STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LLOYD D. JOHNSON, )

)

Petitioner, )

)

vs. ) Case No. 98-2824

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on October 7, 1998, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lloyd D. Johnson, pro se

17410 Northwest 49th Avenue Miami, Florida 33055

For Respondent: Lynne T. Winston, Esquire

Department of Juvenile Justice Inspector General's Office 2737 Centerview Drive

Tallahassee, Florida 32399-3100

STATEMENT OF THE ISSUES

Whether Petitioner should be granted the exemption from disqualification from employment that he is seeking.

PRELIMINARY STATEMENT

By letter dated May 6, 1998, the Department of Juvenile

Justice (Department) notified Petitioner of its intent to deny his "request for an exemption from employment disqualification pursuant to Section 435.07, Florida Statutes." Petitioner thereafter requested a Section 120.57(1) hearing on the Department's proposed action. On June 22, 1998, the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the hearing Respondent had requested.

As noted above, the hearing was held on October 7, 1998. At the hearing, two witnesses testified. Petitioner testified on his own behalf. Perry Turner, the Department's Inspector General, testified for the Department. In addition to Petitioner's and Inspector General Perry's testimony, 16 exhibits (Petitioner's Exhibits 1 through 8 and 10 through 15 and Respondent's Exhibits 1 and 2) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, announced that the parties' proposed recommended orders had to be filed within 14 days from the close of the hearing. The Department filed its proposed recommended order on October 21, 1998. This post-hearing submittal has been carefully considered by the undersigned. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following findings of fact are made:

1. In the early 1980's, when Petitioner was in his late 20's, he owned a retail business in Miami.

2. Anthony Counts managed the business. Although he held the title of Chief Executive Officer and President, Petitioner was not involved in the day-to-day operations of the business. He delegated that responsibility to Mr. Counts. Petitioner, however, did keep the books and do the accounting for the business.

3. Lester Turner was an acquaintance of Petitioner's.

   
   

   Mr. Turner owned a business located near Petitioner's business.

   
   

4. Petitioner participated with Mr. Counts and Mr. Turner in a fraudulent scheme involving the deposit of stolen United States Treasury checks (provided by Mr. Turner) in Petitioner's business account at a local bank.

5. Federal authorities found out about the scheme.

   
   

6. Although Petitioner, when questioned regarding the matter, initially denied his involvement in the scheme, he later admitted his wrongdoing and cooperated with federal law enforcement authorities.

7. A federal indictment was thereafter issued against Petitioner, Mr. Counts and Mr. Turner (in United States District Court for the Southern District of Florida Case No. 86-356-CR).

8. Petitioner was named in one of three counts of the indictment. This count read as follows:

   From an unknown date until or about March 31, 1983, at Miami, Dade County, in the Southern District of Florida, the defendants, ANTHONY COUNTS, LLOYD JOHNSON, and LESTER TURNER, did

   willfully and knowingly combine, conspire, confederate and agree and have a tacit understanding with each other to commit offenses against the United States, that is to willfully and unlawfully posses United States Treasury checks knowing said checks had been stolen from the United States mails, and to utter as true, forged United States Treasury checks with the intent to defraud the United States, knowing said checks to be forged; in violation of Title 18, United States Code, Sections 495 and 1708.

   
   

   In furtherance of the conspiracy and to effect the objects thereof, one or more of the following overt acts were committed by at least one of the conspirators in the Southern District of Florida:

   
   

   OVERT ACTS

   
   

   1. On or about November 15, 1982, defendant LESTER TURNER met with defendants ANTHONY S. COUNTS and LLOYD JOHNSON in Miami, Florida at which time TURNER handed JOHNSON five (5) stolen United States Treasury checks.

      
      

   2. At the meeting described in paragraph 1, supra, TURNER suggested that JOHNSON deposit the checks in JOHNSON'S business account and that COUNTS and JOHNSON keep 50 percent of the proceeds when the checks were cashed.

