STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN W. MOORE, )

)

Petitioner, )

)

vs. ) Case No. 98-5643

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 9, 1999, in Panama City, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John W. Moore, pro se

1410 New York Avenue

Lynn Haven, Florida 32444

For Respondent: John R. Perry, Esquire

Department of Children and Family Services

2639 North Monroe Street, No. 252-A Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.

PRELIMINARY STATEMENT

This matter began on November 25, 1998, when Respondent,

Department of Children and Family Services, issued a letter advising Petitioner, John W. Moore, that his "request for exemption, pursuant to Laws of Florida governing background screening, ha[d] been denied." No reason for the denial was given. Petitioner then requested a formal hearing under Section 120.569, Florida Statutes, to contest the proposed action.

The matter was referred by Respondent to the Division of Administrative Hearings on December 24, 1998, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated January 4, 1999, a final hearing was scheduled on January 25, 1999, in Panama City, Florida. At Respondent's request, the matter was rescheduled to March 9, 1999, at the same location.

At final hearing, Petitioner testified on his own behalf and presented the testimony of his father, Willie James Moore, Sr.; Alphonso Williams, his pastor; and Lorraine Bruce, an independent support coordinator and former employer. Also, he offered Petitioner's Exhibit 1 which was received in evidence.

Respondent offered Respondent's Exhibits 1-3. All exhibits were received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by Respondent on March 19, 1999, and they have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. This case involves a request by Petitioner, John W. Moore, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as an independent contractor providing services to developmentally disabled persons. Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on November 25, 1998, a DCFS committee denied the request.

2. Petitioner is now barred from working in a position of special trust because of two disqualifying offenses. The first offense occurred on November 16, 1994, when Petitioner was arrested for possession of a controlled substance (cocaine), a felony, and possession of drug paraphernalia, a misdemeanor. On October 15, 1995, he entered a plea of nolo contendere. Under a pre-trial intervention program, he was placed on eighteen months probation, required to undergo random drug testing, and required to perform twenty-five hours of community service.

3. The second offense occurred on November 25, 1995, when Petitioner, who was still on probation, was arrested for possession of a controlled substance (cocaine), a felony offense, and resisting arrest without violence, a misdemeanor. On

   January 18, 1996, he pled "no contest" to both offenses. Adjudication of guilt was withheld, and Petitioner was placed on two years community control to be followed by two years probation. He has successfully completed the community control phase of his sentence and will remain on probation for another nine months.

4. From August 1996 until August 1997, Petitioner worked in Bay County for an independent support coordinator, Lorraine Bruce, who provided services for DCFS clients under a contract. He was forced to resign when a background screening disclosed the disqualifying offenses. While working for Bruce, Petitioner provided a variety of services to four developmentally disabled clients. Bruce considered Petitioner to be an outstanding employee and will quickly rehire him if an exemption is granted.

5. Petitioner readily acknowledged his prior arrests and that his use of drugs was foolish and immature. He has completed around 215 hours of community service and a drug abuse course, and he has not used any drugs since 1995. As noted above, since his last arrest, Petitioner worked with mentally retarded clients for a year until he was disqualified. He now works in a restaurant.

6. Petitioner enjoys working with developmentally disabled persons, and he desires an exemption so that he may be recertified by DCFS. He is heavily involved in church activities, and his pastor confirmed that Petitioner has

   contributed many hours to his church and community. In fact, Petitioner has been entrusted by the pastor with a set of church keys since he performs volunteer work at the church almost daily.

7. Given the foregoing considerations, it is found that there is sufficient evidence of rehabilitation since Petitioner's last arrest in 1995, and that he will not present a danger to his clients if the request is approved. His request for an exemption should be approved.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.57 and 120.569, Florida Statutes (Supp. 1998).

9. Section 435.07(3), Florida Statutes (1997), reads as follows:

   (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 incident, the time period that has elapsed since the incident, the nature of the harm occasioned to the victim, and the history of the person since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed.

10. By the appropriate quantum of proof, Petitioner has demonstrated that he "will not present a danger if continued employment is allowed," and that there is "sufficient evidence of

rehabilitation" to justify granting the exemption. His request should accordingly be granted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification for employment in a position of special trust.

DONE AND ENTERED this 25th day of March, 1999, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 25th day of March, 1999.

COPIES FURNISHED:

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

John W. Moore

1410 New York Avenue

Lynn Haven, Florida 32344

John R. Perry, Esquire Department of Children and

Family Services

2639 North Monroe Street, No. 252-A Tallahassee, Florida 32399-2949

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Department of Children and Family Services.

Docket for Case No: 98-005643

Orders for Case No: 98-005643