STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNIE R. BATTLE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0742

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding by video conference before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 16, 1996, in Orlando, Florida. The parties and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Annie R. Battle, pro se

1621 West Grant Street Orlando, Florida 32805

For Respondent: Eric D. Dunlap

Assistant District Legal Counsel Department of Health and

Rehabilitative Services

400 West Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner's request for exemption should be granted.

PRELIMINARY STATEMENT

By letter dated January 24, 1996, Respondent advised Petitioner that Petitioner's request for exemption was denied. Petitioner timely requested a formal hearing.

At the formal hearing, Petitioner testified in her own behalf, called no witnesses, and submitted no exhibits for admission in evidence. Respondent cross examined Petitioner, called no witnesses, and submitted three exhibits for admission in evidence. The identity of the exhibits, and the rulings concerning each, are set forth in the official record of the formal hearing. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioner seeks an exemption for employment in a position for which a security background check is required pursuant to Sections 435.03 and 435.04, Florida Statutes. 1/ Petitioner seeks employment in a position caring for children.

   
   

2. On September 1, 1987, Petitioner pled guilty to trafficking in cocaine, a first degree felony under Section 893.135(1)(b)(1). Petitioner also pled guilty to possession of cocaine, within the meaning of Section 893.03(2)(a)(4).

   
   

3. The court fined Petitioner $50,000, imposed court costs of $2,500, and sentenced Petitioner to 15 years imprisonment. The sentence was to be served by three years imprisonment and by 12 years probation. Petitioner served three years imprisonment, is currently completing her probation, and is paying the fine and court costs over time.

   
   

4. The terms of probation, in relevant part, require Petitioner to submit to drug testing and to remain free of all drugs. On November 9, 1995, Petitioner tested positive for marijuana.

   
   

5. Petitioner failed to show by clear and convincing evidence that she is no longer a threat to those with whom she would interact if exempted. Petitioner failed to show by clear and convincing evidence that she has been rehabilitated.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. The parties were duly noticed for the formal hearing.

   
   

7. The burden of proof is on Petitioner. Petitioner must show by clear and convincing evidence that she should not be disqualified from employment. Section 435.07(3).

   
   

8. Sections 435.03, 435.04, and 435.06, in relevant part, prohibit the employment of a person in a position subject to a background security check if the person has pled nolo contendere, has pled guilty, or has been found guilty of violating Chapter 893. 2/ Petitioner pled guilty to two violations of Chapter 893.

   
   

9. Section 435.06(2), in relevant part, prohibits an employer from employing a person found guilty of violating Chapter 893 3/ unless the person requests an exemption. In order for Respondent to grant an exemption to Petitioner, Section 435.07(3) provides, in relevant part, that Petitioner must show by clear and convincing evidence that she should not be disqualified from employment.

   
   

10. Petitioner must show sufficient evidence of rehabilitation including:

    
    

    . . . the circumstances surrounding the criminal incident . . . , the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating

    that the employee will not present a danger if continued employment is allowed.

    
    

    Section 435.07(3).

    
    

11. Petitioner showed sufficient evidence that adequate time has elapsed since the incident. Petitioner showed little, if any, evidence of the circumstances surrounding the incident. Petitioner failed to show any evidence of the nature of the harm caused to the victim, if any.

    
    

12. Petitioner failed to provide sufficient evidence of her history since the incident, or other circumstances, showing that Petitioner will not present a danger to children if employment is allowed. Petitioner tested positive for marijuana. When confronted with the result's of a positive drug test, Petitioner denied that she ever used marijuana.

    
    

13. Petitioner relied solely on her own testimony to evidence her rehabilitation. Her testimony was general, not specific, and it was inconsistent with evidence submitted by Respondent. Petitioner's testimony was less than clear and convincing.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and therein DENY

Petitioner's request for exemption.

RECOMMENDED this 3rd day of June, 1996, in Tallahassee, Florida.

DANIEL S. MANRY, 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 3rd day of June, 1996.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1995) unless otherwise stated.

2/ Petitioner testified that she pled nolo contendere to the criminal charges against her and denied that she pled guilty to the charges against her. Aside from the fact that the court documents contradict Petitioner's testimony, the point is moot under the language of Sec. 435.04. Sec. 435.04 provides in relevant part:

. . . no persons . . . have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any

offense prohibited under

. . . Chapter 893. . . .

3/ Sec. 435.06(2) authorizes an employer to place the person in a position that is not a position of trust as an alternative to termination.

COPIES FURNISHED:

Richard Doran, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 7, Suite 728

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Eric D. Dunlap

Assistant District Legal Counsel Department of Health and

Rehabilitative Services

400 West Robinson Street Orlando, Florida 32801

Annie R. Battle, pro se 1621 West Grant Street Orlando, Florida 32805

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: 96-000742

Orders for Case No: 96-000742