STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LACONNIE MINCEY, )

)

Petitioner, )

)

vs. ) Case No. 99-2851

)

DEPARTMENT OF JUVENILE )

JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Tampa, Florida, on June 1, 2000.

APPEARANCES

For Petitioner: Manny Anon, Jr.

Deputy General Counsel AFSCME Florida Council 79

99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169

For Respondent: Lynne T. Winston

Attorney

Chief of Investigations Office of Inspector General

2737 Centerview Drive, Suite 300

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to an exemption from disqualification for employment with Respondent due to Petitioner's plea of guilty to three felony counts of credit card

fraud, one felony count of theft, and one misdemeanor count of theft.

PRELIMINARY STATEMENT

By letter filed June 7, 1999, Petitioner requested a formal hearing on Respondent's denial of Petitioner's earlier request for an exemption from disqualification for employment with Respondent.

At the hearing, Petitioner called four witnesses and offered into evidence 28 exhibits. Respondent called two witnesses and offered into evidence three exhibits. The Administrative Law Judge admitted each party's exhibits and sua sponte admitted Petitioner's complete application for employment with Respondent.

The court reporter filed the Transcript on June 28, 2000.

FINDINGS OF FACT

1. Petitioner was born on July 21, 1967. He was raised in Miami, where he earned his high school diploma in 1985.

2. Petitioner's first employment after high school was as a child care worker. He was initially employed at the Elaine Gordon Treatment Center, for four years, and then the Southeast Florida State Hospital, for a year and a half. For the next three years, Petitioner worked as a senior patient clinical assistant at a facility operated by the University of Miami; in this job, Petitioner worked with adolescent sex offenders. His last job in the Miami area was as a supervisor at the Village for Behavioral Change, where Petitioner worked as a supervisor at a

   halfway house for delinquent youth; after a short time at this job, Petitioner decided to move to Tampa.

3. Petitioner's first job in Tampa was as a counselor of adolescents at Tampa Crossroads, which provides alcohol and drug treatment. After a year at Tampa Crossroads, Petitioner became employed by the Pinellas Regional Juvenile Detention Center as a Detention Care Worker I.

4. While working for Tampa Crossroads, Petitioner lived with his cousin and her brother. His cousin was employed by a company that distributed and collected credit cards. A few months after arriving in Tampa, Petitioner and his cousin developed a scheme to make fraudulent use of credit cards with which the cousin came into possession through her employment. For example, Petitioner and his cousin used the credit card of a recently deceased person, whose survivors had returned the card

   to the cousin's company. This seems to have been the full extent of the scheme; evidently, neither Petitioner nor his cousin gave much thought to escaping detection.

5. Through the fraudulent use of credit cards supplied by his cousin, Petitioner bought furniture, car repairs and accessories, gasoline, meals, and home electronic equipment. Fraudulently charging as much as $17,000, Petitioner and his cousin were arrested after a couple of months.

6. Petitioner expresses remorse for his actions. Without trying to avoid responsibility for his criminal behavior,

   Petitioner suggests that he was in a difficult period of his life because his first marriage had just failed and this was his first time away from Miami. But basically he admits he engaged in the fraud because he wanted things.

7. In September 1995, a law enforcement officer employed by the Tampa Police Department filed an affidavit charging Petitioner as follows: two felony counts of "forgery," in violation of Section 831.01, Florida Statutes; two felony counts of "fraudulent use of credit card," in violation of Section 817.61(1), Florida Statutes; one felony count of "possession of two or more/dealing in credit cards," in violation of Section 817.60(6B)[sic], Florida Statutes; one felony count of "grand theft," in violation of Section 812.014, Florida Statutes; and one misdemeanor count of "petit theft," in violation of Section 812.014, Florida Statutes.

8. Following his arrest on October 3, 1995, Petitioner pleaded guilty to two felony counts of "fraudulent use of a credit card," one felony count of "dealing credit cards of another," one felony count of "grand theft third degree," and one misdemeanor count of "petit theft."

9. By Order of Probation entered February 29, 1996, the court withheld adjudication of guilt and placed Petitioner on probation for eight years: five years for the first three counts and three years, to run consecutively, for the fourth count.

   (The probation for the fifth count ran concurrently with the

   probation for the other counts.) The Order of Probation also ordered Petitioner to pay restitution in the total amount of

   $17,896.32 and court costs of $200, as well as perform 200 hours of community service.

10. Evidently by separate order, the court required Petitioner to pay the restitution monthly in payments of $200. Thus, assuming no interest, Petitioner must pay restitution over

    90 months, which means that he would complete restitution prior to the termination of probation, which is due to terminate February 28, 2004.

