STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERNEST PEACOCK, )

)

Petitioner, )

)

vs. ) CASE NO: 96-4310

)

DEPARTMENT OF CHILDREN )

AND FAMILIES, )

)

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 January 14, 1997, in Panama City, Florida.

APPEARANCES

For Petitioner: Ernest Peacock

c/o Debbie Smith

434 Water Oak Street

Panama City, Florida 32408

For Respondent: John R. Perry, Esquire

Department of Children and Families 2639 North Monroe Street, Suite 252-A Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

Whether the Petitioner, defined as “personnel” under Section 402.302, should be granted an exemption pursuant to Chapter 435, Florida Statutes.

PRELIMINARY STATEMENT

By letter dated August 23, 1996, the Respondent, the Department of Children and Families, advised the Petitioner, Ernest Peacock, that he was ineligible to hold a position of special trust. The letter also determined that Mr. Peacock was not eligible for an exemption to the ineligibility determination, in part, because of his past criminal record. Mr. Peacock 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, Ms. Debbie Smith appeared as the representative for Mr. Peacock. Because Ms. Smith was a non- attorney, the undersigned administrative law judge made an inquiry of Ms. Smith’s qualifications and subsequently determined, pursuant to Rule 60Q-2.008, Florida Administrative Code, that Ms. Smith would not impair the flow of the proceedings and that, in light of Mr. Peacock’s acceptance of Ms. Smith, Ms. Smith was qualified. The Department offered no objection to Ms.

Smith’s participation in the hearing.

At the hearing, Mr. Peacock briefly testified on his own behalf and called two witnesses, Ms. Debbie Smith (his representative) and Mr. Ray Smith. No exhibits were offered into evidence. At the hearing, the Department cross-examined Mr.

Peacock, Mr. Smith, and Ms. Smith, called two witnesses, Chris LeClair and Martin Cox, and submitted two exhibits that were entered into evidence.

At the conclusion of the hearing, the undersigned determined that Mr. Peacock needed the opportunity to call an expert witness, his treating counselor or psychiatrist. To that end, the hearing was continued to February 20, 1997. A hearing was held at the Life Management Center in Panama City, Florida. At that hearing, Ms. Smith called Edward Gibson, M.D., Mr. Peacock’s treating psychiatrist. The Department cross-examined Dr. Gibson and no further exhibits were offered by either party.

The parties elected not to transcribe the proceedings. At the hearing, the Department requested the right to file proposed findings of fact and conclusions of law in the form of a Proposed Recommended Order by March 2, 1997. Ms. Smith declined the opportunity to file a proposed recommended order. The Department’s proposed recommended order has been read and considered.

FINDINGS OF FACT

1. Mr. Peacock was involved in a motorcycle accident in 1971. As a result of the accident, Mr. Peacock suffered severe trauma to his brain.

2. Presently, Mr. Peacock is 46 years old. He appears to be mentally and physically disabled and requires constant physical care.

3. Ms. Smith operates a licensed child care facility in Panama City, Bay County. The facility is located in her home.

4. Ms. Smith acts as Mr. Peacock’s caregiver. She considers herself as his “guardian,” and he lives in her home.

5. Ms. Smith is not related to Mr. Peacock, and she has not been appointed guardian by any court of law.

6. Because Mr. Peacock lives in the same structure that houses Ms. Smith’s child care facility, he is subject to the screening laws applicable to employees.

7. Immediately prior to and following his accident, Mr. Peacock was arrested and convicted of two separate criminal charges.

8. In 1970, Mr. Peacock was convicted of petty theft.

   
   

9. In 1981, Mr. Peacock was convicted of an eight-count charge including grand theft.

10. Christiane LeClair is a background screening coordinator employed by the Department of Children and Families. As part of her duties, Ms. LeClair reviews applications to determine if applicants are worthy of positions of special trust. Ms. LeClair determined that Mr. Peacock was not qualified because of his past criminal convictions and because of his mental condition. Specifically, she expressed concern that his behavior was unpredictable and that he was not suitable for being in close contact with children.

11. Mr. Martin Cox is the Deputy District Administrator for the Department of Children and Families, District 2, in Panama City, Florida. Similar to Ms. LeClair, Mr. Cox expressed concern over Mr. Peacock’s unpredictable behavior. He expressed sympathy for Mr. Peacock, but countered that the well-being of the children was the Department’s overriding concern.

12. Dr. Edward Gibson is a licensed physician in the State of Florida, specializing in psychiatry. Dr. Gibson has been a psychiatrist for five years. Before entering the field of psychiatry, Dr. Gibson was a physician specializing in internal medicine.

13. Dr. Gibson has treated Mr. Peacock for the past six months. During the six month period he has seen Mr. Peacock for three fifteen-minute sessions. Mr. Peacock has been diagnosed with a mental illness called organic brain disorder resulting from a physical trauma to his brain. The symptoms of organic brain disorder include rapid mood swings and impulsive behavior. Dr. Gibson treats Mr. Peacock’s condition with two drugs, Sinequan and Mellaril.

