STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACQUELINE SMITH, )

)

Petitioner, )

)

vs. ) Case No. 98-1317

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on August 24, 1998, in Quincy, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Albert Thorburn, Esquire

Grant Dearborn, Esquire

Legal Services of North Florida, Inc. Suite 200

8 West Jefferson Street Quincy, Florida 32351

For Respondent: John R. Perry, Esquire

Assistant District Legal Counsel Department of Children and Families 2639 North Monroe Street

Room 252A

Tallahassee, Florida 32399-2949 STATEMENT OF THE ISSUE

Whether Petitioner may be granted an exemption to work in a position of special trust, pursuant to Section 435.07, Florida

Statutes.

PRELIMINARY STATEMENT

The Department of Children and Family Services denied Petitioner's request for an exemption to work in a position of special trust, and Petitioner requested formal hearing.

Petitioner had two exhibits admitted in evidence and presented the oral testimony of Sergeant Shelton Turner, Gadsden County Sheriff's Department; Annetheria Turner; Edith Smith; and Eddie B. Smith. Petitioner also testified on her own behalf.

Respondent had five exhibits admitted in evidence and presented the oral testimony of Christine LeClair.

No transcript was provided. All timely-filed proposed findings of fact and conclusions of law have been considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Since July 1997, Petitioner has been employed continuously as a driver for Big Bend Transit, Inc., an organization that provides transportation services to disadvantaged persons. In this capacity, Petitioner provided direct hands-on care to children and disabled adults by driving them from place to place in the course of her job.

2. When Petitioner was hired by Big Bend Transit, Inc., she was screened, pursuant to the provisions of Chapter 435, Florida Statutes. It was determined during this screening that Petitioner had been convicted of a felony for possession of cocaine in 1987 and convicted of the misdemeanor of petit theft

   in 1994. Both of these offenses occurred in Florida. By operation of law, Petitioner is disqualified from working in a position of special trust on the basis of her 1987 conviction for possession of cocaine. It was stipulated by the parties that the petit theft conviction is non-disqualifying.

3. Petitioner also has had a lengthy involvement with, and dependence on, alcohol and cocaine. From before her 1987 conviction for possession of cocaine until at least August 1994, Petitioner regularly used these drugs to excess.

4. Petitioner and her immediate supervisor, Ms. Eddie B. Smith (no relation), were both apparently under the erroneous impression that it was acceptable for Petitioner to continue her employment in a position of special trust, despite the disqualification letter sent them by certified mail on

   January 26, 1998. There was nothing unclear about the Agency's notification letter.

5. Petitioner has had an incident-free driving record with Big Bend Transit since her employment.

6. Eddie B. Smith, is the Big Bend Transit supervisor for Petitioner. Ms. Smith has never ridden with Petitioner in the Big Bend van nor has she ever observed Petitioner driving the van. However, she considers Petitioner to be a safe, dependable, responsible driver and employee. She testified that among other Big Bend employees and their disadvantaged clientele, Petitioner's reputation is that "all speak highly of her."

   Although Eddie B. Smith did not know Petitioner prior to her drug rehabilitation, she is aware of Petitioner's past record and experiences, and still wishes to employ her.

   
   

7. From 1987 to 1994, Petitioner repeatedly attended and participated in several substance abuse programs, none of which were successful for her.

8. Notwithstanding her substance abuse during the foregoing period, Petitioner managed to maintain regular employment.

9. Petitioner admitted that the shoplifting incident in September 1994 was inspired by her need to get money to buy cocaine and/or alcohol.

10. However, in August 1994, Petitioner had voluntarily entered detox at Apalachee Center for Human Services, in Tallahassee, and voluntarily proceeded immediately afterward to the residential drug rehabilitation program run by Promise Land Ministries in Crawfordville, Florida.

11. Petitioner admitted to one relapse using alcohol in early 1995, but forthrightly asserted that she knows now that she cannot even take one drink of alcohol, let alone use it socially. Petitioner also used drugs on her one night of relapse. She testified that she has not used either alcohol or drugs since that date in 1995.

12. Petitioner quit smoking cigarettes approximately one year before formal hearing.

13. Primary to Petitioner's successful rehabilitation has been her love for, and taking responsibility for the care of, her son, who is now seven years old.

14. On November 14, 1995, Petitioner tested negative for the use of drugs as part of her employment with Cabot Lodge Motel in Tallahassee, Florida.

15. Petitioner also took a mandatory drug screening test ordered by Big Bend Transit when she went to work for that corporation in July 1997. She also tested drug-free on that occasion.

16. The foregoing two successful drug tests are only accurate to show that Petitioner had not used cocaine or other illegal drugs for a period of two to three days prior to the administration of each test.

17. Petitioner is buying her own home at Lake Talquin Resort. She is a community leader and holds the position of a Director on the Board of the Home Owners' Association at Lake Talquin Resort.

