STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTOR BUSH, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3236

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in the above-style case on October 4, 1996, in Chattahoochee, Florida, by Stephen F. Dean, Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Victor Bush, Pro se

Route 1, Box 689

Chattahoochee, Florida 32324

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 THE ISSUES

Whether the Petitioner is subject to disqualification under the statutes,

and

Whether the Petitioner should be granted an exemption.

PRELIMINARY STATEMENT

Petitioner applied for and was employed in December 1995 as a human service

worker at the State Hospital at Chattahoochee. The background investigation which resulted from the required screening revealed Petitioner's plea to grand theft in 1992. The Respondent advised the Petitioner that he was disqualified from employment, but eligible to request an exemption. The Department of Health and Rehabilitative Services denied his exemption request after an appearance before its review committee. Thereafter, Petitioner requested a formal hearing, and, the matter was forwarded to the Division of Administrative Hearings to conduct a formal hearing in the case.

The case was set for hearing pursuant to notice on October 4, 1996. The Petitioner testified in his own behalf and introduced into evidence letters of

recommendation and his request for exemption. The Respondent introduced the records of Petitioner's plea of nolo contendere to grand theft entered into in September, 1992.

The Department filed a post hearing pleading which was read and considered.

The Respondent filed a letter which was read and considered.

FINDINGS OF FACT

1. In 1992, Petitioner acted as a look-out for Raymond Dickens when Raymond Dickens stole a set of tire rims from the Chevrolet dealer in Quincy. While acting as the look-out, Petitioner decided to disassociate himself from this act, and Petitioner reported the theft, which was in progress, to the police.

   
   

2. The police investigated, and spoke with Petitioner about it. Petitioner admitted his part in the theft, identified Dickens and plead nolo contendere to grand theft.

   
   

3. On September 23, 1992, the Court withheld adjudication, and placed Petitioner on probation for 18 months. In nine months Petitioner satisfactorily completed the probation.

   
   

4. Thereafter, Petitioner took a course in Jacksonville on how to operate heavy equipment, and learned how to drive tractor trailers. His father, who had been a tractor trailer driver until he was injured, gave Petitioner a truck, and Petitioner began to drive with his father who continued to teach him how to be a driver.

   
   

5. In 1995, Petitioner was self-employed or driving on contract for several companies. However, in fall of 1995, Petitioner's father did not want to be on the road, and Petitioner applied for and was employed as a human service worker at the State Hospital at Chattahoochee.

   
   

6. The background investigation revealed Petitioner's plea to grand theft in 1992, and Petitioner was disqualified from employment. Petitioner requested an exemption, and the Department of Health and Rehabilitative Services denied his request after an appearance before its review committee.

   
   

7. Thereafter, Petitioner requested a formal hearing, and, in the interim, was employed as a dump truck driver in Tallahassee until approximately six weeks prior to the formal hearing.

   
   

8. Most recently, Petitioner has been putting his truck in order to take it back out on the road.

   
   

9. Petitioner wanted an exemption to do work as a human service worker because he did it for five months, did a good job, and enjoyed it although it does not pay as much as truck driving.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and parties pursuant to Section 120.57, Florida Statutes.

    
    

11. The Petitioner's employment as a human services worker with the Department of Health and Rehabilitative Services was terminated based upon his

    1992 plea of nolo contendere to a charge of grand theft. The Respondent, Department of Health and Rehabilitative Services, does not specify the statutory basis upon which it screened the Petitioner in the first instance or the basis upon which it based its denial of his exemption.1 However, the facts reveal that the Respondent denied the Petitioner's exemption request because he had plead nolo contendere to a charge of grand theft in 1992.

    
    

12. Presumably, the screening of the Petitioner was pursuant to the provisions of Section 37 of Chapter 95-228, Laws of Florida, which provided in pertinent part as follows:

    
    

    1. SCREENING OF MENTAL HEALTH PERSONNEL.

       1. The department shall require employ- ment screening pursuant to chapter 435 using the standards for level 1 screening set forth in that chapter.

          
          

          Section 435.03: Level 1 screening standards.

          1. All employees required by law to be screened shall be required to undergo back- ground screening as a condition of employment

             and continued employment. For the purposes of this subsection, level 1 screenings shall include, but not be limited to, employment history checks and statewide criminal correspondence checks through the Florida Department of Law Enforcement, and may include local criminal records checks through local law enforcement agencies.

          2. Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:

             * * *

             (r) Chapter 812, relating to theft, robbery, and related crimes, if the offense was a felony.

             
             

13. This provision would, on its face, prohibit the employment of the Petitioner, who entered a plea of nolo contendere to a charge of grand theft, a felony offense under Chapter 812. However, Section 64 of Chapter 95-228, Laws of Florida, stating the effective date of the law provides as follows:

    
    

    Section 64. Except as otherwise provided herein, this act shall take effect October 1, 1995, [and shall apply to offenses committed on or after that date]. [Emphasis supplied.]

    
    

14. The provision under which the Respondent screened the Petitioner was not retroactive in its effect, and did not include within its prohibitions Petitioner's plea entered in 1992. At the time Petitioner entered his plea and

    up until the effective date of Chapter 95-228, Laws of Florida, the screening provisions stated as follows:

    
    

    1. SCREENING OF MENTAL HEALTH PERSONNEL.

       1. The department shall establish

    minimum standards as to good moral character, based on screening, for mental health personnel. Such minimum standards for screening shall ensure that no mental health personnel have been found guilty of, regard- less of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:

    * * *

15. Section 812.13, relating to robbery.

1. This quoted provision makes no mention of theft as defined by Chapter 812. Robbery is theft by force. It is by definition a violent, personally threatening crime. The Petitioner did not enter a plea of nolo contendere to robbery. The Petitioner would not have been precluded from employment by the law existing at the time of the entry of his plea.

   
   

2. The offense to which Petitioner entered his plea occurred in 1992, over three years prior to October 1, 1995. The statute under which the Respondent seeks to screen the Petitioner was not effective until October 1, 1995, and was by it terms only applicable to offenses committed on or after that date. Therefore, Petitioner is not precluded from employment by the terms of the law.

   
   

3. Further, the facts reveal that the Petitioner sought to disassociate himself from the criminal act prior to its completion. He reported the act to the police, and confessed to his part in the conspiracy. He was not adjudicated, but was placed on probation which he completed successfully. He has not committed any other criminal offenses since then. He has been self- supporting and gainfully employed as a truck driver for which he trained after his plea. He was employed for five months by the Respondent, and performed his duties well and without any problems. If it were necessary for the Petitioner to have an exemption, he is entitled to an exemption on the facts presented.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that Victor Bush be determined not to be required to obtain an exemption because the disqualification which was applied to him was not effective until after the date of commission of the disqualifying offense, or alternatively, that Victor Bush be granted an exemption if the Department determines one is required.

DONE AND ENTERED this 28th day of October, 1996, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996.

ENDNOTE

1/ The Department's failure to advise the Petitioner of the statute which requires screening and the portion specifically applicable to him constitutes a potential denial of due process.

COPIES FURNISHED:

Victor Bush Route 1 Box 689

Chattahoochee, FL 32324

John R. Perry, Esquire

HRS 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, Suite 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: 96-003236

Orders for Case No: 96-003236