STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

C. L., )

)

Petitioner, )

)

vs. ) CASE NO. 95-5618

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held by telephone conference in this case on February 20, 1996 and March 12, 1996 before Suzanne F. Hood, Hearing Officer of the Division of Administrative Hearings. The Hearing Officer was located in Tallahassee, Florida. Petitioner participated in the proceeding by telephone from his residence at his address of record. Counsel for Respondent made an appearance by telephone from Daytona Beach, Florida.

APPEARANCES

For Petitioner: C.L., Pro Se

(Address of Record)

For Respondent: Ellen D. Phillips, Esquire

Department of Health and Rehabilitative Services

210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114

STATEMENT OF ISSUE

The issue is whether Respondent properly denied Petitioner's request for exemption from disqualification from employment as a family foster home parent.

PRELIMINARY STATEMENT

By letter dated September 18, 1995, Respondent Department of Health and Rehabilitative Services (Respondent) denied Petitioner C.L.'s (Petitioner) request for exemption for disqualification from employment as a family foster home parent. Petitioner requested a formal hearing by letter dated September 27, 1995. Respondent referred this matter to the Division of Administrative Hearings for the assignment of a Hearing Officer on November 14, 1995. The parties filed a joint response to the Initial Order on December 18, 1995, requesting that this matter not be set for hearing until after February 18, 1996. The undersigned issued a Notice of Telephone Hearing and Order of Instructions on January 16, 1996, setting this matter for formal hearing on February 20, 1996.

When the proceeding commenced on February 20, 1996, the parties had not complied with the Order of Instructions by arranging for a court reporter and prefiling exhibits. Accordingly, the undersigned recessed the hearing and issued an Order dated February 21, 1996, continuing this matter until March 12, 1996.

Respondent filed an Appendix containing five exhibits on March 1, 1996.

When the hearing reconvened on March 12, 1996, Petitioner testified on his own behalf and presented the testimony of three (3) witnesses. Respondent presented the testimony of one witness and offered the prefiled Appendix which, except for the results of a polygraph examination, was accepted into evidence without objection.

A transcript of the March 12, 1996 proceeding was filed on March 28, 1996.

Respondent filed proposed findings of fact and conclusions of law on April 8, 1996. The Appendix to this Recommended Order contains specific rulings on each of Respondent's proposed findings of fact. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. In 1989, Petitioner intervened in a fight that was taking place on the premises of an condominium complex managed by Petitioner and his wife. In order to stop the fight, Petitioner picked up a broom handle and hit one of the participants. Several months later, Petitioner was charged with aggravated assault.

   
   

2. In August of 1990, Petitioner pled nolo contendere to the offense of aggravated assault, a third degree felony. The circuit judge accepted Petitioner's plea, withheld adjudication of guilt and imposition of sentence, and placed Petitioner on probation for four years.

   
   

3. In October of 1990, the circuit judge entered an order reducing Petitioner's probation from four years to two years. The circuit judge modified Petitioner's probation to delete the requirement that Petitioner make restitution in July of 1992. At the conclusion of the two year period, Petitioner successfully completed his probation.

   
   

4. In February of 1995, Petitioner's daughter was injured in a domestic dispute in her home. When Petitioner arrived at his daughter's residence, the police directed him to wait outside. When Petitioner refused to cooperate, the police arrested him. The greater weight of the evidence indicates that Petitioner did not assault the police officers. The state attorney filed an information in April of 1995 charging that Petitioner resisted arrest without violence.

   
   

5. In the mean time, Petitioner and his wife filed an application to become foster parents. Respondent's review of the application revealed that Petitioner previously served two years probation for aggravated assault. Respondent also became aware of Petitioner's pending charge for resisting arrest without violence.

   
   

6. On or about July 12, 1995, Respondent notified Petitioner that he was disqualified from being licensed as a family foster home parent because of the 1989 felony offense for aggravated assault. Petitioner requested exemption from disqualification.

7. On or about September 8, 1995, Respondent conducted an exemption hearing to consider Petitioner's request for exemption from disqualification. The exemption review committee was particularly concerned about Petitioner's pending case. By letter dated September 18, 1995, Respondent denied Petitioner's request for exemption. Petitioner requested a formal hearing by letter dated September 27, 1995.

