the desk review, persons requesting exemptions are required to submit a letter describing the nature of their criminal offenses and their life since they committed
the offenses. The following paragraph is contained in a letter to Mr. Aldridge dated July 28, 2002, and signed by Mr. Thomas:
On August twenty second, nineteen eighty- seven, I Anthony L. Thomas was charged with sex offenses: two counts against a child, fondling/lewd and lascivious acts. On January fifteenth, nineteen eighty-eight I was found guilty of the two counts against a child, fondling/lewd and lascivious acts. I was sentence to complete seven years probation, which included attending counseling for sex offenders.
In the next paragraph of the letter, Mr. Thomas refers to a single victim.4
The results of the Department's background screening were sent to the Department's Inspector General in a memorandum dated August 13. 2002. In the memorandum, Mr. Thomas's criminal history is described as "Sex offense - Against Child Under 16 - Lewd and Lascivious Act," with an arrest date of August 22, 1987. The false Affidavit of Good Moral Character submitted July 10, 1995, was noted in the memorandum as "Other history, which is not disqualifying." On September 9, 2002, the Department's Inspector General indicated on the memorandum that Mr. Thomas's request for an exemption from disqualification from employment was again denied. Subsequent to notice of the intent to deny the exemption request, Mr. Thomas requested the instant administrative hearing.
Work record and character of Mr. Thomas.
Mr. Speight was a team leader at the Victor Cullen Academy in 1994-1995, and Mr. Thomas worked on his team.
Mr. Speight observed Mr. Thomas's job performance and found that the children in his charge were comfortable with Mr. Thomas and that Mr. Thomas did an excellent job with the children.
Mr. Speight did not observe Mr. Thomas engage in any inappropriate conduct during his time at the Victor Cullen Academy.
During the years he was employed at the Hope Center, from 1997 until the fall of 2002, Mr. Thomas worked in both the residential program supervising the residents and as an assistant in the social services program, arranging for services to residents, planning and supervising residents on outings and field trips, and communicating with residents' families. Aileen Phelan and David Chiverton, two of his supervisors at the Hope Center, consider Mr. Thomas an exemplary employee: He worked exceptionally well with the residents of the Hope Center, was attentive to the needs of the residents, was very caring, had a good work ethic, and was always willing to help where help was needed.
Neither Ms. Phelan nor Mr. Chiverton observed
Mr. Thomas engage in any inappropriate behavior during the seven years he worked there. Both were aware of his criminal
background, including the charges of sexual misconduct with a minor client while he was a counselor in the Police Athletic League and the violation of probation for failing to complete sex offender counseling. They were not, however, aware that Mr. Thomas had pleaded guilty to charges involving two girls under the age of 16 years; Mr. Thomas had told them he had sexual contact with one girl. The knowledge that the criminal charges involved two girls did not alter Ms. Phelan's and
Mr. Chiverton's opinions, based on their long association with Mr. Thomas and their familiarity with him as a person and as an employee working with developmentally disabled persons, that he is suitable for employment in a position of trust and that he should be granted an exemption from disqualification from such employment.
Mr. Chiverton has such a high opinion of Mr. Thomas and his contributions to the community that, in April 2000, he extended an invitation to Mr. Thomas to serve as a trustee of the Foundation of Community Assistance and Leadership, of which Mr. Chiverton is the Executive Director.
As the Program Director of the Everglades Youth Development Center, Mr. Speight would hire Mr. Thomas in an appropriate position at the Everglades Youth Development Center were the Department to grant him an exemption from disqualification from employment in a position of trust. In
addition to being familiar with Mr. Thomas's work with children at the Victor Cullen Academy, Mr. Speight has spoken with some of Mr. Thomas's supervisors and co-workers over the past seven or eight years. Although Mr. Speight is aware that Mr. Thomas engaged in a sexual act with a minor in 1987, Mr. Thomas has been a good citizen during the years Mr. Speight has known him. In Mr. Speight's opinion, based on his personal knowledge of Mr. Thomas's character and of his work with high-risk juveniles and on the references from his co-workers, Mr. Thomas would be a highly desirable employee at the Everglades Youth Development Center, and he should be granted the exemption from disqualification from employment in a position of trust that will enable him to work at the Everglades Youth Development Center.
Mr. Thomas acknowledges that, even though they had been dating for some time and he cared for her, he was wrong to engage in sexual behavior with Lonnette Frazier. He has been in touch with Ms. Frazier over the years and understands that she has been to college and is doing well.5
Mr. Thomas has been married since November 1999 to Francia Thomas, whom he met when he attended Bethune Cookman College in 1990-1991. Ms. Thomas is a high school business education teacher, and she and Mr. Thomas have a four-year-old
son. Ms. Thomas has been aware of her husband's criminal history since shortly after they met.
Mr. Thomas is currently attending college to complete his bachelor's degree. He believes that he can be a good example to youthful offenders and can show them that life does not end when you get in trouble as long as you change and use your life to do good.
