STATE OF FLORIDA

DEPARTMENT OF CHILDREN AND FAMILY SERVICES

KENNETH GILBERT,

Petitioner, CASE NO. 98-3561

RENDITION NO. DCF-00-182-FO

v.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

/

FINAL ORDER REVERSING CONCLUSION OF REGARDING CLEAR AND CONVINCING EVIDENCE AND DENYING APPLICATION FOR EXEMPTION

THIS CAUSE is before me for entry of a Final Order based on a Recommended Order issued by an Administrative Law Judge assigned by the Division of Administrative Hearings. It concerns a petitioner who is currently disqualified by law from working with children or disabled or elderly adults.

By law, disqualification is the result of a petitioner's past behavior, which constituted either a crime or a finding of delinquency or the commission of an act of domestic violence.

Alternatively, the disqualification may be the result of the existence of a confirmed report naming a petitioner as the perpetrator of the abuse, neglect or exploitation of a vulnerable adult. See Section 435.07, Florida Statutes.

Pursuant to Section 435.07t3), a person who is disqualified from working with children or disabled or elderly adults may seek an exemption from the disqualification. To secure the exemption, which would allow a petitioner to work with children or elderly or disabled adults, he or she must show, by clear and convincing evidence, that the disqualification should be set aside. To show that the disqualification should be set aside, the burden of proof is on a petitioner to set forth sufficient evidence of rehabilitation and good moral character. Such evidence includes, but is not limited to, the circumstances surrounding the event, the time period that has elapsed since the event, the nature of the harm that the petitioner caused to the victim, and the history of the petitioner indicating that the petitioner will not present a danger to the vulnerable population whose welfare and

well-being are, by law, in the hands of the Department to protect.

In the instant case, the Recommended Order concludes that the petitioner presented such clear and convincing evidence. I disagree and hereby reject the Recommended Order's paragraph 15, which relies on certain conclusions that I also reject in paragraph 14. The Petitioner in the instant case did not meet the standard of proof required to show entitlement to an exemption under Section 435.07(3), Florida Statues.

It is clearly within the Department's discretion whether to grant an exemption. Section 435.07(1), Florida Statutes.

Indeed, in Calvin Phillips v. Department of Juvenile Justice, infra, the District Court of Appeal for the Fourth District of Florida held that the agency was under no obligation to grant an exemption even if Phillip's presentation constituted clear, convincing and unrefuted evidence of rehabilitation. (Emphasis supplied).

In the Phillips case, Phillips supported his application for an exemption with a written explanation of the disqualifying incidents, letters of recommendation from a variety of organizations and individuals, proof of training that he had received, and a psychological evaluation. The various letters of recommendation agreed that Phillips had changed, that he worked to rehabilitate youth into productive members of society, and that he was loyal, dependable, trustworthy, caring and concerned. The psychological evaluation stated that, in terms of violence and aggression, Phillips had "only . . . one" episode of violence in his life, as evidenced by the domestic battery that constituted one disqualifying event, and that he had successfully completed his probation and anger management classes. The report also stated that Phillips had a long-standing history of working with children and was well-respected by his peers and colleagues.

The agency in the Phillips case presented nothing to counter Phillip's evidence. Still, the Court, relying on Thomas v. Department of Juvenile Justice, 730 So.2d 809 (Fla. 3d DCA 1999), ruled that it ". . . may not substitute its judgment for that of the agency on an issue of discretion." Calvin Phillips v. Department of Juvenile Justice, 736 So2d 118, 119 (Fla. 4th DCA 1999).

If Calvin Phillips, with all his evidence, was not entitled to an exemption, then clearly neither is the Petitioner in the instant case. Like Mr. Phillips, Mr. Gilbert had an injunction for protection entered against him. He does not contest the fact that he violated that injunction. Nor does he contest the fact that he failed to complete even half of the treatment into which

the court had ordered him as a result. Indeed, no evidence of rehabilitation was presented, and the hearing before the Administrative Law Judge focused almost entirely on Mr. Gilbert's problems with child custody and support. The fact that the hearing officer did not believe the victim of domestic violence is irrelevant to the issue of whether or not Mr. Gilbert has proven rehabilitation and good moral character. Likewise, the victim's assertions that Mr. Gilbert works well with disabled people is irrelevant to the issue of whether or not Mr. Gilbert has met his burden of proof.

There having been no evidence of rehabilitation presented at the hearing, it is ORDERED that petitioner's application for an exemption from disqualification from employment in a position of trust or responsibility is denied consistent with the district's initial decision.

DONE and ORDERED this 29th day of May, 2000, in Tallahassee, Leon County, Florida.

KATHLEEN A. KEARNEY, Secretary

Department of Children and Family Services

NOTICE OF RIGHT TO APPEAL

This order constitutes final agency action under Chapter 120, Florida Statutes. A party who is adversely affected by this final order is entitled to judicial review. To initiate judicial review, the party seeking it must file one copy of a Notice of Appeal" with the Agency Clerk. The party seeking judicial review must also file another copy of the Notice of Appeal," accompanied by the filing fee required by law, with the First District Court of Appeal in Tallahassee, Florida, or with the District Court of Appeal in the district where the party resides. The Notices must be filed within thirty (30) days of the rendition of this final order.1

1/ The date of the "rendition" of this Final Order is the date that is stamped on its first page. The Notices of Appeal must be received on or before the thirtieth day after that date.

Copies furnished to:

Stephen F. Dean Administrative Law Judge

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, FL 32399-3060

Chris LeClair

Background Screening Coordinator District 2 Legal Office Department of Children and

Family Services

2639 North Monroe Street Tallahassee, FL 32399-2949

Kenneth Gilbert

P.O. Box 522 Greenwood, FL 32424

Steven Wallace, Esquire District 2 Legal Office Department of Children and

Family Services

2639 North Monroe Street Tallahassee, FL 32399-2949

Susan Fairchild

Operations Management Consultant II Department of Children and

Family Services

2749 Fort Knox Blvd. Bldg. 2 Rm 105

Tallahassee, FL 32308

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U. S. Mail or hand delivery to each of the above-named persons this 2nd, day of June, 2000.

Virginia Daire, Agency Clerk Department of Children and

Family Services 1317 Winewood Blvd.

Tallahassee, FL 32399-0700

Docket for Case No: 98-003561

Orders for Case No: 98-003561