STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS MOSLEY, )

)

Petitioner, )

)

vs. ) Case No. 97-0368

) DEPARTMENT OF CHILDREN AND ) FAMILIES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, a duly designated Administrative Law Judge of the Division of Administrative Hearings, on April 4, 1997, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Thomas Mosley, pro se

418 Peachtree Circle Deland, Florida 32720

For Respondent: Daniel Medved

Assistant District Legal Counsel District 12 Legal Office

Department of Children and Families

20 Palmetto Avenue

Daytona Beach, Florida 32114 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Thomas Mosley, should be granted an exemption from disqualification from employment pursuant to Chapter 435, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner, Thomas Mosley, was determined to be disqualified from employment due to background screening pursuant to Chapter 435, Florida Statutes. Mr. Mosley requested an exemption from disqualification. In a letter dated December 20, 1996, Respondent, the Department of Children and Families, notified Mr. Mosley that his request for exemption from disqualification was denied.

On or about January 16, 1997, Mr. Mosley filed a letter with Respondent requesting a formal administrative hearing to contest Respondent’s decision. The request for hearing was filed with the Division of Administrative Hearings on January 24, 1997. The matter was assigned to the undersigned.

At the formal hearing Mr. Mosley testified on his own behalf. Mr. Mosley also offered two exhibits. Both were accepted into evidence without objection. Respondent presented the testimony of David Fox. Three exhibits were offered by Respondent. The Respondent’s exhibits were accepted into evidence.

No transcript of the hearing was filed. The parties were informed that, if they decided to file a proposed order, it was required to be filed on or before April 14, 1997. Neither party filed a proposed order.

FINDINGS OF FACT

1. Petitioner, Thomas Mosley, was employed by Dignity Corporation (hereinafter referred to as "Dignity"), in July of 1996.

2. Dignity provides a home for developmentally disabled clients and a home for severely disabled clients. Both homes are located in Deland, Florida.

3. Mr. Mosley was discharged by Dignity on or about November 4, 1996, as a result of background screening pursuant to Chapter 435, Florida Statutes.

4. As a result of background screening required for Mr. Mosley to be employed by Dignity, it was determined that Mr. Mosley had been arrested on July 2, 1993, July 24, 1993, and June 19, 1994.

5. The following are the pertinent facts concerning the July 2, 1993 arrest:

   1. Mr. Mosley was charged by the arresting officer with "Battery (Domestic Violence)" as defined in Section 784.03, Florida Statutes;

   2. An Information was filed August 3, 1993, charging Mr. Mosley with "Battery, in Violation of F.S. 784.03(1)(a), a First Degree Misdemeanor" in that Mr. Mosley "on or about the 1st day of JULY, 1993 . . . did actually and

      intentionally touch or strike K. Mosley against her will by striking victim against her will";

   3. The charge was nolle prossed on or about January 7, 1994.

6. The "K. Mosley" referred to in the Information is Mr. Mosley’s wife. They have been married since 1987 and have three children. At the time of the formal hearing they were still married, but not living together.

7. The following are the pertinent facts concerning the July 24, 1993 arrest:

   1. Mr. Mosley was charged with breach of an injunction in violation of Section 741.31, Florida Statutes;

   2. An Information was filed August 16, 1993, charging Mr. Mosley with "VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE, in Violation of F.S. 741.31, a Second Degree Misdemeanor" in that Mr. Mosley "on or about the 24th day of July, 1993 . . . did then and there willfully violate the provisions of an injunction for protection against domestic violence, issued pursuant to

      F.S. 741.30, by refusing to vacate the dwelling that the parties share, or by returning to said property, to-wit: by returning to said property";

   3. The charge was nolle processed on or about January 7, 1994.

8. The following are the pertinent facts concerning the June 19, 1994 arrest:

   1. Mr. Mosley was charged with "Battery (Domestic)" in violation of Section 784.03, Florida Statutes, and Resisting Arrest without violence in violation of Section 843.02, Florida Statutes;

   2. On or about August 23, 1994, Mr. Mosley pled nolo contendere to the battery charge. The resisting arrest charge was nolle processed;

   3. Mr. Mosley was placed on 4 months probation, required to pay court costs, and ordered to undergo domestic abuse counseling.

9. Mr. Mosley successfully completed a battery intervention course.

10. At hearing Mr. Mosley denied that he had ever struck his wife. He did admit, however, that he got into arguments with his wife and that he would lose his temper during these arguments. Mr. Mosley also admitted that he had grabbed his wife in an effort to stop her from telephoning the police before his arrest on June 19, 1994.