Summary
The credible and persuasive evidence submitted by Mr. Thomas is sufficient to establish clearly and convincingly that he is rehabilitated, that he is of good moral character, that he is currently fit for employment in a position of trust and responsibility with the Department, and that he should be granted an exemption from disqualification from employment:
Mr. Thomas was 19 years of age when he was arrested and charged with three counts of lewd and lascivious behavior with two girls under the age of 16 years, and 15 years have passed since he pleaded guilty to these offenses. At the time, the criminal court judge believed that Mr. Thomas was unlikely to engage in criminal behavior in the future, and he withheld adjudication of guilt. The only subsequent criminal violation in Mr. Thomas's background is the violation of probation in 1992. Mr. Thomas's failure to comply with two conditions of his probation was not the result of a bad and purposeful
disobedience. Rather, Mr. Thomas's failure to attend sex offender counseling was the result of a lack of money to pay for the counseling, and his failure to pay a total of $84.00 to First Step, Inc., was the result of a misunderstanding of his obligation to pay the $12.00 per year fee. Mr. Thomas was granted early release from probation in July 1994, having successfully completed all of the conditions of his probation.
Mr. Thomas long ago fulfilled the requirements imposed on him by Florida's criminal justice system, and he has no criminal history since the probation violation in 1992 but has, by all accounts, lived a good and productive life.
Mr. Thomas has worked in positions of special trust with young people and with developmentally disabled children and adults since his release from probation in 1994: He worked with juveniles in a high-risk treatment facility in Maryland before returning to Florida in 1995; he was employed for seven years at the Hope Center as a residential instructor; and he is currently working as a residential supervisor at a center in Pembroke Pines that serves mentally ill residents. Mr. Thomas has the respect and loyalty of former supervisors and co-workers in these programs, and they describe a man who was an exemplary employee and a caring social service worker with whom adults and children were comfortable. The evidence is, therefore, sufficient to support a firm and unhesitating belief that
Mr. Thomas would not pose a threat to children were he permitted to work with juveniles committed to the care of the Department.6
Mr. Thomas is married, he has a child and a stable home life, and he is completing his college education.
Mr. Thomas admits that, in 1995, he submitted a false Affidavit of Good Moral Character in which he failed to disclose that he had pleaded guilty to a disqualifying offense. Although the false affidavit Mr. Thomas prepared in 1995 could reasonably serve as a basis for denying his 1996 request for an exemption from disqualification from employment, seven and one-half years have elapsed and Mr. Thomas has fully disclosed and discussed his criminal history with the Department. In light of his personal and employment history since 1995, Mr. Thomas's failure to disclose this criminal history in 1995 is not sufficient to support a finding of fact that Mr. Thomas lacks good moral character.
Mr. Thomas's failure to state in the July 28, 2002, letter to Mr. Aldridge that he was charged with three counts of lewd and lascivious behavior with two separate girls under the age of 16 years is, likewise, not sufficient to support a finding of fact that Mr. Thomas lacks good moral character. Although Mr. Thomas pleaded guilty to the three counts of lewd and lascivious behavior in 1987, when he was 20 years old, the credible and persuasive evidence establishes that he did so as
part of a plea bargain to avoid what he feared could be a prison sentence of 25 years. Throughout the hearing, Mr. Thomas proclaimed his innocence with respect to the charge that he engaged in lewd and lascivious conduct with Carolyn Coston, and he repeatedly asserted that he had actually engaged in conduct of a sexual nature only with Lonnette Frazer, and the omission in the letter of reference to the third count of and the second girl named in the Information is a minor error of omission that is insufficient to outweigh Mr. Thomas's personal and employment history during the past nine years.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2002).
Section 985.01(2), Florida Statutes (2002), provides in pertinent part:
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. . . .
The Department of Juvenile Justice or 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.
Section 435.04, Florida Statutes (2002), sets forth Level 2 screening standards and provides in pertinent part:
All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. For the purposes of this subsection, security background investigations shall include, but shall not be limited to, fingerprinting for all purposes and checks in this subsection, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.
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 contender or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:
* * *
(u) Chapter 800, relating to lewd and lascivious behavior.
Based on the findings of fact herein, the position at the Everglades Youth Detention Center that would be offered to
Mr. Thomas should he receive an exemption from disqualification from employment would involve working with high-risk juvenile offenders, a job that is considered a position of trust and responsibility pursuant to Sections 985.01(2)(b) and 435.04(1), Florida Statutes (2002).
As set forth in the findings of fact herein, in January 1988, Mr. Thomas pleaded guilty to three counts of lewd and lascivious behavior with a child, involving two girls under the age of sixteen years, violations that, in the absence of an exemption, disqualify Mr. Thomas from holding a position of trust and responsibility with the Department or with any provider with which the Department contracts for programs involving children or youth pursuant to Sections 435.04(2)(u) and 435.07(1), Florida Statutes (2002).
However, based on the findings of fact herein,
Mr. Thomas has proven by clear and convincing evidence that he should not be disqualified from such employment.
Section 437.07, Florida Statutes (2002), provides in pertinent
part:
The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:
Felonies committed more than 3 years prior to the date of disqualification;
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(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 may be contested through the hearing procedures set forth in chapter 120.
