STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EARLINE JOHNSON, )

)

Petitioner, )

)

vs. ) Case No. 99-3082

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on December 10, 2000, in Miami, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Earline Johnson, pro se

1788 Northwest 58th Street Miami, Florida 33142-2422

For Respondent: Lynne T. Winston, Esquire

Department of Juvenile Justice Inspector General’s Office 2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner’s request for exemption from employment disqualification should be granted.

PRELIMINARY STATEMENT

By notice dated April 6, 1999, Earline Johnson (Petitioner) was notified by the Department of Juvenile Justice (Respondent) that she was ineligible for employment in a position of special trust or responsibility based upon her criminal history.

Petitioner requested an exemption from employment disqualification, which was subsequently denied by Respondent. Petitioner requested a formal hearing regarding Respondent’s denial. This matter was referred to the Division of Administrative Hearings.

At hearing, Petitioner testified in her own behalf, presented the testimony of one witness, and entered 14 exhibits (Petitioner’s Exhibits numbered 1-14) into evidence. Respondent presented the testimony of one witness and entered ten exhibits (Respondent's Exhibits numbered 1-10) into evidence.

Additionally, Petitioner was permitted to call a witness at a subsequent date. The witness, a law enforcement officer, was not aware of the nature of the hearing, and required the approval of certain supervisors before she could voluntarily testify. A considerable amount of time elapsed without Petitioner presenting the witness to testify. The undersigned subsequently issued an order that required Petitioner to present the witness to testify either voluntarily or through subpoena

and that the failure to comply would result in the hearing being considered concluded and the post-hearing submissions being due by a time certain. Petitioner failed to comply. The parties were ordered to submit their post-hearing submissions within 30 days of January 7, 2001.

A transcript of the hearing was ordered. The Transcript, consisting of one volume, was filed on January 15, 2000. Only Respondent filed a post-hearing submission, which has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. In July 1998, Petitioner held a position with the James E. Scott Community Association (Association) as a caretaker for juveniles. Petitioner had been employed with the Association since 1995. In July 1998, the Association, as a provider facility for Respondent, submitted a Request for Preliminary FCIC/NCIC and DHSMV Screening Check package (Screening Package) on Petitioner to the Respondent's Office of the Inspector General (OIG).

2. Included in the Screening Package was an Affidavit of Good Moral Character (Affidavit). Petitioner executed the Affidavit on July 13, 1998. Petitioner indicated on the Affidavit that she had no disqualifying offenses that would deem her ineligible to work in direct contact with juveniles. The

   disqualifying offenses were enumerated on the Affidavit. The offense pertinent to Petitioner was an offense of Chapter 812, Florida Statutes, relating to theft, robbery and related crimes, if the offense was a felony.

3. The OIG conducted a review of Petitioner's criminal history. OIG's review revealed that Petitioner had potential disqualifying criminal offenses. Her criminal record contained seven arrests by the Metro-Dade Police Department from 1975 to 1995, which were as follows:

   October 10, 1975, arrested and charged with shoplifting and fraud (insufficient funds check (IFC)).

   
   

   December 15, 1978, arrested and charged with shoplifting, felony; shoplifting; fraud (IFC); and a nonmoving traffic violation.

   
   

   December 10, 1983, arrested and charged with shoplifting, reduced to funds check, felony.

   
   

   April 18, 1984, arrested and charged with fraud (IFC), felony; fraud (IFC), misdemeanor; and larceny, grand, second degree.

   
   

   November 17, 1984, arrested and charged with shoplifting, petty.

   
   

   November 9, 1985, arrested and charged with larceny, grand.

   
   

   March 3, 1995, arrested and charged with fraud, welfare; and larceny, grand.

4. By letter dated July 23, 1998, the supervisor of Respondent's Background Screening Unit notified Petitioner of

   the potential disqualification. Further, the Screening Unit's supervisor requested Petitioner to provide certified police reports and judicial dispositions on the arrests.

5. Petitioner complied with the request and submitted certified documents regarding the arrests. The documents indicated that Petitioner's arrests in 1984, 1985, and 1995 for grand theft were disqualifying in nature because they involved violations of Chapter 812, Florida Statutes. Such violations were indicated in the Affidavit as being disqualifying offenses.

