STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIMBERLY ATKINSON, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2555

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before William A. Buzzett, Administrative Law Judge with the Division of Administrative Hearings, on September 20, 1996, in Panama City, Florida.

APPEARANCES

For Petitioner: Kimberly Atkinson

516 Minnesota Avenue

Lynn Haven, Florida 32444

For Respondent: John R. Perry, Esquire

Department of Health and Rehabilitative Services, Suite 252-A

2639 North Monroe Street Tallahassee, Florida 32399-2949

STATEMENT OF ISSUE

Whether the Petitioner's request for an exemption pursuant to chapter 435, Florida Statutes, should be granted.

PRELIMINARY STATEMENT

By letter dated April 19, 1996, the Respondent, the Department of Health and Rehabilitative Services (Department), advised the Petitioner, Kimberly Atkinson (Atkinson), that she was ineligible to hold a position of special trust. The letter also determined that Atkinson was not eligible for an exemption to the ineligibility determination. Atkinson timely requested a formal administrative hearing pursuant to section 120.57, Florida Statutes.

This cause was later assigned to the undersigned administrative law judge for adjudication.

At the hearing, Atkinson testified on her own behalf, and she called six witnesses. 1/ Atkinson offered one exhibit that was entered into evidence without objection. 2/ At the hearing, the Department cross-examined Atkinson and her witnesses, called one witness, Christiane LeClair, and offered no exhibits.

The parties elected to transcribe the proceedings. At the hearing, the parties requested the right to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders within ten days of filing the transcript. The proposed recommended order of the Department was received and considered. Atkinson did not file a proposed recommended order.

FINDINGS OF FACT

1. Approximately ten years ago, Atkinson was charged with attempted armed robbery of a book store. Atkinson offered the following facts relating to the attempted robbery: (1) she decided to rob a book store in Georgia, (2) she secured an unloaded BB gun, (3) she entered the store, (4) she changed her mind when she encountered verbal resistance from the store clerk, (5) she ran from the store, (6) she was apprehended a few blocks from the book store, and (7) she was arrested for armed robbery.

   
   

2. Atkinson pled no contest to a lower charge of attempted theft by taking and was sentenced to four years unsupervised probation.

   
   

3. Other than the attempted theft by taking, Atkinson has no criminal record.

   
   

4. Atkinson operates a small daycare center from her home in Lynn Haven, Bay County, Florida. Because she intended to expand the facility, Atkinson filed the requisite applications with the Department. Subsequently, Atkinson's criminal record was revealed. As a result of her criminal record, Atkinson was advised that she was ineligible to hold a position caring for children. The Department notified Atkinson of her right to request an exemption.

   
   

5. Subsequently, Atkinson appeared before the Department's exemption review board, and she spoke on her own behalf. Atkinson offered neither witnesses nor exhibits at the hearing. According to the Christiane LeClair, the Department's District Screening Coordinator, Atkinson appeared to minimize the seriousness of the offense, and she did not voice true remorse for her actions. At the conclusion of the hearing, the screening committee recommended denial of her exemption request.

   
   

6. Atkinson contested the Department's decision denying her exemption. The contest resulted in this chapter 120 hearing before the undersigned administrative law judge.

   
   

7. Unlike her appearance before the screening committee, at the administrative hearing Atkinson brought six witnesses and introduced a composite exhibit. The witnesses came from varying occupational backgrounds and varying educational levels and all shared similar positive impressions of Atkinson.

   
   

8. For example, James Douglas Williams, a senior foster care counselor for the Department of Children and Family Services in Bay County, testified that Atkinson had cared for his children, that she was trustworthy, and that she was more than competent to care for children. Mr. Williams was aware of Atkinson's criminal past. He stated that her criminal past did not give him a negative impression of Atkinson, and he reasoned that the crime was a youthful indiscretion for which she has adequately paid her debt to society.

   
   

9. Mr. Luther W. McDonald, Jr. also testified on behalf of Atkinson. Mr. McDonald is a thirty-seven year veteran of the Bay County School District, and

   he has lived next door to Atkinson for the past three years. Based on Mr. McDonald's personal observations, he feels that Atkinson is well able to provide care for children. Mr. McDonald also was aware of Atkinson's criminal conviction, and like Mr. Williams, he feels that it was an isolated event that occurred over ten years ago which should not now have a negative effect on her ability to serve as a child care provider.

   
   

10. A series of satisfied parents also testified on Atkinson's behalf. Each parent testified that Atkinson had cared for their respective children and that she provided a warm, caring, and nurturing environment. They also testified that they were aware of her criminal history and that it had no impact on their decision to enroll their children in Atkinson's care.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. The parties were duly noticed of the formal hearing.

    
    

12. Section 435.04, Florida Statutes, provides that certain employees are required to undergo background screening as a condition of employment. The statute further provides that persons subject to the requisite security check are not eligible for employment if they have been found guilty of violating, among other offenses, chapter 812 (theft, robbery, and related crimes) if the offense is a felony. Because Atkinson seeks to continue employment for the care of children, she falls within the requirements of chapter 435, Florida Statutes.

