STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILLIP WHITE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5330J

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings, held a formal hearing in this matter on January 9, 1996, in Lakeland, Florida.

APPEARANCES

For Petitioner: Phillip White, Pro se

1370 North Charleston

Fort Meade, Florida 33841

For Respondent: Lynne T. Winston, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

Should Petitioner's request for exemption from disqualification from employment in a position of special trust be granted?

PRELIMINARY STATEMENT

By letter dated July 27, 1995, the Department of Juvenile Justice (Department) advised Petitioner Phillip White that the Department had conducted a criminal history check and had determined that Petitioner was ineligible for employment in a position of special trust with children. This notice also advised Petitioner that he had a right to request an exemption from disqualification and set out the procedure under which the Petitioner would be allowed to present evidence to convince the Department that he should be granted an exemption for disqualification. As provided, the Petitioner requested an exemption hearing, and was notified by the Department by letter dated August 25, 1995, that the exemption hearing would be held on August 31, 1995. Subsequent to the exemption hearing, the Department, by letter dated September 19, 1995, advised the Petitioner that his request for exemption from disqualification had been denied and that he was entitled to an administrative hearing on the denial under Section 120.57(1), Florida Statutes. By letter dated September 25, 1995, the Petitioner requested an administrative hearing on the Department's denial of exemption from disqualification. On October 25, 1995, the Department referred

this matter to the Division of Administrative Hearings for the assignment of a Hearing Officer and the conduct of a hearing.

At the hearing, Petitioner testified on his own behalf but did not present any other witness. Petitioner's composite exhibit 1 was received as evidence. Petitioner was allowed to late file Petitioner's composite exhibit 2 which was received as evidence without objection from the Department. The Department presented the testimony of James Rhoden, Thomas McFadyen and David Smith. The Department's exhibits 1 through 3 were received as evidence.

There was no transcript of the proceeding filed with the Division. The Department timely filed its proposed findings of fact and conclusions of law in accordance with the Order entered on February 20, 1996, accepting Petitioner's late file exhibit and setting the schedule for the filing of proposed recommended orders. Although Petitioner did not timely file his proposed findings of fact and conclusions of law, they were considered in reaching a decision in this Recommended Order. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is charged under Chapter 39, Florida Statutes, to conduct background screenings on individuals employed by any of its providers of delinquency services or programs who are working with juvenile offenders in positions of special trust.

   
   

2. The purpose of the background screening is to determine if the individual has committed an offense which would disqualify the individual from working in positions of special trust with juvenile offenders.

   
   

3. Petitioner was employed by the Lakeland Marine Institute (LMI) on May 24, 1994, as a counselor. LMI is a step-down program for juvenile offenders being released from boot camps and detention centers. A large percentage of the juveniles coming through LMI are convicted of drug offenses.

   
   

4. During 1994, LMI was providing delinquency service and programs for the Department of Health and Rehabilitative Services (HRS) in connection with juvenile offenders who came through its facility and, as such, was an HRS provider.

   
   

5. Because Petitioner was working in a position of special trust with juvenile offenders at LMI he was required to undergo background screening. Petitioner's fingerprints were taken on May 24, 1994, and submitted to HRS for processing. It is not clear from the record if HRS conducted a background screening on Petitioner. In any event, HRS did not provide LMI with any results from Petitioner's background screening.

   
   

6. Chapter 94-209, Laws of Florida, transferred certain responsibilities concerning juvenile offenders from HRS to the Department of Juvenile Justice, a newly-created department. On January 1, 1995, the Department began background screenings on all of its providers' employees who were working in positions of special trust with juvenile offenders on January 1, 1995.

7. On June 1, 1995, LMI submitted to the Department a Request for Preliminary FCIC/NCIC and DHSMV Screening Check and a Request for Preliminary FAHIS Screening Check on Petitioner.

   
   

8. As part of the screening process, Petitioner signed and filed with the Department an Affidavit of Good Moral Character. His signature on this standard form affidavit indicates that Petitioner had not been convicted of any drug offenses under Chapter 893, Florida Statutes. However, it does not appear that Petitioner was attempting to conceal his convictions because at the same time he disclosed those convictions in his application for employment.

   
   

9. The FAHIS Screening Check was negative, in that no abuse history was found. Likewise, the results of the DHSMV Screening Check indicated that Petitioner's record was clear.

