STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIE WILLIAMS, JR., )

)

Petitioner, )

)

vs. ) Case No. 98-4097

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed fact hearing was held in this case on January 7, 1999, in Gainesville, Florida, before the Division of Administrative Hearings, by its duly assigned Administrative Law Judge, Ella Jane P. Davis.

APPEARANCES

For Petitioner: Willie Williams, Jr., pro se

821 Southeast 12th Avenue Gainesville, Florida 32601

For Respondent: Lucy Goddard, Esquire

Department of Children and and Family Services

1000 Northeast 16 Avenue, Box 3

Gainesville, Florida 32601 STATEMENT OF THE ISSUE

Whether or not Petitioner may be granted an exemption to work in a position of special trust.

PRELIMINARY STATEMENT

By a letter of August 5, 1998, the Department of Children and Family Services (DCF) denied Petitioner's request for an

exemption from disqualification. Petitioner timely requested formal hearing.

This cause was transmitted to the Division of Administrative Hearings on or about September 22, 1998, for a disputed fact hearing, pursuant to Section 120.57(1), Florida Statutes.

At hearing, Petitioner testified on his own behalf and presented the oral testimony, by telephone, of his wife, Michelle Williams. He had seven exhibits admitted in evidence. DCF presented the oral testimony of Background Screening Coordinator, Pat Joiner, and had three exhibits admitted in evidence.

No transcript was ordered. Both parties waived filing proposed recommended orders.

FINDINGS OF FACT

1. Petitioner has been continuously employed with North Florida Evaluation and Treatment Center (NFETC) since November 9, 1994. NFETC is a facility operated by DCF. NFETC houses mentally unstable, criminally charged adult male patients.

2. Petitioner began work at NFETC as a custodial worker. In 1996, he was sought out by his superiors to be trained as a Unit Treatment and Rehabilitation Specialist (UTR). UTRs have

   direct care and treatment of patients. He completed 180 training hours on or about December 31, 1996. In early 1997, he was promoted to the position of UTR. On January 10, 1997, Petitioner was certified as having completed ACT training. ACT involves

   DCF-approved methods for safely subduing violent patients.

3. Since his promotion to UTR, Petitioner has performed adequately as a UTR. He has never been involved in a violent incident involving patients. He has not had any disciplinary actions taken against him.

4. A letter from Petitioner's supervisor at NFETC was admitted in evidence without objection. That letter attests to a four-year working relationship with Petitioner during which he has always been "intelligent, creative, dedicated, energetic, and resourceful. . . . He has always remained calm and served as a stabilizing force for others."

5. Prior to the summer of 1998, the position of UTR was not considered a "position of special trust." In the summer of 1998, DCF authorities at NFETC designated all UTR positions as "positions of special trust," and a screening revealed Petitioner's criminal record, which barred him from employment as a UTR. Since then, and pending resolution of the issue herein, Petitioner has continued to be employed at NFETC in a non-direct care position, at a lesser rate of pay.

6. Petitioner's disqualifying criminal offense involved his plea of nolo contendere to a charge of domestic battery (statute number unspecified) on June 16, 1995. At that time, the court withheld an adjudication of guilt; placed Petitioner on probation for one year, with a special condition that he attend the Batterer's Intervention Program; and waived all court costs.

7. On October 4, 1995, Petitioner was in court for violating his probation. Although Petitioner testified that this court appearance was the result of missing or being late for a scheduled meeting with his probation officer due to his brother's death, court documents indicate that Petitioner once again had been arrested for domestic battery (statute unspecified), a charge to which he plead guilty. Petitioner conceded that he spent seventeen days in jail on this occasion. Where Petitioner's version of the facts differs from the court documents admitted in evidence, I find the court documents to be more credible. However, the court documents also show that on this occasion, Petitioner was reinstated to supervised probation.

8. By July 1996, Petitioner had completed all 26 sessions of the Batterer's Intervention Program, spanning six months. Apparently, he did not begin the program until after the last act of domestic violence. During these sessions, Petitioner participated in "acting out" possible physical altercation scenarios and was trained in new methods of avoiding them, new ways of dealing with anger, and how to anticipate ways in which to handle similar situations without violence in the future.

9. On August 5, 1996, a Petition for Unsuccessful Termination of Probation was presented to the court, because Petitioner "would be unable to comply with the [probation] requirements in a timely manner." As a result of this petition,

   the court discharged Petitioner from probation unsuccessfully and waived the remaining costs of supervision.

