STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK V. FULFORD, )

)

Petitioner, )

)

vs. ) Case No. 98-1631

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this case was heard by the Division of Administrative Hearings, through its Administrative Law Judge, David M. Maloney, on June 3, 1998, in Tampa, Florida.

APPEARANCES

For Petitioner: Jack V. Fulford, pro se

1825 Craven Drive

Seffner, Florida 33584

For Respondent: Jack Emory Farley, Esquire

Department of Children and Family Services

District 14

4720 Old Highway 37

Lakeland, Florida 33813-2030 STATEMENT OF THE ISSUE

Whether Petitioner's request for exemption from disqualification from mental health personnel employment should be granted pursuant to Section 435.07, Florida Statutes.

PRELIMINARY STATEMENT

On April 8, 1998, the Division of Administrative Hearings received a notice from the Department of Children and Family Services (Department). The notice advised that the Department had received a request for a formal administrative hearing from Jack V. Fulford and requested that the matter be assigned to an administrative law judge to conduct a fact-finding hearing and submit a recommended order to the department.

Attached to the notice were Mr. Fulford's request for hearing as well as a letter from Sue B. Gray, District 14 Administrator dated February 25, 1998. In the letter Ms. Gray had advised Mr. Fulford that his "request for exemption pursuant to Chapter 435, Florida Statutes, ha[d] been denied because [he had] failed to show clear and convincing evidence that [he had] been sufficiently rehabilitated."

The Department's request was granted. The case was assigned case no. 98-1631 and Administrative Law Judge Arnold Pollock was designated to conduct the proceedings. Judge Pollock issued a Notice of Hearing setting the case for June 3, 1998, in Tampa, Florida. In the interim, the undersigned was designated to conduct the proceedings in the place of Judge Pollock.

At final hearing, Petitioner testified in his own behalf and presented three exhibits, each of which was admitted into evidence. Respondent presented the testimony of one witness and offered three exhibits, each of which was admitted. At the close

of hearing, Respondent moved that the case be placed in abeyance in hopes of settling the matter.

The motion to place the case in abeyance was granted. The case, however, was not settled during the period of abeyance.

This order is issued following the Department's Status Report and Motion to Proceed and word from the Department that the case will not be settled.

Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, Jack V. Fulford, at the time of hearing, was twenty-nine years old. In June of 1997, he was hired as a member of the mental health personnel at the Heart of Florida Behavioral Center. In order to continue in the position, Mr. Fulford was subject to "level 2 screening," a type of security background check conducted under Chapter 435, Florida Statutes. The background check indicated that Mr. Fulford had been found guilty of a felony prohibited under one of the provisions of the Florida Statutes (or under any similar statute of another jurisdiction) listed in Section 435.04(2), Florida Statutes. It is not clear from the record whether Heart of Florida or the Department notified Mr. Fulford that he was disqualified for employment, but he was so notified. Mr. Fulford then sought an exemption from the disqualification.

2. The Department of Children and Family Services is the licensing agency with discretionary power "to grant to any

   employee otherwise disqualified from employment [in this case, Mr. Fulford] an exemption from disqualification for . . . [f]elonies committed more than three years prior to the date of disqualification . . .". Section 435.07, Florida Statutes. The Department denied Mr. Fulford's request for the exemption following the recommendation by an Exemption Review Committee that the exemption be granted.

3. An FBI record introduced into evidence shows that Mr. Fulford has a long history of drug and alcohol abuse. Mr. Fulford admitted as much in testimony in which he described in some detail the destructive consequences the abuse has caused to friends, family and himself.

4. His use of drugs and alcohol, begun in high school, continued to the point of unquestionable abuse while he was in the United States Navy, from which he received a discharge classified by the Navy as "other than honorable."

5. Mr. Fulford participated in several programs and different treatment centers after his discharge. Although successfully able to discontinue drug use in the early part of this decade after a fourteen to fifteen-month stint in prison for violation of probation, Mr. Fulford continued to drink. In February of 1997, a conviction for DUI convinced him that he could drink no more. At the time of hearing, Mr. Fulford had been drug and alcohol free for at least 15 months. During that

   fifteen months he had consumed "no drugs, alcohol or mind- altering substances, whatsoever." (Testimony of Mr. Fulford.)

