STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREW C. GREENE, )

)

Petitioner, )

)

vs. ) Case No. 99-1061

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for formal hearing before Don W. Davis, a duly-designated administrative law judge of the Division of Administrative Hearings on May 12, 1999, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Andrew C. Greene, pro se

Apartment K-103

2125 Jackson Bluff Road Tallahassee, Florida 32304

For Respondent: John R. Perry, Esquire

Department of Children and Family Services

Suite 252-A

2639 North Monroe Street Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

Is Petitioner entitled to exemption from disqualification by law with regard to working in a position of special trust and responsibility related to children, disabled adults, and elderly persons?

PRELIMINARY STATEMENT

On February 17, 1999, Respondent notified Petitioner that his request for exemption from disqualification was denied. The letter of denial created the option for Petitioner to seek a hearing, pursuant to Chapter 120, Florida Statutes, to contest the preliminary decision denying the exemption.

On February 26, 1999, Petitioner requested a formal hearing to seek an exemption from disqualification. In turn, Respondent forwarded the case to the Division of Administrative Hearings to conduct a formal hearing.

At the final hearing, Petitioner testified on his own behalf and presented one composite exhibit, admitted only to the extent that such material is corroborative of direct testimony.

Respondent presented no witnesses, but did present two composite exhibits.

The parties were provided the opportunity to file proposed recommended orders. Both parties responded and where possible their written post-hearing submissions have been utilized in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is disqualified from working in a position of special trust because of: a 1990 conviction of cocaine possession, a 1990 conviction of sale of a counterfeit substance, two 1992 convictions for possession of cocaine, and conviction of a 1992 charge of failure to appear.

2. Prior to these criminal convictions, Petitioner had worked as a mail carrier.

3. Petitioner explained that the drug convictions really revolved around residue found on paraphernalia in his possession. He offered no explanation as to how this detail diminished the gravity of his conduct.

4. After Petitioner's conflict with law enforcement and his release from subsequent incarceration in the state prison system, he has earned a bachelor's degree in social work. He is presently applying for admission to graduate school at Florida State University to work toward a master's degree in his chosen field of social work.

5. Petitioner presently works with his church and with inmates at the correctional facility in Wakulla, Florida.

   CONCLUSIONS OF LAW

   
   

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

7. Section 435.07, Florida Statutes, permits Respondent to grant Petitioner, and similarly situated persons, exemptions from disqualification upon conclusion of a three-year period following a disqualifying felony conviction, provided there has been a demonstration by "clear and convincing evidence" on the part of the one seeking the exemption that it should be granted.

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

   
   

   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.

9. Petitioner in the present case has not presented clear and convincing evidence to support a reasonable belief that he is of good character so as to justify an exemption. He presented no witnesses other than himself. At times he appeared less than remorseful about his past conduct. He previously violated requirements related to his probation. The time period that has elapsed since the incidents is brief, and that, coupled with the evidence presented, militates against granting the exemption at this time.

RECOMMENDATION

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

RECOMMENDED that a final order be entered denying Petitioner's request for exemption from disqualification to work with children in positions of special trust.

DONE AND ENTERED this 9th day of June, 1999, in Tallahassee, Florida.

DON W. 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 9th day of June, 1999.

COPIES FURNISHED:

John R. Perry, Esquire Department of Children

and Family Services Suite 252-A

2639 North Monroe Street Tallahassee, Florida 32399-2949

Andrew C. Greene Apartment K-103

2125 Jackson Bluff Road Tallahassee, Florida 32304

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: 99-001061

Orders for Case No: 99-001061