STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT ADAMS, )

)

Petitioner, )

)

vs. ) Case No. 97-1975

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

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Administrative Law Judge, Division of Administrative Hearings, held a formal hearing in this matter on July 30, 1997, in Bartow, Florida.

APPEARANCES

For Petitioner: Scott Adams, pro se

Post Office Box 212

Highlands City, Florida 33846

For Respondent: Jack Emory Farley

Chief Legal Counsel District 14

4720 Old Highway 37

Lakeland, Florida 33813-2030

STATEMENT OF THE ISSUES

Should Petitioner's request for exemption from disqualification from employment in a position of trust or responsibility be granted?

PRELIMINARY MATTERS

By letter dated March 12, 1997, the Department of Health and Rehabilitative Services (n/k/a Department of Children and Families (Department) advised Petitioner that his request for exemption pursuant to Section 435.07, Florida Statutes, had been denied because Petitioner had failed to demonstrate by clear and convincing evidence that he had been sufficiently rehabilitated. The letter also advised Petitioner of his right to a formal hearing under Section 120.57(1), Florida Statutes. Petitioner requested a formal hearing, and on April 3, 1997, this matter was referred 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, Petitioner testified on his own behalf but did not present any other witness. Petitioner's Exhibits 1 through 4 were received as evidence. The Department presented the testimony of Melinda Bozeman and Robert King. The Department's Exhibits 1 through 4 were received as evidence.

Chapter 435, Florida Statutes, and Chapter 3, Exemption Procedures, HRS Manual 205-11, were officially recognized.

There was no transcript of this proceeding filed with the Division. 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. The Department is the agency of the State of Florida charged with the responsibility of requiring security background investigations of persons employed by employers under its jurisdiction and licensing powers in positions designated by law as positions of trust or responsibility.

2. The purpose of the security background screening is to determine if there are individuals who have committed an offense which would disqualify the individual from working in positions designated by law as positions of trust or responsibility.

3. Petitioner was employed at the Peace River Center for Personal Development, Inc. (Peace River Center) in Polk County, Florida, as a counselor for abused or chemically-dependent children. This job required that Petitioner be screened in accordance with Chapter 435, Florida Statutes. This screening revealed a felony conviction which disqualified Petitioner from his employment. Petitioner and Peace River Center were notified on February 3, 1997. As required by law, Peace River Center removed Petitioner from contact with children and assigned him to other duties.

4. On August 31, 1990, Petitioner was charged with vehicular homicide, a felony, to which he pled nolo contendre.

   Adjudication was withheld. Petitioner served 3 years probation and paid costs of $275.00.

5. The pertinent facts surrounding the accident are:

   
   

   (a) Petitioner was traveling at approximately 75-to-80 miles per hour in a 45 mile-per-hour zone when he struck and killed a pedestrian who was attempting to cross the street; (b) The victim was a married woman in her mid 50's with an adult son; (c) Petitioner had no excuse for the excessive speed; (d) Both Petitioner and his passenger were severely injured; and (e) There were no drugs or alcohol involved.

6. Petitioner received some counseling after the accident; however, he currently is not receiving any counseling. Even though Petitioner testified that his inability to hold a job was related to the accident, there was no indication that Petitioner felt he needed or intended to get counseling in this regard.

7. Petitioner graduated from high school and has completed approximately 30 hours toward his college degree. Petitioner is planning to begin college again and work toward a degree in Management Information Systems.

8. Since the accident, Petitioner has held six different jobs. Presently, Petitioner is working with Peace River Center (see Finding of Fact 3). Before being disqualified, Petitioner appeared to be doing a credible job for Peace River Center.

9. In April 1994 and March 1996, Petitioner was involved in automobile accidents wherein Petitioner was charged with reckless

   driving. No one was injured in these accidents, and there was only minimal property damage.

   CONCLUSIONS OF LAW

   
   

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

11. Section 435.04(1) and (2), Florida Statutes, provides in pertinent part as follows:

    1. All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. . . .

    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 following provisions of the Florida Statutes or under any similar statute of another jurisdiction.

       * * *

       
       

       (d) Section 782.071, relating to vehicular homicide.

       
       

12. Section 435.07(1)(a) and (3), Florida Statutes, provides as follows:

    Unless otherwise provided by law, the provisions of this section shall apply to exemptions from disqualification.

    1. The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:

       1. Felonies committed more than 3 years prior to the date of disqualification;

          * * *

          
          

          (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 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.

13. Under existing law, the burden is upon Petitioner to demonstrate by clear and convincing evidence that he should not be disqualified from employment because he has been sufficiently rehabilitated and will not present a danger to the clients he will be serving if allowed to be employed in positions designated by law as positions of trust and responsibility. Although sufficient time has elapsed since Petitioner pled nolo contendere to the charge of vehicular homicide, Petitioner has failed to demonstrate by clear and convincing evidence that he has been sufficiently rehabilitated such that he would not present a danger to the clients he would serve if continued employment was allowed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Families enter a Final Order denying Petitioner's request for an exemption from disqualification for employment in positions of trust and responsibility.

DONE AND ENTERED this 19th day of August, 1997, 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

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1997.

COPIES FURNISHED:

Scot Adams, pro se Post Office Box 212

Highlands City, Florida 33846

Jack Emory Farley Chief Legal Counsel District 14

4720 Old Highway 37

Lakeland, Florida 33813-2030

Gregory D. Venz, Agency Clerk 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.

Docket for Case No: 97-001975

Orders for Case No: 97-001975