STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGORY MILLER, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1479

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On July 9, 1996, a formal administrative hearing was held in this case in New Port Richey, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gregory Miller, pro se

10910 Bridleton Road

Port Richey, Florida 34668

For Respondent: Kathleen R. Harvey, Esquire

Department of Health and Rehabilitative Services

11351 Ulmerton Road, Suite 100

Largo, Florida 34648-1630 STATEMENT OF THE ISSUE

The issue in this case is whether HRS should grant the Petitioner an exemption from disqualification under Section 409.175, Fla. Stat. (1993).

PRELIMINARY STATEMENT

By letter dated August 30, 1995, HRS denied the Petitioner's request for an exemption from disqualification. The Petitioner requested formal administrative proceedings under Section 120.57(1), Fla. Stat. (1995), but HRS apparently lost the request. 1/ When the Petitioner inquired as to the status of his request, HRS could find no record of his request and sent the Petitioner a letter dated November 30, 1995, asking the Petitioner to produce a return receipt to prove his request was timely filed, but the letter was not sent to the Petitioner's current address, and delivery was delayed. The Petitioner finally responded by letter dated January 31, 1996, enclosing a return receipt without a copy of the certified mail alleged to have been delivered at the time. HRS nonetheless referred the matter to the Division of Administrative Hearings (DOAH) on March 25, 1996.

Initially, the case was set for final hearing on June 25, 1996, but HRS's Motion to Continue was granted over the Petitioner's objection, and final hearing was continued to July 9, 1996, in New Port Richey.

At final hearing, the Petitioner testified in his own behalf and had Petitioner's Exhibits 1 through 4 admitted in evidence. HRS called one witness and had Respondent's Exhibits 1 through 15 admitted in evidence.

After presentation of the evidence, neither party ordered the preparation of a transcript of the final hearing, and the parties were given ten days in which to file proposed recommended orders. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 96-1479.

FINDINGS OF FACT

1. Before 1989, the Petitioner, Gregory Miller, was a community control counselor (in effect, a juvenile probation officer) working for HRS. After several years of satisfactory job performance, his employment was terminated for unsatisfactory job performance in 1989. The Petitioner believes his termination by HRS was unfair.

   
   

2. On January 30, 1991, the Petitioner, Gregory Miller, pled nolo contendere to attempted arson in violation of Section Section 806.01, Fla. Stat. (1991). Adjudication was withheld, and the Petitioner was placed on probation for two years.

   
   

3. The attempted arson charge arose at a time in October, 1990, when the Petitioner, who has a 20-year history of substance abuse and suffers from bipolar disorder and borderline personality disorder, decompensated under financial and other stress and attempted to burn his automobile in order to fraudulently obtain property and casualty insurance benefits. At the time of the arson attempt, his car was parked in the garage, and a tenant was residing in the garage apartment overhead. The tenant noticed the fire started by the Petitioner, put it out and reported it to the Petitioner. The Petitioner berated him for putting the fire out and told him to get his personal belongings out of the garage apartment and leave. While the tenant was in the garage apartment gathering his belongings, the Petitioner was attempting to restart the fire. The tenant had been a worker's compensation client of the Petitioner.

   
   

4. The Petitioner continued to have mental and emotional and substance problems that led to additional criminal charges.

   
   

5. On February 13, 1991, he was arrested and charged with battery of a law enforcement officer, a third degree felony. On October 3, 1991, the Petitioner pled guilty to the lesser included offense of resisting arrest without violence, a misdemeanor, and was sentenced to seven days time served in jail.

   
   

6. On or about December 22, 1991, the Petitioner overdosed on a mixture of drugs and alcohol in a possible suicide attempt. When confronted with law enforcement officers, the Petitioner struck the officers and was arrested and charged with battery of a law enforcement officer, a third degree felony. The Petitioner was involuntarily committed under the Baker Act, and on September 21, 1992, he pled nolo contendere to simple battery, a first degree misdemeanor, and was sentenced to one day time served in jail and ordered to pay $200 in fine and court costs.

7. As a result of his other criminal charges, the Petitioner was charged with violation of his probation on the attempted arson charge. On or about March 16, 1992, the Petitioner pled guilty to violation of probation. Adjudication on the violation of probation was withheld, but probation was revoked, and he was resentenced under the attempted arson charge to a year of community control, followed by a year of probation.

   
   

8. On or about March 8, 1992, the Petitioner was charged with driving with his license suspended or revoked for failure to maintain required insurance coverage.

   
   

9. Since 1992, the Petitioner has not been involved in any additional criminal activity or charges. On February 23, 1993, his community control was converted to probation. He moved to Pasco County and, on December 22, 1993, his probation was terminated early.

   
   

10. The Petitioner has sought professional counseling. On or about March 22, 1993, he was referred to a vocational rehabilitation counselor with the Department of Labor and Employment Security, Division of Vocational Rehabilitation. Since approximately early 1994, he also has been under the care of a psychiatrist. With the help of counseling, the Petitioner has been sober since before August, 1993.