6. Regarding the arrest on April 18, 1984, Petitioner, along with another person, exited a department store with clothing items for which she had not paid. The value of the clothing items was $630. The court made a finding of guilt, withheld adjudication, and imposed probation.

7. As to the arrest on November 9, 1985, Petitioner and another person exited a department store with clothing for which they had paid. Petitioner's vehicle was searched, and additional clothing from a second department store was discovered. The court made a finding of guilt, withheld adjudication, and imposed probation and community control.

8. Regarding the arrest on March 7, 1995, Petitioner and an accomplice received Aid to Families with Dependent Children (AFDC) benefits and Food Stamp benefits for which they were not

   entitled from August 1993 through August 1994. The value of the AFDC benefits was $3,111 and the Food Stamps benefits was

   $6,856. Petitioner pled guilty, and the court made a finding of guilt and adjudicated her guilty and, among other things, imposed probation, community service, and restitution.

9. In completing the Affidavit, Petitioner had no intent to deceive. Petitioner’s employer advised Petitioner to complete the Affidavit indicating that she had no disqualifying offenses. However, the responsibility was upon Petitioner to complete the Affidavit and to complete it accurately and honestly. She should have known to indicate on the Affidavit that she had a disqualifying offense.

10. Respondent reviewed the information. Respondent determined that Petitioner was ineligible for continued employment in a position of special trust or responsibility.

11. By letter dated April 6, 1999, the Screening Unit’s supervisor notified Petitioner that she was ineligible based on the dispositions of the arrests on April 18, 1984, and March 7, 1995, and that she could request an exemption from disqualification. The Association was also notified simultaneously of Petitioner’s ineligibility and was instructed to immediately remove her from direct contact with juveniles.

    The Association removed Petitioner from direct contact with juveniles.

12. Petitioner requested an informal exemption hearing, which was held on May 14, 1999. The hearing was conducted by a committee of three individuals, who only had the authority to make a recommendation to Respondent’s Inspector General who had final decision-making authority. In a report dated June 7, 1999, two of the committee’s members recommended that Petitioner’s exemption be denied, one member recommended granting the exemption. On May 14, 1999, Petitioner also executed a corrected Affidavit, indicating that she had disqualifying offenses. The committee’s recommendation and Petitioner’s file, along with the corrected Affidavit was forwarded to Respondent’s Inspector General.

13. After reviewing the recommendation, the file, and the Affidavit, the Inspector General denied Petitioner’s request for exemption on June 9, 1999. By letter dated June 11, 1999, the Inspector General notified Petitioner that her request for exemption was denied.

14. Respondent’s Inspector General denied Petitioner’s exemption because she failed to accurately complete the Affidavit; because of her recent conviction of welfare fraud and grand theft, regarding the March 7, 1995, arrest; and because

    she had not completed her obligations for the conviction of welfare fraud and grand theft. At the time of the denial and the hearing, Petitioner had not completed her probation, which would end in April 2000, and Petitioner had not paid restitution.

15. Petitioner has performed in an exemplary manner during her employment with the Association.

16. Petitioner’s witness provided support as to her good moral character. However, even Petitioner’s witness stated that Petitioner is unable to show good moral character until she completes her probation and pays restitution.

17. Petitioner presented letters to support her position of good moral character.

18. Respondent concedes that Petitioner does not present a threat to juveniles.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

20. Section 39.001, Florida Statutes, provides in pertinent part:

    (2) The Department of Juvenile

    Justice . . . may contract with . . . public

    and private agencies, and private individuals and corporations in carrying out the purposes of, and the responsibilities established in, this chapter.

    
    

    1. When the Department of Juvenile Justice . . . contracts with a provider for any program for children, all personnel, including owners, operators, employees, and volunteers, in the facility must be of good moral character. A volunteer who assists on an intermittent basis for less than 40 hours per month need not be screened if the volunteer is under direct and constant supervision by persons who meet the screening requirements.

       
       

    2. The Department of Juvenile Justice . . . shall require employment

       screening pursuant to chapter 435, using the level 2 standards set forth in that chapter for personnel in programs for children or youth.

