STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY THOMAS, )

)

Petitioner, )

)

vs. ) Case No. 97-5743

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held by video teleconference in this case on May 5, 1998, with the parties appearing at Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Anthony Thomas, pro se

5565 Northwest 185th Street Miami, Florida 33055

For Respondent: Lynne T. Winston, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUES

Whether the Petitioner is entitled to an exemption to work in a position of special trust.

PRELIMINARY STATEMENT

This case began on November 11, 1997, when the Petitioner, Anthony Thomas, filed a request for a formal hearing with regard

to the denial of his request for an exemption to work in a position of special trust with the Department of Juvenile Justice (the Department). The matter was forwarded to the Division of Administrative Hearings for formal proceedings on December 8, 1997.

Thereafter, the case was scheduled for hearing by video teleconference with the parties appearing in Miami, Florida. At the hearing, Petitioner testified in his own behalf and offered the testimony of Aileen Phelan, the director of social services for the Hope Center; David Chiveton, director of operations and purchasing for the Hope Center; Theodore McGill, an employee with the Department of Corrections; and Tadar Muhammad, director of group living for the Everglades Academy, a Youth Services International, Inc. facility under contract with the Department. Petitioner's Exhibits numbered 9, 10, 11, and 13 have been received into evidence. Several objections to Petitioner's exhibits were sustained based upon hearsay. Petitioner sought to introduce letters of recommendation without the declarant being available for cross examination.

Perry Turner, inspector general for the Department testified on behalf of the Respondent. The Respondent's Exhibits numbered 1, 2, 5, 6, 7, 8, 11, 12, 13, and 14 were admitted into evidence.

A transcript of the proceedings has not been filed. The Respondent filed a proposed recommended order which has been considered in the preparation of this order. Petitioner's

letter, presumably filed in lieu of a proposed order, has also been considered.

FINDINGS OF FACT

1. Petitioner, Anthony Thomas, is an applicant for employment at a provider facility controlled by the Department of Juvenile Justice (the Department).

2. As such, Petitioner must complete forms designated to reveal pertinent information regarding Petitioner's background.

3. Part of the documentation required of Petitioner is an affidavit of good moral character. This form lists numerous offenses or acts which disqualify an applicant from employment in a position of special trust.

4. On July 10, 1995, Petitioner completed an affidavit of good moral character and affirmed, under penalty of perjury, that he met the moral character requirements for employment but did not disclose that his record contained one or more of the disqualifying acts or offenses. In fact, Petitioner does have a history containing one or more such acts or offenses.

5. In October, 1987, Petitioner was charged with handling and fondling a child under the age of sixteen years, a second degree felony.

6. In January, 1988, Petitioner entered a plea of guilty to the charges and received a suspended sentence with probation and mandatory counseling.

7. Subsequently, Petitioner violated the terms of his probation and was brought before the court for failure to complete counseling and to remit the fees outstanding for same.

8. In 1994, Petitioner completed the counseling requirement, paid all outstanding fees, and was released from probation having successfully complied with the order of the court.

9. A background search completed by the Department for the July 1995, application revealed the foregoing information. The Petitioner received an unfavorable and disqualifying rating in August of 1995 which he did not dispute.

10. In October of 1996, Petitioner again applied for employment for a position of special trust for a provider facility controlled by the Department.

11. On the affidavit of good moral character for this application Petitioner truthfully revealed that his record contained one or more of the disqualifying acts or offenses listed.

12. Notwithstanding the truthful disclosure, Petitioner again received an unfavorable and disqualifying rating for this employment request.

13. Upon receipt of this denial, Petitioner timely requested an exemption and filed a request for an administrative review of the decision denying same.

14. Petitioner has been employed at the Hope Center for approximately six and one-half months. In order to qualify for this employment, Petitioner obtained an exemption from the Department of Children and Families to work in a position of

    special trust.

    
    

15. Hope Center is a residential facility for adults many of whom have the mental age of a child. Petitioner assists the residents with daily living skills.

16. Throughout his employment at Hope Center, Petitioner has exhibited exemplary conduct and has been entrusted with residents for field trips and apartment visits.

17. Petitioner seeks employment at a Department facility because of his interest in working with youthful offenders and to improve his earning level.

18. Petitioner has similar prior experience working at an academy in Maryland. He met Tadar Muhammad at the Maryland facility when they both served as youth counselors.

19. As director of group living for the Florida facility with whom Petitioner now seeks employment, Mr. Muhammad opined that he would have to have more information before deciding whether or not to hire Petitioner to a position of special trust.

20. While many of Petitioner's witnesses knew of his criminal background, none were aware of the specifics of the charges.

21. In 1987, while still a teenager himself, Petitioner was employed as a youth counselor for a facility known in this record as "PAL."

22. During this time, Petitioner, who was in a position of trust, engaged in sexual conduct with a minor female under

    sixteen years of age who attended activities at PAL.

    
    

23. Petitioner denied having sexual relations with a second minor female.

24. When Petitioner was arrested and charged, both females from the PAL facility were named as participants in the sexual acts with Petitioner.

25. Although Petitioner pled guilty to the charges naming both females, he maintains he was sexually active with only one of the minors.

26. The position now sought by Petitioner does not include minor females. Moreover, Petitioner would not be left with any minor unsupervised.

27. Petitioner maintained he entered the plea because of fear of possible incarceration. Petitioner planned to attend college on an athletic scholarship which the criminal court permitted.

28. Petitioner enjoys a good reputation among his coworkers and peers. Those who testified in his behalf maintain that the acts of his past do not reflect adversely on his current character.

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

30. Section 435.07, Florida Statutes, provides, in

    pertinent part:

    
    

    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 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.

          
          

          * * *

          
          

          (5) Exemptions granted by one licensing agency shall be considered by subsequent licensing agencies, but are not binding on the subsequent licensing agency.

          
          

31. In accordance with the foregoing, Petitioner bears the burden of proof in this cause to establish by clear and convincing evidence his entitlement to the exemption sought. Based upon the evidence presented, Petitioner has met that burden.

32. The original criminal act which supports the disqualification of this Petitioner occurred in 1987. Petitioner was inappropriately involved with at least one minor female who participated in the program which Petitioner chaperoned. Given his youth, the circumstances of his admission and plea to the charges, as well as his successful completion of the court

    ordered probation and counseling, Petitioner has fully complied with the criminal judgment.

33. Petitioner's explanation as to the violation of probation charge has been accepted as credible. According to Petitioner he lacked the funds to pay for the counseling. Once charged with the violation, he sold his vehicle, paid the outstanding fees for counseling and completed the course. While a financial hardship to Petitioner, he recognized that he was required to complete the counseling and he did so.

34. Finally, as to the false affidavit, Petitioner believed the background search would pass him as it had done in Maryland. This erroneous assumption resulted in the denial issued in 1995. It was not a deliberate attempt to conceal information. He disclosed his past to employers and successfully obtained an exemption from the Department of Children and Families.

35. Since that time, Petitioner has continued working in a position of special trust without incident and with the full approval of his supervisors. Continued employment in a position of special trust with youthful male offenders will not present a danger or harm to the state or its interests.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a Final Order granting Petitioner an exemption to work at Everglades Academy with youthful male offenders.

DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida.

J. D. Parrish 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 29th day of May, 1998.

COPIES FURNISHED:

Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Anthony Thomas, pro se

5565 Northwest 185th Street Miami, Florida 33055

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: 97-005743

Orders for Case No: 97-005743