Upon due notice, this cause came on for formal hearing on November 6, 1996, by videoconference between Jacksonville, Florida and Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings in Tallahassee, Florida.
For Petitioner: Harry E. Siegler, pro se
Whether Petitioner is entitled to an exemption from disqualification to work in a position of special trust.
At formal hearing, Petitioner presented the oral testimony of Iris Siegler, Sue Siegler, and Shirley Drawston, and testified on his own behalf. He had ten exhibits admitted in evidence.
Respondent had seven exhibits admitted in evidence.
Due to unusual delay in the filing of the transcript by the court reporter, an order was entered to file the transcript or show cause why proposed recommended orders could not be submitted without a transcript. A transcript was filed on January 24, 1997. A post-hearing order explaining how to prepare proposed orders was mailed January 27, 1997. No proposed orders were filed.
On June 6, 1979, Petitioner went into a public restroom and attempted to use a urinal. To do so, he had to remove his sexual organ from his clothing.
An adult male dressed in beach clothing called to him, "Come here," so Petitioner turned around and took half a step. The man asked, "What do you like?" Petitioner responded, "Women. Excuse me," and faced the urinal again.
The other man, a plain-clothes law-enforcement officer, arrested Petitioner.
Petitioner was charged with Section 800.03, Florida Statutes, "exposure of a sexual organ (by masturbation) -- misdemeanor." This was a misdemeanor charge at the time
committed.
Despite there having been no masturbation, in his opinion, Petitioner pled nolo contendere, and adjudication was withheld; he was assigned six months unsupervised probation and paid a fine.
It is only on the basis of the foregoing 1979 plea that Petitioner has been disqualified from working in a position of special trust. He was notified by an April 18, 1996 letter that, pursuant to Sections 402.302(8) and 435.04(2), Florida Statutes [1995], he is disqualified as a household member in a family day care home. (Agency Exhibit 1)
Petitioner also was arrested in 1982. The record is unclear as to what statute he was charged under at that time, but he did plead guilty and was fined.
The circumstances surrounding the 1982 incident were established solely by Petitioner's testimony. He was in a department store restroom. There was a hole cut in the wall between two stalls "and apparently there was someone on the other side, the next stall that prompted me to put my sex organ through the hole in the wall." The person in the next stall was not a law enforcement officer. (TR 37-41, 43-45)1
Petitioner was arrested upon exiting the restroom.
He has not been arrested since 1982.
Petitioner has been happily married for 27 years. He and his wife have three children and five grandchildren. He and
his wife are well-loved by their own children and grandchildren. They have a history of welcoming the troubled friends of their children into their home.
The neighborhood children and Petitioner's grandchildren have always affectionately called Petitioner, "Grand-daddy" and have called Petitioner's wife, "Nanny." Their home is, and always has been, a gathering place for the neighborhood children.
Petitioner's wife runs a licensed family day care home out of the family home from 6:00 a.m. to 6:00 p.m., Monday through Friday. Although she did not know about Petitioner's 1979 incident before it was disclosed through the agency screening process, she does not believe Petitioner presents a danger to children. She believes the 1979 incident constituted "entrapment".
By a second letter dated April 18, 1996, Petitioner's wife was notified that, pursuant to Sections 402.302(8) and 435.04(2) Florida Statutes [1995] (Agency Exhibit 2), Petitioner was forbidden from having contact with any children in her family day care home and that if he is allowed to have contact with children in her care, she would be subject to an administrative fine and possible criminal penalties.
The four children currently paying to attend Petitioner's wife's day care home are respectively aged one, two, three, and four years of age.
For the last eight years, due to his trade as a self- employed leather worker, Petitioner has traveled a wide circuit from flea market to flea market throughout the week. He is only present in the family home from 10:30 p.m. Fridays to 3:00 a.m. Mondays. His wife's day care home does not operate during those periods that Petitioner is typically at home.
Petitioner is a devout Seventh Day Adventist and an elder of his local church. He is the church's Sabbath School Superintendent.
Petitioner's daughter and former daughter-in-law wrote letters entered in evidence and also testified that the family home is warm and loving and that Petitioner is a great "Grand- daddy." They rely on Petitioner and his wife for baby-sitting services. In their mutual opinion, Petitioner is not a danger to children, however some of their testimony minimized Petitioner's problems as only being "past mistakes."
Neighbors' letters to the effect that Petitioner does not pose a threat to children, is active in his church, and travels except on weekends were admitted in evidence without objection, as was a statement by his pastor that Petitioner is a man of "impeccable character." However, none of these persons was available for cross-examination, and their letters do not clearly show that they had knowledge of Petitioner's past lewd acts or any reason or opportunity to know if he had committed any subsequent ones.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.
This case was referred by the agency to the Division of Administrative Hearings only upon the Petitioner's request for an exemption.
If an exemption for Petitioner were to either be granted or denied it would ultimately be dispositive of whether or not Petitioner's wife could allow him on the home premises while any of the four paying day care clients were present.
Whether or not Petitioner has contact with other children who are not day care clients on the family day care home premises during the hours that day care is not offered apparently is not within the purview of the agency's April 18, 1996 letter to Petitioner's wife. See, Sections 402.313 and 402.3015, Florida Statutes [1993], and 402.313 and 402.302, Florida Statutes [1995].
The parties have asserted that Sections 402.302(8) and 435.04(2), Florida Statutes [1995] govern this case. Section 402.302(8), Florida Statutes [1995] provides for screening of child care personnel and provides that "personnel" shall include certain family members, one of which would be Petitioner. Section 435.04(2), Florida Statutes [1995] disqualifies, under Subsection (p), "persons who have been found guilty of,
regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under . . . Chapter 800, relating to lewdness and indecent exposure."
