STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY LANDREY, )

)

Petitioner, )

)

vs ) Case No. 97-4997

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on December 18, 1997, by video-conference. The parties, counsel and court reporter participated from Orlando, Florida. The Administrative Law Judge presided from Tallahassee, Florida.

APPEARANCES

For Petitioner: Jeffrey Landrey, pro se

3355 Coe Avenue

Orlando, Florida 32806

For Respondent: Carmen M. Sierra

Department of Children and Family Services

Suite S-1106

400 West Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUE

Mr. Landrey has requested an exemption from disqualification from employment relating to children and other vulnerable

persons. The issue for disposition is whether he is entitled to that exemption.

PRELIMINARY STATEMENT

When the Department of Children and Family Services (DCFS) preliminarily denied Mr. Landrey’s request for exemption, he requested a formal hearing and the case was forwarded to the Division of Administrative Hearings.

Mr. Landrey testified in his own behalf and presented a packet of letters of recommendation or support. That exhibit was received as Petitioner’s composite Exhibit No. 1. Counsel for DCFS did not object to the letters, except with regard to the limited relevance of those which pre-date the incident in question. DCFS, through counsel, cross-examined Mr. Landrey and offered a single exhibit, an arrest report and disposition, which was received without objection as Respondent’s Exhibit No. 1.

Mr. Landrey’s letter summarizing his case was filed on

December 30, 1997; a proposed recommended order was filed by the DCFS on January 2, 1998.

FINDINGS OF FACT

1. Jeffrey Landrey is a 37-year-old long-time resident of Orlando, Florida. He has a high school diploma and a stable employment history, primarily as a file clerk of a law firm and as a waiter or cook at various military or private clubs.

2. On June 26, 1995, Mr. Landrey was arrested for indecent conduct. In his words, he had gone to a park that was well known for sexual escapades, looking for affection and some release.

3. In the men’s rest room, Mr. Landrey openly masturbated and continued masturbating when an undercover law enforcement officer walked in and watched him. The officer left; then returned and induced Mr. Landrey to accompany him out of the park, and arrested him.

4. At his attorney’s urging, Mr. Landrey pled no contest in return for completing an AIDS awareness course, avoiding the park for six (6) months and paying a $377.50 fine. He has now satisfied that sentence.

5. Mr. Landrey asserts that as of March 1996, with the help of a hypnotist, he has turned his life around: he has quit alcohol and drugs, has become a vegetarian and has become “very spiritual." He has sold his late-model car to buy a “clunker” vehicle and to finance his college education. He wants to pursue a degree in social work.

6. Mr. Landrey obtained a job at the Primrose Center, a non-residential workshop for mentally and physically handicapped persons, to see if he really could be a social worker. He loved the work and says the clients offered “unconditional love."

7. After two weeks at Primrose Center, Mr. Landrey was terminated when the legally-required screening process revealed his 1995 arrest and disposition.

8. Although he claims that he left a good-paying job to work at Primrose Center and now feels it unfair that he was not screened before he took the job, Mr. Landrey concedes that he did not tell Primrose about the nature of his arrest, but rather described it in such veiled terms that the employer thought he was talking about a traffic offense and told him not to worry.

9. Although the offense which disqualifies Mr. Landrey is minor, the finding that he should now be exempt, that is, that he is rehabilitated and will not present a danger, must be based solely on his own testimony. He presented some letters of personal recommendation but no evidence that the authors of the letters were aware of the indecent conduct offense. The other letters are employment recommendations and a letter from his church pastor stating only that he is a “registered and active parishioner."

10. Mr. Landrey was not candid with his employer at Primrose. This, and the brief time since his offense and subsequent avowed rehabilitation, preclude the findings necessary for an exemption at this time.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction in this matter pursuant to Sections 120.569, 120.57(l), and 435.07(3), Florida Statutes.

12. Section 800.03, Florida Statutes, prohibits the display of one’s sexual organs in public in a vulgar or indecent manner. Violation of this Section is a misdemeanor of the first degree.

13. Persons subject to background screening pursuant to Sections 435.03 and 435.04, Florida Statutes, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any of a series of offenses, including those prohibited by Chapter 800, Florida Statutes.

14. A licensing agency may grant an exemption from disqualification of offenses, like Mr. Landrey’s, which are misdemeanors, according to this procedure:

    
    

    435.07 Exemptions from disqualification.– Unless otherwise provided by law, the provisions of this section shall apply to exemptions from 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 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. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120.

15. Mr. Landrey has taken some significant steps towards rehabilitation but, as found above, it is not possible, based on the evidence presented, to recommend that he is clearly not a danger to the vulnerable persons with whom he commendably seeks to work.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the request for exemption be DENIED, without prejudice to Mr. Landrey’s right to renew his request later with additional evidence of his rehabilitation.

DONE AND ENTERED this 12th day of January, 1998.

MARY CLARK

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 12th day of January, 1998.

COPIES FURNISHED:

Jeffrey Landrey 3355 Coe Avenue

Orlando, Florida 32806

Carmen M. Sierra Department of Children and

Family Services Suite S-1106

400 West Robinson Street Orlando, Florida 32801

Gregory D. Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel Department of Children and

Family Services 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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-004997

Orders for Case No: 97-004997