STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NURY RIVAS, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1374

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on June 19, 1996 in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Nury Rivas, pro se

7504 Laurel Hill Road Orlando, Florida 32818

For Respondent: Laurie A. Lashomb, Esquire

District 7 Legal Office Department of Health and

Rehabilitative Services

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether the Petitioner has presented clear and convincing evidence that she is of good moral character so as to receive an exemption from disqualification from employment with adults who are severely developmentally disabled, under Section 393.0655, Florida Statutes (1995).

PRELIMINARY STATEMENT

This proceeding is the result of Petitioner's request for an exemption from disqualification which was denied by the Respondent's District Administrator, by letter dated February 27, 1996. Thereafter, Petitioner requested an formal hearing before the Division. The disqualification is the result of Petitioner's conviction of a felony. Petitioner is seeking an exemption so that she may be approved by DHRS for the purpose of working in a facility for the developmentally disabled.

At the hearing Petitioner testified in her own behalf and presented the testimony of Rebecca J. Russell, Certified Behavior Analyst at Laurel Hill

Cluster, and offered six exhibits in evidence. HRS presented the testimony of one witness, and offered no exhibits in evidence.

The transcript of the hearing was not prepared. Neither Petitioner nor Respondent has filed proposed findings of fact and conclusions of law.

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

FINDINGS OF FACT

1. In January 1990, Petitioner was arrested, tried and convicted of "trafficking in cocaine", a first degree felony, and was sentenced to fifteen years in the custody of the Department of Corrections.

   
   

2. In September 1994, due to good behavior, Petitioner became eligible for placement in a work release program. She was assigned to the Pine Hills Community Correctional Center and was closely monitored for nearly one year.

   She performed the duties of a driver which required her to transport inmates on the work release program to and from their jobs.

   
   

3. During her assignment at Pine Hills Center, Petitioner successfully completed numerous courses in various areas, including Diversified Cooperative Training, effective parenting, nutritional management, physical management and blood borne pathogens. During this same period, Petitioner received several certificates of merit from her instructors and staff.

   
   

4. During her assignment to the Center, Petitioner has not posed a threat to the security of the facility or the community. She has not received any disciplinary action and has maintained high ratings. She has received several recommendations from members of the staff, including the Superintendent.

   
   

5. In August 1995, Petitioner was approved to participate in the work release program as a Residential Training Instructor (RTI) with Quest, Inc. at the Laurel Hill Cluster. She was responsible for the daily care and training for eight profoundly developmentally disabled persons with complex medical conditions.

   
   

6. Petitioner performed her duties as an RTI in an excellent manner for over five months. She developed close interpersonal relationships with her clients and gave them quality care when on duty. Petitioner worked well with the staff at Laurel Hill Cluster. The staff are aware of her criminal record and, nevertheless, she received very high recommendations. She would be eligible for immediate rehire when an exemption is granted.

   
   

7. Since her disqualification from employment in a position of special trust, Petitioner has been employed as a maid in a motel in Orlando and has received high recommendations from her employer.

   
   

8. Petitioner was scheduled for release from the custody of the Department of Corrections on June 20, 1996.

   
   

9. At the hearing, Petitioner acknowledged her prior felonious conduct. She expressed remorse and a desire the change her behavior in the future. She was sincere in her desire to work with the disabled adults, and showed every indication that she wished to re-enter society as a law-abiding citizen.

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Under subsection 393.0655, Florida Statutes (1995), Respondent is required to conduct a screening of employees hired to work as caretakers for the developmentally disabled. Conviction of a felony under Chapter 393, relating to drug abuse prevention, is a bar to employment in positions of trust or responsibility. Section 435.06, Florida Statutes (1995).

12. Section 435.02(1), Florida Statutes (1995), states as follows: The employer must either terminate the employ-

    ment of any of its personnel found to be in noncompliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07.

