STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALVIN W. WALKER, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0468

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard by video teleconferencing before the Division of Administrative Hearings by its assigned Hearing Officer, Donald

1. Alexander, on August 27, 1996.

   
   

   APPEARANCES

   
   

   For Petitioner: Pauline M. Ingraham-Drayton, Esquire

   200 West Forsyth Street, Suite 80 Jacksonville, Florida 32202

   
   

   For Respondent: Roger L. D. Williams, Esquire

   Post Office Box 2417 Jacksonville, Florida 32231-0083

   
   

   STATEMENT OF THE ISSUE

   
   

   The issue is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.

   
   

   PRELIMINARY STATEMENT

   
   

   This matter began on September 5, 1996, when respondent, Department of Health and Rehabilitative Services, issued a letter denying a request by petitioner, Alvin V. Walker, for exemption from disqualification under the background screening statutes. The disqualification was "based on a misdemeanor on August 8, 1990 for prostitution." Petitioner then requested a formal hearing under Section 120.57(1), Florida Statutes, to contest the proposed action.

   
   

   The matter was referred by respondent to the Division of Administrative Hearings on January 23, 1996, with a request that a Hearing Officer be assigned to conduct a formal hearing. By Notice of Hearing dated February 22, 1996, a final hearing was scheduled on March 18, 1996, in Jacksonville, Florida. At final hearing, petitioner's unopposed ore tenus motion for continuance was granted, and the case was rescheduled to May 17, 1996, at the same location.

   Thereafter, petitioner's motion for continuance was granted, and the case was continued to August 27, 1996, by video teleconferencing. Under that procedure,

   both parties were present in Jacksonville, Florida, while the Hearing Officer was present in Tallahassee, Florida. On August 26, 1996, the case was transferred from Hearing Officer Larry J. Sartin to the undersigned.

   
   

   At final hearing, petitioner testified on his own behalf and presented the testimony of Roy F. Britt, a licensed mental health counselor; Irene M. Toto, a mental health employee; Costell Cross, a state employee; and Eric W. DeWees, a friend. Respondent offered respondent's exhibits 1-6 which were received in evidence.

   
   

   There is no transcript of hearing. Proposed findings of fact and conclusions of law were due by September 3, 1996. None were filed by either party. The exhibits received into evidence were filed with the undersigned on September 4, 1996.

   
   

   FINDINGS OF FACT

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   1. This case involves a request by petitioner, Alvin V. Walker, for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner intends to work in the psychiatric wing of a local hospital with persons suffering from mental illness. Respondent, Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of approving or denying such requests.

      
      

   2. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on August 8, 1990. On that date, petitioner was arrested for the offense of "prostitution," a misdemeanor under Chapter 796, Florida Statutes.

      
      

   3. The circumstances surrounding the incident were not discussed at final hearing. However, the Florida Department of Law Enforcement report stipulated into evidence indicates that on April 30, 1991, adjudication of guilt was withheld by the Duval County Court, and the arrest was sealed.

      
      

   4. Although the denial of petitioner's request was based solely on his 1990 arrest, at hearing petitioner candidly acknowledged that in 1992 he was invited into the automobile of an undercover police officer in Duval County and was asked what type of sexual things he liked to do. After answering the question, he was given a citation for an undisclosed offense and later pled nolo contendere to the charge. For this, he received one month's probation. Since that time, his record is unblemished.

      
      

   5. Shortly after the 1992 incident, petitioner began counseling sessions with a mental health counselor. He has continued his therapy since that time. The counselor described petitioner as a "very decent" person with "high morals," and someone who has shown improvement in terms of stability since he began his counseling sessions.

      
      

   6. From June 1993 until May 1995, petitioner was employed as a rehabilitation counselor with Renaissance Center, Inc. (Renaissance), a residential treatment facility for adults eighteen years of age and older with chronic mental illnesses. In June 1995, Renaissance was acquired by Mental Health Resources and petitioner continued doing the same type of work for the successor firm. He left there in January 1996 for employment with the St. Johns

      River Hospital as a mental health assistant in the facility's psychiatric unit. In April 1996, however, a background screening disclosed his 1990 arrest, and he was forced to resign pending the outcome of this proceeding. If petitioner's request is approved, the facility will rehire him.

      
      

   7. Petitioner's former employer at Renaissance established that petitioner was a very conscientious, responsible, and reliable employee who poses no threat to his clients. The employer considered petitioner to be of "good moral character."

      
      

   8. For the last four or five years, petitioner has been actively involved in the "Outreach" ministry of his church. That program involves providing spiritual support, services and counseling to prisoners in the Duval County Jail each Sunday with follow-up sessions during the week. Members of his church attested to his good moral character.

