STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALD GREGG, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1694

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, a Hearing Officer for the Division of Administrative Hearings, held a final hearing in the above-styled case on May 28, 1996, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Gerald Gregg, Pro Se

2527 Red Robin Drive East Jacksonville, Florida 32210

For Respondent: Roger L.D. Williams, Esquire

District 4 Legal Office Department of Health and

Rehabilitative Services Post Office Box 2417

Jacksonville, Florida 32231-0083 STATEMENT OF THE ISSUE

Should Petitioner be granted an exemption from disqualification of service in the capacity of foster parent?

PRELIMINARY STATEMENT

By request filed on March 26, 1996, Petitioner requested formal proceedings in response to Respondent's prior denial of Petitioner's request for exemption from disqualification as a foster parent in the operation of a family foster home.

On April 3, 1996, the matter was referred to the Division of Administrative Hearings for further administrative proceedings.

At the final hearing, Respondent presented six exhibits, but no testimonial evidence. Petitioner presented testimony of one witness, himself.

No transcript of the final hearing was provided. Neither party submitted proposed findings of fact and no proposed findings had been received at the time of preparation of this recommended order.

FINDINGS OF FACT

1. On February 2, 1996, Respondent preliminarily established that Petitioner was disqualified to be a foster parent within the definition of "family foster home" contained in Section 409.175(2), Florida Statutes. The denial was based upon Petitioner's failure to meet minimum screening requirements for "good moral character" specified by Section 435.04(2), Florida Statutes.

   
   

2. Petitioner's testimony at the final hearing establishes that an incident occurred in a public bathroom where, as a result of a verbal interchange between Petitioner and a policeman, Petitioner was arrested for the offense of "offering for lewdness" in violation of Section 796.07, Florida Statutes (1989). The offense occurred on August 24, 1990.

   
   

3. Petitioner subsequently absenced himself from the State of Florida, obstensibly to be at the bedside of his ill father in North Carolina. Following his later return to Florida, Petitioner appeared in court on September 14, 1993, where he was placed on probation, paid a fine and obtained a medical test to determine whether he was infected with the HIV virus.

   
   

4. Petitioner and his wife presently care for his godchild, a minor female of eight months of age, and wish to be licensed by Respondent as foster parents. The licensure process required that Petitioner undergo background screening.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

6. Since Petitioner's potential licensure as a foster parent would result in his denomination as an individual in a position of special trust or responsibility, background screening was required. The basis for screening Petitioner is found in Section 402.305(2), Florida Statutes (1994 Supp.).

   
   

7. As established by the evidence presented, the offense which allegedly disqualifies Petitioner took place prior to October 1, 1995. Such date is prior to the beginning date for which the current provisions of Section 435.04(2), Florida Statutes, as enacted by Chapter 95-228, Section 64, Laws of Florida, may be applied. Accordingly, minimum standards applicable to personnel to be employed in delivering services to children contained in the current screening provisions set forth in Section 435.04(2), Florida Statutes, are not applicable. Thus, the preceding law for screening personnel must be applied.

   
   

8. Section 402.305(2)(a)11, Florida Statutes (1994 Supp.), disqualifies a person from providing services in the instance where the individual has committed any violation of Chapter 796, Florida Statutes, relating to prostitution. Section 402.305(2)(a)11, Florida Statutes (1994 Supp.), disqualifies Petitioner, absent his qualification for exemption.

   
   

9. In accordance with Section 402.305(2)(c)1.b, Florida Statutes (1994 Supp.), Petitioner may obtain an exemption from disqualification 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 exemption may be contested through the hearing procedures set forth in chapter 120.

   
   

10. Petitioner bears the burden of proof in this proceeding. Fla. DOT v.

J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA, 1981). Petitioner has failed to present clear and convincing evidence to support a reasonable belief that he is of good character so as to justify an exemption. While the time period that has elapsed since the incident is not brief, the steps which Petitioner has taken to rehabilitate himself are unclear and militate against granting him an exemption from disqualification for licensure in a position of special trust with children.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner an exemption from disqualification to work with children in positions of special trust.

DONE and ENTERED in Tallahassee, Florida, this 25th day of June, 1996.

DON W. DAVIS, 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 25th day of June, 1996.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties.

No Proposed Findings Were Submitted.

COPIES FURNISHED:

Roger L.D. Williams, Esquire District 4 Legal Office Department of Health and

Rehabilitative Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Gerald Gregg

2527 Red Robin Drive East Jacksonville, Florida 32210

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 7, Suite 728

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

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: 96-001694

Orders for Case No: 96-001694