    
    

11. Fortunately, therapy seems to have been successful. Except for two short hospitalizations for decompensation and medication adjustment early in his counseling, the Petitioner has been sober and mentally stable over the course of the last three years. From a mental health standpoint, the Petitioner no longer seemed to be a danger to himself or others, and he was making good progress in rehabilitating himself.

    
    

12. On or about May 18, 1995, the Petitioner sought employment with Action Youth Care, a provider on contract with HRS. When he applied for the job, he was required to complete an Affidavit of Good Moral Character that swore, in pertinent part, that he had "not been found guilty of, or entered a plea of nolo contendere or guilty to, any offense prohibited under . . . Section 806.01 [Florida Statutes, arson]." The affidavit also required the Petitioner to "acknowledge the existence of any criminal . . . record regardless of whether [he] was adjudged guilty by the court and regardless of whether or not those records have been sealed or expunged." The Petitioner signed without acknowledging his attempted arson record. When his name was screened, the attempted arson record disqualified him from employment, and the Petitioner was terminated from his employment pending his request for an exemption.

    
    

13. Despite the Petitioner's commendable progress in rehabilitating himself, there still are signs that some instability persists. He does not seem to appreciate the seriousness of his criminal record and history of substance abuse and mental illness, as they relate to HRS's statutory obligation to properly assess his moral character under Section 409.175, Fla. Stat. (1995). Instead, he blames HRS's actions on a "political" conspiracy to prevent him from obtaining employment. Similarly, he attempts to excuse his criminal record by blaming it all on HRS--the termination of his employment in 1989 allegedly was the sole cause of his decompensation and the resulting criminal offenses. His excuse for falsifying his Affidavit of Good Moral Character was that it was reasonable not to disclose the arson record because it was only attempted arson, not arson. He does not seem to appreciate that there is little or no difference in blameworthiness between the two. (The only real difference between the two is how soon the fire goes out or is put out.) Finally, the Employee Closing

    Summary produced by Action Health Care upon termination of the Petitioner's employment stated that Action would not re-hire the Petitioner and that the Petitioner's "weak areas" included: "poor rapport with team"; "would not accept authority"; and "documentation skills." (No "strengths" were noted on the form.) The Petitioner again blamed HRS, contending that the person who completed the form was lying to cooperate with HRS's conspiracy against the Petitioner.

    
    

14. It is found that the evidence, taken as a whole, was not clear and convincing proof of rehabilitation and good moral character at this time.

    
    

    CONCLUSIONS OF LAW

    
    

15. Section 409.175(4)(a)6.p., Fla. Stat. (1993), disqualifies child- placing agency, family foster home, residential child-caring agency, summer day camp and summer 24-hour camp personnel who "have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under . . . Section 806.01, relating to arson." (The 1993 codification governs this case. See Section 64, Chapter 95-228, Laws of Florida (1995).)

    
    

16. Section 409.175(4)(a)8., Fla. Stat. (1993), authorizes HRS to grant an exemption from a "sub-sub-subparagraph" (a)6.p. disqualification but provides in pertinent part:

    
    

    b. In order to grant an exemption to a person, the department shall have clear and convincing 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 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.

    
    

17. It is concluded that the Petitioner's evidence of rehabilitation was not sufficient and that the Petitioner did not provide clear and convincing evidence to support a reasonable belief that he is of good character so as to justify an exemption at this time.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that HRS enter a final order denying the Petitioner's request for an exemption from disqualification.

DONE and ENTERED this 21st day of August, 1996, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON, 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 21st day of August, 1996.

ENDNOTE

1/ The Petitioner claimed to have made the request by certified mail, return receipt requested. He has a return receipt for certified mail delivered to counsel for HRS on September 25, 1995, but counsel has no recollection of having received the request for hearing, and the Petitioner does not have a copy of the letter he claims to have delivered on September 25, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-1479

To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Finding of Fact.

The Petitioner's post-hearing submission essentially amounted to a single proposed finding that enough time had passed by the time of the final hearing to demonstrate rehabilitation. That proposed finding of fact is rejected as not proven by clear and convincing evidence.

Respondent's Proposed Findings of Fact. 1.-11. Accepted and incorporated.

12. First sentence, accepted and incorporated; second, accepted but subordinate and unnecessary.

13.-14. Accepted but subordinate and unnecessary.

15.-18. Accepted and incorporated to the extent not subordinate or unnecessary.

COPIES FURNISHED:

Gregory Miller

10910 Bridleton Road

Port Richey, Florida 34668

Kathleen R. Harvey, Esquire Department of Health and

Rehabilitative Services 11351 Ulmerton Road, Suite 100

Largo, Florida 34648-1630

Gregory D. Venz Agency Clerk

Department of Health and Rehabilitative Services

1317 Winewood Boulevard, Room 204X 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 to the Department of Health and Rehabilitative Services 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 consult with the Department of Health and Rehabilitative Services concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 96-001479

Orders for Case No: 96-001479