STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAUS ROHR, )

)

Petitioner, )

)

vs. ) Case No. 98-2128

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 18, 1998, at Largo, Florida, before Richard A. Hixson, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James Deakyne, Esquire

Deakyne & James

216 Mirror Lake Drive, North St. Petersburg, Florida 33701

For Respondent: Frank H. Nagatani, Esquire

Department of Children and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778 STATEMENT OF THE ISSUES

The issue for determination in this case is whether Petitioner should be granted an exemption from disqualification for purposes of the re-issuance of his wife's license as a family day care home operator.

PRELIMINARY STATEMENT

By letter dated April 14, 1998, Respondent, Department of Children and Family Services, denied the request of Petitioner, Claus Rohr, for exemption from disqualification for the purposes of the re-issuance of his wife's license as a family day care home operator. On April 27, 1998, Petitioner filed a timely request for an administrative hearing, and on May 6, 1998, the matter was referred to the Division of Administrative Hearings.

Formal hearing was held August 18, 1998. At hearing, Petitioner testified in his own behalf and presented the testimony of four witnesses: Christopher Witts, Denise Cooper, Gloria Elee, and Petitioner's wife Elizabeth Rohr. Petitioner also presented eight exhibits which were received in evidence.

Respondent presented the testimony of three witness: Anthony Russo, George Siebert, and Jewel Waiters. Respondent also presented seven exhibits which were received in evidence.

A transcript of the hearing was not filed. On September 2, 1998, Petitioner filed a Proposed Recommended Order. On September 4, 1998, Respondent filed a Proposed Recommended Order.

FINDINGS OF FACT

1. In 1994, Elizabeth Rohr, wife of Petitioner, Claus Rohr, made application to the Pinellas County Licensing Board for a child day care license. Petitioner, as a family member over 12 years of age residing with the operator, was required to undergo a background screening as part of the licensure proceedings.

2. At the time of his wife's initial application for licensure in 1994, Petitioner and his wife disclosed to the Pinellas County Licensing Board that in 1981 Petitioner had been convicted of possession of Diazepam, a controlled substance, which was a disqualifying offense.

3. The background screening conducted by the Pinellas County Licensing Board in 1994 confirmed Petitioner's conviction of possession of Diazepam, a controlled substance in Broward County, Florida, on March 9, 1981.

4. Due to an error in the reporting procedures from the Florida Department of Law Enforcement and the Federal Bureau of Investigation, the background screening conducted in 1994 by Respondent, Department of Children and Family Services, the successor agency to the Department of Health and Rehabilitative Services, did not reveal Petitioner's 1981 conviction for possession of a controlled substance. Subsequently, Elizabeth Rohr was mistakenly approved for a child day care license.

5. In 1998 During a routine five-year background re- screening of Elizabeth Rohr's license, Respondent discovered Petitioner's 1981 conviction. Petitioner thereafter made application for exemption from disqualification, which as indicated above, was denied by Respondent. During the pendency of these proceedings, Petitioner's wife has retained her license on the condition that Petitioner could not be present at the times of the operation of the day care center.

6. Respondent's denial of Petitioner's request for exemption is based not only on Petitioner's 1981 conviction for possession of Diazepam, but also on Petitioner's conduct subsequent to his 1981 conviction. Specifically, the letter of denial of exemption cites Petitioner's 1992 adjudication for driving under the influence (DUI), and Petitioner's 1997 adjudication for aggravated assault on a law enforcement officer, fleeing and eluding, reckless driving, and DUI.

7. Petitioner is a recovering alcoholic with a history of substance abuse problems. In addition to his 1981 conviction for possession of Diazepam, law enforcement records indicate that on April 20, 1980, Petitioner was arrested for DUI, possession of marijuana, possession of drug paraphernalia, and resisting arrest. Law enforcement records further reflect that on

   March 14, 1981, Petitioner was arrested for disorderly conduct, and on May 5, 1981 Petitioner was arrested for DUI and driving while his license was revoked. In March of 1992 Petitioner was arrested and convicted of driving with a suspended license, and on March 22, 1992, Petitioner was arrested and incarcerated for violation of the terms of his probation in the 1981 conviction for possession of Diazepam.

8. On December 4, 1996, Petitioner was arrested by Detective Anthony Russo of the Pinellas Park Police Department for speeding, DUI, aggravated assault on a law enforcement officer, fleeing, and eluding. Detective Russo testified at

   hearing that Petitioner was stopped for speeding and was observed to be intoxicated. Petitioner attempted to flee, and during the course of flight Petitioner engaged in a high-speed chase, driving without lights, and running a stop sign. At one point during this incident Petitioner made a U-turn and turned his vehicle toward Detective Russo. Petitioner entered pleas of nolo contendere to DUI, reckless driving, fleeing and eluding a law enforcement officer, and aggravated assault on a law enforcement officer. Petitioner was released from probation on these charges in July of 1998.

