Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The formal hearing was conducted in Jacksonville, Florida, on December 1, 2005. The appearances were as follows:
The issue to be resolved in this proceeding concerns whether a request for exemption by the above-named Petitioner,
seeking exemption from disqualification in accordance with Section 435.07, Florida Statutes (2005), should be granted.
The Department of Children and Family Services (Department) advised the Petitioner, Laura Potts, that she had a disqualifying offense that precluded her continued employment as a child care worker. The notification was by letter of November 3, 2004. On February 9, 2005, a "free-form" exemption hearing was held by the Agency, and by letter of February 17, 2005, the Department denied the request for exemption from disqualification, in accordance with the background screening statutes. The Petitioner had a felony conviction involving fraud and grand theft, which is the basis of the denial of exemption.
In any event, the Petitioner requested a formal proceeding and hearing to contest that initial agency action and to seek her exemption from disqualification. The request for hearing was forwarded to the Division of Administrative Hearings to conduct a formal proceeding and hearing and was referred to the undersigned Administrative Law Judge for that purpose.
The cause came on for hearing as noticed. The Petitioner testified on her own behalf at the hearing, and offered two exhibits that were admitted into evidence. The Respondent presented the testimony of one witness and offered five
exhibits, which were admitted into evidence. Additionally, official recognition was taken of portions of Chapters 402 and 435, Florida Statutes. Upon concluding the proceedings the parties were given the right to submit proposed recommended orders. The Department submitted a Proposed Recommended Order which has been considered in the rendition of this Recommended Order. The Petitioner did not file a proposed recommended order.
On August 30, 2002, the Petitioner was living in Orange County, Florida. She was working for the Conway Presbyterian Church. Prior to that she had worked for Magellan Academy, Child Care Centers, Inc. (Magellan), which operates licensed child care centers. Her mother owns the Magellan Academy's Child Care Centers. It is a quality operation which has won numerous awards. The Petitioner was employed in child care through her mother's business since she was twelve years of age.
While she was away from her employment with Magellan, she was living in Orange County and was working for the Conway Presbyterian Church. She was working in a capacity with the church's office, which enabled her to have access to the check book and the bank account or accounts held by the church.
The Petitioner apparently came to the Orange County Orlando Metropolitan area in association with her education at
Stetson University. She earned a bachelor of arts in political science from Stetson in May of 2000 with a minor in business law and Spanish. She has an excellent academic record. She has been a candidate for an MBA at Jacksonville University since that time.
During her college career she served as an intern for Congresswoman Tillie K. Fowler, was editor-in-chief of the Hatter, the Stetson University School yearbook, and a member of "Who's Who in American Colleges and universities."
While still living in the Orlando, Florida, area after graduating from college, the Petitioner was employed by the Small Blessings Child Care Center in Orlando, Florida, as assistant director. This is apparently an enterprise conducted by the Conway Presbyterian Church. During the period between late 2000 and the first months of 2001, prior to May 2001, the Petitioner had signature authority on the Conway Presbyterian Church's checking account and was responsible for keeping the checking account balanced and reporting to the church's steward and finance committee.
During that period of time she wrote checks and secured the cash from the checks for her own uses, without recording checks in the check book, she altered amounts of deposits made for the church, pocketing the difference between the amount of money she had in her possession and the lower amount that she
actually deposited. She forged the name of a Mrs. Krick, another church employee who was one of two required signators for all checks for the church. This enabled the Petitioner to accomplish her theft of the church funds. In any event, the Petitioner stole in excess of $21,000.00 from the church. The discrepancies in the church's accounting and bank records were discovered during approximately May 2001, and the Petitioner was prosecuted. On August 30, 2002, the Petitioner was adjudicated guilty of a "scheme to defraud" of $20,000.00 or more and grand theft in the second degree of $20,000.00 or more. She was sentenced to six months in the Orange County Jail. She was also placed on supervised probation for 10 years. Under her court order she was authorized to terminate probation after five years, provided all conditions of the probation are met. The Petitioner was also ordered to pay $46,189.36 to the victim, the Conway Presbyterian Church, in installments of $1,000.00 per month.