18. As a Director, Petitioner oversees the maintenance and quality of her trailer park neighborhood.

19. Petitioner runs her own yard and cleanup service to supplement her regular employment with Big Bend Transit and also baby-sits for her friends and neighbors.

20. Petitioner's immediate neighbors, who know her both professionally and intimately as a friend and baby-sitter for

    their nine-year-old son, are Sergeant Shelton Turner of the Gadsden County Sheriff's Office and his wife, Annetheria.

21. According to Mr. and Mrs. Turner, Petitioner is a model neighbor and friend. Both expressed the sentiment that "my house is her house."

22. Mr. Turner serves on the Home Owners' Association Board with Petitioner. He has known Petitioner for ten years and testified that since her rehabilitation, Petitioner has made a 360-degree change in her life. He considers her totally rehabilitated and has seen her "transformation." Sergeant Turner has had an opportunity to observe Petitioner in her home at all hours of the day and night and testified that, "[She's] not in that old white station wagon at the drug hole [anymore]... no one with drugs is ever hanging on [at her house]." Sergeant Turner further testified that two signs of drug abuse can never be observed in Petitioner's home, e.g., the lights are never cut off for failure to pay, and there is always food in the house.

23. Antheria Turner is a Program Director at a group home for the elderly, where she has observed Petitioner with disadvantaged clients. She testified that, "If there were a position in one of my homes, I would have no problem hiring her." Mrs. Turner has only known Petitioner for the last three years during which time Petitioner has been drug-free, but she is well aware of Petitioner's past criminal record and drug/alcohol dependency.

24. Petitioner is an active church-goer and credits her religious faith as another reason for her continued rehabilitation. She is characterized by Ms. Turner as a "good Christian."

25. Edith Smith is the former owner of Precious Angels Family Home Daycare. Ms. Smith is employed elsewhere at the present time, but has known Petitioner for six to seven years. She also has had an opportunity to observe Petitioner's transition, subsequent to her final successful drug rehabilitation. Before rehabilitation, she would distance herself from Petitioner but now Petitioner often babysits for Ms. Smith's four year old daughter, and Ms. Smith considers Petitioner to be "very loving and caring around children," and trustworthy.

26. At formal hearing, the Department presented one witness, a district screening coordinator who did not recommend that Petitioner be granted an exemption from disqualification. She speculated that the Petitioner might be somehow "covering up" possible continued weekend drug abuse. Her testimony is to the effect that if Petitioner could remain fully employed while "using," the fact that Petitioner has remained fully employed since she quit "using" in 1995 should not be considered as part of the evidence of good moral character. Ms. LeClair's testimony does not amount to either a policy statement by the agency or an expert opinion that Petitioner's current full time employment

    should be held against her. The Department seemed to merely assert a "legal position" that a longer period of rehabilitation should be necessary to clearly and convincingly establish Petitioner's good moral character, under the circumstances of this case.

    CONCLUSIONS OF LAW

    
    

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

28. By operation of law, Petitioner is precluded from working in a position of special trust (such as for Big Bend Transit, Inc.), unless she receives an exemption pursuant to the instant hearing. See Sections 110.1127(3)(a), 435.04(2)(cc), 893.03(2)(a)(4), 893.13(1)(a)(1), Florida Statutes.

29. Section 435.07(3), Florida Statutes, authorizes the Agency to grant exemptions from disqualification in certain cases. Specifically, it provides that:

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.

1. Petitioner was a recidivist drug offender who routinely abused drugs and alcohol for years prior to 1995. Her last criminal offense, however, was in late 1994, and that minor shoplifting incident is insufficient by itself to preclude her working in a position of special trust. The disqualifying incident, which was a felony cocaine conviction, occurred almost

   11 years ago. Although Petitioner candidly volunteered the information that she had illegally used drugs and alcohol on one night in 1995, all other evidence clearly and convincingly points to Petitioner having been fully rehabilitated and an asset to her community for more than two years.

2. Speculation by departmental personnel that since Petitioner was able to be gainfully and fully employed while misusing and abusing alcohol and cocaine, that fact somehow discredited her ability to be gainfully and fully employed once she was rehabilitated, is not persuasive that Petitioner must demonstrate rehabilitation in excess of two years.

3. The request for exemption should be granted.

RECOMMENDATION

Upon 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 Jacqueline Smith's request for exemption from disqualification.

DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 2nd day of October, 1998.

COPIES FURNISHED:

Albert Thornburn, Esquire Grant Dearborn, Esquire Legal Services of North

Florida, Inc.

Suite 200

8 West Jefferson Street Quincy, Florida 32351

John Perry, Esquire Department of Children

and Family Services 2639 North Monroe Street Suite 100A

Tallahassee, Florida 32399

Gregory D. Venz, Agency Clerk Department of Children and

Family Service 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: 98-001317

Orders for Case No: 98-001317