STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOWARD MITCHELL, )

)

Petitioner, )

)

vs. ) Case No. 98-3074

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Administrative Law Judge on November 9, 1998, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Howard Mitchell, pro se

Route 2, Box 88-C Monticello, Florida 32344

For Respondent: Steven Wallace, Esquire

Department of Children and Family Services

2639 North Monroe Street, Suite 252-A Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Petitioner should be granted exemption from disqualification from licensure as a foster parent pursuant to Chapter 435, Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the discovery by the Department that the Petitioner Howard Mitchell had certain criminal matters in his record. This resulted from a "background screening" performed pursuant to Chapter 435, Florida Statutes. Mr.

Mitchell was notified of the potential disqualification based upon his criminal record and timely requested an exemption from it. The request was denied by the Respondent agency and a formal administrative hearing was requested to contest that denial. The matter was ultimately assigned to the undersigned Administrative Law Judge and this formal proceeding ensued.

The cause came on for hearing as noticed. The Petitioner testified on his own behalf at the hearing. The Respondent offered no testimony but presented seven exhibits which were admitted into evidence. The parties were accorded the opportunity to file proposed recommended orders, which were timely filed after the hearing, and considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner seeks licensure for a position of special trust (foster home) from the Respondent agency, the Department of Children and Family Services. The background screening was performed pursuant to that application for licensure, in accordance with Chapter 435, Florida Statutes. A disqualifying offense was discovered.

2. The Respondent is an agency of the state of Florida charged in pertinent part with regulating the entry into and the practice of providing foster care and care for children and the developmentally disabled.

3. The Petitioner was involved in three criminal cases which were filed in Dade County, in the fall of 1984 from September through November. They were related to the same factual events and were consolidated. This resulted in the above referenced disposition on two counts of forgery and uttering a forged instrument, one count of petty theft and one of grand theft. The Petitioner was convicted on the grand theft count and adjudication was withheld on the other counts. His sentence was to restitution and a period of probation, which he served.

4. Previously in 1981, the Petitioner was arrested on a charge involving theft and trafficking in stolen property in Pennsylvania. That case involved a situation where the Petitioner was an employee (either as a custodian or security guard) of the Franklin Mint. He had access to valuable property as a result of his employment and took some $21,841.00 worth of gold, silver, cash and jewelry from his employer. The theft was discovered and the Petitioner was confronted with the fact of the missing property and readily admitted his guilt. He then fully cooperated with his employer and law enforcement authorities in recovery of the missing valuables, most of which were still in his possession. The Petitioner ultimately was convicted in 1981

   in Pennsylvania for "theft by unlawful taking" and theft by receiving stolen property.

5. Before he could be sentenced he left the jurisdiction. Thereafter he lived in the vicinity of Monticello, Florida, and worked, married and began raising a family, with no further involvement with the criminal justice system. He remained at large, although living an exemplary life, until October 1993 when the Jefferson County Sheriff's Department discovered the existence of an outstanding warrant from Pennsylvania with regard to the Pennsylvania conviction. The Petitioner thereupon was arrested and returned to Pennsylvania for sentencing. The court of jurisdiction in Pennsylvania, on September 22, 1994, determined to nolle prosequi all the charges except that of theft by unlawful taking. He was sentenced to twelve months of non- reporting probation. The court took into account the circumstances involved in his prior arrest, the conviction and the reasons he had been beyond the jurisdiction of the Pennsylvania court for approximately twelve years.

6. The circumstances underlying these offenses and the Petitioner's flight from the Pennsylvania jurisdiction, before sentencing in that state, are that at the time the crimes in both Pennsylvania and Florida were committed the Petitioner had a serious problem with abuse of alcohol and illicit drugs. He fully admits that and testified unequivocally that since that time he has conducted himself as an exemplary family man, raising

   his sons with his wife. He has learned a serious, positive lesson from his experience with illegal conduct. He has used his experience as a positive tool in the profession he has chosen, that is, counseling troubled youths and the developmentally disabled. His testimony as to the exemplary manner he has carried out his personal life and family life, as well as his work life in working with troubled youths and the developmentally disabled since 1984, is born out by the testimonial letters stipulated into evidence. The testimonials are all very supportive of his version of the circumstances of his life in the fourteen years since his altercations with the legal system.

7. Although his violations of law are serious ones, it is equally clear that they were committed at a time when he was a much different person. He then was almost constantly under the influence of alcohol and/or illicit drugs, according to his own testimony. He has, ever since returning to Florida, assiduously avoided the use of alcohol or illicit drugs according to his testimony and his corroborative evidence bears that out. He has evidently dedicated his professional life to working with the disabled and underprivileged and emotionally disturbed youth ever since his own involvement with the criminal justice system. He has used that experience as a positive force and example in his counseling profession and duties. It is apparent from his un- contradicted testimony and the corroborative evidence that he submitted that he has indeed turned a dark period in his life

   into a positive force in working for the good of others. His own successful family life helps to corroborate this. Further, in 1990, the Petitioner passed an employment screening procedure performed by the Department of Heath and Rehabilitative Services, the Respondent's predecessor agency. He was thus approved at that time to work with children and developmentally disabled persons. He worked with children and the developmentally disabled for a number of years, performing in an exemplary manner. It was only a 1995 change in the law which disqualified him due to the 1984 Dade County grand theft conviction (for which he had only been sentenced to 22 months probation).