9. In addition to these incidents, Petitioner was arrested on August 27, 1996, for domestic battery. This arrest arose from what Petitioner's wife described at hearing as a "dry drunk" episode during which Petitioner outwardly manifested signs of alcoholic behavior although he had not consumed any alcohol. At this time Petitioner engaged in an altercation with his

   seventeen-year-old daughter which escalated into a physical confrontation with his wife. During this incident Petitioner's wife feared for her children's safety and locked them in a room. With the concurrence of his wife, the charges of domestic violence against Petitioner were ultimately dismissed.

10. Subsequent to his arrest in December 1996, Petitioner has made significant rehabilitation efforts. He has regularly attended Alcoholics Anonymous (AA) meetings and has maintained his sobriety for more than eighteen months. Petitioner has also

    maintained steady employment with an optical lens company and has received a raise in salary in March of 1998. Additionally, Petitioner is enrolled in a Microsoft certification program at St. Petersburg Junior College, and has received a cumulative grade point average of 3.19 on a 4.0 scale. Petitioner and his wife are active members of St. Andrews Lutheran Church and regularly participate in church youth activities.

11. Petitioner's current AA sponsor testified that Petitioner is making progress in his twelve-step program, and she has not observed any relapses on Petitioner's part. Relapses are not uncommon in persons suffering from alcoholism, and Petitioner has experienced relapses several times during his prior attempts to cope with his substance abuse problems.

12. As indicated above Elizabeth Rohr has been licensed, although mistakenly, to operate a child day care center beginning in 1994. There have been no complaints nor any incidents of misconduct on the part of Petitioner and his wife reported to the Respondent during that time. Christopher Witts, who has taken his daughter to Mrs. Rohr's day care center for four years, testified that he was aware of Petitioner's past problems and has no apprehension in utilizing Mrs. Rohr's day care services for his daughter, which he considers excellent.

    CONCLUSIONS OF LAW

    
    

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

14. Section 402.31(3), Florida Statutes requires:

    
    

    (3) Child care personnel in family day care homes shall be subject to the applicable screening provisions contained in ss. 402.305(2) and 402.3055. For purposes of screening in family day care homes, the term includes any member over the age of 12 years of a family day care home operator's family, or persons over the age of 12 years residing with the operator in the family day care home.

    Members of the operator's family, or persons residing with the operator, who are between the ages of 12 years and 18 years shall not be required to be fingerprinted, but shall be screened for delinquency records. (emphasis supplied)

    
    

    Section 402.305(2)(a), Florida Statutes states:

    
    

    2) PERSONNEL.- Minimum standards for child care personnel shall include minimum requirements as to:

    
    

    (a) Good moral character based upon screening. This screening shall be conducted as provided in chapter 435, using the level 2 standards for screening set forth in that chapter.

    
    

15. Section 435.04, Florida Statutes, is titled: "Level II Screening Standards" and lists those statutory offenses that compel disqualification. A Chapter 893 felony offense relating to drug abuse prevention and control is such an offense.

16. Section 435.07, Florida Statutes, requires the individual requesting an exemption to demonstrate by clear and convincing evidence that he or she should not be disqualified. A person seeking exemption has the burden or coming forward with clear and convincing evidence of rehabilitation, including but not limited to the time period that has elapsed since the incident, the history of the person seeking the exemption since the incident and any other evidence indicating will not present a danger if the exemption is granted.

17. "Clear and convincing evidence" requires that the evidence must be found to be credible, facts to which witnesses testify must be distinctly remembered, testimony must be precise

    and explicit, and witnesses must be lacking in confusion as to facts in issue; evidence must be of such weight that it produces in the mind of the trier-of-fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz vs. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

18. Petitioner did not meet the burden of proving entitlement to exemption from disqualification by clear and convincing evidence. Although Petitioner has made significant and substantial progress toward rehabilitation, the period of time that has elapsed since Petitioner's last serious incident is relatively short, and Petitioners has had a history of relapse.

19. While the evidence demonstrates that generally when Petitioner maintains sobriety, as he has done for the past eighteen months, he presents no danger to others, at least on one occasion evidenced by Petitioner's domestic violence arrest in 1996, Petitioner displayed threatening behavior at a time when he was not under the influence of alcohol.

20. Under these circumstances and in light of Petitioner's history of substance abuse, the evidence is not clear and convincing under the standard set forth above that Petitioner has demonstrated rehabilitation for a sufficient period of time to qualify for an exemption from disqualification.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order upholding the denial of Petitioner's request for exemption at this time.

DONE AND ENTERED this 22nd day of September, 1998, in Tallahassee, Leon County, Florida.

RICHARD A. HIXSON

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 22nd day of September, 1998.

COPIES FURNISHED:

James Deakyne, Jr., Esquire Deakyne & James

216 Mirror Lake Drive, North St. Petersburg, Florida 33701

Frank H. Nagatani, Esquire Department of Children and

Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778

Gregory D. Venz, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building Two, Room 204

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: 98-002128

Orders for Case No: 98-002128