STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STANLEY J. LANE, )

)

Petitioner, )

)

vs. ) Case No. 98-2534

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on October 15, 1998, in Lakeland, Florida.

APPEARANCES

For Petitioner: Stanley J. Lane, pro se

212 West Park Street Lakeland, Florida 33803

For Respondent: Jack Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33803 STATEMENT OF THE ISSUE

Should Petitioner's request for exemption from disqualification from employment in a position of trust or responsibility be granted?

PRELIMINARY STATEMENT

By letter dated April 24, 1998, the Department of Children and Family Services (Department) advised Petitioner that his

request for exemption pursuant to Section 435.07, Florida Statutes, had been denied because Petitioner had failed to demonstrate by clear and convincing evidence that he had been sufficiently rehabilitated. The letter also advised Petitioner of his right to a formal hearing under Section 120.57(1), Florida Statutes. Petitioner responded to the Department's letter on

May 26, 1998, and requested a formal hearing. On June 2, 1998, this matter was referred to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a hearing.

At the hearing, the Petitioner testified on his own behalf but presented no other witness. Petitioner's Exhibit No. 1 was received as evidence. The Department presented the testimony of Petitioner, Malcolm Miller, and Robert King. The Department’s Exhibits Nos. 1 through 3 were received as evidence. Chapter 435, Florida Statutes, and Section 409.175, Florida Statutes, were officially recognized. At the close of the hearing, Petitioner was given the opportunity to late file further evidence from the court in West Virginia concerning Petitioner's probationary status. On November 25, 1998, Petitioner filed Petitioner's Exhibit No. 2 which was received as evidence.

A transcript of this proceeding was filed with the Division on October 20, 1998. The parties elected not to file any proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is the agency of the State of Florida charged with the responsibility of requiring security background investigations of persons employed by employers under the Department's jurisdiction and licensing powers in positions designated by law as positions of trust or responsibility.

2. The purpose of the security background screening is to determine if there are individuals who have committed an offense which would disqualify the individual from working in positions designated by law as positions of trust or responsibility.

3. Petitioner was employed in a position of trust or responsibility by Anchor House Ministries in Auburndale (Anchor) located in Polk County, Florida, an agency, as that term is defined by Section 409.175(2)(a), Florida Statutes, which housed children and required licensure by the Department. Petitioner's job required that he be screened in accordance with level 2 standards for screening set forth in Chapter 435, Florida Statutes. This screening revealed a felony conviction which disqualified Petitioner from employment in a position of trust or responsibility. Petitioner and Anchor were notified of Petitioner's disqualification. Thereafter, Petitioner was discharged from his employment with Anchor.

4. Subsequent to being discharged by Anchor, Petitioner was employed by Lakeland Regional Medical Center (Lakeland Medical). The record is not clear if Petitioner's position with Lakeland Medical required that Petitioner be screened in accordance with Chapter 435, Florida Statutes. In any event, it appears that Petitioner was not screened as a result of his employment with Lakeland Medical.

5. On June 4, 1992, the Grand Jurors of the State of West Virginia in and for the County of Braxton returned a 16-Count Indictment, Number 92-F-20 (Indictment), against Petitioner involving allegations of breaking and entering with the intent to steal which were alleged to have occurred between June 7, 1991, and February 19, 1992, and an allegation of aggravated robbery and felonious assault alleged to have occurred on

   January 7, 1992, contained in Count 10 of the Indictment.

   
   

6. On July 14, 1992, Petitioner entered Appalachian Teen Challenge, Inc. (Appalachian) and successfully completed the long-term residential program offered by Appalachian on August 3, 1993.

7. Thereafter, on December 21, 1993, Petitioner entered a plea of guilty to the charge of grand larceny contained in Count

   10 of the Indictment, a third degree felony under Section 812.014(2)(c)1., Florida Statutes. The court accepted the plea of guilty to grand larceny and adjudicated Petitioner guilty.

   The State of West Virginia moved to dismiss the remaining charges

   contained in the Indictment. The court granted the motion and all other charges were dismissed by the court.

8. By a Sentencing Order dated December 23, 1993, the court suspended the imposition of sentence and committed the Petitioner to the custody of the West Virginia Commissioner of Corrections as a youthful offender to be assigned to a center for youthful offenders for a period of not less than six months, nor more than two years. Time served was to be at the discretion of the superintendent of the youthful offender center where Petitioner was assigned. The court also required that Petitioner undergo a period of training programs.