8. The totality of the circumstances involving the Petitioner's criminal violations and the way he has conducted his life ever since then shows, when considered together, that he has rehabilitated himself from the affliction of his moral character represented by the 1981 and 1984 violations. Although those crimes were of a serious nature, including his flight to avoid sentencing and resultant failure to atone for his Pennsylvania crime for a period of approximately 12 years, those criminal situations in which he was involved do not have in their inherent nature an element which would show that the Petitioner is irretrievably disqualified from being an honest, wholesome and otherwise appropriate foster parent. This belief on the part of the undersigned is corroborated by the exemplary manner in which the Petitioner has conducted both his public and his private

   family life every since 1984 when he was last involved in legal difficulties. The crimes he committed, were not of such a nature that the inherent risks that circumstance would pose to his employment in a position of special trust could be said to out- weigh the benefits which would be gained by having one of his professional experience and commitment to that vocation be able to continue in such employment and practice.

9. He thus must be found, based on his own peculiar circumstances, to have rehabilitated himself from the onus of those crimes and, pursuant to Section 409.175, Florida Statutes, must be found to be a person of "good moral character". The totality of the evidence and circumstances of this case indicate that the Petitioner will not pose a danger to the children or developmentally disabled persons with whom he comes in contact with if he continues his employment in that profession.

   CONCLUSIONS OF LAW

   
   

   The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties hereto. See Section 120.57(1), Florida Statutes.

10. Section 435.04, Florida Statutes, provides that all persons "in positions designated by law as positions of trust or responsibility" must not "have been found guilty of, regardless of adjudication, or entered a plea of nolo contendre or guilty to, any offense prohibited under," inter alia, Chapter 812, Florida Statutes, relating to theft, if the offense is a felony.

11. The Petitioner has been found guilty of a felony pursuant to Chapter 812, Florida Statutes, in 1984. This was determined by the Respondent's second background screening. He was at that point determined to be disqualified from licensure as a family foster home or a foster parent and, of course, this formal proceeding ensued wherein he disputes that finding.

12. The Petitioner had been required to undergo screening in order to be licensed as a foster parent pursuant to

    Section 409.175, Florida Statutes, which mandates that an individual so licensed be of "good moral character." Further, Section 409.175 (2)(f), Florida Statutes, specifies:

    A license under this act is a public trust and privilege, and is not an entitlement. This privilege must guide the finder of fact or trier of law at any administrative proceeding or court action initiated by the department.

    
    

13. Section 435.175, Florida Statutes, authorizes the Respondent agency to grant an exemption from the impact of Section 435.04, Florida Statutes, under the following circumstances:

    (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 indicated that the employee will not present a danger if continued employment is allowed.

14. It is true that the crimes the Petitioner committed involved breach of trust stemming from his taking criminal advantage of his position as a security guard in the theft of checks with regard to the Florida grand theft offense and the theft of property at the Franklin Mint based upon his breach of trust involving his position at that institution. This is complicated further by the fact that he fled to avoid sentencing with regard to the Pennsylvania matter and remained at large for

12 years, living in Florida. This complicating factor involving his avoidance of sentencing for 12 years as to the Pennsylvania case would belie his rehabilitation of the 1981 and 1984 offenses as to the quality of his moral character, but for the fact that, ever since 1984, he has led an exemplary family life and public life, avoiding problems with the legal system and indeed working productively to turn his unfortunate misconduct into a positive example in teaching troubled youths concerning how to live a beneficial, worthy and productive life. His record shows that ever since his own criminal violations he has endeavored to devote his life to helping others and to helping his wife to raise their children to be better people than he himself was in the early 1980's. In summary, it must be concluded that, in consideration of the elements recited in the above-quoted statutory provision, that sufficient, clear, and convincing evidence of the Petitioner's rehabilitation as to his moral character has been provided and that he should be granted the

subject exemption.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witness it is, therefore,

RECOMMENDED:

That a Final Order be entered by the Department of Children and Family Services, granting the Petitioner's request for an exemption from disqualification pursuant to Chapter 435, Florida Statutes.

DONE AND ENTERED this 4th day of February, 1999, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 www.doah.state.fl

Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1999.

COPIES FURNISHED:

Howard Mitchell Route 2, Box 88-C

Monticello, Florida 32344

Steven Wallace, Esquire Department of Children and

Family Services Suite 252-A

2639 North Monroe Street Tallahassee, Florida 32399-2949

Gregory Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John 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: 98-003074

Orders for Case No: 98-003074