14. In July 1996, Dr. Gibson adjusted Mr. Peacock’s medication because it had been reported that he displayed aggressive behavior. With proper medication, it appears that the symptoms associated with organic brain disorder are kept under control.

15. Dr. Gibson testified that if Mr. Peacock failed to maintain his treatment of Sinequan or Mellarill, Mr. Peacock would undergo rapid mood swings, poor control, and impulsive behavior.

    CONCLUSION OF LAW

    
    

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

17. Section 402.305, Florida Statutes, relates to licensing standards for child care facilities. In particular, subsection

    (2) provide minimum standards for child care personnel and provides that such personnel must meet the level 2 standards for screening set forth in Chapter 435. The subsection further provides that persons disqualified may be granted exemptions as provided by section 435.07, Florida Statutes.

18. For the purpose of the licensing standards referenced in section 402.305, “personnel” has been defined to include, among others, “a person, over the age of 12 years residing with a child care facility operator if the child care facility is located in or adjacent to the home of the operator.” Because Mr. Peacock is over the age of 12 and because he resides with Ms. Smith in a house that also houses her child care facility, Mr. Peacock is considered “personnel” within the requirements of

    section 402.302, Florida Statutes. Therefore, as personnel, Mr. Peacock is subject to the screening requirements of Chapter 435.

19. Section 435.03, Florida Statutes, provides the background screening as a condition of employment. The statute further provides that person subject to the requisite security check are not eligible for employment if they have been found guilty of violating, among other statutes, Chapter 812 (theft, robbery, and related crimes).

20. Mr. Peacock was convicted of the felony of grand theft. As a result of his conviction, he is not eligible to reside in a home that serves as a child care facility unless he receives an exemption pursuant to Section 435.07, Florida Statutes.

21. 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.

22. Based on the requirements of section 435.07, Florida Statutes, Mr. Peacock is eligible for consideration for an exemption from disqualification because his conviction date for grand theft was June 10, 1981 - more than fifteen years ago.

23. The requirements of section 435.07, however, are permissive. Section 435.07(3) provides that the Petitioner has the burden, by clear and convincing evidence, to demonstrate that he should not be disqualified under the statute. 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. (emphasis provided).

24. Mr. Peacock has partially met his burden under Section 435.07, Florida Statutes, but fails to satisfy all the requirements of the section.

25. First, with regard to criminal offenses cited by the Department as support for denying the exemption, Mr. Peacock has met his burden. He has proven that the events occurred over fifteen years ago and that there was no harm to the victim.

26. With regard to rehabilitation, Mr. Peacock is nether physically or mentally capable of conducting a similar criminal activity. His physical condition has deteriorated to such a degree that he appears totally disabled and completely incapable of attempting to pursue any criminal activity. Therefore, it appears that he is rehabilitated even though his rehabilitation could be classified as involuntary rehabilitation.

27. The focus of review in this matter rests with the last prong of the test found in section 435.07(3) - “any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed.” The Department takes the position that because Mr. Peacock has been

    diagnosed with organic brain disorder and because he takes Sinequan and Mellaril he presents a danger to the children because his behavior is unpredictable.

28. The Department’s concern appears to be supported by Dr. Gibson’s testimony. In particular, the testimony was clear that persons suffering from organic brain disorder are subject to mood swings. The evidence is also clear that if Mr. Peacock’s medication is not maintained at the correct dosage or if he ceases to take the medication, he could be subject to rapid mood swings and poor impulsive control.

29. Mr. Peacock has failed to meet his burden under Section 437.07, Florida Statutes. Specifically, he has failed to proved by clear and convincing evidence that he will not present a danger is he is allowed to stay in the same facility that houses Ms. Smith child care facility.

30. In summary, both the undersigned and the Department are sympathetic to Mr. Peacock’s plight. However, the Department must balance the rights of Mr. Peacock against its duty to protect the children of this state. When weighing both interests, the Department rightfully erred on the cautious side of protecting the children. It is important to note that Ms. Smith should be commended for unselfishly giving her time and effort to assure Mr. Peacock’s well-being. To that extent, it is unfortunate that that this ruling will create an additional hardship and burden on her and Mr. Peacock.

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 Mr. Peacock’s request for an exemption.

DONE and ORDERED this 12th day of March, 1997, at 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 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997.

COPIES FURNISHED:

Ernest Peacock c/o Debbie Smith

434 Water Oak Street Panama City, FL 32401

John R. Perry, Esquire

Department of Children and Families 2639 North Monroe Street

Suite 252A

Tallahassee, FL 32399-2949

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

1317 Winewood Boulevard

Tallahassee, FL 32399-0700

Richard A. Doran, General Counsel Building 2 Room 204

1317 Winewood Boulevard

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 Recommenced 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: 96-004310

Orders for Case No: 96-004310