9. After successfully completing the program requirements of Anthony Center, the youthful offender center where Petitioner was assigned, the court, by order dated July 7, 1994, released Petitioner from Anthony Center and placed Petitioner on probation for a period of five years. A condition of Petitioner's probation was restitution. Since being placed on probation, Petitioner has made monthly restitution payments and continues to make restitution payments.

10. After being placed on probation, Petitioner moved to Florida and enrolled in Southeastern Bible College where he has earned 150 hours of college credits. Petitioner's move to Florida was approved by his probation officer in West Virginia. Petitioner has maintained contact with his probation officer in West Virginia since his move to Florida. Additionally,

    Petitioner, until just recently, maintained his residence in West Virginia.

11. Since moving to Florida, Petitioner has married and, with the help of his father-in-law, purchased a home.

12. There is no evidence in the court records of West Virginia concerning Petitioner's use of illegal drugs or alcohol during the time of his troubles in 1991 and 1992. However, when asked by the exemption committee concerning the use of illegal drugs and alcohol, Petitioner candidly admitted to the exemption committee that at time of his troubles in West Virginia during 1991 and 1992, he had been involved with illegal drugs and alcohol. However, Petitioner also advised the exemption committee that he was no longer involved with illegal drugs or alcohol. Furthermore, Petitioner advised the exemption committee that he had overcome his problem with drugs and alcohol though the church and his faith in God, without being involved in Alcoholics Anonymous or Narcotics Anonymous.

13. Likewise, Petitioner's testimony at the hearing, which I find to be credible, was that he had solved his drug and alcohol problem through the church and his faith in God, notwithstanding the testimony of Malcomb Miller or Robert King to the contrary.

14. By order dated November 4, 1998, Petitioner's probation was discharged and terminated and Petitioner was released from the supervision of the court in West Virginia.

15. There is sufficient evidence to show that Petitioner has been sufficiently rehabilitated to be employed in a position of trust and responsibility and that he will not present a danger if allowed to be employed in a position of trust or responsibility.

    CONCLUSIONS OF LAW

    
    

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

17. Sections 409.175(2)(a), (i), and (k), Florida Statutes, provide in pertinent part as follows:

    (2) As used in this section, the term:

    (a) "Agency" means a residential child- caring agency or a child placing agency.

    
    

    * * *

    
    

    (i) "Personnel" means all owners, operators, employees, and volunteers working in a child- placing agency, family foster home, or residential child-caring agency who may be employed by or do volunteer work for a person, corporation, or agency which holds a license as a child-placing agency or a residential child-caring agency. . . .

    (k) "Screening" means the act of assessing the background of personnel and includes, but is not limited to, employment history checks as provided in chapter 435, using the level 2 standards for screening set forth in that chapter. . . .

18. Sections 435.04(1) and (2)(r), Florida Statutes, provide in pertinent part as follows:

    1. All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security

       background investigations as a condition of employment and continued employment. . . .

    2. The security background investigations under this section must ensure that no persons subject to the provisions of this section have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or underany similar statute of another jurisdiction.

       
       

       * * *

       
       

       (r) Chapter 812, relating to theft, robbery, and related crimes, if the offense is a felony.

       
       

19. Sections 435.07(1)(a) and (3), Florida Statutes, in pertinent part provide as follows:

    Unless otherwise provided by law, the provisions of this section shall apply to exemptions from disqualification.

    1. The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:

       1. Felonies committed more than 3 years prior to the date of disqualification;

          * * *

          
          

          (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 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 it continued employment is allowed.

          
          

20. It is clear from the evidence that Petitioner committed and pled guilty to an offense that disqualifies him from employment in a position of trust or responsibility unless Petitioner can show by clear and convincing evidence that he has been sufficiently rehabilitated and would not present a danger if continued employment was allowed in the position of trust or responsibility; and thereby, is entitled to an exemption from disqualification. Clearly, Petitioner has presented clear and convincing evidence that he has been sufficiently rehabilitated such that he would not present a danger if allowed continued employment in a position of trust or responsibility.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Petitioner's request for an exemption from disqualification for employment in positions of trust and responsibility.

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

WILLIAM R. CAVE

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) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1998.

COPIES FURNISHED:

Stanley J. Lane, pro se

212 West Park Street Lakeland, Florida 33803

Jack Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33803

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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-002534

Orders for Case No: 98-002534