STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

QUARALEND R. HUDSON, )

)

Petitioner, )

)

vs. ) Case No. 99-2588

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 20, 1999, in Tallahassee, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Quaralend R. Hudson, pro se

7504 Messer Court

Tallahassee, Florida 32304

For Respondent: Steven Wallace, 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 May 27, 1999, when Respondent, Department of Children and Family Services, issued a letter advising Petitioner, Quaralend R. Hudson, that her "request for exemption, pursuant to Laws of Florida governing background screening, ha[d] been denied." No reason for the denial was given. By letter dated May 29, 1999, Petitioner 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 June 10, 1999, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated June 28, 1999, a final hearing was scheduled on August 20, 1999, in Tallahassee, Florida.

At the final hearing, Petitioner testified on her own behalf and presented the testimony of her husband, William F. Hudson, and her former employer, Jenecia T. Carter. Also, she offered Petitioner's Exhibits 1 and 2. Both exhibits were received in evidence. Respondent offered Respondent's Exhibits 1 and 2 which were received in evidence.

There is no transcript of the hearing. Proposed Findings of Fact and Conclusions of Law were filed by Respondent on

August 27, 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, Quaralend R. Hudson, 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 a child care worker. Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In an earlier preliminary decision, a DCFS committee denied the request.

2. Petitioner is now barred from working in a position of special trust because of a disqualifying offense which occurred in North Carolina in 1992. On December 15, 1991, she was arrested for false imprisonment in Sampson County,

   North Carolina. Upon advice of her court-appointed counsel, on June 2, 1992, she pled guilty to that charge and was sentenced to two years' supervised probation and ordered to pay $445.00 in costs and attorney's fees. Petitioner successfully completed all terms of probation.

3. In explaining the circumstances surrounding her arrest, Petitioner noted that she was a passenger in her boyfriend's automobile when he became involved in an altercation with another person who owed him money. During the altercation, her boyfriend

   forced the other person into his car. Both Petitioner and her boyfriend were subsequently arrested for false imprisonment.

4. Since her conviction, Petitioner has an unblemished record and a history of steady employment. From 1993 to 1996, she was an assistant manager at a store in North Carolina. She then moved to Tallahassee, Florida, where she worked for approximately 18 months as an assistant manager at a fast food restaurant. In January 1999, Petitioner was employed as a worker at Kids R' It, a child care center in Tallahassee. Although an initial background screening failed to reveal her criminal record, a second check revealed the disqualifying offense, and Petitioner was forced to resign her position in May 1999. Since that time, she has worked with a local telemarketing firm.

5. Petitioner has been married for five years, lives in a stable environment, regularly attends church, and has turned her life around. She enjoys working with children, and there is no evidence that she would pose a danger to children. According to her former employer, Petitioner was an asset to the day care center, a loving, caring employee, dedicated and dependable, and an "exceptional" person. If the request is approved, Petitioner will return to her former job.

6. On March 9, 1999, or after the first background screening had been performed, Petitioner signed an Affidavit of Good Moral Character for her employer. In the affidavit, she swore that she had never been found guilty or entered a plea of

   guilty or no contest to any of an enumerated list of crimes, including false imprisonment, regardless of whether the records had been sealed or expunged. As noted above, Petitioner had pled guilty to that charge in North Carolina in 1992.

7. At hearing, Petitioner explained that when she signed the affidavit, she was under the mistaken impression that she had pled no contest (rather than guilty), and that this had the effect of expunging the 1992 conviction from her record. Even so, the instructions on the affidavit made clear that her conviction, even if the result of a no contest plea, and later sealed or expunged, must still be disclosed. Therefore, it is assumed that when she executed the affidavit, Petitioner was attempting to conceal the North Carolina conviction. To her credit, however, Petitioner voluntarily disclosed the matter to her employer a short time later.

8. Given the foregoing considerations, it is found that Petitioner poses no threat to children through continued employment at a day care center. However, because she executed a false affidavit less than six months ago, there is less than clear and convincing evidence of rehabilitation since Petitioner's plea of guilty in 1992.

   CONCLUSIONS OF LAW

   
   

9. 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).

10. 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.

11. Except for making a false affidavit, Petitioner would clearly qualify for an exemption. Indeed, she has a blemish-free record since her arrest in December 1991; she had an exemplary recommendation from her former employer; and letters received in evidence corroborate her claim that she has been an outstanding caretaker with children. However, the execution of a false affidavit less than six months ago leads the undersigned to conclude that Petitioner has not sufficiently rehabilitated herself as of this time. Compare Johnson v. Dep't of Juv. Just.,

21 F.A.L.R. 761 (Dep't of Juv. Just., Nov. 23, 1998)(execution of false affidavit 18 months prior to hearing grounds for denying request for exemption). Therefore, the request should be denied. Petitioner should be advised, however, that she may resubmit a request for an exemption in the future.

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 denying Petitioner's request for an exemption from disqualification for employment in a position of special trust.

DONE AND ENTERED this 7th day of September, 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 7th day of September, 1999.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 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

Quaralend R. Hudson 7504 Messer Court

Tallahassee, Florida 32304

Steven Wallace, 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 15 days. Any exceptions to this Recommended Order should be filed with the Department of Children and Family Services.

Docket for Case No: 99-002588

Orders for Case No: 99-002588