However, Chapter 435, Florida Statutes did not come into being until October 1, 1995, and Section 64 of Chapter 95-
228 Laws of Florida, which created it, specifically provided that "[e]xcept as otherwise provided herein, this act shall take effect October 1, 1995, and shall apply to offenses committed on or after that date."
Since there is no evidence in this record to demonstrate under what statute Petitioner was convicted in 1982, the only disqualifying offense for consideration in this case is Petitioner's 1979 "no contest" plea to Section 800.03, Florida Statutes.2
Therefore, the date of Petitioner's sole disqualifying offense relative to the evolution of Chapters 402, 403, 409, and 435, Florida Statutes, is crucial to disposition of this case. At the time of Petitioner's act and plea of nolo contendere in 1979, the charge he pled to [Section 800.03, Florida Statutes] was only a misdemeanor and there was as yet no agency screening process in place which would automatically disqualify him from
working in a position of special trust. When the first universal screening procedures were enacted in 1984-1985, Petitioner still would not have automatically been disqualified because the statute only disqualified persons who had been found guilty of,
regardless of adjudication, or entered a plea of nolo contendere or guilty to any FELONY prohibited under Chapter 800, Florida Statutes. Since Petitioner had only pled nolo contendere to a misdemeanor under Chapter 800 in 1979, he still would not have been screened out in 1985. Only in 1986 or 1987 did the applicable statute, Section 402.305, Florida Statutes, begin to disqualify persons who had entered nolo contendere pleas to any and all OFFENSES charged under Chapter 800, including misdemeanors.
For the foregoing reasons, Petitioner should never have been disqualified in 1996 for acts/offenses which, when committed, would not have disqualified him.3
If Petitioner had been correctly statutorily disqualified due to the 1979 incident, it would have been Petitioner's burden to prove herein by clear and convincing evidence that he is of current good moral character and does not present a danger to children pursuant to Section 435.07(3), Florida Statutes [1995, 1996], which is virtually identical to all its predecessor statutes.
Section 435.07(3), Florida Statutes [1996] provides, in pertinent part,
In order for a licensing department to grant an exemption to any employee, 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 set forth in chapter 120.
If Petitioner had been correctly statutorily disqualified for his 1979 act and nolo contendere plea, the events as described by Petitioner surrounding his 1982 arrest and conviction could be considered as part of the statutory element, "the history of [the person] since the incident," even if that 1982 arrest and conviction were not disqualifying events in themselves. See Conclusions of Law 26-28 with endnotes.
The circumstances surrounding Petitioner's 1979 disqualifying offense seem innocent enough as described by him and may border on his entrapment by law-enforcement personnel. However, the circumstances three years later, in 1982, when Petitioner stuck his sexual organ through a hole in a men's room stall on the request of an unseen person is neither innocent or naïve. His "prompter" was not a law enforcement officer, so there was no issue of entrapment. In 1982, Petitioner's behavior was clearly knowing and volitional. It was also clearly both perverse and perverted. Persons who engage in this type of lewd and indecent behavior may be reasonably presumed to be dangerous to children. At the very least, the 1982 incident was a serious
lapse of judgment which could warrant an ordinary prudent person concluding that Petitioner should not be authorized to work in a position of special trust or to be present in a family day care home.
The remainder of the evidence, on its face, shows that Petitioner has had no arrests for lewd or indecent behavior for the last fifteen years and is the trusted Sabbath School Superintendent of his church. He is gainfully employed and is respected in his family, church, and community.
Notwithstanding the glowing reports of Petitioner's family members and the absence of any subsequent arrests, the record does not provide adequate information on whether or not Petitioner has committed any subsequent lewd acts. The family members seem sincere, but have denied or minimized the 1979 incident. They also have personal reasons for testifying on Petitioner's behalf. The testimonial letters of others are credible so far as they go, but the writers' knowledge of, and experience with, Petitioner are severely limited.
The clear and convincing evidence test is a stringent one. "Clear and convincing evidence" requires that the evidence must be found to be credible; the facts to which the witnesses testify must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction without hesitancy, as to the
truth of the allegations sought to be established. See, Smith vs. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988); Slomowitz vs. Walker, 429 So.2d 797 (Fla. 4th DCA 1983).
Herein, Petitioner has alleged that he is not a danger to children, and the undersigned is not convinced, without hesitancy, that his allegation is true. However, since he was not subject to disqualification on the basis of the 1979 offense in the first place, he cannot be barred from a position of special trust on that basis.
Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1997.
1 The agency prefiled its Agency Exhibit 5, the 1979 arrest report and disposition. Attached thereto was a second page which records the 1982 guilty plea and shows a fine was paid. Petitioner did not object to admission in evidence of any part of Agency Exhibit 5 but thereafter objected to inquiry about the 1982 events "because no exhibit had been tendered to him to cover it." This objection was overruled as insufficient at law, and Petitioner testified to the events of 1982 himself. It was only in the course of preparing the recommended order that the undersigned determined that the 1982 exhibit was, in fact, in evidence. Petitioner's testimony, however, is sufficient to support Findings of Fact 7 and 8.
2 Because Petitioner only paid a fine, it is probable that his 1982 guilty plea and conviction were for a misdemeanor, but it could have been under a different statute than Chapter 800, Florida Statutes. It could have been under another statute listed as disqualifying one from child care or a non-qualifying statute.
3 There is no way to determine from this record if the 1982 conviction, by itself, would disqualify Petitioner. See, Endnote 2.
Gregory D. Venz, Clerk
Richard A. Doran General Counsel
Harry E. Siegler
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.