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(5) Exemptions granted by one licensing agency shall be considered by subsequent licensing agencies,, but are not binding on the subsequent licensing agency.
The Department took the position at the final hearing that a person who engaged in lewd and lascivious conduct with two children under the age of 16 years will not, no matter how much time has elapsed since the offense, be granted an exemption from disqualification from employment, regardless of the quality and quantity of the evidence of rehabilitation. While it is true that the charges to which Mr. Thomas pleaded guilty in January 1988 are among the disqualifying offenses enumerated in Section 435.04(2), Florida Statutes, it is equally true that the
Legislature specifically contemplated that persons who were found guilty of such an offense could earn the right to an exemption from the disqualification by proving entitlement to an exemption by clear and convincing evidence.
Clear and convincing evidence was defined by the court in Evans Packing Co. v. Department of Agriculture and Consumer
Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989) as follows:
[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
In addition, Judge Sharp, in her dissenting opinion in Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting), reviewed recent pronouncements on clear and convincing evidence:
Clear and convincing evidence requires more proof than preponderance of evidence, but less than beyond a reasonable doubt. In re Inquiry Concerning a Judge re Graziano,
696 So. 2d 744 (Fla. 1997). It is an intermediate level of proof that entails both qualitative and quantative [sic] elements. In re Adoption of Baby E.A.W.,
658 So. 2d 961, 967 (Fla. 1995), cert.
denied, 516 U.S. 1051, 116 S. Ct. 719, 133
L. Ed. 2d 672 (1996). The sum total of evidence must be sufficient to convince the trier of fact without any hesitancy. Id. It must produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Inquiry Concerning Davie, 645 So. 2d 398, 404 (Fla. 1994).
Measured by this standard and based on the findings of fact herein, Mr. Thomas has proven by clear and convincing evidence that, in consideration of the nearly 16 years that has passed since he pleaded guilty to three charges of lewd and lascivious behavior with two teenage girls under the age of 16 years, of his successful and early completion of probation, and of his personal and employment history since 1994, he is rehabilitated and is a person of good moral character.
The Department has broad discretion to grant or deny an application for an exemption from disqualification from employment, Phillips v. Department of Juvenile Justice,
736 So. 2d 118, 119 (Fla. 4th DCA 1999), but the Department's decision whether to grant or deny the exemption must not be unreasonable or "outside the range of discretion delegated to th[e] agency." Heburn v. Department of Children and Families, 772 So. 2d 561, 563 (Fla. 1st DCA 2000).
The Department has a special responsibility to the juvenile offenders in its charge, and it must carefully exercise
its discretion in granting exemptions from disqualification from employment based on the facts of each individual case. In this case, based on the findings of fact herein, the Department should exercise its discretion to grant Mr. Thomas an exemption from disqualification from employment with the Department or with any provider of children and youth programs under contract
with the Department.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order granting Anthony L. Thomas an exemption from disqualification from employment in a position of trust or responsibility with the Department of Juvenile Justice.
DONE AND ENTERED this 17th day of March, 2003, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2003.
(1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner;
without committing the crime of sexual battery, commits a felony of the second degree, punishable as provided in
s. 775.082, s. 775.083, or s. 775.084.
Neither the victim's lack of chastity nor the victim's consent is a defense to the crime proscribed by this section.
2/ The requirement in Judge Farnell's May 12, 1988, order that Mr. Thomas attend sex offender counseling was contingent on a finding by Iowa officials that Mr. Thomas needed sex offender counseling. There is nothing in the record of this proceeding establishing that a determination was ever made that Mr. Thomas needed such counseling.
3/ Although Mr. Speight testified at the hearing that he was not familiar with the specifics of the criminal charges against
Mr. Thomas, it was his understanding that Mr. Thomas pleaded guilty to criminal charges of having sex with a minor.
4/ In his testimony at the final hearing, Mr. Thomas admitted that he signed the July 28, 2002, letter, but he denies having written or read the letter. It is presumed, however, that Mr. Thomas was aware of the contents of the letter when he signed it.
5/ In 1997, Ms. Frazier wrote a letter to the Department of Children and Families in support of Mr. Thomas. In the letter she stated that she suffered no harm as a result of the incident with Mr. Thomas. She stated in the letter that she had earned a bachelor's of science degree in criminal justice and that she considers herself a strong and intelligent African American woman.
6/ It has not been overlooked that Mr. Thomas admits that he had an encounter of a sexual nature with a 14-to-15-year old girl who was a participant in activities sponsored by the Police Athletic League at a time when Mr. Thomas was a counselor in that organization and supervised the activities in which the girl participated. Even if it is assumed, as he insists is the case, that he engaged in such behavior only on one occasion and only with his girlfriend of more than six months, Mr. Thomas showed a serious lapse in judgment for a person working in a position of trust. He was, however, 19 years of age at the time of the incident, and he has an unblemished record of employment in positions of trust since 1994.
Richard D. Davison, Esquire Department of Juvenile Justice 2737 Centerview Drive, Suite 312
William E. Stacey, Jr., Esquire
Anthony L. Thomas
William G. Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive
Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive, Suite 312
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.