    
    

13. Respondent may grant to any employee otherwise disqualified from employment an exemption from disqualification from working with disabled adults for felonies committed more than 3 years prior to the date of disqualification, under the following conditions:

    
    

    . . . the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, 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. The decision of the licensing department regarding an exemption

    may be contested through the hearing procedures under chapter 120. subsection 435.07(1),(3),

    Florida Statutes (1995).

    
    

14. Petitioner has presented clear evidence that she has a strong desire to work with the developmentally disabled adults. She has received strong recommendations from the staff at Laurel Hill, where she was employed as RTI prior to her disqualification, and is eligible for rehire there. Petitioner has demonstrated that, while she has been incarcerated, she has made every reasonable effort to show that she is rehabilitated; Petitioner earned substantial gain time for her good behavior so that, within four years of the original fifteen year sentence for trafficking in cocaine, Petitioner became eligible for work release and placement in a half-way house. Petitioner conducted herself in an exemplary fashion and has been released from DOC

    custody. However, Petitioner failed to explain the circumstances surrounding her original felony arrest and conviction, a very serious offense. In addition, all of Petitioner's actions, since her arrest, has been conducted under close scrutiny and strict monitoring of DOC personnel. Petitioner only became eligible for release from custody on June 20, 1996. This is insufficient time to demonstrate, by clear and convincing evidence, that she has, in fact, been rehabilitated. A period of time must elapse so that Petitioner can demonstrate that she will live as a law-abiding citizen in the community and not present a danger to those entrusted to her care if continued employment is allowed.

    
    

15. Because of Petitioner's candor, conduct and high recommendations, a period of six months of good conduct from her release date should be sufficient time to demonstrate rehabilitation and become eligible for an exemption. See: Antel vs. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request for exemption from disqualification

for employment with developmentally disabled adults be DENIED.

DONE AND ENTERED this 13th day of August, 1996, in Tallahassee, Leon County, 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 13th day of August, 1996.

COPIES FURNISHED:

Laurie A. Lashomb, Esquire Department of Health and

Rehabilitative Services

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

Nury Rivas

7504 Laurel Hill Road Orlando, Florida 32818

Gregory D. Venz Agency Clerk

Department of Health and Rehabilitative Services

1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700

Richard Doran General Counsel

Department of Health and Rehabilitative Services

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

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.

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

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

NURY RIVAS

Petitioner,

v. CASE NO. 96-1374

RENDITION NO. HRS-96-414-FOF-RCD

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

Respondent.

/

FINAL ORDER

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

The Recommended Order concluded that the department appropriately denied petitioner's request for an exemption from disqualification from working in a position of trust with the developmentally disabled. The hearing officer determined that petitioner's laudatory conduct while under the supervision of the Department of Corrections for the offense which resulted in her disqualification was insufficient to clearly and convincingly establish her rehabilitation. No exceptions the Recommended Order have been filed.

The Recommended Order is approved and adopted with the exception of paragraph 15. I reject the hearing officer's conclusion that "a period of six months of good conduct from her release date should be sufficient time to demonstrate rehabilitation and become eligible for an exemption." In the event petitioner applies for an exemption at some future date, her application will be carefully considered on its merits, without being bound by the record of the instant proceeding.

Accordingly, it is ORDERED that petitioner's request for an exemption from disqualification from employment in a position of trust with the developmentally disabled is DENIED.

DONE and ORDERED this 20th day of December, 1996, in Tallahassee, Leon County, Florida.

EDWARD A. FEAVER, Secretary Department of Health and

Rehabilitative Services

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

Deputy Secretary

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 HRS, 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:

Daniel M. Kilbride, Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Eric Dunlap, Esquire District 7 Legal Office Department of Health and

Rehabilitative Services

400 West Robinson Street Suite 5-827

Orlando, Florida 32801

Michael Ingram

Background Screening Coordinator Department of Health and

Rehabilitative Services

400 West Robinson Street Orlando, Florida 32801

Nury Rivas

7504 Laurel Hill Road Orlando, Florida 32818

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 2nd, day of January, 1997.

Gregory D. Venz Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

(904) 488-2381

Docket for Case No: 96-001374

Orders for Case No: 96-001374