STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA SUSAN FLOYD, )

)

Petitioner, )

)

vs. ) Case No. 98-2130

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 15, 1998, in Largo, Florida, before Lawrence P. Stevenson, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linda Susan Floyd, pro se

13149 119th Street North Largo, Florida 33778

For Respondent: Amy V. Archibald, Esquire

Department of Children and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether the Petitioner is eligible for an exemption from disqualification to work in a position of special trust pursuant to the terms of Section 435.07, Florida Statutes.

PRELIMINARY STATEMENT

By letter dated March 18, 1998, Petitioner was notified by Respondent that her request for an exemption from disqualification had been denied. The denial was based on an Exemption Review Committee’s review of the record pertaining to Petitioner’s June 12, 1992, adjudication for felony theft, and her current placement on probation for welfare fraud. The letter stated that because of "the serious nature of the adjudications, and your current probationary sentence, there has not been sufficient opportunity for you to demonstrate rehabilitation." Petitioner challenged the denial and timely filed a request for formal hearing.

At the formal hearing, Petitioner testified on her own behalf and offered two exhibits, which were accepted into evidence. Respondent presented the testimony of George H. Seibert, a Human Services Program Specialist assigned to the Background Screening Unit of the Department of Children and Family Services. Respondent offered a composite exhibit consisting of official records of Petitioner’s criminal history, which was admitted into evidence without objection.

No transcript was provided. Both parties waived the opportunity to file proposed recommended orders.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the

following findings of fact are made:

1. Petitioner has worked as a certified nursing assistant at Highland Pines Rehabilitation and Nursing Center in Clearwater for the past six years. A recommendation letter from the Director of Nursing characterizes Petitioner as an excellent, reliable, and trustworthy employee.

2. Petitioner is disqualified from working in a position of special trust as a result of a 1991 conviction for grand theft under Section 812.014, Florida Statutes. Petitioner was also been convicted of petit theft in the same case. Both crimes involved passing forged checks. She was initially given a sentence of four years probation, but was imprisoned in 1992 for violation of her probation conditions.

3. In 1996, Petitioner was found guilty of welfare fraud in violation of Section 409.325(1), Florida Statutes (1995). She was placed on community control for a period of one year, to be followed by three years of probation. A letter from the Department of Corrections indicates that Petitioner’s probation is now scheduled to terminate on April 18, 2000, with a possibility of early termination provided all conditions have been satisfied. Petitioner has not violated the terms of her probation on this conviction.

4. Petitioner testified that her criminal activities were due to “financial difficulties” and drug use. She testified that she now believes herself to be rehabilitated and ready to put her past behind her.

5. Petitioner testified that she has not entered into any sort of structural rehabilitation program or received counseling in connection with her rehabilitation efforts. Her testimony was essentially that she has turned her life around on her own.

6. Petitioner applied to Respondent for an exemption. A hearing was held by the Exemption Review Committee on

   February 17, 1998. The Exemption Review Committee recommended to the District Administrator that the requested exemption be denied.

7. After reviewing the record and the Exemption Review Committee’s recommendation, the District Administrator concurred with the committee’s recommendation and denied Petitioner’s request by letter dated March 18, 1998.

8. Upon consideration of all available information and the record of Petitioner’s adjudication for felony theft and her current placement on probation for welfare fraud, the District Administrator concluded that, due to the serious nature of the adjudications and her current probationary status, there has not been sufficient opportunity for Petitioner to demonstrate rehabilitation.

9. Petitioner failed to offer any evidence of her rehabilitation, beyond her testimony that she has changed her ways and the fact that she has thus far served her current probation without incident. While several years have passed since the grand theft conviction that compelled disqualification,

   Petitioner’s subsequent history is also relevant to Respondent’s decision. Petitioner’s conviction in 1996 of welfare fraud certainly provided Respondent with reason to believe that Petitioner had not demonstrated rehabilitation.

   CONCLUSIONS OF LAW

   
   

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

11. This proceeding is governed by Section 435.07, Florida Statutes, subsection (3) of which provides in pertinent part:

    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.

12. Violations of Chapter 812, Florida Statutes, relating to theft, robbery, and related crimes, are listed under Section 435.04(2), Florida Statutes, “if the offense is a felony.” Petitioner was convicted of grand theft under Section 812.014, Florida Statutes, a third degree felony. Respondent thus had sufficient statutory basis to disqualify Petitioner.

13. Petitioner has not demonstrated by clear and convincing evidence that she should receive an exemption from disqualification. She offered no evidence of extenuating circumstances surrounding the criminal incident for which exemption was sought. While sufficient time has passed since the

incident to demonstrate rehabilitation, Petitioner’s subsequent history gives little tangible indication that such has occurred.

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 denying Petitioner an exemption to work in a position of special trust.

DONE AND ENTERED this 19th day of August, 1998, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

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 19th day of August, 1998.

COPIES FURNISHED:

Linda Susan Floyd, pro se 13149 119th Street North Largo, Florida 33778

Amy V. Archibald, Esquire Department of Children

and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

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: 98-002130

Orders for Case No: 98-002130