   
   

8. In October of 1995, Petitioner signed a deferred prosecution agreement in which he admitted that the facts alleged in the information charging resisting officer without violence to his person were true and correct. The state attorney dismissed the 1995 case charging that Petitioner resisted arrest without violence on January 30, 1996.

   
   

9. On or about February 19, 1996, Respondent conducted a second hearing to consider Petitioner's request for exemption from disqualification. The exemption review committee confirmed their original decision to deny Petitioner an exemption.

   
   

10. Petitioner is the parent of two living adult children and one deceased adult child. He has been interested in helping young people all of his adult life. Over the years, Petitioner has been a positive role model for the youth in his community as well as his own children.

    
    

11. Petitioner and his wife have always provided a stable family environment for their family with an emphasis on the development of a strong work ethic. Together they valiantly faced the challenge of coping with a severely disabled child until his death. Both of them are committed to giving of themselves and sharing their home with children in need.

    
    

12. Petitioner seeks to become a family foster home parent for children with special needs. Specifically, the children have a DSM-III diagnosis for a mental health disorder and been identified as presenting exceptionally challenging behaviors.

    
    

13. Working with emotionally handicapped children requires a particularly high degree of patience. Children with behavior problems create confrontational situations; therefore, the foster parent of such children must maintain a calm demeanor regardless of the circumstances.

    
    

14. Petitioner's reputation as a man of integrity and a productive member of society is commendable. However, his responses to two emotional situations in 1989 and 1995 create a question whether he would always react appropriately to the "acting out" behavior of children. Petitioner has not provided clear and convincing evidence that he is entitled to an exemption from disqualification from employment as a family foster home parent.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Every applicant for licensure as a family foster home parent must undergo background screening. Section 409.175(4)(a)5, Florida Statutes (1995).

17. Section 435.03(2)(g), Florida Statutes (1995), provides in pertinent part:

    
    

    Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under . . . (g)

    Section 784.021, relating to aggravated assault.

    
    

18. Respondent may grant an exemption from disqualification from working with children as provided in Section 435.07, Florida Statutes (1995). Section 409.175(4)(a)6, Florida Statutes (1995). Respondent has discretion to grant an exemption for felonies committed more than three years prior to the date of the disqualification. Section 435.07(1)(a), Florida Statutes (1995).

    
    

19. Petitioner has the burden of proving by clear and convincing evidence that he is entitled to exemption from disqualification from employment as a family foster home parent. Section 435.07(3), Florida Statutes (1995). He has not met this burden.

    
    

20. It has been over five years since Petitioner pled nolo contendere to aggravated assault. Nevertheless Petitioner has not presented sufficient evidence of rehabilitation due to the more recent incident involving charges against him for resisting arrest without violence. His inappropriate responses on both occasions justify the denial of an exemption from disqualification at this time.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is recommended that Respondent enter a Final Order denying Petitioner's request for exemption from disqualification from employment as a family foster home parent.

DONE and ENTERED this 1st day of May, 1996, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD, 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 1st day of May, 1996.

APPENDIX CASE NO.95-5618

The following are the Hearing Officer's specific rulings on the findings of facts proposed by Respondent in its proposed findings of fact.

Petitioner's Proposed Findings of Fact

Petitioner did not file Proposed Findings of Fact.

Respondent's Proposed Findings of Fact

1. First sentence accepted as restated in the preliminary statement of this Recommended Order. 8A, 8B, and 8C accepted as restated in Findings of Fact 2, 4 and 8 respectively. 8D--accept that

   C.L. disputes his guilt; greater weight of evidence shows C.L. pled nolo contendere to aggravated assault and served term of probation; greater weight of evidence shows C.L. signed a deferred prosecution agreement admitting the facts involving the charge of resisting arrest without violence. 8E accepted in Findings of Fact 10 and 11 of this Recommended Order. 8F accepted in Findings of Fact 12 of this Recommended Order.

2. Accepted in Findings of Fact 13 of this Recommended Order.

COPIES FURNISHED:

C. L.

(Address of Record)

Ellen D. Phillips, Esquire Department of Health and

Rehabilitative Services

210 North Palmetto Avenue Suite 412 Daytona Beach, Florida 32114

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 7, Suite 728

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this 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 contact the agency that will issue the final order in this case concerning agency 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.

Docket for Case No: 95-005618

Orders for Case No: 95-005618