STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CORDETT D. MCCALL, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1305

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on May 13, 1996, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was Jacksonville, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Cordett D. McCall

8090 Atlantic Boulevard, Apartment G43 Jacksonville, Florida 32211

For Respondent: Roger L. D. Williams, Esquire

Department of Health and Rehabilitative Services

District 4 Legal Office Post Office Box 2417

Jacksonville, Florida 32231-0083 STATEMENT OF THE ISSUES

Is Petitioner disqualified by law from working in a position of special trust and responsibility related to mental-health services in a child-guidance clinic? If disqualified, is Petitioner entitled to exemption from disqualification?

PRELIMINARY STATEMENT

On February 5, 1996, Respondent notified Petitioner that he was disqualified from continuing employment in a child-guidance clinic as "mental- health personnel" defined at Section 394.455(20), Florida Statutes. The basis for that disqualification was related to alleged misdemeanor battery offenses in which Petitioner was said to have battered his wife. For this reason, the notice of disqualification indicated that Petitioner could not meet the minimum requirements for a position of special trust or responsibility, for reasons envisioned by Section 435.04(2), Florida Statutes (1995).

On February 6, 1996, Petitioner requested a hearing before the Respondent to contest that determination by seeking an exemption from the disqualification. On that same date, Petitioner was notified that he would be provided a hearing on February 14, 1996.

On February 14, 1996, the hearing ensued before the Respondent, consistent with Section 435.07(3), Florida Statutes. Having considered Petitioner's presentation, Respondent denied the exemption by letter dated February 16, 1996. The letter of denial created the option for Petitioner to seek a hearing, pursuant to Chapter 120, Florida Statutes, to contest the preliminary decision denying the exemption. On February 28, 1996, Petitioner requested a formal hearing to seek an exemption from disqualification. In turn, Respondent forwarded the case to the Division of Administrative Hearings to conduct a formal hearing. The hearing was held on the aforementioned date.

At hearing, Petitioner testified on his own behalf and presented the testimony of his wife, Michelle Lynn McCall. Petitioner's Composite Exhibit 1 was admitted into evidence.

Following the opportunity to contest the facts in the exhibit by inquiry directed to those persons who authored the exhibit Respondent's counsel has verified that the exhibit is authentic and that the facts in the exhibit constitute the opinions expressed by the authors. The verification was by writing withdrawing objection to the exhibit. The hearing record had been left open for 20 days beyond the hearing date to allow Petitioner to arrange for Respondent's counsel to interview those individuals who prepared the remarks set forth in Petitioner's

Composite Exhibit 1, and to confirm those remarks. Alternatively,

Petitioner had the opportunity, during the 20-day period following the hearing to take the depositions of those individuals who are referred to in Petitioner's Composite Exhibit 1 and to file those depositions.

Respondent did not present witnesses; however, Respondent's Exhibits 1-7 were admitted into evidence.

The hearing was recorded by electronic means. The tapes prepared during the hearing are provided with this record. The tapes have not been transcribed.

The parties were provided the opportunity to file proposed recommended orders. None were filed.

FINDINGS OF FACT

1. Petitioner has had a relationship with his wife since they were 16 years old. At the time the hearing was conducted, husband and wife were 24 years old. They had been married for approximately three years and had a child who was four years old.

   
   

2. Beginning February 1995, Petitioner became suspicious that his wife was having an affair with another man. Around that time, the couple argued several times a week. This would cause Petitioner to leave their home. In addition, Petitioner and Mrs. McCall would not speak to each other for a couple of days following these arguments.

3. On March 16, 1995, the man with whom Petitioner's wife was having the relationship called the couple's home. On that occasion, Mrs. McCall would not say who was speaking to her on the telephone and appeared secretive. It led to a further argument between Petitioner and Mrs. McCall. Petitioner then grabbed his keys and started to leave. Mrs. McCall struggled with him to get the keys out of his hand. During the struggle, Mrs. McCall was scratched on her chest. The noise that the couple made was sufficiently noticeable that the neighbors called the police to investigate.

