STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVIE HUNT )

)

Petitioner, )

)

vs. ) CASE NO. 96-2775

)

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: Stevie Hunt

714 East 8th Court

Panama City, Florida 32401

For Respondent: John R. Perry, Esquire

Department of Health and Rehabilitative Services

2639 North Monroe Street, Suite 252-A 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 May 13, 1996, the Respondent, Department of Health and Rehabilitative Services (hereinafter the "Department"), advised the Petitioner, Stevie Hunt (hereinafter "Hunt"), that he was ineligible to hold a position of special trust.

The letter also determined that Hunt was not eligible for an exemption to the ineligibility determination. Hunt 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, Hunt testified on his own behalf, and he called two witnesses. 1/ Hunt offered no exhibits. At the hearing, the Department cross- examined Hunt and his witnesses, called one witness, Christiane LeClair, and submitted one exhibit that was entered into evidence without objection. 2/

The parties elected not 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 by September 30, 1996. The proposed recommended order of the Department was received and considered. Hunt did not file a proposed recommended order.

FINDINGS OF FACT

1. On September 23, 1995 Hunt was charged with battery on his wife. The facts surrounding this incident are limited, but essentially the evidence indicated that Hunt struck his wife with a closed fist. Subsequently, Hunt pled no contest to the charge and was sentenced to 30 days imprisonment and nine months supervised probation.

   
   

2. Approximately six months after the above-referenced battery, Hunt began work at Bayshore Cluster, a residential facility that houses non-ambulatory residents with severe developmental disabilities, located in Panama City, Florida.

   
   

3. Based on Hunt's conviction of battery on his spouse, the Department advised Hunt that he was ineligible to hold a position caring for the developmentally disabled. The Department also advised Hunt that he was ineligible for a statutory exemption.

   
   

4. Hunt contested the decision of the Department that denied him an exemption for employment in a position for which a security background check is required pursuant to Sections 435.03 and 435.04, Florida Statutes. The contest resulted in this Chapter 120 hearing before the undersigned Administrative Law Judge.

   
   

5. At the hearing, Hunt failed to take responsibility for battering his wife. In fact, Hunt attempted to shift the blame for the incident by claiming that his wife initiated the dispute that resulted in the battery.

   
   

   CONCLUSIONS OF LAW

   
   

6. 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.

   
   

7. Section 435.04, Florida Statutes, 3/ 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, domestic violence as defined in Section 741.30, Florida Statutes. Because Hunt seeks to continue employment caring for the developmentally disabled, he falls within the requirements of Chapter 435, Florida Statutes.

   
   

8. Section 741.30, Florida Statutes, defines "domestic violence" as "any assault, [battery], sexual assault . . . resulting in physical injury or death of one family or household member by another who is or was residing in the same single dwelling unit." [emphasis provided].

9. Because Hunt was charged with and pled no contest to battery on his wife (domestic violence), he is not eligible for employment without receiving an exemption from the Department.

   
   

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

    
    

11. Section 435.07(3) provides that the Petitioner (Hunt) has the burden, by clear and convincing evidence, to demonstrate that he 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.

    
    

12. Hunt has failed to show by clear and convincing evidence that he should not be disqualified from employment. Specifically, Hunt failed to show by clear and convincing evidence that he has satisfied the requisite elements of rehabilitation as enunciated in Section 435.07, Florida Statutes.

    
    

13. With regard to the first statutory element evidencing rehabilitation, the circumstances surrounding the event, Hunt's responses and justifications surrounding the battery of his wife were inadequate. Specifically, Hunt had stated that the Department did not take into consideration whether his wife started the altercation that resulted in the battery. Hunt's response is unacceptable. Identifying the person who initiated the altercation is of no consequence in this matter and really serves to demonstrate Hunt's inability to take complete responsibility for his actions.

    
    

14. With regard to the second statutory element evidencing rehabilitation, the period of time that had elapsed since the incident, Hunt is unable to satisfy this element. Hunt's battery of his wife only occurred twelve months ago. Therefore, insufficient time has elapsed to illuminate whether this battery was an isolated event or a pattern of behavior.

    
    

15. With regard to the third statutory element evidencing rehabilitation, the nature of the harm to the victim, no evidence was offered.

    
    

16. The only relevant testimony offered by Hunt was the testimony of co- workers who believed that Hunt was hard working, diligent, and non-violent. While these witnesses appeared credible, their exposure to Hunt was limited to essentially three months - which is too short a period of time to draw a conclusion relating to his behavior or his disposition for violence.

    
    

17. In summary, Hunt should not receive an exemption. The record in evidence reveals a person who battered his wife. Furthermore, the battery was too recent in time to conclude whether it represented an isolated event or whether it evidences Hunt's propensity for violence. In either event, the

welfare of the developmentally disabled is at stake, and Department correctly sided with its clients. The Department's denial of Hunt's request for an exemption was correct.

RECOMMENDATION

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

That the Department enter a Final Order and therein DENY Hunt's request for exemption.

DONE and ENTERED this 29th day of October, 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 29th day of October, 1996.

ENDNOTES

1/ Ms. Lou Jean Roulhach, Hunt's co-worker at Bayshore Cluster, and Francis Sheffield, Hunt's supervisor.

2/ Respondent's Composite Exhibit Number 1 consists of a final judgment and sentence of Stevie Hunt and related documents associated with his charge of battery and domestic violence.

3/ In addition to the general background screening requirements contained in Chapter 435, Florida Statutes, Section 393, Florida Statutes, provides minimum standards for caretakers of the developmentally disabled. The procedures and requirements relating to exemptions appear to be identical, and both sections provide that domestic violence is grounds for exclusion from employment.

COPIES FURNISHED:

John R. Perry, Esquire Department of Health and

Rehabilitative Services

2639 North Monroe Street, Suite 252-A Tallahassee, Florida 32399-2949

Stevie Hunt

714 East 8th Court

Panama City, Florida 32401

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 7, Suite 204-X 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran, Esquire Department of Health and

Rehabilitative Services Building 7, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 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: 96-002775

Orders for Case No: 96-002775