      
      

   3. On or about November 15, 1982, COUNTS and JOHNSON went to the Inter-American Bank of Miami, and JOHNSON deposited in his business account the five (5) stolen United States Treasury checks described in paragraph 1, supra.

      
      

   4. On or about November 21, 1982, defendant ANTHONY COUNTS paid defendant LESTER TURNER six hundred dollars ($600.00) representing 50 percent of the proceeds from the five (5) stolen United States Treasury checks.

   5. Between December, 1982 and March 15, 1983, defendant LESTER TURNER gave defendant ANTHONY COUNTS several more stolen United States Treasury checks which defendant LLOYD JOHNSON deposited in JOHNSON's business account at Inter-American Bank of Miami.

      
      

   6. Sometime in February or March 1983, the exact date unknown, defendant ANTHONY COUNTS received from defendant LESTER TURNER two (2) stolen United States Treasury checks, No. 84,968,071, dated February 25, 1983, payable to J. Jeffrey Stives in the amount of $643.76 and No. 12,818,775, dated February 28, 1983, payable to John R. Perry in the amount of

      $684.56.

      
      

   7. On or about March 18, 1983, defendant ANTHONY COUNTS forged the signature of J. Jeffrey Stives to stolen United States Treasury Check No. 84,968,071 described in paragraph 6, supra, and deposited said check in his (COUNTS') business account at the Peoples National Bank of Commerce, Miami, Florida.

      
      

   8. On or about the same date described in paragraph 7, supra, defendant ANTHONY COUNTS forged the signature of John R. Perry to stolen United States Treasury Check No. 12,818,775 and deposited said check in his (COUNTS') business account at the Peoples National Bank of Commerce, Miami, Florida.

      
      

   9. Sometime between January 1983, and April 1983, the exact date unknown, defendant LLOYD JOHNSON received stolen United States Treasury Check No. 54,926,144, payable to Annie L. Gilchrist, dated January 31, 1983, in the amount of $160.00 from defendant LESTER TURNER.

      
      

      All in violation of Title 18, United States Code, Section 371.

      
      

9. On June 30, 1986, Petitioner entered a plea of guilty to this count of the indictment. The court accepted Petitioner's

   guilty plea and found Petitioner guilty as charged. This was his first (and it has remained his only) criminal conviction.

10. On August 19, 1986, the court placed Petitioner on probation for a period of two years. As a condition of his probation, he was required to "make restitution in the amount of

    $2,000.00 to be paid during [the] period of probation as directed by the Probation Department." "Imposition of a sentence of confinement" was withheld.

11. Petitioner was discharged from probation on August 17, 1988. Shortly before his discharge, in July of 1988, Petitioner was arrested for allegedly failing to timely make a restitution payment and thus violating a condition of his probation. Petitioner, however, ultimately made the payment and his probation was neither revoked nor extended.

12. At no time subsequent to his discharge from probation has Petitioner been in trouble with the law.

13. Following his apprehension by federal authorities, Petitioner went back to school and received additional degrees in computer science. (He had previously received a Bachelor of Technology degree from Florida A & M University.)

14. Until 1994, Petitioner worked as a computer programmer/analyst.

15. In 1994, motivated by a desire to "give something back to the community" and to help others not make the same mistake that he made, Petitioner left a higher paying position in the

    computer field to work for the Metro-Miami Action Plan Trust, a state-funded arm of Miami-Dade County government, teaching Kingian non-violence.

16. In his new position, it was Petitioner's responsibility to teach children in the community how to act appropriately, without violence, in the face of negative influences.

17. On March 5, 1997, Petitioner signed a "Consent to Background Screening" form, which provided as follows:

    I hereby authorize the Department of Juvenile Justice to check any and all records pertaining to criminal history, driver's license history, and abuse registry and delinquency reports pursuant to Section 39.001, 39.076 and Chapter 435, Florida Statutes. I further authorize any law enforcement agency to release to the Department of Juvenile Justice information regarding convictions under Florida Statutes or statutes of other jurisdictions. I understand that as a criminal justice agency, the Department of Juvenile Justice has access to all criminal records, even those which have been sealed.

