STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAUDE BARTON, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2558

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held on August 14, 1990, in the Old Administration Building, Assistant Superintendent's Office, Union Correction Institution, Raiford, Florida. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Claude Barton, Pro se #103199

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

For Respondent: Charlene J. Petersen, Esquire

HRS-District IV Legal Office 5920 Arlington Expressway Post Office Box 2417

Jacksonville, Florida 32231-0083 STATEMENT OF ISSUES

The issues for consideration concern the entitlement of Petitioner to work with children, See Section 402.305(1)(a), Florida Statutes (1985).

PRELIMINARY STATEMENT

Respondent through correspondence of May 23, 1986 had notified Petitioner of his disqualification to continue in employment in a position where he worked with children. The basis of disqualification concerns a conviction on May 14, 1986 in the Circuit court, Fourth Judicial Circuit of Florida, in and for Duval County, Case No. 85-5119CF related to sexual battery, Section 794.011, Florida Statutes. Petitioner contested that disqualification and the case was referred to the Division of Administrative Hearings for consideration. Final hearing in this cause was delayed pending appellant opportunities which were being pursued by the Petitioner directed to his criminal law conviction.

In the course of final hearing Petitioner was somewhat equivocal about his intentions to pursue his administrative remedies. He remarked that the had no plans to take care of children, but he did not abandon the action.

Respondent's exhibit numbers 1 and 2 were admitted into evidence. They are shown as Petitioner's exhibit numbers 1 and 2, but they were offered by Respondent. The same exhibits pertain to the companion case of State of Florida, Department of Health and Rehabilitative Services, vs. Evelyn M. Barton, (Little Scholars Academy), Respondent, DOAH Case No. 85-2349. In addition, in the present action, Petitioner was allowed to present certified copies of any other court proceedings pertaining to his criminal law case which formed the basis of his disqualification to work with children. That material was to be filed with the Division of Administrative Hearings on or before September 7, 1990. No further information was provided by Petitioner. Neither has the Respondent presented additional information beyond the two exhibits previously described. The first of those exhibits is a composite containing the information for Case No. 85-5119CF, the judgement related to a finding of guilt under Count 8, the sentence and certifying documents. The second exhibit is a composite exhibit related to the opinion of September 25, 1987 in the appeal of the criminal case taken by Claude Barton, Appellant vs. State of Florida, Appellee, in the District Court of Appeal, First District, State of Florida, Case No. BO-45, a per curiam affirmance of the judgement and sentence of the lower court. Also included is a mandate directed to the lower court on October 13, 1987. On a latter date Petitioner filed an action in the District Court of Appeal, First District, Case No. 89-02677, Claude Hiller Barton, Petitioner vs. Richard Dugger, Secretary, et al., Respondents. The allegations complain of ineffective counsel in the previous appeal. On February 7, 1990, that Court entered an order denying the Petition for Writ of Habeas Corpus. A copy of that order is included as Hearing Officer's Exhibit No. 1. On March 16, 1990, that Court denied the motion for rehearing that had been filed on February 23, 1990. A copy of that order denying rehearing is provided as Hearing Officer's Exhibit No. 2. Recently Petitioner filed another Petition for Writ of Habeas Corpus receipt of which was acknowledged by the Clerk of the First District Court of Appeal on August 10, 1990.

The parties were given until September 4, 1990 to decide whether they intended to order the preparation of a transcript of the hearing. Neither party elected to file a transcript. Neither party elected to file proposed recommended orders on or before September 21, 1990, the deadline for submission of proposed recommended orders. Petitioner did present closing comments by correspondence received on September 4, 1991 and it has been considered.

FINDINGS OF FACT

1. A Petitioner was tried and found guilty of a violation of Section 794.011, Florida Statutes, related to sexual battery. This finding was in the case of State of Florida vs. Claude Hiller Barton, in the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida, Case No. 85-5199CF. On June 30, 1986, he was sentenced to life with a minimum 25 year mandatory service. He took appeal to the District Court of Appeal, First District, State of Florida, and in the action of Claude Hiller Barton, Appellant vs. State of Florida, Appellee, Case No. BO-45 and by opinion filed September 25, 1987 the judgement and sentence was responded to by per curiam affirmance. The mandate to the Circuit Court concerning disposition of the appeal in Case No. BO-45, was issued on October 13, 1987.

2. Following his conviction, Respondent, by correspondence of May 23, 1986, noticed the Petitioner of his disqualification from continuing employment in a position as a person who works with children. The correspondence reminded the Petitioner of his right to request an administrative hearing to contest the disqualification. It further stated that given that the Petitioner had been convicted of a felony that he was not entitled to exemption from disqualification and could only challenge the accuracy of the records pertaining to his conviction.

   
   

3. The case was forwarded to the Division of Administrative Hearings for consideration through a formal hearing. At the instigation of the Petitioner and with concurrence of Respondent consideration of this dispute was forestalled pending the outcome of the appeal.

   
   

4. The existence of the September 25, 1987 opinion of the First District Court Appeal which affirmed the judgement and sentence was first revealed at the final hearing on August 14, 1990. Prior to that occasion numerous attempts had been made to have the parties provide status reports in the administrative case concerning the outcome of the appeal as reflected in the file in this action, to no avail.