   
   

4. When the police arrived at Petitioner's home on March 16, 1995, Petitioner was sitting on the couch. The police noticed the visible marks on Mrs. McCall's chest. Consequently, Petitioner was charged with battery under Section 784.03, Florida Statutes.

   
   

5. On March 18, 1995, Petitioner pled no contest to the offense of battery for the incident that took place on March 16, 1995 involving his wife. He was given two days unsupervised probation and required to pay $75.00 in court costs. The court adjudicated Petitioner guilty of the offense.

   
   

6. After the March 16, 1995 incident the McCalls continued to argue. On April 11, 1995, when Petitioner left home to go to work that morning, he told Mrs. McCall that he was going to leave work in the afternoon and travel to Deland, Florida, to see his father. Instead, Petitioner went home that afternoon to get some papers before making the trip to see his father. When he arrived at his home a person named Renee, Mrs. McCall's friend, was watching the McCalls' child in one room, while Mrs. McCall was in bed with her male acquaintance in the McCalls' bedroom. When Petitioner discovered his wife with another man, he began to scream and yell and picked up his son to leave the home. Mrs. McCall tried to intervene and stop Petitioner from leaving the home with her son. During the course of this incident, Petitioner grabbed his wife by the arms and pushed her aside, causing her to fall against the wall. The areas upon which she was grabbed by Petitioner were bruised. Mrs. McCall is prone to bruising because she is a hemophiliac.

   
   

7. Their child was not harmed during this physical exchange between the couple. After the exchange, Petitioner left the home and went to Deland, leaving the child with his mother.

   
   

8. Before discovering his wife in bed with the other man, Petitioner did not know, as a matter of fact, that his wife was having a relationship with that person. When Petitioner discovered his wife in bed with the other man, he did not threaten her, notwithstanding the yelling and screaming.

   
   

9. Renee had called the police when Petitioner arrived at the home, but the police did not arrive for one-half hour to one hour after Petitioner had left the home.

   
   

10. Mrs. McCall was concerned about how her husband would react beyond the point where he had discovered her with another man. Therefore, she determined to make a complaint about her husband's physical activity in which he bruised her arms. Based upon that complaint, the police determined to arrest Petitioner.

    
    

11. Following the trip to Deland Petitioner came back that night and spent the night with a friend in Jacksonville, Florida.

12. The next morning Petitioner called Mrs. McCall and inquired concerning the circumstances of their exchange. Mrs. McCall told him that she had called the police after he left because she was afraid of what he might do to her and that made her "press charges". Petitioner responded by telling his wife where he was located and telling her to have the police come to that location and pick him up, which they did.

    
    

13. When the police arrested Petitioner for the events on April 11, 1995, they again charged him with a violation of Section 784.03, Florida Statutes, and made mention that the battery for which he was accused was associated with domestic violence.

    
    

14. Following the arrest, Mrs. McCall spoke with the state attorney's office to have them drop the charges for the battery that occurred on April 11, 1995. The state attorney's office was unwilling to drop the charges in view of the prior charge dating from March 16, 1995.

    
    

15. Petitioner pled no contest to the battery offense related to the April 11, 1995 incident. He was given a 30-day sentence, credited with serving two days of the sentence, and the remaining 28 days of that sentence were suspended, conditioned upon the successful service of probation. The probation was served for nine months. Petitioner was adjudicated guilty for the offense and was required to participate in a program for individuals who had committed offenses involving domestic violence. The program emphasized controlling one's aggression. Petitioner completed the program related to management of his aggression. In the program to deal with domestic violence, Petitioner and other participants were required to discuss the experiences they had concerning domestic violence.

    
    

16. The McCalls lived apart from April, 1995 until January, 1996. During that time, Petitioner kept their child for the most part because his living arrangements were more suitable than those under which Mrs. McCall existed.

    
    

17. While they were estranged, initially, the couple did not do things together and would separately spend time with their child. At the end of their estrangement the couple began to do things as a family unit.