    
    

13. Furthermore, because Atkinson was charged with and plead no contest to attempted theft by taking, she is not eligible for employment without receiving an exemption from the Department.

    
    

14. Section 435.07, Florida Statutes, provides that the appropriate licensing agency (the Department) may grant to any employees otherwise disqualified from employment an exemption for (1) felonies committed more than 3 years prior to the date of disqualification and (2) misdemeanors.

    
    

15. Section 453.07(3) provides that the Petitioner (Atkinson) has the burden, by clear and convincing evidence, to demonstrate that she should not be disqualified from employment. The section further provides that the Petitioner must show sufficient evidence of rehabilitation including:

    
    

    . . . the circumstances surrounding the criminal incident . . . ,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.

    
    

16. Atkinson has shown by clear and convincing evidence that she should not be disqualified from employment. Specifically, Atkinson has shown by clear and convincing evidence that she has satisfied the requisite elements of rehabilitation as enunciated in section 435.07(3), Florida Statutes.

17. With regard to the first element evidencing rehabilitation, the circumstances surrounding the event, Atkinson provided more than adequate information relating to the facts surrounding her attempted armed robbery conviction. Atkinson testified that she was in dire straits, that she was an unwed mother, and that she was in a hopeless situation. While her responses in no way justify armed robbery, they do provide an insight to her desperate condition.

    
    

18. With regard to the second element evidencing rehabilitation, the period of time that had elapsed since the incident, it is unrefuted that the incident occurred more than ten years ago. Based on the record presented, Atkinson has lived a model life since the incident and has made every attempt to lead a productive and independent life. Furthermore, as referenced earlier, section 435.07 provides that the agency may grant an exemption after "three years" if the crime was a felony or at anytime if the crime was a misdemeanor. Based on the time guidelines provided by the Legislature, Atkinson has far exceeded the time limitations contemplated by the Legislature before an exemption is considered.

    
    

19. With regard to the third element evidencing rehabilitation, the nature of the harm to the victim, the evidence indicates that no harm came to the victim (the store clerk). In fact, Atkinson testified that she immediately abandoned her plan to rob the store when she encountered verbal resistance from the store clerk. There is no evidence that any harm whatsoever came to the victim.

    
    

20. With regard to the fourth element evidencing rehabilitation, the history of the employee (Atkinson) since the incident, the evidence in the record indicates that the attempted robbery was an isolated event that occurred over ten years ago. Furthermore, the record is clear that since the armed robbery attempt, Atkinson has worked hard to overcome her criminal past and that she has had no subsequent encounter with the criminal justice system.

    
    

21. The last element evidencing rehabilitation is any evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. As referenced earlier, Ms. Atkinson offered the testimony of a series of citizens and parents who collectively testified on her behalf. The evidence overwhelmingly supports a finding that Atkinson does not present a danger if she is allowed to continue to care for children. Not only were the witnesses credible, these witnesses appeared to be loving and considerate parents who would place the welfare of their children above any other factor, including Atkinson's future. Without exception, the witnesses supported Atkinson's efforts to continue to care for children. Equally impressive was the testimony of Mr. Williams, whose profession relates directly to child welfare, and Mr. McDonald, whose career had been with the Bay County School district. While both Mr. Williams and Mr. McDonald appear to be individuals who would not compromise their strong beliefs or support for the welfare and safety of children, they too found Atkinson to be trustworthy and qualified to care for children.

    
    

22. The Department's only stated justification for denying Atkinson's exemption was because she did not appear to be sufficiently "remorseful" for her past actions. While the Department has a legislative charge to ensure that the vulnerable children of this state are protected, this charge must be enforced through the application of the controlling statutes (section 435.07(3)), Florida Statutes. Atkinson provided clear and convincing evidence for each element demonstrating rehabilitation. Rather than deny Atkinson based on those

    standards of rehabilitation, the Department relied on the purely subjective standard that Atkinson did not appear "remorseful."

    
    

23. In summary, Atkinson has proven by clear and convincing evidence that she should not be disqualified from employment. She has provided clear and convincing evidence relating to each of the statutory requirements evidencing rehabilitation. The facts of this case appear to be tailor made to the criteria contained in section 435.07. Moreover, it appears that Atkinson represents the type of individual whom the Legislature must have contemplated when it provided a "second chance" through the exemption process.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:

That the Department enter a Final Order GRANTING Atkinson's request for exemption.

DONE and ENTERED this 1st day of November, 1996, in Tallahassee, Florida.

WILLIAM A. BUZZETT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUMCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996.

ENDNOTES

1/ Mr. James Douglas Williams, Luther McDonald, Pam Joy Carson, Nancy Wirt, Colleen Beth Casa, and Stephanie Morris.

2/ Petitioner's Composite Exhibit Number1 contained a series of reference letters attesting to Atkinson's good character.

COPIES FURNISHED:

Kimberly Atkinson

516 Minnesota Avenue Lynn Haven, FL 32444

John R. Perry, Esquire

Department of Health and Rehabilitative Services, District 2 Legal Office

2639 North Monroe Street Suite 252A

Tallahassee, FL 32399-2949

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services

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

Richard Doran, General Counsel Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Room 204

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-002555

Orders for Case No: 96-002555