18. On April 1, 1997, Petitioner executed an "Affidavit of Good Moral Character" form, which provided, in pertinent part, as follows:

As an applicant for employment as a caretaker with Metro-Miami Action Plan Trust1 I affirm that I meet the moral requirements for employment as caretaker, as required by the Florida Statutes and rules, in that: . . .

I have not been found guilty regardless of whether adjudication was imposed or withheld, of any of the offenses listed below, or to any similar offense in another jurisdiction, regardless of whether record is sealed or expunged;

I have not entered a plea of guilty or nolo contendre (no contest) or had the court enter such a plea, to any of the offenses listed below, or to any similar offense in another jurisdiction regardless of whether the record is sealed or expunged. . . .

I understand that I am obligated to notify my employer of any possible disqualifying offenses which may occur while employed in a caretaker's position.

The offenses referenced above are the following sections and chapters of the Florida Statutes: . . . .

1. 812 relating to theft, robbery and related crimes, if the offense was a felony. . . .

   
   

   Under the penalty of perjury, I attest that I have read the foregoing carefully and state that my attestation here is true and correct.

   
   

   
   

   SIGNATURE OF AFFIANT OR

   To the best of my knowledge and belief, my record contains one or more of the foregoing disqualifying acts or offenses. (If you have previously been granted an exemption for this disqualifying offense please attach a copy of letter granting exemption.

   
   

   
   

   SIGNATURE OF AFFIANT

   
   

2. In an apparent effort to conceal his criminal record, Petitioner placed his signature on the first signature line, thereby attesting, untruthfully, that he had never pled guilty to any of the disqualifying offenses enumerated on the form.2

3. A background screening investigation conducted by the Department, however, revealed that he was not qualified to serve in his "caretaker" position with the Metro-Miami Action Plan Trust.

4. Petitioner thereafter requested from the Department an exemption from such disqualification.

5. Petitioner's request was preliminarily denied by the Department.

6. Because of his disqualification from employment resulting from his 1986 federal felony conviction, Petitioner is no longer employed by the Metro-Miami Action Plan Trust.

7. Based upon Petitioner's history since the criminal conduct that led to his federal indictment and conviction, including, most significantly, his providing to the Department a false "Affidavit of Good Moral Character," it appears that he has not fully rehabilitated himself.

   CONCLUSIONS OF LAW

   
   

8. Petitioner has been advised by the Department that, because of his federal conviction,3 he is presently disqualified from employment in positions of special trust, like the position he had with Metro-Miami Action Plan Trust. See Sections 39.001(2), 435.04, and 435.06, Florida Statutes.

9. Petitioner is seeking from the Department an exemption from such disqualification pursuant to Section 435.07, Florida Statutes, which provides, in pertinent part, as follows:

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

   
   

   1. The appropriate licensing agency4 may grant to any employee otherwise disqualified from employment an exemption from disqualification for:

      
      

      (a) Felonies committed more than 3 years prior to the date of disqualification; . . .

      
      

      For the purposes of this subsection, the term "felonies" means both felonies prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdictions. . . .

      
      

      (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 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. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120. . . .

      
      

      (5) Exemptions granted by one licensing agency shall be considered by subsequent licensing agencies, but are not binding on the subsequent licensing agency.