    
    

18. Subsequent to being reunited, the McCalls had been seeing a marriage counselor for about a month at the time the hearing was conducted. The McCalls had been to four sessions with the counselor and intended to continue seeing a marriage counselor in the future. The McCalls described their relationship as improving since they have been reunited.

    
    

19. Prior to the events in March and April, 1995, in which Petitioner battered Mrs. McCall in the manner described, Petitioner had never struck his wife. As explained at the hearing, Mrs. McCall is not concerned that her husband will batter her in the future.

    
    

20. Petitioner holds a bachelor's degree in psychology. He has one year of study in sociology in a bachelor's-level program. In the past, he worked two and one-half years for ARA Living Centers, providing direct care to adults. He left that position and took employment with an organization known as New Directions. This was a mental-health position, working with children on an out- patient basis. Petitioner held this job for approximately two years. Beyond that point, Petitioner took a position as a child-guidance case worker in a mental-health capacity. It was that position that prompted the screening that was conducted in January, 1996, leading to the decision to disqualify him from

    that employment. The procedures followed in the disqualification are as detailed in the preliminary statement above. Petitioner contested the decision to deny him an exemption from disqualification.

    
    

21. His request to be heard before the Respondent and to seek a formal hearing to contest the preliminary decision by Respondent denying the exemption from disqualification were both timely filed.

    
    

22. Before being terminated from his position as a child-guidance counselor based upon the disqualification, Petitioner had worked voluntarily at a group home for children.

    
    

23. In the past, when working with children and adults, Petitioner has never been disciplined or reprimanded concerning his conduct in providing that care.

    
    

24. Mr. George Robinson is an HRS Protective Services worker. He began work with Respondent on June 12, 1995. Prior to that employment, Mr. Robinson worked in the Mental Health Center in Jacksonville, Florida, as a discharge planner. Mr. Robinson knew Petitioner when they attended college. He considers Petitioner his friend and speaks highly of Petitioner's character. In addition, Mr. Robinson is familiar with Petitioner's work history and recommended that Petitioner receive a position at the Mental Health Center of Jacksonville, Florida, where Petitioner was employed from November 15, 1993 through November 30, 1995.

    
    

25. Jane Escobar, M.S.W., Manager, Children's Department for the Mental Health Center of Jacksonville, Inc. refers to Petitioner's work history with that organization. Among the duties Petitioner performed with the organization was as an individual assigned to the Therapeutic Group Home within the Mental Health Center, in which position Petitioner worked with emotionally-disturbed children. This work entailed association with counseling groups, individual social skills training, chart documentation, and recreational activities. It also involved interaction with families and other treating professionals. Following receipt of his bachelor's degree, Petitioner was promoted to a position of mental-health counselor within the Mental Health Center, a position which required him to carry a case load of approximately 15-18 clinical cases, involving individual counseling with children, family work, and often involving seeing the children in their homes, as well as at their schools, and in his office. Petitioner left the position with Mental Health Center of Jacksonville in good standing to pursue a career-enhancing position. Ms. Escobar considers Petitioner to be a well-liked and a highly-respected clinician. Ms. Escobar indicates that the Mental Health Center would willingly return Petitioner to employment if a position were available at the Center.

    
    

26. Mr. Val Thomas has written to commend Petitioner for his work as a counselor for Mr. Thomas' son. Mr. Thomas attributes Petitioner's good works for helping the Thomas family to correct problems which their son was having.

    
    

27. Ms. Nancy Edmonds, a clinical social worker, speaks favorably of Petitioner, whom she has known in a professional and personal capacity for two years. She is impressed by Petitioner's moral character and finds Petitioner to be an understanding and caring person. She has found him capable of dealing with the most difficult circumstances in their work, without losing his composure. She finds that he works well with children and adolescents.

28. Mr. Brian J. Maxson is the First Step Coordinator at Hubbard House, the facility in which Petitioner participated in group sessions concerning his conduct toward his wife, as a condition of his probation. Mr. Maxson confirms that Petitioner completed that program.