11. According to the arrest record, relating to the June 19, 1994 arrest, Mr. Mosley pushed his wife to the ground. Mr. Mosley denied this allegation. The evidence also failed to prove that Ms. Mosley suffered any injury if Mr. Mosley did push her to the ground.

12. The evidence failed to prove that Mr. Mosley injured any person during the incidents which led to his arrest on July 2, 1993, July 24, 1993, or June 19, 1994.

13. Mr. Mosley has been working for a construction company since his employment at Dignity was terminated.

14. At the time of the formal hearing Mr. Mosley was no longer working for the construction company. He had been terminated due to a dispute with his supervisor.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120,57, Florida Statutes (1996 Supp.).

16. Section 435.03(2), Florida Statutes, provides that persons 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" certain specified provisions of Florida Statutes "or under any similar statute of another jurisdiction."

17. The evidence in this case failed to prove that Mr. Mosley has been found guilty of, or entered a plea of nolo contendere or guilty to, any of the offenses listed in Section 435.05(2)(a) through (z). All of the charges against Mr. Mosley proved in this case were nolle prossed

    except the June 19, 1994, charge of battery under Section 784.03, Florida Statutes.

18. Mr. Mosley did plead nolo contendere to the June 19, 1994, battery charge, but offenses under Section 784.03, Florida Statutes, which are to may considered

    pursuant to Section 435.05(2)(h), Florida Statues, are those in which "the victim of the offense was a minor." The evidence in this case failed to prove that Ms. Mosley was a minor at the time of this offense.

19. In addition to screening to determine whether an employee has committed an offense listed in Section 435.05(2), Florida Statutes, Section 435.05(3), Florida Statutes, requires that it must also be determined that an employee subject to background screening "[h]as not committed an act that constitutes domestic violence as defined in s. 741.30."

20. Section 741.30, Florida Statutes, adopts by reference the definition of "domestic violence" provided in Section 741.28(1), Florida Statutes:

    (1) "Domestic violence" means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, or any criminal offense resulting in physical injury or death of one family or household member by another who is or was residing in the same single dwelling unit.

21. The evidence in this case proved that Mr. Mosley pled nolo contendere to battery in violation of Section 784.03, Florida Statutes. The evidence, however, failed to prove that the offense resulted "in physical injury or death" to anyone.

22. Based upon the foregoing, Mr. Mosley should be granted an exemption from disqualification from employment. The evidence failed to prove that Mr. Mosley has committed any offense for which he may be disqualified.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered by the Department of Children and Families granting Thomas Mosley an exemption from disqualification from employment pursuant to Section 435, Florida Statutes.

DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Florida.

LARRY J. SARTIN

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 27th day of June, 1997.

COPIES FURNISHED:

Thomas Mosley

418 Peachtree Circle Deland, Florida 32720

Daniel Medved, Assistant District Legal Counsel District 12 Legal Office

Department of Children and Families

20 Palmetto Avenue

Daytona Beach, Florida 32114

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

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel Department of Children and Families Building 2, 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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS MOSLEY , )

)

Petitioner, )

)

vs. ) Case No. 97-0368

) Rendition No.

DEPARTMENT OF CHILDREN AND ) DCR 97-271-FOF-RCD FAMILIES, )

)

Respondent. )

)

ORDER REOPENING FILE ON REMAND

Respondent has entered a Partial Final Order and Remand Order in this case. Respondent has rejected certain conclusions of law entered in the Recommended Order in this case. As a result of the rejection of those conclusions of law, Respondent has remanded this case for further findings as to whether Petitioner proved that he has been rehabilitated enough to be granted an exemption from disqualification.

Accordingly, it is ORDERED:

1. The file in this case is reopened; and

   
   

2. On or before November 24, 1997, the parties may respond to the order of remand. The parties may present argument in writing as to whether the remand is proper and,

if so, what findings concerning Petitioner's rehabilitation should be made.

DONE AND ENTERED this 29th day of October, 1997, in Tallahassee, Florida.

LARRY J. SARTIN

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 29th day of October, 1997.

COPIES FURNISHED:

Thomas Mosley

418 Peachtree Circle Deland, Florida 32720

Daniel Medved

Assistant District Legal Counsel District 12 Legal Office

Department of Children and Families

20 Palmetto Avenue

Daytona Beach, Florida 32114

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

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 97-000368

Orders for Case No: 97-000368