The Petitioner remained on probation at the time of this hearing. Her probation may end as soon as August 2007, or as late as August 2013, depending on whether there are violations of probation and whether she performs all conditions of the probation which authorize the probationary term to be reduced by half. The Petitioner has been faithfully paying the
installments of restitution, as required by the court, but still has a substantial amount left to pay.
Other than some restaurant meals and pleasure trips the Petitioner took she cannot specifically recall how she spent most of the stolen money or at least professes not to. She testified in a vague way that at the time the crime occurred she was engaged and her fiancée made specific demands for certain material things and to maintain a certain lifestyle that she felt obligated to help provide.
The Petitioner testified that she feels that she is not a danger to children and does not appear to understand how the crime of grand theft, as serious as she believes it was, is still relevant to her ability to work in a child care facility. The Petitioner also acknowledged in her testimony that the Conway Presbyterian Church was unable to follow through and complete some of its planned projects because of the financial deficit caused by her theft of the money.
The Petitioner became again employed by the Magellan Academy as a director in January 2004. She is working in the corporation's corporate office as an administrator which is separate from the child care facility, and she does not work directly with children. The Petitioner both before and after the crime in question has been faithful and trustworthy in handling funds belonging to others. She now works for the
Magellan Academy and has access to the corporation charge accounts and bank accounts and no further misconduct has occurred.
The Petitioner was adjudicated guilty of the above- referenced crime in August of 2002. Therefore, somewhat less than three and one-half years have elapsed since she was convicted of the felonies involved.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2005).
Section 402.302(3), Florida Statutes, provides in pertinent part as follows:
(3) Child care personnel means all owners, operators, employees, and volunteers working in a child care facility.
Section 402.305(2), Florida Statutes, sets forth the following minimum standards for child care personnel where it states:
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Good moral character based upon screening. This screening shall be conducted as provided in Chapter 435, using the Level II standards for screening set forth in that chapter.
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Section 435.04, Florida Statutes, provides as follows regarding the Level II screening standards:
All employees and 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. . . .
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 provision of Florida Statutes or under any similar statute of another jurisdiction.
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(w) Chapter 812 relating to theft, robbery, related crimes, if the offense is a felony.
Section 435.07, Florida Statutes, provides in relevant part as follows:
435.07 Exemption from disqualification. Unless otherwise provided by law, the provisions of this section shall apply to the exemptions from disqualification.
The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:
Felonies committed more that 3 years prior to the date of disqualification;
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In order for a licensing department to grant exemption for 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, 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.
There is no question that the Petitioner's 2002 conviction for grand theft by passing worthless bank checks under Section 812.014(2)(b), Florida Statutes, is a disqualifying offense. See § 435.04(2)(y), Fla. Stat.
The Petitioner has failed to present persuasive evidence of rehabilitation and sufficient elapsed rehabilitation from the date of her conviction. The Petitioner stole a substantial amount of money from a church, which quite obviously renders her moral character and level of personal integrity quite open to question. Such a crime occurring only approximately three and one-half years prior to the hearing in this matter would require a substantial showing of rehabilitation from the deleterious effects the commission of
such a crime would indicate regarding a perpetrator's moral character, personal honesty, and integrity. There has been simply insufficient time passed for adequate proof of rehabilitation of the Petitioner's moral character and integrity to arise for presentation in this proceeding. This is true for the further reason that she is still on probation and has not yet accomplished the penance required by the law for the crime she committed, since her probationary status remains in place and uncompleted, including the fact that restitution of the money itself has not been completed.
Further, although the Petitioner appears quite genuinely remorseful for having committed the crime, causing such a financial hardship for the Conway Presbyterian Church, the Petitioner seems to have a less-than-full understanding of how the commission of such a crime only three and one-half years ago is relevant and germane to her employment in a child care facility by a child care services company.
In summary, in view of the above findings of facts, persuasive evidence has not been adduced to show that sufficient rehabilitation and rehabilitation time has occurred or elapsed to justify granting the exemption at this time. Therefore, the exemption should be denied without prejudice for the Petitioner to again seek an exemption when such rehabilitation time is more extensive and more indicia of rehabilitation has been