    
    

29. At present, Petitioner works with AT&T in soliciting customers to use its services. He had held that position for two months when the hearing commenced.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

31. In Petitioner's position as child-guidance case worker, which position Petitioner assumed in January, 1996, he was required to undergo screening as an individual in a position of special trust or responsibility. The basis for screening Petitioner is found in Section 402.305(2), Florida Statutes (1994 Supp.) 1/

    
    

32. Section 402.305(2)(a)24, Florida Statutes (1994 Supp.), disqualifies a person from providing services in the instance where the individual has committed the offense of battery, as defined in Section 784.03, Florida Statutes, assuming the victim of the offense to be a minor. It makes no reference to battery of an adult. Mrs. McCall was an adult when Petitioner committed battery directed to her on two occasions. Thus, Section 402.305(2)(a)24, Florida Statutes (1994 Supp.), does not disqualify Petitioner.

    
    

33. The screening which has been conducted also contemplates considering Section 402.305(2)(b)3, Florida Statutes (1994 Supp.), which disqualifies a person from working with children in the event that person has committed an act which constitutes domestic violence, as defined in Section 741.28, Florida Statutes (1994 Supp.). The battery that was committed on March 16, 1995 and April 11, 1995 constitutes domestic violence, as defined in Section 741.28, Florida Statutes (1994 Supp.). Thus Petitioner was disqualified.

    
    

34. In accordance with Section 402.305(2)(c)1.g, Florida Statutes (1994 Supp.), Petitioner may seek an exemption from disqualification for acts of domestic violence if he complies with Section 402.305(2)(c)2., Florida Statutes (1994 Supp.), which states:

    
    

    In order to grant an exemption to a person, the department must have clear and convinc- ing evidence to support a reasonable belief that the person is of good character so as to justify an exemption. The person shall bear the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surround- ing 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 regarding an exemp- tion may be contested through the hearing pro- cedures set forth in chapter 120.

    
    

35. Petitioner has presented clear and convincing evidence to support a reasonable belief that he is of good character so as to justify an exemption.

He has performed the requirements related to his probation to deal with any problem related to anger management. He has conducted himself in an appropriate manner in the intervening period in which he and his wife were separated. He has attempted reconciliation with his wife, to include receiving marriage counseling. The circumstances surrounding the incident would tend to explain his aberrant behavior, when compared to his normal demeanor. While the time period that has elapsed since the incidents is brief, the steps which Petitioner has taken to rehabilitate himself militate against denying him an exemption based upon the lack of separation in time between the incidents and the point at which he has requested an exemption. While the harm caused to his wife is significant, it is not so grave as to promote questions concerning the propriety of allowing Respondent to reassume a position of special trust with children.

Petitioner's history since the time of the incident has been commendable. Overall, the circumstances demonstrate that Petitioner will not be a present danger to the safety or well-being of children if granted the exemption.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner an exemption

from disqualification to work with children in positions of special trust.

DONE AND ENTERED this 14th day of June, 1996, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 14th day of June, 1996.

ENDNOTE

1/ This provision related to minimum standards for personnel to be employed in delivering services to children applies because the current provision on screening set forth in Section 435.04(2), Florida Statutes, only took effect for allegedly disqualifying offenses which occurred on October 1, 1995 or dates subsequent. See Chapter 95-228, Section 64, Laws of Florida. The offenses which disqualified the Petitioner took place prior to October 1, 1995. Thus, the preceding law for screening personnel must be applied.

COPIES FURNISHED:

Cordett D. McCall

8090 Atlantic Boulevard Apartment G43 Jacksonville, FL 32211

Roger L. D. Williams, Esquire Department of Health and

Rehabilitative Services District 4 Legal Office Post Office Box 2417

Jacksonville, FL 32231-0083

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 7, Suite 728

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Richard Doran, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

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 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: 96-001305

Orders for Case No: 96-001305