11. Petitioner earns $25,000 annually from a janitorial service that he operates. Out of takehome pay of $661 every two weeks, Petitioner pays monthly child support of $260, monthly rent of $400, and monthly debt payments of $100. Petitioner owns no assets, except for a unliened 1996 Kia Sophia, which he bought, in damaged condition, for $1000.

12. Petitioner has paid $162.50 every two weeks, so as to shorten the period required to pay the restitution. He also returned to the stores the stolen merchandise still in his possession.

13. On October 2, 1996, Petitioner completed a State of Florida employment application and submitted it to Respondent for possible employment at Respondent's Pinellas Regional Juvenile Detention Center (JDC). In response to a written question asking if the applicant has ever pleaded no contest or guilty to a crime

    that is a felony or first-degree misdemeanor, Petitioner checked the box marked yes and explained: "I used a credit card belonging to another" in Tampa. In response to a written question asking if the applicant has ever had adjudication withheld to a crime that is a felony or first-degree misdemeanor, Petitioner checked the box marked yes and noted: "same as above."

14. Respondent conducted the standard criminal screenings of job applicants, and nothing was uncovered, perhaps due to the fact that the offenses were relatively recent. Respondent offered Petitioner an Other Personnel Services (OPS) position, essentially as a detention care worker responsible for maintaining order in the JDC. Petitioner began working in November 1996.

15. When a career service Detention Care Worker I position became available, Petitioner decided to seek the position, which imposed the same requirements as the job he was performing, but offered better benefits.

16. Petitioner completed another State of Florida employment application, dated November 2, 1997, and submitted it to Respondent. He answered the above-cited questions in the identical way as he did 13 months earlier. This time, Petitioner also submitted a signed affidavit of good moral character. He indicated that he was not guilty of any of 30 cited statutory

    offenses, including "812 relating to theft, robbery and related crimes, if the offense was a felony."

17. Performing another criminal screening, Respondent received information concerning the above-described arrests and probation. By letter dated February 18, 1999, Respondent informed Petitioner that he was no longer eligible for employment in a position of special trust or responsibility, such as his current position with Respondent. He was therefore to be terminated from his position immediately.

18. Petitioner sought an exemption from disqualification. A committee of Respondent's employees at the JDC conducted a hearing and entered a recommendation on April 26, 1999, that Respondent grant an exemption. In part, the recommendation reasoned:

    [Petitioner] has been honest and forthright about his record since his first point of contact with our agency. . . . His record with us is unblemished and is highly recommended by his peers and his supervisors. [Respondent] has complied with his probation order up to this point. He has completed 200 service hours and has not missed a restitution payment. He is working two jobs in order to pay back the restitution sooner.

    . . .

    
    

19. The delay between the adverse criminal screening and the letter terminating Petitioner's employment is partly attributed to a series of disqualification waivers that Petitioner received from Respondent's JDC employees. These waivers appear to have been for nonwaivable offenses and, except

    for their small value as evidence of Petitioner's value as an employee of Respondent at the JDC, they are not relevant and, in particular, do not establish an exemption by estoppel.

20. In any event, Respondent's Inspector General overturned the recommendation and denied the request for an exemption. Any delay in the issuance of his ruling was immaterial and, again, does not provide the basis for some form of exemption by estoppel or default.

21. However, the fact remains that Petitioner was a model employee at the JDC. He worked effectively with the juveniles incarcerated at the JDC and with his coworkers and supervisors. He was conscientious, dependable, loyal, competent, and professional in all of his dealings and even voluntarily assisted a coworker with her troubled son. When dealing with the juveniles, he always insisted upon compliance with the rules, but, whenever possible, exhibited kind-heartedness. While working at the JDC, Petitioner earned the trust and respect of all of those around him and never displayed bad moral character.

22. The evidence provided by Petitioner's coworkers, supervisors, and friends also tend to establish his rehabilitation. Petitioner's probation officer testified that Petitioner is very compliant and cooperative. At the time of the hearing, he had completed all of his community service except for

    1.5 hours, which may have arisen due to an accounting error. Petitioner has maintained fulltime employment and passed all drug

    screens, as required by the conditions of his probation. He has renewed his religious practices and is now active at his church.

23. At the time of the hearing, Petitioner still owed

    
    

    $13,005.15 in restitution. Except for the fact that restitution is not complete, the probation officer testified that she would recommend termination of probation; she explained that she cannot recommend termination of probation as long as any conditions remain outstanding.

24. Respondent's primary contention in support of denying the request for probation is that Petitioner has not completed his probation. Respondent argues that the completion of probation is a necessary precondition to rehabilitation.

