vs. ) CASE NO. 96-0860
Respondent. )
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on March 14, 1996, in Gainesville, Florida.
For Petitioner: W. D., pro se
For Respondent: Lucy E. Goddard, Esquire
The issue in this case is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be approved.
This matter began on February 6, 1996, when respondent, Department of Health and Rehabilitative Services, issued a letter advising petitioner, W. D., that his request for an exemption from disqualification had been denied and he "continue(d) to be ineligible for employment in a position of special trust." The letter did not cite the reason for disqualification. Thereafter, petitioner requested a formal hearing to contest the proposed action. The matter was referred by respondent to the Division of Administrative Hearings on February 19, 1996, with a request that a Hearing Officer be assigned to conduct a hearing.
By notice of hearing dated February 28, 1996, a final hearing was scheduled on March 14, 1996, in Gainesville, Florida.
At final hearing, petitioner testified on his own behalf and offered petitioner's composite exhibit 1. The exhibit was received in evidence. Respondent presented the testimony of Pat Joiner, its district background
screening coordinator. Also, it offered respondent's exhibits 1-13. All exhibits were received in evidence.
There is no transcript of hearing. Proposed findings of fact and conclusions of law were due by March 25, 1996. None were filed by either party.
At issue in this case is a request by petitioner, W. D., for an exemption from disqualification from employment in a position of special trust, namely, working with developmentally disabled persons. Respondent, Department of Health and Rehabilitative Services (HRS), is the agency charged with the statutory responsibility of approving or denying such requests.
When the relevant events herein occurred, petitioner was sharing an apartment with his fiance in Gainesville, Florida. As such, his fiance was a "family or household member" within the meaning of the law. On the evening of October 16, 1992, petitioner was arrested on charges of battery (domestic violence) against his fiance and battery against her girlfriend as a result of an altercation. After a trial was conducted in the Alachua County Court on February 9, 1993, the jury returned a verdict of guilty on both charges. Thereafter, petitioner was ordered to pay costs in the amount of $310.00 or in lieu thereof complete 50 hours of community service, and reimburse one of the victims for the cost of replacing her broken eye glasses. He was also placed on six months probation. On August 20, 1993, petitioner was discharged from probation after successfully complying with all general and special conditions of his probation.
In 1995, petitioner secured employment with the Alachua County Association for Retarded Citizens (ARC) as a residential care technician. Because the job involved working with developmentally disabled persons, petitioner was required to undergo a background screening for disqualifying offenses. A background check by the Florida Department of Law Enforcement revealed petitioner's arrest and conviction on two counts of battery. Because the offense of battery against a "family or household member" constitutes domestic violence and is a disqualifying offense under the law, petitioner was notified by HRS that he was ineligible to continue employment with ARC. That advice prompted petitioner to request an exemption. After his request was denied by an HRS committee, petitioner initiated this proceeding.
In order to obtain an exemption, a disqualified person must present (a) "clear and convincing evidence to support a reasonable belief that the person is of good character so as to justify an exemption," and (b) "sufficent evidence of rehabili-tation." In establishing rehabilitation, the circumstances surrounding the incident, the time period that has elaped since the incident, the nature of the harm occasioned to the victim, and the history of the person since the incident, are factors to be considered.
In support of his request, petitioner first described the circumstances surrounding the incident. According to his account, which was not controverted, it was precipitated by the friend of his fiance, who was drinking that evening. After the argument began, the friend placed petitioner in a "bear hug." While breaking free, petitioner unintentionally knocked her down. She also broke her glasses during the altercation. There were no apparent injuries to the friend.
Petitioner denied that his fiance suffered any serious injuries during the incident. However, the arrest report does indicate that his fiance suffered a cut on her elbow, "soreness" in her face, and her clothes "were pulled open and dissheveled (sic)." Even so, there is no indication that the fiance required medical treatment or suffered any permanent injury. Petitioner avers that this was the only incident of that nature during his nine year relationship with his fiance, and he asks that he not be punished indefinitely for this one mistake.
Petitioner has no blemishes on his record since the incident occurred more than three years ago. A contention that he is now undergoing counseling was not disputed. As to petitioner's "history since the incident," except for a six-week stint with ARC, the record does not show his entire employment history since late 1992. However, petitioner did work for eighteen years with the Gainesville Regional Utilities, including some period of time after his 1992 arrest.
Petitioner enjoys working with retarded children and desires to continue his employment with ARC. Letters received in evidence as petitioner's exhibit 1 corroborate his assertions that he did a good job during his brief tenure with ARC, he was considered a "reliable" employee, and he will be reemployed if his request for an exemption is granted. They also corroborate his contention that he is now a good citizen. Based on this unrefuted evidence, it is found that there is sufficient evidence to support a reasonable belief that petitioner is of good character so as to justify an exemption and that he will not be a danger to the safety or welfare of the children with whom he would work. Accordingly, his request should be granted.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.
Section 393.0655, Florida Statutes, which governs this proceeding, was substantially amended during the 1995 legislative session. Under the new law, exemption requests relating to offenses occurring on and 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 393.0655, Florida Statutes (Supp. 1994). See Section 64, Chapter 95-228, Laws of Florida. In addition to the amendments found in Chapter 95-228, Laws of Florida, section 393.0655 was amended in minor respects by four other acts during the 1995 legislative session. However, the history note to the statute indicates that Chapter 95-228, Laws of Florida, represents "the last expression of legislative will," and therefore that version has been published in the 1995 Florida Statutes. Nothwithstanding these changes, it is noted that sections 393.0655(3)(b) and 435.07(3), which contain the "old" and "new" standards for obtaining an exemption, are identical in all material respects except that the new screening standards no longer require that a disqualified person demonstrate "good character."
Because petitioner's offense occurred in 1992, the "old" standards must necessarily apply. Section 393.0655(2)(d), Florida Statutes (Supp. 1994), provides that the screening standards must ensure that the person "(h)as not committed an act which constitutes domestic violence as defined in s. 741.28." At the same time, Section 393.0655(3)(a)7., Florida Statutes, authorizes HRS to
grant to any person who has committed domestic violence an exemption from disqualification from working with the developmentally disabled.
Section 393.0655(3)(b), Florida Statutes (Supp. 1994), imposes the following burden on a disqualified person seeking an exemption:
(b) 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 children. The decision of the department re-garding an exemption may be contested through the hearing procedures set forth in chapter 120.
By evidence which meets the appropriate evidentiary standard, petitioner has established that he is "of good character," is sufficiently rehabilitated since his arrest in 1992, and will not "present a danger to the safety or well-being of children." This being so, his request for an exemption from disqualification from employment in a position of special trust should be approved.
