STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD HALL, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5896J

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 11, 1996, a formal administrative hearing was held in this case in Orlando, Florida, before Daniel M. Kilbride, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kenneth W. Williams, Esquire

Irvin Williams and Associates 1103 West Willow Run Drive Port Orange, Florida 32119

For Respondent: Lynne T. Winston, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

Whether Petitioner, Richard Hall, should receive an exemption from disqualification in a caretaker's position, a position of special trust.

PRELIMINARY STATEMENT

Petitioner requested that Respondent grant him an exemption from disqualification from employment in a caretaker's position. By letter dated October 24, 1995, Respondent notified Petitioner that his request was denied.

Petitioner subsequently requested a formal administrative hearing challenging Respondent's denial of his request and this matter was referred to the Division of Administrative Hearings. Following discovery and denial of Petitioner's Motion for Judgment, a formal hearing was held by video conference, with the Hearing Officer located in Tallahassee and the parties, their counsel and witnesses located in Orlando, Florida.

At the formal hearing, Petitioner argued that he had been improperly terminated by Respondent as he was allegedly a permanent status career service employee. Respondent argued that Petitioner was a substitute rather than a career service employee, and that even if Petitioner was a career service

employee, the Public Employees Relations Commission (PERC) had jurisdiction over the issue of the appropriateness of Petitioner's termination, not the Division of Administrative Hearings (DOAH). Petitioner was afforded the opportunity to brief the jurisdictional issue prior to the hearing officer's making a final decision on this matter.

The DOAH does not have jurisdiction to hear Petitioner's complaint that he was wrongfully terminated by Respondent. The DOAH only has the jurisdictional authority to hear argument on the issue of whether Petitioner is entitled to an exemption from employment disqualification. Section 435.07(3), Florida Statutes vests DOAH with this particular jurisdiction when it states that the decision of Respondent "regarding an exemption may be contested through the hearing procedures set forth in Chapter 120." PERC is vested with the jurisdiction to hear appeals arising out of dismissals of permanent employees in the career service system, pursuant to Section 447.207(8), Florida Statutes. There is no statutory authority vesting DOAH with similar or concurrent jurisdiction. See: Jenkins v. Department of Health and Rehabilitative Services, 618 So.2d 749 (Fla. 1st DCA 1993) and Tomlinson v. Department of Health and Rehabilitative Services, 558 So.2d 62 (Fla. 2d DCA 1990).

At the formal hearing, Petitioner testified on his own behalf and presented the testimony of Darlene Hall and excerpts from the deposition testimony of Alexander Wynn, former Superintendent of the Orlando Regional Juvenile Detention Center. Petitioner offered nine exhibits which were accepted into evidence.

Respondent called Inspector General David L. Smith as a witness and offered nine exhibits which were accepted into evidence. A transcript was not prepared. The parties filed proposed recommended orders on July 2, 1996.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case Number 95-5896J.

FINDINGS OF FACT

1. On or about November 18, 1994, Petitioner submitted a state employment application for a position as a Detention Care Worker II (DCW II), position number 40756 with the Department of Juvenile Justice. A DCW II is responsible for the care and custody of juvenile offenders and for providing counsel and advise to these offenders.

   
   

2. Respondent submitted the application to Alexander Wynn, who was at that time superintendent for the Orlando Regional Juvenile Detention Center. It was the responsibility of Superintendent Wynn to review all the applications submitted for the open position, interview the candidates and submit a recommendation to his superiors for hire in the position.

   
   

3. At the time of submission, Petitioner had not answered the questions regarding his background which appear in the first block on page 3 of the application. Petitioner informed Superintendent Wynn during the interview that he was not sure how to answer the questions as he was not aware of the degree of one offense in his background and because his record had been cleared of the charges.

   
   

4. Superintendent Wynn instructed Hall to provide him with documents from the court which indicated the nature of the offense and its disposition.

5. Petitioner was asked on his state application whether he had ever pled guilty or nolo contendere to a crime which is a felony or first degree misdemeanor. Petitioner responded to this question in the negative. Petitioner was also asked on his state application whether he had ever had the adjudication of guilt withheld on a crime which is a felony or first degree misdemeanor; again Petitioner responded in the negative.

   
   

6. Petitioner was charged in February of 1994 with one court of violating Section 784.03(1)(a), Florida Statutes, battery. A violation of Section 784.03(1)(a), Florida Statutes, is a first degree misdemeanor.

   
   

7. The information which was filed on Petitioner specifies that the battery charge resulted from the fact that Petitioner, "on or about the 9th day of November 1993, within Volusia County, Florida, did actually and intentionally touch or strike Lucretia Hall against her will by squeezing victim around the neck and/or forcing victim onto the bed."

   
   

8. At the time of the battery, Petitioner was married to and living with Lucretia Hall.

   
   

9. The court withheld adjudication of guilt pending Petitioner's successful completion of probation. Petitioner was placed on probation for one year, ordered to participate in marriage counseling, and pay court costs or perform 25 hours of community service.

