STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM BROWN, )

)

Petitioner, )

)

vs. ) Case No. 96-5338

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on April 16, 1997, and December 2, 1997, in Lakeland, Florida.

APPEARANCES

For Petitioner: William Brown, pro se

504 West Halmcrae Boulevard Avon Park, Florida 33825

For Respondent: Jack Emory Farley

Chief Legal Counsel District 14

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030 STATEMENT OF THE ISSUE

Should Petitioner's request for exemption from disqualification pursuant to Section 435.07, Florida Statutes, be granted?

PRELIMINARY MATTERS

By letter dated October 9, 1996, the Department of Children and Family Services (Department) advised Petitioner that he was not eligible for employment in positions for which background screening was required by law. The Department further advised Petitioner that he could request exemption from disqualification. Petitioner made a timely request for exemption from disqualification. Subsequently, the Department, after allowing Petitioner the opportunity to present additional evidence, considered Petitioner's request for exemption. By letter dated October 22, 1996, the Department advised Petitioner that his request for exemption from disqualification had been denied, and further advised Petitioner that he could request a hearing under Chapter 120, Florida Statutes, to contest the denial. Petitioner made a timely request to the Department for a formal hearing.

By a Notice dated November 6, 1996, the Department referred this matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a hearing.

At the hearing on April 16, 1997, Petitioner testified on his own behalf but offered no documentary evidence. At the hearing on April 16, 1997, the Department presented the testimony of Melinda Bozeman. Department's Exhibits One through Nine were received as evidence. The hearing on April 16, 1997, was

continued and rescheduled for December 2, 1997, to allow Petitioner an opportunity to gather evidence as to the pending criminal charges. At the hearing on December 2, 1997, Petitioner informed the undersigned that he had documentation concerning the disposition of the pending criminal charges but had failed to bring them to the hearing. Petitioner was given until

December 9, 1997, to file whatever documentation he had concerning the pending criminal charges with the Division. At the hearing on December 2, 1997, the Department offered no testimony or documentary evidence. Petitioner failed to file any documentation as to the pending criminal charges with the Division. By Order dated December 10, 1997, the parties were given until 5:00 p.m. on December 31, 1997, to file their proposed findings of fact and conclusions of law.

The transcript of the April 16, 1997, hearing was filed with the Division on April 25, 1997. The transcript of the

December 2, 1997, hearing was filed with the Division on December 4, 1997. The Department timely filed its proposed findings of fact and conclusions of law. Petitioner elected not to file any proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Prior to August 9, 1996, Petitioner was employed by Avon Park Cluster Home in a position that required background screening. At the request of Petitioner's employer, Avon Park Cluster Home, the Department conducted a background check on Petitioner. As a result of this background check, it was determined that there were potentially disqualifying criminal offenses pending against Petitioner in the State of New York and the State of Florida. Because of the lack of information as to the disposition of these potentially disqualifying offenses the Department was unable to complete the background screening on Petitioner. In accordance with Section 435.05(1)(d), Florida Statutes, the Department, by letter dated August 9, 1996, advised Petitioner that it was his responsibility to provide the Department with the necessary documentation to show the disposition of those offenses so that it could complete its background check of Petitioner.

2. By letter dated September 11, 1996, the Department advised Petitioner that since he had not been able to provide the Department with the necessary information as to the disposition of the potentially disqualifying offenses, the Department could make no screening determination and therefore, Petitioner was not eligible for a position requiring background screening.

3. Subsequent to the Department's letter of September 11, 1996, Petitioner furnished certain information concerning the potentially disqualifying offenses.

4. By letter dated October 9, 1996, the Department again advised Petitioner that it was unable to conduct a proper background screening with the information furnished by Petitioner. Therefore, Petitioner was not eligible for a position that required background screening and further advised Petitioner that he could request a hearing to be exempted from this disqualification.

5. Petitioner timely requested a hearing which was afforded to him by the Department. At this hearing, Petitioner was allowed to present evidence to show that he was entitled to be exempted from this disqualification.

6. After hearing Petitioner's evidence, the Department determined that Petitioner had failed to present sufficient evidence to prove that he was entitled to an exemption from disqualification.

7. Petitioner timely requested a hearing under Chapter 120, Florida Statutes.

8. Although Petitioner was given ample time and opportunity to present evidence of the disposition of the potentially disqualifying offenses, he failed to present any evidence of the disposition of those offenses.

9. Likewise, Petitioner failed to present any evidence of rehabilitation or circumstances or evidence indicating that

   Petitioner would not present a danger if continued employment was allowed as required by Section 435.07(3), Florida Statutes.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.57(1) and 435.07(3), Florida Statutes.

    
    

11. Section 435.05(1)(d), Florida Statutes, provides:

    
    

    The person whose background is being checked must supply any missing criminal or other necessary information to the employer within

    30 days after the employer makes a request for the information or be subject to automatic disqualification. (Emphasis furnished.)

    
    

12. Section 435.07(3), Florida Statutes, provides:

    
    

    (3) 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. . . .

    (Emphasis furnished.)

    
    

13. The Department having disqualified Petitioner from employment in positions of trust or responsibility dealing with children, disabled adults, or aged persons, the only issue to be resolved is whether Petitioner has shown by clear and convincing evidence that he has met the conditions set out in Section 435.07(3), Florida Statutes, and is therefore entitled to an exemption from disqualification. Clearly, the Petitioner has failed to meet his burden in this regard.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's request for exemption from disqualification.

DONE AND ENTERED this 29th day of January, 1998, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1998.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran General Counsel Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32299-0700

William Brown, pro se

504 West Halmcrae Boulevard Avon Park, Florida 33825

Jack Emory Farley

Chief Legal Counsel, District 14 Department of Children

and Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

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: 96-005338

Orders for Case No: 96-005338