6. The FBI record introduced into evidence by the Department, although difficult to decipher without any supporting explanation, is full of arrests and convictions suffered by Mr. Fulford since 1987. The only item that reflects an offense that falls within the list for "level 2 screening" is a plea of nolo contendere with a disposition of "guilty/convicted" (Petitioner's No. 1, page 6) for the third degree felony of possession of cocaine. The arrest leading to the disposition occurred on March 2, 1990; the disposition, twenty days later, on March 22, 1990.

7. During his service in the Navy, Mr. Fulford received training in the medical field. He worked as an orderly, emergency room technician, and a mental health facilitator. He was trained in CPR. The only meaningful employment he has enjoyed during his adult life has been in a hospital environment.

8. In one of the treatment programs in which Mr. Fulford participated, one of the steps in the multi-step pdrocess was to participate as a facilitator providing therapy to other patients or participants. Mr. Fulford reached that step. When asked about his work experience, therefore, in the papers reviewed by the Exemption Review Committee, Mr. Fulford listed his "work" as a facilitator for other participants in the abuse program in which he was also a patient or participant.

9. The Exemption Review Committee recommended that Mr. Fulford be granted an exemption. Prior to exemption becoming finalized, however, one of the department's employees, Mr. Miller, discovered that the "work" done by Mr. Fulford in the treatment program was not done as an employee of the program but as a patient/participant progressing along a multi-step process. Thinking that Mr. Fulford had filled out papers of the committee falsely, Mr. Miller advocated that the Department reject the review committee's recommendation. The Department did so.

10. On February 25, 1998, the Department advised Mr. Fulford that his request for an exemption had been denied "because [he had] failed to show clear and convincing evidence that [he had] been sufficiently rehabilitated." Letter from Sue

    B. Gray, District 14 Administrator, filed with the Department Clerk on April 2, 1998.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 12.057 and 435.07(3), Florida Statutes.

12. Mr. Fulford, by virtue of his March, 1990 conviction for possession of cocaine, was appropriately disqualified for employment as a member of the medical personnel at the Heart of Florida Behavioral Center. It does not appear that any of the other arrests or offenses for which Mr. Fulford was determined to be guilty, require disqualification.1

13. The Department has authority to grant an exemption to an employee when, the employee demonstrates "by clear and convincing evidence that the employee should not be disqualified from employment." Section 435.07(3), Florida Statutes.

    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 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.

    Id. The primary purpose of Chapter 435 appears to be protection of children, the disabled and the elderly from abuse.2 The main, if not the only true victim, of Mr. Fulford's felony is Mr.

    Fulford, himself.

    
    

14. Nonetheless, there is no doubt that Mr. Fulford has not shown by clear and convincing evidence in this proceeding that he has been rehabilitated, as the issue was joined by the department, or entitled otherwise to an exemption. But Mr. Fulford has shown that he has at least set out on the road to rehabilitation. Moreover, but for a subsequent conversation with Mr. Miller of the Department, in which Mr. Miller mistakenly interpreted Mr. Fulford's answer on papers to the Examination Review Committee concerning his work experience as false, Mr. Fulford would have obtained from the department an exemption from disqualification. Under the circumstances of this entire case,

Mr. Fulford is entitled to more consideration than a full rejection of his request for an exemption from disqualification.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department enter a final order either:

1. Granting the exemption subject to a probationary period, (the terms of the probation could include participation by Mr. Fulford as an out-patient in a drug rehabilitation program, monitoring at work at the Heart of Florida Behavioral Center, and participation in regular attendance at Narcotics and Alcoholics Anonymous Groups;) or

2. Denial of the exemption without prejudice to reapply and obtain an exemption upon a showing of rehabilitation by sufficient evidence at the appropriate time in the future.

DONE AND ENTERED this 5th day of October, 1998, in Tallahassee, Leon County, Florida.

DAVID M. MALONEY

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 5th day of October, 1998.

ENDNOTES

1 Without an explanation of Petitioner's Exhibit no. 1, this conclusion appears to be correct. That the Department chose not to favor the record with a proposed recommended order was not helpful to a clear understanding of all the evidence and issues in the case.

2 Again, without any explanation of the purpose of the law at hearing or a proposed recommended order, this conclusion is subject to the qualification that the position of the Department may not have been fully presented at hearing or in post-hearing filings the Department is entitled to make by law.

COPIES FURNISHED:

Jack Emory Farley, Esquire Department of Children and

Family Services District 14

4720 Old Highway 37

Lakeland, Florida 33813-2030

Jack V. Fulford 1825 Craven Drive

Seffner, Florida 33584

Gregory D. Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 John S. Slye, 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: 98-001631

Orders for Case No: 98-001631