   
   

10. Petitioner successfully completed probation. Probation was terminated and the case was closed.

    
    

11. Petitioner provided Wynn with a document indicating his judgment and sentence and his release from probation.

    
    

12. Wynn stated that he was satisfied that the documents cleared Petitioner and, accordingly, Petitioner followed Superintendent Wynn's instructions and answered the questions per his direction. Wynn informed Petitioner that he would file the documents in Petitioner's personnel file, and if anyone had any questions regarding the charge to refer them to him.

    
    

13. By letter of September 30, 1994, Petitioner was offered a permanent position as a Detention Care Worker II at the Orlando Regional Detention center. He began work on or about November 27, 1994.

    
    

14. Petitioner was subsequently fingerprinted and a background screening was conducted.

    
    

15. Following the completion of a background screening, Petitioner was notified that he was not eligible for employment in a caretaker's position and was terminated by Respondent on June 14, 1995, pursuant to allegations that he had plead guilty to domestic battery and was the subject of a confirmed abuse report.

    
    

16. This was the only allegation of domestic abuse in his nine-year marriage to Lucretia Hall.

    
    

17. Petitioner has remarried since the incident and has never exhibited any violent tendencies towards his current wife or his stepchildren. Sufficient time has lapsed since the incident and he has demonstrated rehabilitation.

18. Petitioner has demonstrated that he is a reliable person of good moral character.

    
    

19. There is not, nor has there been, any evidence of a confirmed abuse report against the Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.

    
    

21. Section 39.076(3), Florida Statutes (1994), provides that Respondent 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 twenty-six enumerated sections of the Florida Statutes or under a similar statute of other jurisdictions. Section 39.076(4), Florida Statutes (1994), also states that standards for screening must ensure that personnel in delinquency facilities, services, and programs have not committed an act which constitutes domestic violence as defined in Section 741.28.

    
    

22. Section 241.28(1), Florida Statutes (1994), defines domestic violence as "any assault, battery, sexual assault, sexual battery, or any criminal offense resulting in physical injury or death of one family or household member by another who is or was residing in the same single dwelling unit."

    
    

23. Because Petitioner was married to and living with Lucretia Hall at the time he committed battery against her, his offense meets the definition of domestic violence thereby making him ineligible to work in a caretaker's position unless he is granted an exemption.

    
    

24. Section 39.076(6), Florida Statutes (1994), provides that in order for a disqualified person to be granted an exemption, there must be clear and convincing evidence to support a reasonable belief that the person is of good moral character so as to justify an exemption. This statute clearly places the ultimate burden on Petitioner to establish by clear and convincing evidence that he should be granted an exemption:

    
    

    The person bears 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, history of the person since the incident, and such other circumstances shall be sufficient to indicate that the person will not present a danger to the safety or

    well-being of children.

    
    

    See, also, Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    249 (Fla. 1st DCW 1977); and Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988.

    
    

25. Petitioner has met his burden of proof in presenting clear and convincing evidence to support a reasonable belief that he is now of good moral

    character since the commission of his domestic violence offense and is entitled to an exemption.

    
    

26. Petitioner was confused on the meaning and content of question 3 of the state employment application and he relied on the advice of Superintendent Wynn on how the question should be answered.

    
    

27. Petitioner did not seek to intentionally misrepresent or mislead the Department of Juvenile Justice with regard to his criminal background.

    
    

28. Although Petitioner plead guilty to a serious offense, the victim of the domestic battery did not suffer serious injury and this type of conduct has not been repeated. Petitioner rehabilitated himself through counseling and community service. He remains free of violence in his current marriage to Darlene Hall.

    
    

29. Petitioner presented himself in the hearing as a person of reasonable self-control and discipline.

    
    

30. In his six and one-half months of employment with the Department of Juvenile Justice, Petitioner was an above average employee.

    
    

31. The evidence is sufficient to indicate that the Petitioner will not present a danger to the safety or well-being of children.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice enter a final order granting an exemption to Petitioner, Richard Hall.

DONE and ENTERED this 31st day of July, 1996, in Tallahassee, Florida.

DANIEL M. KILBRIDE, 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 31st day of July, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5896J

To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

Accepted in substance: paragraphs 1, 2, 3, 4 (in part) 5 (in part), 6, 7,

8 (in part), 9 (in part), 10 (in part), 11 (in part), 12 (in part), 13, 14 (in part), 15, 16 (in part), and 17.

Respondent's Proposed Findings of Fact.

Accepted in substance: paragraphs 1, 2, 3, 6, 7, 8, 9, 10, 11 (in part),

12 (in Preliminary Statement), 13 (in Preliminary Statement), 14 (in Preliminary Statement).

Rejected as hearsay or immaterial and irrelevant: paragraphs 4, 5, 11 (in part).

COPIES FURNISHED:

Kenneth W. Williams, Esquire Irvin Williams and Associates 1103 W. Willow Run Drive

Port Orange, Florida 32119

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

Tallahassee, Florida 32399-3100

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

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.

Docket for Case No: 95-005896

Orders for Case No: 95-005896