   
   

10. Preliminary FCIC/NCIC Screening Check indicated that Petitioner had been convicted of possessing cocaine with intent to sell and the sale of cocaine, a second degree felony and a disqualifying offense. The screening check was rated as Unfavorable/Disqualifying.

    
    

11. Petitioner's criminal record revealed that Petitioner had committed the following offenses:

    
    

    1. Possession of cocaine with intent to sell - March 28, 1991.

       Sale of Cocaine - March 28, 1991.

       Both of these offenses were in violation

       of Section 893.13, Florida Statutes, a second degree felony and a disqualifying offense under Section 39.076(3)(y), Florida Statutes.

    2. Possession of cocaine with intent to sell - January 7, 1993.

       Sale of cocaine - January 7, 1993.

       Both of these offenses were in violation of Section 893.13, Florida Statutes, a second degree felony and a disqualifying offense under Section 39.076(3)(y), Florida Statutes.

    3. Possession of cocaine with intent to sell - February 18, 1993.

       Sale of cocaine - February 18, 1993,

       Both of these offenses were in violation of Section 893.13, Florida Statutes, a second degree felony and a disqualifying offense under Section 39.076(3)(y), Florida Statutes.

       
       

12. Originally, Petitioner was placed on probation for the offenses committed on March 28, 1991 However, when Petitioner committed the above listed offenses in 1993, probation was revoked. On June 10, 1993, Petitioner pled nolo contendere to all of the above offenses. Petitioner was adjudicated guilty on all counts and sentenced to a term of seven years on each count listed with each sentence to run concurrently with the other sentences. Additionally, Petitioner was placed on seven years probation on each count listed above with each term of probation to run concurrently with the other terms of probation. However, the terms of probation were to run consecutively to the sentences imposed.

13. Petitioner freely admits that he was on drugs for a period of time before his incarceration in 1993, and that the offenses were committed for the purpose of paying for his drug habit and not as a means of making money.

    
    

14. The offenses committed by Petitioner in 1991, were his first brush with the law, and at that time Petitioner was 38 years of age.

    
    

15. Although the March 28, 1991, offenses involved the sale of cocaine within a 1000 feet of the Fort Meade Middle School, there is no evidence that Petitioner ever sold, or attempted to sell, illegal drugs to a minor.

    
    

16. Petitioner served his time at Hardee Correctional Institution and Madison Correctional Institution. From the record it appears that Petitioner was eligible for early release and was released by the Department of Corrections (DOC) on February 8, 1994, and placed on probation.

    
    

17. Petitioner began his rehabilitation while still incarcerated by DOC by participating in the DOC Drug Abuse Program and Prison Fellowship. Petitioner has continued his rehabilitation since being released from prison through his work at LMI, the church and the community.

    
    

18. Since his release from prison, and during his tenure with LMI, approximately 15 months, Petitioner has gained the respect and support of his fellow workers and supervisors at LMI. Also, during his tenure with LMI, Petitioner has gained the respect and support of Department employees with whom he came in contact as a result of his work with juvenile offenders at LMI.

    
    

19. Petitioner has complied with all conditions of his probation, including random drug testing with all reports showing negative results, and has shown a positive attitude toward community supervision while on probation. Since being placed on probation, Petitioner has gained the support and respect of the Correctional Probation Officers who handle his case. Since his release, Petitioner has not associated with the criminal element with whom he had association before his conviction.

    
    

20. Since his release, Petitioner has gained the respect and support of the community of Fort Meade, specifically the religious and school community, for his work with children.

    
    

21. During his tenure with LMI, Petitioner worked closely with children. Petitioner has counseled children and their parents without any problems.

    
    

22. There is competent substantial evidence to establish facts to show that Petitioner has rehabilitated himself such that he will not present a danger to the safety or well being of children and that he is of good moral character so as to justify an exemption from disqualification, notwithstanding Petitioner's age when he committed the offenses or that the offenses are close in time to the request for exemption or that he has only served approximately two years and two months of a seven year probation and is still under supervised probation.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings pursuant to Section 120.57(1), Florida Statutes (1995) and Section 39.076(6), Florida Statutes (Supp. 1994).