       
       

    3. The Department of Juvenile

    Justice . . . may grant exemptions from disqualification from working with children as provided in s. 435.07.

    
    

21. Petitioner is an employee of a provider, the Association. Respondent is charged with performing a level 2 standards check, provided in Chapter 435, Florida Statutes, on Petitioner; however, Respondent is also given the authority to grant Petitioner an exemption from disqualification for working with children at the facility operated by the provider.

22. Section 435.04, Florida Statutes, provides in pertinent part:

    1. All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. For the purposes of this subsection, security background investigations shall include, but not be limited to, employment history checks, fingerprinting for all purposes and checks in this subsection, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.

       
       

    2. The security background investigations under this section must ensure that no persons subject to the provisions of this section have been found guilty of, regardless of adjudication or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:

       
       

       * * *

       
       

       (w) Chapter 812, relating to theft, robbery, and related crimes, if the offense was a felony.

       
       

23. Petitioner is employed in a position of trust or responsibility. She committed an offense related to theft, which was a felony. However, Respondent may grant an exemption.

24 Section 435.06, Florida Statutes, provides in pertinent

part:

(2) The employer must either terminate the employment of any of is personnel found to

be in noncompliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07.

1. Section 435.07, Florida Statutes, provides in pertinent part:

   Unless otherwise provided by law, the provisions of this section shall apply to exemptions from disqualification.

   
   

   1. The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:

      
      

      1. Felonies committed more than 3 years prior to the date of disqualification;

         
         

         * * *

         
         

         (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. . . .

2. Subsection 39.001(2), Florida Statutes, required Petitioner, as an employee of the Association, to be of good moral character. Subsection 435.06(2), Florida Statutes, addresses minimum standards for good moral character and the affected employee being granted an exemption from disqualification. Subsections 435.07(1) and (3), Florida Statutes, address the affected employee demonstrating by clear and convincing evidence that he/she should not be disqualified from employment and the employee having the burden of demonstrating his/her rehabilitation in order to receive an exemption from disqualification.

3. Moral character has been defined as "not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence." Zemour, Inc. v. Florida Division of Beverage, 347

   So. 2d 1102, 1105 (Fla. 1st DCA 1977).

   
   

4. "What constitutes good moral character is a matter to be developed by facts, evaluated by the agency, with a judicial review of same available." White v. Beary, 237 So. 2d 263, 266

   (Fla. 1st DCA 1970). A lack of good moral character has been determined to include "acts and conduct which would cause a

   reasonable man to have substantial doubts about an individual’s honesty, fairness, and respect for the rights of others and for the laws of the state and nation." Florida Board of Bar Examiners Re: G.W.L., 364 So. 2d 454, 458 (Fla. 1978).

5. "In the context of professional and occupational licensing, the question of what constitutes good moral character has been held to be ordinarily a question of fact for the trier of fact." Albert v. Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, 573 So. 2d

   187, 188 (Fla. 3d DCA 1991).

   
   

6. Petitioner failed to demonstrate that she has been rehabilitated regarding the felony offense of welfare fraud and grand theft. She has not completed her probation and has not paid restitution.

7. Petitioner’s action as to the Affidavit should also be considered in determining whether she possesses good moral character. Petitioner failed to demonstrate that she possesses good moral character through her conduct by not indicating on the Affidavit that she had a disqualifying offense. She was not truthful on the Affidavit. The role played by Petitioner's employer is to be considered in Petitioner completing the Affidavit; however, her employer’s role fails to excuse

Petitioner’s responsibility to truthfully and honestly complete

the Affidavit.

RECOMMENDATION

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

RECOMMENDED that the Department of Juvenile Justice enter a final order denying Earline Johnson an exemption from disqualification of employment to work in a position of special trust or responsibility with it.

DONE AND ENTERED this 30th day of March, 2001, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

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 30th day of March, 2001.

COPIES FURNISHED:

Earline Johnson

1788 Northwest 58th Street Miami, Florida 33142-2422

Lynne T. Winston, Esquire Department of Juvenile Justice Inspector General’s Office 2737 Centerview Drive

Tallahassee, Florida 32399-3100

William G. Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive

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

Docket for Case No: 99-003082

Orders for Case No: 99-003082