STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA WARREN, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3820

)

DEPARTMENT OF CHILDREN )

AND FAMILIES, f/k/a ) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A Formal Hearing was heard before the Division of Administrative Hearings by its duly designated Administrative Law Judge, Daniel M. Kilbride, on November 21 and December 2, 1996 in Melbourne, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Burton J. Green, Esquire

43 South Atlantic Avenue Cocoa Beach, Florida 32931

For Respondent: Carmen Sierra, Esquire

District 7 Legal Office

Department of Children and Families

400 West Robinson Street Orlando, Florida 32801-1782

STATEMENT OF THE ISSUE

Whether the Petitioner has presented clear and convincing evidence that she is of good moral character so as to receive an exemption from disqualification from employment transporting

adults who are developmentally disabled, under Section 435.07, Florida Statutes (1995).

PRELIMINARY STATEMENT

This proceeding is the result of Petitioner’s request for an exemption from disqualification which was denied by the District Administrator, by letter dated July 18, 1996. Thereafter, Petitioner requested a formal hearing before the Division. The disqualification is the result of Petitioner’s conviction of a disqualifying misdemeanor. Petitioner is seeking an exemption so that she may continue to be employed by a regional transportation authority to transport developmentally disabled adults from their home to other destinations in the community.

At the hearing Petitioner testified in her own behalf and presented the testimony of Leona McKinney, her immediate supervisor; Don Lusk, SCAT Director; and Jeffrey Herndon, her supervisor at her previous employment; and Andrea Coles, a friend and former co-worker; and offered no exhibits in evidence.

Respondent offered six exhibits in evidence. The parties stipulated to four findings of fact which were admitted.

The transcript of the hearing was prepared and filed on December 30, 1996. The telephone testimony of the witness Herndon was filed on the same date. Petitioner filed her proposed findings of fact and conclusions of law on January 2, 1997. Respondent has not filed proposed findings of fact and conclusions of law as of the date of this order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner was found guilty of prostitution under Section 796.07, Florida Statutes (1973), on December 21, 1973, in Dade County, Florida. Adjudication of guilt was withheld and Petitioner was placed on probation for a period of six (6) months. Petitioner successfully completed probation.

2. Petitioner was found guilty of driving under the influence, and two companion civil traffic infractions, in Dade County, Florida on or about June, 1974. Adjudication of guilt was withheld and Petitioner was placed on probation for a period of three (3) months. Petitioner successfully completed probation.

3. Petitioner was convicted of a misdemeanor charge of possession of marijuana on April 2, 1982 in Pinellas County, Florida and was sentenced to time served in the county jail.

4. Petitioner has not been arrested or convicted for any criminal offense since 1982.

5. Petitioner is currently employed by Brevard County, Florida as a Vehicle Operator I, para-transport, assigned to the Space Coast Area Transit (SCAT) section. As a condition to Petitioner’s employment she is required to have a commercial driver’s license (CDL) with a P endorsement, Class B. Her duties

   with SCAT require that Petitioner pick-up and return people needing home transportation, including developmentally disabled individuals.

6. When Petitioner is assigned to pick up handicapped persons, she does not operate a bus along a scheduled route, but picks up individuals at their home or other locations as indicated on a manifest provided at the beginning of each work day.

7. Petitioner did not disclose her criminal record on her employment application for her position with SCAT. Employment screening under Florida law was not being required by Petitioner’s employer at the time that Petitioner applied for her position with SCAT.

8. No evidence was introduced to show Petitioner was required to make such a disclosure at the time she was hired.

9. At the time that she completed her employment application Petitioner was under the impression that she did not have to disclose the prostitution charge. Petitioner believed that this charge would be removed from her record after she successfully completed probation.

10. As to the remaining charges, assuming Petitioner was required to disclose her prior criminal record, Petitioner believed that disclosure of those charges were appropriate but chose not to disclose them on the application for fear that if she did she would not be hired. At the time that Petitioner

    filled out and signed her application for employment, she knew that she was not disclosing this information.

11. At the time that Petitioner applied for the position with SCAT she was separated from her husband and not receiving any financial assistance from him. Petitioner was under financial pressure as she was the sole support for herself and her teenage son who lived with her.

12. Petitioner did not disclose her prior criminal record to her Department Director, Don Lusk, prior to the July 11, 1996 exemption hearing. She did discuss her history with Mr. Lusk after the hearing. Petitioner’s reasons for not disclosing this information was that she was embarrassed by these facts and wanted to put them behind her. She did not believe that the prostitution charge had to be disclosed. Lusk felt that Petitioner’s explanations to him were candid and would not effect her employment status.