24. Since LMI is providing a delinquency service or program to the Department, Section 39.076, Florida Statutes, would govern this proceeding. Section 39.076, Florida Statutes, was substantially amended during the 1995 legislative session. Under the new law, exemption requests relating to offenses occurring on or after October 1, 1995, are governed by the screening standards in Section 435.07, Florida Statutes (1995), while pre-October 1, 1995, offenses continue to be governed by the standards in Section 39.076, Florida Statutes (Supp. 1994). See Section 64, Chapter 95-228, Laws of Florida, and W. D. vs. Department of Health and Rehabilitative Services, DOAH Case No. 96-0860C, dated March 27, 1996. Because Petitioner's offenses occurred in 1991 and 1993, the "old" standards must necessarily apply.

    
    

25. Sections 39.076(2), (3)(y), (5)(a) and (6), Florida Statutes, provide in pertinent part as follows:

    
    

    1. When the department [contracts with a provider for any delinquency service or

       program], all personnel, including all owners, operators, employees, and volunteers in the facility or providing the service or program shall be of good moral character. . . .

    2. The department shall [establish minimum standards for good moral character], based on screening, for personnel in [delinquency facilities, services, and programs]. Such minimum standards shall ensure that no personnel 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 laws of other jurisdictions:

    * * *

    (y) Chapter 893, relating to drug abuse

    or prevention and control, only if the offense was a felony or if any other person involved in the offense was a child.

    * * *

    1. For the following, the department may grant to any person an exemption from disqual- ification from working with children:

       1. Felonies, [other than specified felonies], prohibited under any of the foregoing Florida Statutes cited in this section, or any similar law of another jurisdiction, [committed more

          than 3 years previously]. For the purposes of this section, ["specified felony" means those felonies enumerated in paragraphs (3)(a). . .(y)]

          . . . and under similar laws of other jurisdictions;

          * * *

    2. In order to grant an exemption to a person, the department must have clear and convincing evidence to support a reasonable belief that

    the person is of [good character so as to justify an exemption. The person bears the burden of setting forth sufficient evidence of rehabili-

    tation], 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, the history of the person since the incident,

    and such other circumstances as shall be sufficient [to indicate that the person will not present a danger to the safety or well being of children].

    . . . [Emphasis supplied]

    
    

26. Because Petitioner violated Section 893.13, Florida Statutes, a disqualifying offense and a specified felony under Section 39.076(5)(a), Florida Statutes, it appears that he would never be eligible for an exemption from disqualification of employment in a position of special trust. However, in Fewquay v. Page, Case No. 86-22339 (U.S.D.C. S.D.Fla., dated September 15, 1987), the court concluded that an irrebuttable presumption that a person convicted of a felony is unfit to be placed in a position of special trust was unconstitutional. See J. M. vs. Department of Health and Rehabilitative Services, (Amended Final Order dated April 3, 1991) wherein the Department of Health and Rehabilitative Services acquiesced in that opinion.

    
    

27. Petitioner's latest disqualifying offense occurred on February 18, 1993, which is less than three years previous to Petitioner's request for exemption from disqualification. However, more than three years has now passed since the occurrence of the latest offense. Therefore, the three-year waiting period has been satisfied.

    
    

28. By evidence which meets the appropriate evidentiary standard, Petitioner has established that he is of "good moral character", is sufficiently rehabilitated since his arrest in 1993, and will not "present a danger to the safety or well-being of children". Having met the standards set forth in Section 39.076, Florida Statutes, for exemption from disqualification, Petitioner's request for exemption from disqualification from employment in a position of special trust should be granted.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice enter a final order granting Petitioner's request for an exemption from disqualification from employment in a position of special trust.

RECOMMENDED this 23rd day of April, 1996, at Tallahassee, Florida.

WILLIAM R. CAVE, 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 23rd day of April, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5330J

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner and the Department in this case.

Petitioner's Proposed Findings of Fact.

Petitioner's proposed findings of fact 1 through 9 are set forth more as argument than findings of fact. However, where a proposed finding of fact can be gleaned from the argument it has adopted in Findings of Fact 1 through 22, with the exception of Petitioner's argument in proposed findings of fact 1, 2, 5 and 6 that his background screening with HRS had been completed by HRS and was favorable but was being disregarded by the Department. There is no evidence that HRS completed this screening or that the Department had any knowledge of any results of such screening.

Department's Proposed Findings of Fact.