25. In determining whether a person seeking an exemption has completed rehabilitation, it is important to assess the extent of his compliance with the conditions of his probation. Obviously, the successful completion of probation is evidence of rehabilitation, and, if supported by the other evidence, the successful completion of probation may be an important factor in determining that a person has rehabilitated himself.

26. On the other hand, the failure to complete probation does not necessarily preclude a determination of rehabilitation. All of the circumstances must be considered in determining whether a person has rehabilitated himself.

27. The failing in predicating the rehabilitation determination on the successful completion of probation is

    revealed in comparing Petitioner's case with a hypothetical case of another detention care worker, who, but for three facts, is identically situated with Petitioner. The first distinguishing fact is that, after reducing the restitution to $13,000, the hypothetical detention care worker wins the lottery or receives a large inheritance. The second distinguishing fact is that, after receiving the proceeds, the hypothetical detention care worker pays off the remainder of his restitution. The third distinguishing fact is that his probation is then terminated.

28. In the absent of statutory or regulatory authority, the rehabilitation determination cannot be governed by the continuation of probation, when probation likely has not been terminated due merely to the ongoing liability for restitution, without introducing an arbitrary element into the rehabilitation determination. In the present case, Petitioner is working two jobs and is shortening the period of repayment as much as he can; this is exactly what would be expected of the hypothetical detention care worker who enjoys a windfall, and this is all that we can expect, given other evidence of rehabilitation, of Petitioner.

29. More generally, the record does not offer much detail as to the identity of the victims or the extent of the injury caused, except that it was obviously about $17,000. The circumstances surrounding the crimes are not particularly

    telling. Charging a camcorder and auto accessories does not conjure images of Jean Valjean stealing a loaf of bread to eat.

30. On the other hand, five years have passed since the crimes, and, during that time, Petitioner has conducted himself in an exemplary fashion.

31. Unusual in exemption cases is the fact that Petitioner has had an opportunity to demonstrate, following disqualifying crimes, his good moral character while performing the work for which he now seeks the exemption. Candidly disclosing his crimes, Petitioner, due to the failure of Respondent's personnel to follow up on the disclosures in the application and the failure of the criminal screening process, was able to obtain employment as a detention care worker.

32. Later, seeking to gain the benefits of a career service position, Petitioner again disclosed his criminal background. Although it is true that he should have disclosed the grand theft on the affidavit filed at this time, his failure to do so is not indicative of an attempt to conceal. He had, again, revealed the credit card crimes on the application that he was filing for this career service position, as he had revealed the credit card crimes on his first application. It is illogical that he would try to conceal one count of grand theft while disclosing three counts of credit card fraud. More likely, as revealed by the two applications, he had reduced in his mind the various crimes to their most salient characteristic: credit card theft. His

    failure to detect the specific language in the affidavit requiring disclosure of the felony theft offense is reflective of Petitioner's linguistic skill, not his honesty.

33. Petitioner has proved by clear and convincing evidence that he has rehabilitated himself and is of good moral character to justify the issuance of the exemption.

    CONCLUSIONS OF LAW

    
    

34. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

35. The parties do not contest that Petitioner's criminal offenses in late 1995, as disposed of in early 1996, constitute disqualification from the employment that he seeks with Respondent's JDC.

36. However, Section 435.06(2) authorizes Respondent to issue an exemption from disqualification. Section 435.07(1) authorizes the granting of exemptions for felonies more than three years old and misdemeanors. Section 435.07(3) requires:

    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. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120.

    
    

37. Cognizant that Respondent is, as it contends, no longer a social services agency, but is now a criminal justice agency, the record nonetheless fails to suggest that Petitioner would represent a risk to the juvenile inmates or even that his history, as formed by these criminal offenses followed by rehabilitation, would present problems working with the juveniles assigned to the JDC. If a categoric prohibition is needed to prevent such persons from working as detention care workers, then legislation or possibly rulemaking can supply this need. At present, the rehabilitation determination in this case remains a function of the facts of the case, and the clear and convincing evidence is that Petitioner has rehabilitated himself.

RECOMMENDATION

It is

RECOMMENDED that the Department of Juvenile Justice enter a final order granting Petitioner an exemption from disqualification in employment.

DONE AND ENTERED this 25th day of August, 2000, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 August, 2000.

COPIES FURNISHED:

William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100

Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Manny Anon, Jr., Deputy General Counsel AFSCME Florida Council 79

99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169

Lynne T. Winston, Attorney Chief of Investigations Office of Inspector General

2737 Centerview Drive, Suite 300

Tallahassee, Florida 32399-3100

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-002851

Orders for Case No: 99-002851