STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREA M. LATSON, )

)

Petitioner, )

)

vs. ) Case No. 99-1319

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on June 15, 1999, by video teleconference at sites in West Palm Beach and Tallahassee, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Andrea M. Latson, pro se

541 West Sixth Street, Apartment 2 Riviera Beach, Florida 33404-7411

For Respondent: Colleen Farnsworth, Esquire

Department of Children and Family Services

111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

The issue in this case is whether the Petitioner, Andrea Latson, should be granted an exemption from disqualification from employment, pursuant to Chapter 435, Florida Statutes.

PRELIMINARY STATEMENT

At the final hearing in this case, with the agreement of all parties, the normal order of presenting evidence was reversed, and the Respondent presented its evidence first.1 The Respondent presented the testimony of three witnesses and offered eight exhibits, all of which were received in evidence. The Petitioner then testified on her own behalf. The Petitioner did not call any additional witnesses. The Petitioner also offered three exhibits. The Respondent objected to the Petitioner's exhibits. Ruling on the objections was reserved. Upon further consideration, the objections are overruled, and the Petitioner's three exhibits are received in evidence.

At the conclusion of the hearing, the Respondent requested that the parties be allowed ten days from the date of the hearing within which to file their proposed recommended orders.2 The request was granted. As of the date of this Recommended Order, the Petitioner has not filed a proposed recommended order or any other post-hearing document. On June 25, 1999, the Respondent timely filed a Proposed Recommended Order containing proposed findings of fact and conclusions of law. The Respondent's proposed findings of fact and conclusions of law have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Andrea M. Latson, became subject to the screening requirements of Chapter 435, Florida Statutes, by obtaining employment in a day care facility for children. As a result of the screening process, it was discovered that the Petitioner had a criminal history which disqualified her from employment in such a facility. The Petitioner was advised of the disqualification, and was also advised that she could seek an exemption from the disqualification.

2. The Petitioner promptly requested an exemption from disqualification. Following an informal hearing, the Petitioner's request for exemption was denied. The Petitioner timely requested an evidentiary hearing pursuant to Chapter 120, Florida Statutes.

3. The Petitioner is disqualified by reason of pleading guilty to each of four separate charges of sale of cocaine, in violation of Section 893.13, Florida Statutes. Each of those violations was a felony.3 The Petitioner's guilty pleas were entered on or shortly before October 12, 1994. The criminal offenses to which the Petitioner pled guilty took place during January and February of 1994.

4. The Petitioner provided very little in the way of information about her rehabilitation since the disqualifying crimes to which she pled guilty. She appears to be making progress towards achievement of a high school equivalency

   certificate, but did not provide any details regarding her efforts to improve her education. She does not appear to appreciate the seriousness of her disqualifying crimes, nor does she appear to be remorseful about them. To the contrary, the Petitioner displays a tendency to minimize her responsibility for those crimes and to attempt to shift the blame for those crimes to the circumstances in which she found herself at the times she committed the disqualifying crimes.

5. None of the information provided by the Petitioner indicated that she had made any significant progress towards rehabilitation. Quite to the contrary, since the disqualifying crimes, the Petitioner, by fraudulent means, obtained at least

   $3,639.00 in public assistance money to which she was not entitled. On November 22, 1996, the Petitioner was arrested and charged with public assistance fraud in violation of Section 409.325(1), Florida Statutes.4 The Petitioner entered a plea of guilty to the charge. The Petitioner has done very little to pay back the fraudulently received funds.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57, Florida Statutes.

7. By reason of her pleas of guilty to four separate charges of sale of cocaine in violation of Section 813.13(1)(a)1, Florida Statutes, the Petitioner is disqualified from the

   employment she hopes to return to, unless she can demonstrate that she is entitled to an exemption. In order to receive an exemption, the Petitioner must comply with the requirements of Section 435.07(3), Florida Statutes, which reads in pertinent part 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 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.

8. The Petitioner has failed to meet her burden of clearly and convincingly demonstrating that she has become rehabilitated since the events that led to her disqualification from employment. She has not shown by clear and convincing evidence that granting her an exemption from such disqualification will not endanger any individual that the employment screening and disqualification provisions of the Florida Statutes were intended to protect. She has not convinced the undersigned that, if she is granted an exemption, she will not pose a threat to the safety of children. While the Petitioner may some day be able to establish her fitness to occupy a position of special trust, she

has not clearly and convincingly demonstrated that, taking into consideration the factors described in Section 435.07(3), Florida Statutes, she qualifies for such employment at the present time. Accordingly, her request for an exemption to allow her to be so employed should be denied.

RECOMMENDATION

Based on all of the foregoing, it is RECOMMENDED that the Department issue a final order denying the exemption that the Petitioner has requested.

DONE AND ENTERED this 7th day of July, 1999, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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

Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1999.

ENDNOTES

1/ This change in the order of presenting evidence did not change the burden of proof. That burden is established by statute and remains with the Petitioner, regardless of the order in which evidence is presented.

2/ Neither party ordered a transcript of the final hearing. 3/ See Section 893.13(1)(a)1, Florida Statutes, and

Section 893.03(2)(a), Florida Statutes, to which the first- mentioned provision refers.

4/ The provisions of Section 409.325, Florida Statutes, have since been transferred to Section 414.39, Florida Statutes.

COPIES FURNISHED:

Andrea M. Latson

541 West Sixth Street, Apartment 2 Riviera Beach, Florida 33404-7411

Colleen Farnsworth, Esquire

Department of Children and Family Services

111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401

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: 99-001319

Orders for Case No: 99-001319