STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN HARRIS, )

)

Petitioner, )

)

vs. ) Case No. 98-0039

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

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 2, 1998, in Quincy, Florida.

APPEARANCES

For Petitioner: Ben R. Patterson, Esquire

Patterson & Traynham, P.A.

315 Beard Street Post Office Box 4289

Tallahassee, Florida 32315-4289

For Respondent: John R. Perry

Assistant District Legal Counsel District 2 Legal Office

Department of Children and Family Services 2639 North Monroe Street, Room 252-A Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

Petitioner, John Harris, was determined to be disqualified from employment due to background screening pursuant to Chapter 435, Florida Statutes. Mr. Harris was notified of the determination in October 1997. Mr. Harris requested an exemption from disqualification. In a letter dated December 17, 1997, Respondent, the Department of Children and Family Services, notified Mr. Harris that his request for exemption from disqualification was denied.

On or about December 23, 1997, Mr. Harris requested that the Department of Children and Family Services grant him a formal administrative hearing to contest Respondent’s decision. The request for hearing was filed by the Department of Children and Family Services with the Division of Administrative Hearings on January 7, 1998, with a request that the matter be assigned to an Administrative Law Judge. The matter was assigned to the undersigned.

At the formal hearing Mr. Harris testified on his own behalf and presented the testimony of Rollean F. Lloyd and David G. Causey. Mr. Harris also offered three exhibits. All three were accepted into evidence without objection. Respondent called no witnesses. Four exhibits were offered for identification by Respondent. Respondent’s exhibits 1, 2 and 4 were accepted into evidence. Respondent's exhibit 3 was not offered. One joint exhibit was 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 13, 1998. Respondent filed a proposed order on April 10, 1998. Petitioner filed a proposed order on April 13, 1998.

FINDINGS OF FACT

1. Petitioner, John Harris, was employed at the Florida State Hospital in Chattahoochee, Florida, from October 1977 to January 15, 1998.

2. The Florida State Hospital is a residential facility for mentally ill adults.

3. Mr. Harris was employed as a Unit Treatment and Rehabilitation Specialist. Mr. Harris was involved in the provision of direct care to residents of Florida State Hospital.

4. During 1997 the Department of Children and Family Services (hereinafter referred to as the "Department") pursuant to Chapter 435, Florida Statutes, conducted background screening of employees involved in the provision of direct care to residents of Florida State Hospital.

5. As a result of a background screening check of Mr. Harris, it was determined that Mr. Harris had pled nolo contendere to possession of cocaine, a felony pursuant to Chapter 893, Florida Statutes, in 1989.

6. As a result of the determination that Mr. Harris had pled nolo contendere to a felony under Chapter 893, Florida

   Statutes, Mr. Harris was notified by the Department that he was disqualified from employment in his position with Florida State Hospital.

7. The following are the pertinent facts concerning the 1989 nolo contendere plea:

   1. During the afternoon of September 11, 1989, Mr. Harris was traveling by automobile from Tallahassee, Florida, where he had picked up the automobile from his wife, to Quincy, Florida, where he lived;

   2. Mr. Harris was traveling at a speed of 100mph while being chased by law enforcement. He was stopped by other law enforcement personnel waiting for him just outside Quincy;

   3. The automobile that Mr. Harris was driving was searched and cocaine was discovered;

   4. Mr. Harris was charged with possession of a controlled substance in violation of Chapter 893, Florida Statutes, and reckless driving in violation of Chapter 316, Florida Statutes;

   5. Mr. Harris pled nolo contendere to the charge of possession of cocaine, a felony, and was adjudicated guilty of the offense on or about February 21, 1990; and

   6. Mr. Harris was sentenced to probation for a period of one year.

8. Although not listed in the letter informing Mr. Harris of the results of his background screening, Mr. Harris also was charged and pled nolo contendere to the offense of possession of

   cocaine with intent to sell in 1981 and driving under the influence of alcohol and possession of cannabis in 1995.

9. The following are the only pertinent facts concerning the 1981 offense offered at hearing:

   1. On or about May 24, 1982, Mr. Harris pled nolo contendere to possession with intent to sell cocaine in violation of Chapter 893, Florida Statutes, a second degree felony, as a result of an incident that took place in 1981; and

   2. Mr. Harris was adjudicated guilty and was sentenced to probation for a period of eight years.

10. The following are the pertinent facts concerning the 1995 offenses for driving under the influence of alcohol and possession of cannabis:

    1. Mr. Harris was driving an automobile in or near Bainbridge, Georgia, when he was stopped by law enforcement;

    2. Mr. Harris was charged with driving under the influence of alcohol and possession of cannabis that was found in the glove compartment of the automobile;

    3. Mr. Harris was adjudicated guilty of both offenses; and

       
       

    4. Mr. Harris was sentenced to probation for a period of one year and a number of week-ends in jail.

11. At the time of the formal hearing Mr. Harris was 44 years of age.

12. Mr. Harris' immediate supervisor, Rollean Lloyd (Ms. Lloyd indicated at the hearing that her first name is

    spelled "Rollean") testified at the formal hearing in support of Mr. Harris' continued employment at Florida State Hospital.

