STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY OSBORNE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5561

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held on January 30, 1997 in Clearwater, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Betty Osborne, Pro Se

4149 Thirty-Eighth Street South St. Petersburg, Florida 33711

For Respondent: Kathleen Harvey, Esquire

Department of Children and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 34648-1630

STATEMENT OF THE ISSUE

On or about August 16, 1996, Petitioner, Betty Osborne, was notified by Respondent, the Department of Children and Family Services, that she was disqualified from employment in a position of special trust. The disqualification was based on the results

of Petitioner's criminal screening. Petitioner challenged this eligibility status and requested an exemption from disqualification. On August 20, 1996, the Department's Exemption Review Committee met and, after reviewing the Petitioner's record, denied her request for an exemption from disqualification. Petitioner filed a timely request for formal hearing and this proceeding followed.

At the final hearing, Petitioner testified on her own behalf and offered no exhibits into evidence. Respondent presented one witness, George H. Seibert, Background Screening Coordinator, Department of Children and Family Services. Respondent offered and had admitted into evidence five exhibits.

The proceeding was recorded but not transcribed. Neither party filed proposed findings of fact or conclusions of law.

FINDINGS OF FACT

1. Petitioner applied for a license as a child care provider in 1993 in an effort to qualify to open her own day care facility.

2. Based on a criminal screening of Respondent, the Department of Children and Family Services (Depatment), determined that Petitioner was disqualified from employment in a position of special trust or responsibility, and thus was ineligible to work or volunteer in child care programs.

3. Pursuant to Petitioner's request for an exemption from disqualification, the Department convened the Exemption Review

   Committee (Committee) to consider the requested exemption. The Committee reviewed Petitioner's record relating to her August 19, 1993, plea of nolo contendere to one count of grand theft.

4. On or about January 7, 1993, Petitioner was charged with grand theft. The incident giving rise to the denial of the request for exemption occurred during the course of Petitioner's employment as a supervisor with the Pinellas County Tax Collector's Office. The allegation was that Petitioner had misappropriated $20,000 or more collected by that office for fishing licenses for her personal use or with the intent to deprive the State of Florida of a right to the property or benefit therefrom.

5. On or about August 19, 1993, Petitioner completed a Plea Form on which she indicated that she would plead nolo contendere to one count of grand theft. Paragraph Five of the Plea Form expressly stated that "No one has pressured or forced me to enter this plea.", and that "No one has promised me anything to get me to enter this plea. . . ." Nevertheless, the form noted that Petitioner had an understanding that as a result of the plea, she would serve fifteen (15) years probation; pay

   $300.00 in court costs; and pay $56,404.00 in restitution. Both Petitioner and her attorney signed the Plea Form.

6. On or about August 19, 1993, an Order of Probation (Order) was entered noting that the "Defendant being present with counsel: entered a plea of nolo contendere to the offense of

   grand theft". The Order withheld an adjudication of guilt; placed Petitioner on fifteen (15) months of probation; and required payment of $300.00 in court costs and $56,404.00 in restitution. The amount of restitution was reduced to $27,501.00 by an order issued on January 26, 1994.

7. As of August 20, 1996, the date of the Department Exemption Review and hearing, Petitioner had twelve years of probation remaining to be served. Also, as of that date, Petitioner had paid only $300.00 in restitution. If Petitioner had made restitution payments as scheduled, she would have paid

   $7,100.00 as of August 1996. At the time of this hearing, Petiitoner had made no additional restitution payments.

8. At hearing, Petitioner presented no evidence of rehabilitation. Several letters of recommendation written by friends on Petitioner's behalf indicate that she is (1) active in her church; works well with children and others; and has a love for children. However, none of these letters reflect that Petitioner has worked in a responsible position or has been engaged in activities that demonstrate rehabilitation since she entered a plea of nolo contendere to grand theft.

   CONCLUSIONS OF LAW

   
   

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

10. Section 435.04(1), Florida Statutes, provides that all

    employees in positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment or continued employment. Subsection (2) provides in relevant part the following:

    (2) The security background investigations under this section must ensure that no persons subject to the provisions of this section 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 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 is a felony.

    
    

11. Section 812.014(2)(b), Florida Statutes, provides the following:

    (b) If the property stolen is valued at

    $20,000 or more, but less than $100,000, the offender commits grand theft in the second degree, punishable as a felony of the second degree. . . .

    
    

12. In the instant case, it is undisputed that Petitioner entered a plea of nolo contendere to the charge of grand theft and that such offense is a basis for denying or removing a person from employment in a position of trust or responsibility. Section 435.04(2), Florida Statutes. Child care providers are deemed to be such a positions.

13. Notwithstanding, an employee's being disqualified, Section 435.07(1), Florida Statutes, authorizes appropriate licensing agencies to grant any employee otherwise disqualified

    from employment an exemption from disqualification for certain categories of offenses. Among the categories of offenses for which exemptions may be granted are:

    1. Felonies committed more than three years prior to the date of disqualification. Section 435.07(1)(a), Florida Statutes.

       
       

14. Petitioner has the burden of demonstrating by clear and convincing evidence that she should not be disqualified from employment in a position of trust. Section 435.07(3), Florida Statutes. That section further provides that:

    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.

    
    

15. The offense, grand theft, to which Petitioner entered a plea of nolo contendere is a serious one. Although more than three years have elapsed since Petiitoner entered her plea, she has more than eleven years of probation remaining to be served and has paid only $300.00 of the $27,501.00 restitution.

16. Petitioner presented no evidence of any employment, or civic or charitable involvement since she entered the plea of nolo contendere that would reflect rehabilitation. Absent such evidence, Petitioner has failed to demonstrate by clear and

convincing evidence that she should not be disqualified from employment in a position of trust.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent, the Department of Children and Family Services, enter a Final Order denying Petitioner, Betty Osborne, an exemption from disqualification from employment in a position designated by law as one of trust or responsibility.

DONE and ENTERED this 28th day of March, 1997, in Tallahassee, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUMCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1997.

COPIES FURNISHED:

Ms. Betty Osborne

4149 38th Street South

St. Petersburg, Florida 33711

Kathleen Harvey, Esquire Department of Children

and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 34648-1630

Gregory D. Venz, Agency Clerk Department of Children

and Family Services Building Two, Room 204 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran General Counsel Department of Children

and Family Services Building Two, Room 204 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: 96-005561

Orders for Case No: 96-005561