STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. J., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 87-5572C

   ) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on March 14, 1988, in St. Petersburg, Florida. The issue for determination in this proceeding is whether petitioner is entitled to an exemption from disqualification as a treatment resource personnel.

   
   

   APPEARANCES

   
   

   For Petitioner: E. J.

   
   

   For Respondent: Samuel C. Chavers, Esquire

   Department of HRS, District 5 701 94th Avenue North

   St. Petersburg, Florida 33702 INTRODUCTION

   In support of her position that she is entitled to an exemption from disqualification as a treatment resource personnel, petitioner testified in her own behalf, and also presented the testimony of her daughter, Darlene Mortimer. Petitioner's composite Exhibit 1 was received into evidence.

   
   

   The respondent Department of Health and Rehabilitative Serviced presented the testimony of George Seibert, a background screening coordinator with the Department. The respondent's Exhibits 1 and 2 were received into evidence.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

   
   

   1. Treatment resource personnel, as defined in the "Comprehensive Alcoholism Prevention, Control, and Treatment Act," Chapter 396, Florida statutes, are screened in order to establish their good moral character. A person found guilty of certain enumerated offenses is disqualified from employment at a treatment resource which serves unmarried clients under the age of 18 years.

   2. In 1979, the petitioner was found guilty of one of the disqualifying offenses listed in Section 396.0425(1), Florida statutes. She was convicted of lewd and lascivious behavior for removing her clothes at a bar. In connection with this offense, she was jailed and her daughter was removed from her custody and was placed in foster care.

      
      

   3. The Department of Health and Rehabilitative Services is authorized, in certain instances, to grant an exemption to a treatment resource personnel from disqualification from working with children or the developmentally disabled. Section 396.0425(3), Florida Statutes. The petitioner requested such an exemption and appeared before the Department's Exemption Review Committee in November of 1987. The Committee determined that an inconsistent pattern of rehabilitation existed in her case and denied her request for an exemption from disqualification.

      
      

   4. On or about June 11, 1987, the petitioner entered a plea of guilty to the offense of driving under the influence of alcohol and was placed on probation for a period of one year. Among the terms of her probation were that she refrain from the consumption and possession of alcoholic beverages.

      
      

   5. In September of 1987, petitioner was adjudicated guilty of trespass in a structure or conveyance, which offense occurred on June 27, 1987. She was ordered to pay restitution and court costs and was placed on probation for six months.

      
      

   6. Petitioner admits that she has had a problem with alcohol for twenty years. She has no recall of the offenses which occurred in June of 1987, and states that she was in a "total blackout" state on both occasions.

      
      

   7. In January of 1988, petitioner began attending Alcoholic Anonymous (AA) meetings, often going to two meetings a day. She also attends Junior College and aspires to be a school teacher some day. She states that she realizes that all of her prior problems were alcohol-related. She states that, as of the date of the hearing, March 14, 1988, she has been sober for 49 days. Her daughter confirmed that petitioner was not drinking now, and states that AA has become a big part of their lives.

      
      

      CONCLUSIONS OF LAW

      
      

   8. In requesting an exemption from disqualification from employment as a treatment resource personnel, the petitioner bears the burden of setting forth sufficient evidence of rehabilitation and demonstrating that she will not present a danger to the safety or well-being of children. In order to justify an exemption, the Department must be presented with "clear and convincing evidence to support a reasonable belief that the treatment resource personnel is of good character." Section 396.0425(3)(b), Florida Statutes.

      
      

   9. The petitioner has failed to satisfy her burden of proof in this proceeding. While some eight to nine years have elapsed since the disqualifying incident occurred in 1979, it has only been since January of this year that petitioner has taken affirmative action to deal with her problem with alcoholism. Her most recent criminal offenses, while not disqualifying offenses as enumerated in Chapter 396, Florida Statutes, were alcohol-related and occurred less than one year ago. She is still on probation for one of those offenses. A sufficient period of time has not elapsed from which it would be

      logical to assume that petitioner will abstain from alcohol-related conduct which could present a danger to children.

      
      

   10. It is laudable that petitioner has begun to receive treatment through AA, and that she has the support of her daughter in that program. However, there has not been a sufficient lapse of time to demonstrate rehabilitation or to otherwise provide assurance that petitioner will not present a danger to the safety or well-being of children. At this time, there simply is no clear and convincing evidence to support a reasonable belief that petitioner is of good character so as to justify an exemption.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's request for an exemption from disqualification as a treatment resource personnel be DENIED.

Respectfully submitted and entered this 26th day of May, 1988, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of May , 1988.

COPIES FURNISHED:

E.J.

Samuel C. Chavers, Esquire Department of HRS

District 5

701 94th Avenue North

St. Petersburg, Florida 33702

Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 87-005572

Orders for Case No: 87-005572