10. The most information that can be gleaned from the court documents and Petitioner's testimony concerning the reasons behind the unsuccessful termination of his probation in 1996, is that Petitioner was unable to pay all supervision costs on time, had lost some period of reporting to his probation officer due to his jail time in October 1995, and had unsuccessfully completed his probation due to the domestic battery guilty plea on

    October 4, 1995.

    
    

11. Petitioner testified that he has not been arrested since October 4, 1995. However, he also acknowledged that prior to the initial June 16, 1995, domestic violence charge, there may have been as many as three other arrests as a result of physical altercations with his ex-wife.

12. Petitioner testified that the nature of the June 1995 incident which gave rise to the disqualifying offense was merely that he "put his hands on" his wife to stop her from hitting him, during a period of time in which he was under great stress due to several deaths in his immediate family, the birth of a new baby, and his job as a long-haul trucker. His ex-wife confirmed each of these elements of stress in Petitioner's life at that time, but she was asked no questions concerning the physicality of the disqualifying June 1995 incident, and Petitioner's continuous employment at NFETC since November 1994, would seem to negate his

    story of being a long-haul trucker in June 1995. Upon all the evidence, I do not find Petitioner credible as to his description of the disqualifying incident.

13. Upon all the evidence, I also do not find credible Petitioner's and his ex-wife's testimony that Petitioner did not strike his wife after 1994.

14. At some point subsequent to October 1995, the couple divorced. Petitioner pays his child support regularly. His NFETC employment provides insurance for his two children. He visits his children regularly at his ex-wife's home and entertains them in his own home. He has a good relationship with both children. He has become friends with his ex-wife

15. Petitioner lives with and cares for his aged and infirm mother.

16. Petitioner attends no church regularly but does attend several churches occasionally. He contributes to the Boys and Girls Clubs of America through the United Way collection at NFETC.

17. He has completed sixteen hours of a writing class in spelling and grammar, which should enhance his performance as a UTR.

    CONCLUSIONS OF LAW

    
    

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

19. The applicable statutes in this cause, in pertinent part, are as follows:

    435.07 Exemptions from disqualification – Unless 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:

    (e) Commissions of acts of domestic violence as defined in s. 741.30;

    
    

    * * *

    
    

    (3) In order for a licensing department to grant and 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 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 employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed.

20. Even giving Petitioner and his ex-wife the benefit of the doubt that they are merely unclear as to whether certain physical altercations between them occurred in 1994 or 1995, the overall tone of their respective testimonies is only that they wish to minimize and forget their repetitive and serious marital disputes and the mutual domestic violence associated therewith.

21. Petitioner has a rather lengthy history of domestic violence prior to 1995. The last incident of domestic violence was in 1995, more than three years ago. At that time, Petitioner apparently hit his ex-wife when they had a new baby, but there is no clear evidence of the nature of the harm caused to her. Since that time, the couple have divorced, and there have been no further arrests of Petitioner for any type of violence. The history of Petitioner's employment and care of his aged mother and his two children since the disqualifying offense suggests that currently he is a good employee, father, and son, but this is insufficient to demonstrate rehabilitation from violence upon provocation. He has been rated a reliable and stable employee since before the last incident of domestic violence, and therefore no rehabilitation since the last incident, either through the Batterer's Intervention Program or otherwise, has been demonstrated. Petitioner is required by law to pay his child support. Therefore, his paying child support is irrelevant to good character or non-violence.

22. It appears that either the divorce or the Batterer's Intervention Program have kept Petitioner out of jail and court appearances associated with domestic violence charges since October 1995, but there is insufficient evidence to clearly and convincingly persuade me that Petitioner will not perpetrate violence upon any person in the future. A longer period of good citizenship and non-violence and a more genuine acceptance of

    responsibility for his past violent behavior would have been more persuasive of Petitioner's reformation.

23. To grant an exception to work in a position of special trust, the standard to be applied is whether or not Petitioner has demonstrated by clear and convincing evidence that he will not present a danger if permitted to work in any position of special trust. There is no lesser standard for returning Petitioner to the direct care of a more-violent-than-average population of patients than would be the standard applied to any and all other positions of special trust. Petitioner should not be granted an exception at this time.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is,

RECOMMENDED:

That the Department of Children and Family Services enter a

Final Order denying the requested exemption to work in a position of special trust at this time and specifying therein the earliest date that Petitioner may reapply (one year from his last application) if he chooses to do so.

DONE AND ENTERED this 5th day of February, 1999, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1999.

COPIES FURNISHED:

Lucy Goddard, Esquire Department of Children and

Family Services

1000 Northeast 16 Avenue, Box 3

Gainesville, Florida 32601

Willie Williams, Jr.

821 Southeast 12th Avenue Gainesville, Florida 32601

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: 98-004097

Orders for Case No: 98-004097