STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATSY R. STEWART, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

Case No. 03-2450

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on

September 11, 2003, at sites in Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: None

For Respondent: Richard D. Davidson, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is eligible for an exemption from disqualification from working with children.

PRELIMINARY STATEMENT

By letter dated March 27, 2003, Respondent Department of Juvenile Justice (“DJJ”) notified Petitioner Patsy R. Stewart that the agency had denied her request for an exemption from disqualification from employment.

Petitioner timely exercised her right to be heard in a formal administrative proceeding. On July 2, 2003, the agency referred the matter to the Division of Administrative Hearings. The case was assigned to an Administrative Law Judge, and the final hearing was scheduled to occur on September 11, 2003.

The final hearing, which was conducted by video teleconference, could have commenced as scheduled, except that Petitioner failed to appear. As a result, the Administrative Law Judge delayed the start of the hearing, giving Petitioner additional time to report to either hearing site. Attempts were made to contact Petitioner by telephone, to no avail. Finally, after a reasonable time, the Administrative Law Judge convened the proceeding.

DJJ presented the testimony of its Chief of Investigations along with Respondent’s Exhibits 1 through 4.

Neither party ordered a transcript of the final hearing.

DJJ timely submitted a proposed recommended order. Stewart did not file any post-hearing papers.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2003 Florida Statutes.

FINDINGS OF FACT

1. On or about December 15, 1987, Petitioner Patsy R. Stewart (“Stewart”) was found guilty on a felony charge of conspiring to traffic in cocaine.

2. On or about July 24, 2002, in connection with an application for employment in a program for children or youths, Stewart executed an Affidavit of Good Moral Character in which she acknowledged the drug-related felony conviction in her

   criminal record.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

4. Section 984.01, Florida Statutes, provides in pertinent part:

   1. The Department of Juvenile Justice or the Department of Children and Family Services, as appropriate, may contract with the Federal Government, other state departments and agencies, county and municipal governments and agencies, public and private agencies, and private individuals and corporations in carrying out the purposes of, and the responsibilities established in, this chapter.

      
      

      1. 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. Each contract entered into by either department for services delivered on an appointment or intermittent basis by a provider that does not have regular custodial responsibility for children and each contract with a school for before or aftercare services must ensure that the owners, operators, and all personnel who have direct contact with children are of good moral character. A volunteer who assists on an intermittent basis for less than 40 hours per month need not be screened if the volunteer is under direct and constant supervision by persons who meet the screening requirements.

         
         

      2. The Department of Juvenile Justice and 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.

         
         

      3. The Department of Juvenile Justice or the Department of Children and Family Services may grant exemptions from disqualification from working with children as provided in s. 435.07.

         
         

5. The level 2 standards to which Section 984.01(2)(b), Florida Statutes, refers are set forth in Section 435.04 as follows:

   1. 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 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.

      
      

   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:

   
   

   * * *

   
   

   (mm) 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.

   
   

   * * *

   
   

   (5) Under penalty of perjury, all employees in such positions of trust or responsibility shall attest to meeting the requirements for qualifying for employment and agreeing to inform the employer immediately if convicted of any of the disqualifying offenses while employed by the employer. Each employer of employees in such positions of trust or responsibilities which is licensed or registered by a state agency shall submit to the licensing agency annually, under penalty of perjury, an affidavit of compliance with the provisions of this section.

6. Conspiracy to traffic in cocaine is a felony violation of Chapter 893. See §§ 893.135(1)(b) and 893.135(5), FLA. STAT. Having been found guilty of committing a felony drug crime,

   Stewart is disqualified from employment in a program for youth

   
   

   or children. Accordingly, Stewart’s employer was required “either [to] terminate [her] employment . . . or place [her] in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07.” See § 435.06(2).

7. Under Section 435.07, Florida Statutes, DJJ is granted authority to exempt some employees from disqualification. Employees whom the agency may exempt (as opposed to employees it may not exempt) include those, such as Stewart, whose convictions were for felonies committed more than three years before the date of disqualification. See § 435.07(1)(a).

8. The agency is prohibited, however, from granting exemptions to all employees who are “exemptible” under Section 435.07(1), Florida Statutes. As provided in Section 435.07(3),

   [i]n 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 regarding an exemption may be contested through the hearing procedures set forth in chapter 120.

   
   

   (emphasis added). Thus, to fall within the agency’s power to award an exemption from disqualification, an employee must be both “exemptible” under Section 435.07(1) and prove by clear and convincing evidence that he or she has been rehabilitated, according to the standards prescribed in Section 435.07(3), Florida Statutes.

9. A clearly rehabilitated, “exemptible” employee is not entitled to an exemption, however, but is merely eligible to be granted one at the agency’s broad discretion. See Heburn v.

   Department of Children and Families, 772 So. 2d 561 (Fla. 1st DCA 2000), rev. denied, 790 So. 2d 1104 (Fla. 2001); Phillips v. Department of Juvenile Justice, 736 So. 2d 118 (Fla. 4th DCA 1999). As the courts in Heburn and Phillips made clear, the denial of an exemption to an eligible employee will not generally be considered an abuse of discretion.

10. Further, it follows from Heburn and Phillips that the ultimate issue in a formal administrative proceeding brought by a disappointed employee pursuant to Section 435.07(3), Florida

    Statutes, generally should not be whether the exemption should be granted (for that is a matter committed to the agency’s wide discretion) but rather in most cases should be whether the employee is eligible for an exemption——that is, whether the agency even has the discretionary power to award him one. If the employee is ineligible in fact, then the agency does not have the discretion to grant him an exemption, and the employee’s request must be denied for that reason, not as a discretionary matter but as a legal one.

11. Typically, as here, the resolution of an eligibility dispute will turn on whether the employee establishes, by clear and convincing evidence, that he or she has been rehabilitated, taking into account the criteria enumerated in Section 435.07(3), Florida Statutes.

12. In this case, Stewart has not carried her burden to establish rehabilitation clearly and convincingly. Therefore, she is not eligible for an exemption even if DJJ were inclined to grant her one.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order denying Stewart an exemption from disqualification from working with children.

DONE AND ENTERED this 10th day of October, 2003, in Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 10th day of October, 2003.

COPIES FURNISHED:

Richard D. Davidson, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Patsy Rose Stewart

36 Southwest Avenue F Belle Glade, Florida 33430

William G. Bankhead, Secretary Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 03-002450

Orders for Case No: 03-002450