STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAYMOND A. BAKER, )

)

Petitioner, )

)

vs. ) Case No. 97-4495

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 15, 1998, in Tallahassee, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ben R. Patterson, Esquire

Post Office Box 4289 Tallahassee, Florida 32315-4289

For Respondent: John R. Perry, Esquire

2639 North Monroe Street Suite 100A

Tallahassee, Florida 32399-2949 STATEMENT OF THE ISSUE

The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.

PRELIMINARY STATEMENT

This matter began on September 2, 1997, when Respondent,

Department of Children and Family Services, issued a letter denying a request by Petitioner, Raymond A. Baker, for an "exemption, pursuant to Laws of Florida governing background screening." The disqualification was based on Petitioner's conviction for the offense of "battery-domestic," a misdemeanor, on September 19, 1993. Petitioner then requested a formal hearing under Section 120.57(1), Florida Statutes, to contest the proposed action. The matter was referred by Respondent to the Division of Administrative Hearings on September 29, 1997, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated October 27, 1997, a final hearing was scheduled on January 15, 1998, in Tallahassee, Florida.

At final hearing, Petitioner testified on his own behalf and presented the testimony of Alice Wilkerson, a unit treatment rehabilitation specialist at Florida State Hospital; Rollene F. Lloyd, a unit treatment rehabilitation specialist at Florida State Hospital; and Elizabeth Goldwire, a unit treatment rehabilitation specialist supervisor I at Florida State Hospital. Also, he offered Petitioner's Exhibits 1-9. All exhibits were received in evidence. Respondent presented the testimony of Laura Lovett, the victim of the domestic violence; and Cristiane LeClair, background screening coordinator for the agency.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by Respondent and

Petitioner on January 27 and 28, 1998, respectively, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. This case involves a request by Petitioner, Raymond A. Baker, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a supervisor in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on September 2, 1997, a DCFS committee denied the request.

2. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on September 19, 1993. On that date, Petitioner was arrested for the offense of committing a "battery upon his live-in girlfriend," a misdemeanor under Section 784.03(1)(a), Florida Statutes (1993). Since the victim in that case was a person with whom Petitioner was then residing, the offense constituted domestic violence as it subsequently became defined in 1994 by Section 741.28, Florida Statutes.

3. Petitioner entered a plea of No Contest to the charge of "[b]attery-domestic" on October 12, 1993. Adjudication of guilt was withheld, he was fined $150.00, and he was placed on twelve months probation. In addition, he was required to complete "New Hope & Alcohol Counseling," and he was ordered to have no contact with the victim.

4. Petitioner successfully completed all terms of his probation, including counseling courses in both spousal abuse and substance abuse.

5. In October 1993, Petitioner began working at FSH in an Other Personnel Services position. Eventually, he attained the position of unit treatment rehabilitation senior supervisor I in Unit 4, a position involving supervision of developmentally disabled adults. Due to a change in the law, in 1996, he was required to undergo a background screening. That screening uncovered his 1993 offense, and on July 18, 1997, he was disqualified from working in a position of special trust with developmentally disabled adults. Petitioner then accepted a position of fiscal assistant in the financial services section of FSH, a position having no contact with residents. He has continued working in that position pending the outcome of this case. Because of his desire to return to his former position, he has applied for an exemption from disqualification.

6. Petitioner is a graduate of Florida State University with a degree in government and criminology. He also holds a

   Doctor of Jurisprudence from Howard University School of Law. He eventually plans to take the Florida Bar examination, and if he passes the examination, the Florida Bar will accept him for membership, notwithstanding his 1993 misdemeanor conviction.

   This assertion was not contradicted.

   
   

7. In interpreting the statutory criteria which govern the granting of exemptions, the DCFS considers the following factors, among others, to be important. First, the applicant should not minimize the seriousness of the offense; he must express some remorse; and he must have insight into the seriousness of the incident and the risks involved. A three-person committee preliminarily denied the request in early September 1997 because at that time it believed that Petitioner minimized the incident, that he expressed little or no remorse, and that he had no insight into the seriousness of his offense.

8. More than four years have elapsed since the criminal incident, a sufficient time for rehabilitation. Since that time, there have been no other blemishes on Petitioner's record.

   Except for a "bleeding toe," which was caused when the victim either cut it on broken glass or accidentally jammed it against the door, there was no injury to the victim.

9. Petitioner has worked continuously at FSH since the incident, and he was described by former colleagues in Unit 4 as having a good rapport with patients and staff. According to

   co-workers, he also handled crises in the unit "in the right

   way." During the years 1995, 1996, and 1997, he received satisfactory evaluations from his supervisor. There is no evidence that Petitioner would present a danger to the residents if the exemption is granted.

10. Petitioner's description of the circumstances surrounding the incident was not altogether accurate. This finding is made after considering the testimony of the victim who reluctantly testified on behalf of DCFS. For example, Petitioner recalled that the altercation ensued after the two had an argument over finances. However, it was established that it was caused when the victim attempted to break off the relationship and to leave the premises. In an effort to keep her from leaving, Petitioner tried to disrobe her. Also, he was extremely argumentative when speaking with the investigating law enforcement officer, and he refused to leave the premises when requested. According to the victim, Petitioner's verbally abusive behavior and his refusal to leave, rather than the altercation itself, ultimately led to his arrest that evening. While Petitioner was somewhat evasive and had no recollection about some of the facts surrounding the incident, this is probably attributable, at least in part, to his being highly intoxicated when the incident occurred.

11. Petitioner expressed regret for his actions on the evening of September 19, 1993. His assertion that he has had no problems with alcohol since that night was not contradicted.

    Given the lapse of time since the incident, a record of continuous employment with the FSH with good evaluations, the completion of two counseling courses, and an expression of regret, the request for an exemption should be granted.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.569, Florida Statutes (1997).

13. Section 435.07(3), Florida Statutes (1997), reads as follows:

(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 incident, the time period that has elapsed since the incident, the nature of the harm occasioned to the victim, and the history of the person since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed.

1. By evidence which meets the appropriate standard, Petitioner has demonstrated "sufficient evidence of rehabilitation" to justify granting the exemption. In reaching this conclusion, the undersigned has given consideration to the established fact that four years have elapsed since the disqualifying offense occurred and Petitioner has had no subsequent blemishes on his record. Also, since 1993, he has a

   record of continuous employment with the Florida State Hospital with good evaluations. Except for an accidental cut to the victim's toe, she suffered no injuries. Further, Petitioner has completed two counseling courses and has expressed regret.

   Finally, there is no evidence that continued employment will present a danger to the FSH clients. Therefore, Petitioner's request for an exemption should be approved.

2. Given this conclusion, it is unnecessary to reach the issue of whether Petitioner's offense of battery under Section 784.03(1)(a), Florida Statutes (1993), which did not constitute "domestic violence" until the term was broadly defined effective July 1, 1994, by the adoption of Section 741.28, Florida Statutes, is nonetheless a disqualifying offense under Sections

435.03 and 435.04, Florida Statutes (1997).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification for employment in a position of special trust.

DONE AND ENTERED this 11th day of February, 1998, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1998.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Pete Peterson, Esquire Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Ben R. Patterson, Esquire Post Office Box 4289

Tallahassee, Florida 32315-4289

John R. Perry, Esquire Department of Children and

Family Services

2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Department of Children and Family Services.

Docket for Case No: 97-004495

Orders for Case No: 97-004495