      
      

   9. Based on the testimony of witnesses Britt, Toto, Cross and DeWees, as corroborated by petitioner's own testimony, it is found that petitioner has presented sufficient evidence of rehabilitation since his 1990 arrest, he is of "good character," and he poses no threat to the safety or well-being of his clients. The request for an exemption should accordingly be approved.

      
      

      CONCLUSIONS OF LAW

      
      

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

       
       

   11. In 1995, the legislature comprehensively amended the statutes which govern those persons seeking to work in mental health programs. See Chapter 95- 228, Laws of Florida. In this proceeding, the disqualifying offense, prostitution, occurred in 1990, and therefore the provisions of Section 394.457(6)(c)2., Florida Statutes (Supp. 1994), must apply. This is because Section 64, Chapter 95-228, Laws of Florida, provides that the screening standards in Section 394.457, Florida Statutes (Supp. 1994), apply to offenses occurring before October 1, 1995, while the new screening standards in Section 435.07, Florida Statutes, apply to offenses occurring after that date. See, e.g., W. D. v. Dep't of Health and Rehab. Services, Case No. 96-0860C (DHRS, August 6, 1996). The "old" and "new" screening standards are essentially the same in all material respects except that the new standards no longer require that the applicant demonstrate that he or she has "good character."

       
       

   12. Section 394.457(6)(c)2., Florida Statutes (Supp. 1994), reads as follows:

       
       

       (c)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 the exemption. The person shall bear the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circum- stances 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 the children. The decision of the department regarding an exemption may be contested through the hearing procedures set forth

       in chapter 120.

       
       

   13. By evidence which meets the appropriate evidentiary standard, petitioner has demonstrated that he is "of good character," is sufficiently rehabilitated since his arrest in 1990, and will not "present a danger to the safety or well-being of (his clients)." Petitioner having satisfied the statutory requirements, his request for an exemption from disqualification from employment in a position of special trust should be approved.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter

a final order granting petitioner's request for an exemption from disqualification for employment in a position of special trust.

DONE AND ENTERED this 10th day of September, 1996, in Tallahassee, Florida.

DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675, SunCom 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1996.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Room 200-X Tallahassee, Florida 32399-0700

Richard E. Doran, Esquire Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

Pauline M. Ingraham-Drayton, Esquire

200 West Forsyth Street, Suite 80 Jacksonville, Florida 32202

Roger L. D. Williams, Esquire Post Office Box 2417 Jacksonville, Florida 32231-0083

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the Department of Health and Rehabilitative Services concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the Department of Health and Rehabilitative Services.

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

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

STATE OF FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES

ALVIN V. WALKER

Petitioner,

v. CASE NO. 96-0468

RENDITION NO. DCF-97- 010-FOF-RCD

DEPARTMENT OF CHILDREN AND FAMILIES FILED

Respondent.

/

FINAL ORDER

THIS CAUSE is before me for entry of a Final Order.

The Recommended Order concludes that petitioner is rehabilitated from two incidents of prostitution such that he poses no threat to patients at the psychiatric facility where he would be employed but for the disqualifying offenses. The administrative law judge recommends that the department 1/ grant the exemption from disqualification requested by petitioner. No exceptions to the Recommended Order have been filed.

The Recommended Order is approved and adopted except for paragraphs 11 and

12. This does not affect the determination that petitioner is entitled to an exemption under the applicable law. 2/

Accordingly, it is ORDERED that petitioner's request for an exemption from disqualification is hereby GRANTED.

DONE and ORDERED this 31st day of January, 1997, Tallahassee, Leon County, Florida.

EDWARD A. FEAVER, Secretary Department of Children and

Families

By: SAMARA H. NAVARRO, D.B.A.

Deputy Secretary

ENDNOTES

1/ The Department of Health and Rehabilitative Services became the Department of children and Families on January 1, 1997. Ch. 96-403, Laws of Fla.

2/ do not decide whether section 394.457, Florida Statutes (Supp. 1994), or chapter 435, Florida Statutes (1995), applies because petitioner's entitlement to an exemption is the same under either statute. To the extent that W. D. v. Dept. of Health and Rehab. Serv., Case No. 96-0860C (Aug. 6, 1996), suggests otherwise, it is expressly receded from.

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF CHILDREN AND FAMILIES, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

Donald Alexander, Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Roger L. D. Williams, Esquire District 4 Legal Office Department of Children

and Families

Post Office Box 2417 Pensacola, Florida 32231-0063

Carlton Jones

Background Screening Coordinator Department of Children

and Families

Post Office Box 2417 Pensacola, Florida 32231-0063

Pauline M. Ingraham-Drayton, Esquire

200 West Forsyth Street, Suite 60 Jacksonville, Florida 32202

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U.S. Mail or hand delivery to each of the above-named persons this 31st, day of January, 1997.

Gregory D. Venz Agency Clerk

Department of Children and Families

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

(904) 488-2381

Docket for Case No: 96-000468

Orders for Case No: 96-000468