13. In regard to the 1973 prostitution charge, Petitioner, who was then 22 years old, was unemployed and in need of money. A casual acquaintance of hers suggested that she could make some money by offering sex for money and that the acquaintance could make all of the arrangements. Petitioner agreed, let her acquaintance make the arrangements, and went with her to meet some men. The men turned out to be undercover police officers who arrested Petitioner. No sex acts took place and no evidence was presented that any would have taken place but for

    Petitioner’s arrest. This was Petitioner’s first and only act of solicitation.

14. There is no evidence which indicates that Petitioner has again been involved in any act of prostitution since the 1973 incident.

15. Leona McKinney, Petitioner’s immediate supervisor during the entire time of her employment with SCAT; Don Lusk, SCAT’s Director; and Jeffrey Herndon, Petitioner’s supervisor at her previous employment as a tour bus driver escort at Spaceport USA, Kennedy Space Center, Cape Canaveral, Florida, all indicated that there have never been any problems with the Petitioner’s job performance or related duties as a bus driver. Her employment history has been good. No complaints had ever been made or filed against her in connection with the performance of her job duties.

16. Lusk indicated that he was satisfied with Petitioner’s performance of her duties. In his opinion, Petitioner did not pose any danger to SCAT’s clientele.

17. Both Lusk and Herndon indicated that, based on Petitioner’s employment history with them, and notwithstanding her failure to have disclosed the prior criminal charges, that her employment would be continued and that she would be eligible for rehire.

18. The failure of Petitioner to obtain an exemption will affect her employability with SCAT. Without an exemption, the Petitioner would not be able to perform the duties required of

    SCAT vehicle operator to transport developmentally handicapped individuals. This would pose scheduling problems for SCAT.

19. Petitioner drinks socially and responsibly. Petitioner appears to handle stress in her life adequately without recourse to alcohol or drug use.

20. Although SCAT performs random drug testing of all its employees, including Petitioner, there is no record of any adverse drug test results on Petitioner.

21. There is no evidence that Petitioner has ever endangered any of the people whom she transports while driving for SCAT or while she drove for Spaceport USA.

22. Petitioner testified with candor and credibility, and is worthy of belief.

23. Petitioner has demonstrated that she is rehabilitated and will not present a danger to disabled adults if continued employment is allowed.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes (1995).

25. Under subsection 393.0655, Florida Statutes (1995), Respondent is required to conduct a screening of employees hired to work as direct service providers for the developmentally disabled.

26. Conviction of a crime under Chapter 796, relating to prostitution, is a bar to employment in positions of trust or responsibility. Section 435.06, Florida Statutes (1995).

27. Section 435.06(2), Florida Statutes (1995), states as follows:

    The employer must either terminate the employment of any of its personnel found to be in noncompliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to Section 435.07 Florida Statutes.

28. Respondent may grant to any employee otherwise disqualified from employment an exemption from disqualification from working with disabled adults for misdemeanors prohibited under the following conditions:

    . . . the employee must demonstrate any 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 under Chapter

    120. Subsection 435.07(1)(b)(3), Florida

    Statutes (1995).

29. Petitioner has presented clear evidence as to the circumstances surrounding the disqualifying crime and that there has been no repetition of the offending conduct on her part during the past 23 years. This is more than sufficient time to demonstrate, by clear and convincing evidence, that she has, in fact, been rehabilitated. Petitioner has demonstrated that she has lived as a law-abiding citizen in the community for more than

    14 years. Petitioner will not present a danger to those entrusted to her care, if continued employment is allowed.

30. There exists no legal reason why Petitioner should not be granted an exemption from disqualification based upon the 1973 prostitution charge. Said charge is too remote in time and is not sufficiently related in circumstances to the duties performed by Petitioner as a vehicle operator with SCAT to deny her an exemption. See: Antel v. Department of Business and Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988).

31. The fact that Petitioner did not disclose her entire criminal history on her application, assuming she were required to do so, in light of the facts existing at the time of her failure to disclose, does not warrant the denial of an exemption in this case.

32. Because of Petitioner’s candor, conduct and high recommendations, and more than sufficient time to demonstrate rehabilitation, Petitioner has become eligible for an exemption.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Petitioner’s request for exemption from disqualification for employment in transporting developmentally disabled adults be GRANTED.

RECOMMENDED this 6th day of February, 1997, at Tallahassee, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.

COPIES FURNISHED:

Burton J. Green, Esquire

43 South Atlantic Avenue Cocoa Beach, Florida 32931

Carmen Sierra, Esquire District 7 Legal Office

Department of Children & Families

400 West Robinson Street Orlando, Florida 32801-1782

Gregory D. Venz, Agency Clerk Department of Children & Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran, Esquire

Department of Children & Families 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: 96-003820

Orders for Case No: 96-003820