    Ms. Lloyd also signed a letter (Ms. Lloyd's first name is spelled "Rollene" on the letter) supporting his continued employment at Florida State Hospital.

13. Ms. Lloyd's supervisor also testified at the formal hearing and signed a letter supporting his continued employment at Florida State Hospital:

    I have known John Harris for approximately eight years as an employee of Unit 4, Florida State Hospital. I have observed Mr. Harris over this time and he had become a concientious [sic] worker who relates well to the residents and to the staff in Unit 4. His recent attendance record has been good and Mr. Harris performs his job to the best of his ability. Mr. Harris is cooperative with his supervisors and supportive of his co-workers.

14. For the past eleven years Mr. Harris has been, and was at the time of the formal hearing, married to Ollie Harris.

    Mr. Harris has two sons, one twenty years of age and the other eighteen years of age.

    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 (1997).

16. Section 435.04, Florida Statutes (1997), provides that all persons in positions designated by law as positions of trust or responsibility must "not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty

    to, any offense prohibited under [Sections 435.04(2)(a) through (cc), Florida Statutes (1997)] or under any similar statute of another jurisdiction."

17. Among the offenses listed in Sections 435.04(2)(a) through (cc), Florida Statutes (1997), is:

    (cc) Chapter 893, relating to drug abuse prevention and control, only if the offense was a felony or if any other person involved in the offense was a minor.

    
    

18. Mr. Harris was required to undergo screening for his position with Florida State Hospital pursuant to Section 110.1127(3)(a), Florida Statutes (1997).

19. Mr. Harris has been found guilty of, and entered a plea of nolo contendere to, a felony under Chapter 893, Florida Statutes, in 1989, as determined by the Department's background screening. Mr. Harris was, therefore, determined to be disqualified from his employment at Florida State Hospital by the Department.

20. Mr. Harris argued at hearing and has argued is his proposed order that he should not be considered disqualified pursuant under Chapter 435, Florida Statutes (1997), because the offense relied upon by the Department was committed prior to the effective date of the law providing for disqualification.

21. Chapter 435, Florida Statutes (1997), was enacted by Chapter 95-228, Laws of Florida. Section 62, Chapter 95-228, Laws of Florida, provides the following with regard to the effective date of Chapter 435, Florida Statutes:

    Except as otherwise provided herein, this act shall take effect October 1, 1995, and shall apply to offenses committed on or after that date.

    
    

22. Based upon the foregoing, Mr. Harris has argued that he cannot be disqualified from employment pursuant to Section 435.04, Florida Statutes (1997), for a conviction that occurred in 1989, prior to the October 1, 1995, effective date.

23. Mr. Harris' argument is rejected. Sections 46 and 47, Chapter 95-228, Laws of Florida, contain two newly created "offenses" (Sections 435.51(6) and 435.11, Florida Statutes, respectively). The reference to "offenses committed on or after [October 1, 1995]" only applies to those two newly created offenses in order to ensure that Chapter 95-228, Laws of Florida, did not violate the prohibition against an ex post facto law of Section 9, Article I of the Constitution of the United States of America.

24. Section 435.07, Florida Statutes (1997), authorizes the Department to grant an exemption from the impact of Section 435.04, Florida Statutes (1997), under the following circumstances:

    (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 indication that the employee will not present a danger if continued employment is allowed. . . .

    
    

25. The evidence proved that the conviction for which Mr. Harris was disqualified did not involve violence or direct harm to any other person. The evidence also proved that the

    incident, and the other two similar incidents, did not directly involve persons under Mr. Harris' care and did not occur while Mr. Harris was at Florida State Hospital.

26. The evidence proved that the 1989 drug conviction, which gave rise to his disqualification, was preceded in 1981 by another drug conviction. Since 1989, Mr. Harris was convicted a third time, in 1995, of another drug related conviction.

27. Although it has been over ten years since the incident which gave rise to Mr. Harris' disqualification, it has been three years since his most recent drug-related criminal conviction.

28. The evidence proved that Mr. Harris is highly regarded by his supervisors at Florida State Hospital. Despite

    Mr. Harris' involvement with drugs, he was performing his duties at Florida State Hospital at the time of his dismissal without difficulty.

29. The difficulty with recommending an exemption for

Mr. Harris is that the evidence proved that he has been involved in continuing and repeated drug abuse over a period beginning at least in 1981 and running through at least 1995. Mr. Harris, who

was less than candid at the hearing of this matter, has, therefore, failed to prove his "rehabilitation" from the offense for which he has been found to 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 Family Services denying John Harris' request for an exemption from disqualification from employment pursuant to Section 435, Florida Statutes.

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

LARRY J. SARTIN

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:

Ben R. Patterson, Esquire Patterson and Traynham

315 Beard Street Post Office Box 4289

Tallahassee, Florida 32315-4289

John Perry, Esquire District 2 Legal Office Department of Children and

Family Services

2639 North Monroe Street Tallahassee, Florida 32399-2949

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-000039

Orders for Case No: 98-000039