      
      

10. Petitioner has failed to meet his burden of clearly and convincingly demonstrating that his "history" since his involvement in the fraudulent scheme that led to his 1986 felony conviction in United States District Court for the Southern District of Florida Case No. 86-356-CR reflects that he has fully rehabilitated himself (in terms of acting responsibly and honestly) and that therefore granting him an exemption from such disqualification will not endanger any individual that the employment screening and disqualification provisions of Florida Statutes were intended to protect. Although, by all appearances, he had made substantial progress towards full recovery up until the time of his submission of his "Affidavit of Good Moral Character" to the Department, the submission of this false affidavit (with the apparent intent to mislead the Department about his criminal record) represented a major setback that, the evidence does not reveal, he has yet overcome. While Petitioner may some day (perhaps even in the not too distant future) be able to establish his fitness to occupy a position of special trust, he has not clearly and convincingly demonstrated that, taking

    into consideration the factors described in Section 435.07(3), Florida Statutes, he qualifies for such employment at the present time.

11. Accordingly, his request for an exemption to allow him to be so employed should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department issue a final order denying the exemption that Petitioner has requested.

DONE AND ENTERED this 27th day of Ocotber, 1998, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 27th day of October, 1998.

ENDNOTES

1 In fact, Petitioner was already an employee of the Metro-Miami Action Plan Trust at the time he executed this form.

2 The undersigned finds unworthy of belief Petitioner's unsubstantiated, self-serving testimony that, when he signed this form, Petitioner believed that he did not have a criminal record and therefore was not disqualified from employment "as a caretaker."

3 A person adjudicated guilty of a disqualifying offense may not challenge his disqualification from employment by relitigating the question of his guilt of the offense and attempting to show that the conviction was erroneous. Cf. The Florida Bar v. Vernell, 374 So. 2d 473, 475 (Fla. 1979)(in bar disciplinary proceeding, attorney charged with having been convicted of misdemeanors "did not have the right to a trial de novo before the referee for the purpose of showing that his conviction was erroneous"); McGraw v. Department of State, 491 So. 2d 1193, 1195 (Fla. 1st DCA 1986)(private investigator whose license was revoked pursuant to statutory provision authorizing disciplinary action where licensee has been "found guilty of the commission of a crime which directly relates to the business for which the license is held" was not entitled, in disciplinary proceeding below, to relitigate the question of his guilt of crime of which he had been found guilty in prior criminal proceeding).

4 Section 39.001(2)(c), Florida Statutes, authorizes the Department to "grant exemptions from disqualification from working with children" to "personnel in programs [funded pursuant to Chapter 39, Florida Statutes] for children or youths."

COPIES FURNISHED:

Lloyd D. Johnson

17410 Northwest 49th Avenue Miami, Florida 33055

Lynne T. Winston, Esquire Department of Juvenile Justice Inspector General's Office 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

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.

1 In fact, Petitioner was already an employee of the Metro-Miami Action Plan Trust at the time he executed this form.

2 The undersigned finds unworthy of belief Petitioner's unsubstantiated, self-serving testimony that, when he signed this form, he believed that he did not have a criminal record and therefore was not disqualified from employment "as a caretaker."

3 A person adjudicated guilty of a disqualifying offense may not challenge his disqualification from employment by relitigating the question of his guilt of the offense and attempting to show that the conviction was erroneous. Cf. The Florida Bar v. Vernell, 374 So. 2d 473, 475 (Fla. 1979)(in bar disciplinary proceeding, attorney charged with having been convicted of misdemeanors "did not have the right to a trial de novo before the referee for the purpose of showing that his conviction was erroneous"); McGraw v. Department of State, 491 So. 2d 1193, 1195 (Fla. 1st DCA 1986)(private investigator whose license was revoked pursuant to statutory provision authorizing disciplinary action where licensee has been "found guilty of the commission of a crime which directly relates to the business for which the license is held" was not entitled, in disciplinary proceeding below, to relitigate the question of his guilt of crime of which he had been found guilty in prior criminal proceeding).

4 Section 39.001(2)(c), Florida Statutes, authorizes the Department to "grant exemptions from disqualification from working with children" to "personnel in programs [funded pursuant to Chapter 39, Florida Statutes] for children or youths."

Docket for Case No: 98-002824

Orders for Case No: 98-002824