1. Proposed findings of fact 1 through 12 are adopted in substance as modified in Findings of Fact 1 through 22.

2. Proposed findings of fact 13-15 are covered in the Preliminary Statement.

COPIES FURNISHED:

Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Phillip White, Pro se 1370 North Charleston

Fort Meade, Florida 33841

Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF JUVENILE JUSTICE

PHILLIP WHITE,

Petitioner,

vs. DOAH CASE NO. 95-5330J

FINAL ORDER DJJ NO. 96-00003

DEPARTMENT OF JUVENILE JUSTICE,

Respondent.

/

FINAL ORDER

Statement of the Case

This proceeding arose out of a petition filed by Phillip White seeking an exemption from statutory disqualification from employment in a position of special trust as required by section 39.076, Florida Statutes. Petitioner was an employee of Lakeland Marine Institute, with which the Department of Juvenile Justice contracts to provide services for juvenile offenders.

Petitioner White had on three separate instances committed the offenses of possession of cocaine with intent to sell, and sale of cocaine, in violation of section 893.13, Florida Statutes. The first instance occurred in March of 1991, when he was 38 years of age. He was placed on probation for this offense. The second and third instances occurred in January and March of 1993, after which White's probation was revoked. On June 10, 1993, he pled nolo contendere to all charges, was adjudicated guilty, and sentenced to a term of seven years with a probationary period of seven years to run consecutive to his sentence. He was apparently eligible for early release, which occurred on February 8, 1994.

When applying for employment with Lakeland Marine Institute, White signed an affidavit of good moral character indicating that he had not been convicted of any drug offenses under chapter 893, Florida Statutes, although his employment application disclosed the convictions.

On June 1, 1995, Lakeland Marine Institute submitted a request for background screening to the Department of Juvenile Justice. As a result of this screening, Petitioner White's convictions were revealed.

Possession of cocaine and sale of cocaine are each disqualifying offenses under the provisions of section 39.076(3)(y), Florida Statutes. Petitioner sought an exemption from disqualification pursuant to section 39.076(6). After an exemption hearing conducted pursuant to s. 120.57(1) Florida Statutes, a

Hearing Officer's Recommended Order issued, concluding that Petitioner has rehabilitated himself so as to justify an exemption from disqualification.

Ruling on Exceptions

The Respondent Department of Juvenile Justice has excepted to the Hearing Officer's conclusions. Respondent cites to Petitioner's convictions not only of three counts of possession of cocaine, but also of three counts of sale of cocaine, as being of such seriousness as to preclude the granting of an exemption. Respondent further points to Petitioner's having falsified his affidavit of good moral character as an act in itself demonstrative of lack of good moral character. Finally, Respondent urges that the exemption should not be granted because Petitioner has more than four years remaining of his seven- year probation, and so should not be in a position to supervise youthful offenders, many of whom have drug-related records, while he is under supervision himself.

The exceptions are viewed as well taken. They are granted.

FINDINGS OF FACT

The Findings of Fact set forth in the Hearing Officer's Recommended Order are hereby adopted, except for that portion of Paragraph 22 which states that "Petitioner has rehabilitated himself such that he will not present a danger to the safety or well being of children", which is a conclusion rather than a finding of fact.

CONCLUSIONS OF LAW

The Conclusions of Law set forth in the Hearing Officer's Recommended Order are hereby adopted with the exception of Paragraph 28, which is specifically rejected.

Order

Based upon the foregoing findings of Fact and Conclusions of Law, it is hereby

Ordered:

The Petition for exemption is denied.

Entered this 11th day of July, 1996, in Tallahassee, Florida.

Calvin Ross, Secretary Department of Juvenile Justice

CERTIFICATE OF SERVICE

I hereby certify that a true copy of this Final Order has been provided by Certified U.S. Mail to Phillip White, Petitioner, at 1370 North Charleston, Fort Meade, Florida 33841, and by hand delivery to Lynne T. Winston, Esquire, Department of Juvenile Justice, 2737 Centerview Drive, Tallahassee, Florida 32399-3100, this 11th day of July 1996.

Lilly M. Crockett, Agency Clerk

COPIES FURNISHED:

William R. Cave, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Janet E. Ferris, General Counsel

James Sloan, Assistant General Counsel

NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY ANY PARTY PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110 (D), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, 2737 CENTERVIEW DRIVE, TALLAHASSEE, FLORIDA 32399-3100, WITHIN THIRTY (30) DAYS OF RENDITION OF THIS ORDER.

Docket for Case No: 95-005330

Orders for Case No: 95-005330