   
   

5. Having been unsuccessful in pursuing his ordinary remedies related to the criminal court case, Petitioner sought extraordinary relief through a writ of habeas corpus alleging ineffective assistance of appellate counsel. This was in the action of Claude Hiller Barton, Petitioner vs. Richard Dugger, Secretary, Florida Department of Corrections and the State of Florida, Respondents, in the District Court of Appeal, First District, Case No. 89-02677. That petition was denied by order of February 7, 1990, and a motion for rehearing was denied on March 16, 1990. Petitioner has made a further attempt to gain relief based upon a claim of ineffectiveness of the counsel employed to pursue his original petition for writ of habeas corpus. Acknowledgment of receipt of the most recent petition for writ of habeas corpus was provided on August 10, 1990 from the Clerk of the First District Court of Appeal.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

   
   

7. Section 402.305(1)(a), Florida Statutes (1985), establishes the minimum standards for child care personnel in effect at the relevant times in this inquiry. It states:

   
   

   1. PERSONNEL.--Minimum standards for child care personnel, which shall include minimum requirements as to:

      1. Good moral character based upon screening. Such minimum standards for screening shall ensure that no child care personnel at a child care facility or other child care program have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any felony prohibited under any of the following provisions of the Florida Statutes or under a similar statute of another jurisdiction:

1. Section 782.04, relating to murder.

2. Section 782.07, relating to manslaughter.

3. Section 782.071, relating to vehicular homicide.

4. Section 782.09, relating to killing of an unborn child by injury to the mother.

5. Section 784.021, relating to aggravated assault.

6. Section 784.045, relating to aggravated battery.

7. Section 787.01, relating to kidnapping.

8. Section 784.02, relating to false imprisonment.

9. Section 787.04, relating to removing children from the state or concealing children contrary to court order.

10. Section 794.011, relating to sexual battery.

11. Section 794.041, relating to prohibited acts of persons in familial or custodial authority.

12. Chapter 796, relating to prostitution.

13. Section 798.02, relating to lewd and lascivious behavior.

14. Chapter 806.01, relating to arson.

15. Section 806.01, relating to arson.

16. Section 812.13, relating to robbery.

17. Section 826.04, relating to incest.

18. Section 827.03, relating to aggravated child abuse.

19. Section 827.04, relating to child abuse.

20. Section 827.05, relating to negligent treatment of children.

21. Section 827.071, relating to sexual performance by a child.

22. Section 827.09, relating to abuse, neglect, or exploitation of aged or disabled persons.

23. Chapter 847, relating to obscene literature.

24. Section 784.011, relating to assault, if the victim of the offense was a minor.

25. Chapter 784.03, relating to obscene literature.

26. Chapter 893, relating to drug abuse prevention and control, if the offense was a felony or if any other person involved in the offense was a minor.

For purposes of this subsection, a finding of delinquency or a plea of nolo contendere or other plea amounting to an admission of guilt to a petition alleging delinquency pursuant to part II of chapter 39 or similar statutes of other jurisdictions, for any of the foregoing acts, has the same effect as a finding of guilt, regardless of adjudication or disposition. Such standards for screening shall also ensure that the person has not been judicially determined to have committed abuse against a child as defined in s.

39.01(2) and (7), to have a substantiated indicated report of abuse as defined in s. 415.503, or to have committed an act which constitutes domestic violence as defined in s. 741.30. For misdemeanors prohibited under any of the foregoing Florida Statutes or under similar statutes of other jurisdictions or for judicial determinations of abuse, substantiated indicated reports of abuse, or commissions of domestic violence used for disqualification of a person from working with children, the department or local licensing agency may grant an exemption from such a disqualification if the

department or local licensing agency has clear and convincing evidence to support a reasonable belief that the person is of good character as to justify an exemption. The person shall bear the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the incident, the time period that has elapsed since the incident, the nature of the harm occasioned to the victim, and the history of the person since the incident, or such other circumstances that shall by the aforementioned standards indicate that the person will not present a danger to the safety or well-being of children. The decision of the department or local licensing agency regarding an exemption may be contested through the hearing procedures set forth in s. 402.3055.

8. Petitioner has been convicted of a violation of Section 794.011, Florida Statutes. He therefore lacks the requisite good moral character to provide child care in a child care facility or other child care program. He has failed to show that the records pertaining to his conviction are irregular or to demonstrate that the conviction was overturned. Given that he was convicted of one of the statutorily designated felonies, he is not entitled to an exemption from disqualification.

RECOMMENDATION

Based upon a full consideration of the facts found and of the conclusions of law reached, it is, RECOMMENDED:

That a Final Order be entered which establishes the disqualification of the Petitioner from acting as a person who is considered as child care personnel at a child care facility or child care program.

DONE and ENTERED this 24th day of October, 1990, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1990.

COPIES FURNISHED:

Sam Power, Department Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Charlene J. Petersen, Esquire HRS-District 4 Legal Office 5920 Arlington Expressway Post Office Box 2417 Jacksonville, FL 32231-0083

Claude Barton, #103199

Union Correctional Institution Post Office Box 221

Raiford, FL 32083

Docket for Case No: 86-002558

Orders for Case No: 86-002558