STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLOTTE BOUIE, )

)

Petitioner, )

)

vs. ) Case No. 99-3734

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 6, 1999, in Tallahassee, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charlotte Bouie, pro se

2937 Greenon Court

Tallahassee, Florida 32304

For Respondent: John R. Perry, 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 July 27, 1999, when Respondent, Department of Children and Family Services, issued a letter advising Petitioner, Charlotte Bouie, 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 filed on August 6, 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 September 2, 1999, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated September 17, 1999, a final hearing was scheduled on October 4, 1999, in Tallahassee, Florida. At Respondent’s request, the hearing was continued to October 6, 1999, at the same location.

At the final hearing, Petitioner testified on her own behalf and offered Petitioner's Exhibit 1, which was received in evidence. Respondent presented the testimony of Malvin Jones, an investigator for the Florida A & M University Police Department. Also, it offered Respondent's Exhibits 1-3, 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

November 8, 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, Charlotte Bouie, 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 with elderly persons in a convalescent home. Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision made in July 1999, 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 on July 22, 1994. On that date, when she was then known as Geraldine Bouie, Petitioner was charged with carrying a concealed firearm and aggravated assault with a deadly weapon, both felonies. The latter offense is a disqualifying offense under Chapter 435, Florida Statutes.

3. On March 25, 1995, Petitioner pled no contest to both charges, adjudication of guilt was withheld, and she was placed on one year's supervised probation. In addition, Petitioner was required to pay court costs, complete 10 work days in the

   Sheriff’s Work Program, and forfeit her firearm. Although the public records received in evidence reflect that Petitioner violated her terms of probation "in a material respect," her probation was nonetheless terminated on May 10, 1996.

4. In explaining the circumstances surrounding her arrest, Petitioner noted that on the evening of July 22, 1994, she had been receiving firearm instructions at a local "gun class." After the class ended, she decided to visit a male friend who worked at Florida A & M University (FAMU). When she arrived on campus, she says she was carrying two weapons in her pocketbook, one a 9-millimeter pistol, and the other a Titan 38-caliber revolver.

5. According to Petitioner's account of the incident, she was showing the weapons to her friend when another female, who was a former girlfriend of the male, approached her and "struck [her] from behind." At some point, the FAMU campus police were called, a 38-caliber revolver was found in Petitioner's purse, and she was subsequently arrested. At the hearing, Petitioner denied that the weapon found by the police was loaded, that her conduct that evening constituted a crime, or that she pointed her revolver at the other female. This version of events, however, is not found to be totally accurate.

6. According to an investigator with the FAMU Police Department, the revolver taken from Petitioner on July 22, 1994, was indeed loaded and ready to fire. This was confirmed by the

   production at hearing of the weapon and six "soft-nosed" bullets (later removed from the revolver) which were found in her purse that evening. Also, certified copies of public records received in evidence confirm that two crimes were committed by Petitioner that evening, including the disqualifying offense.

7. Although the record is not altogether clear concerning Petitioner's employment record since her arrest, before 1995, and for an unknown period thereafter, Petitioner worked as a "home health" worker for an elderly couple in Tallahassee until both "expired." After their death, Petitioner learned that she was no longer eligible to engage in that type of work without an exemption. Even so, she worked part-time on a volunteer basis "for a year" at the Meadows, a convalescent home, and she was employed by a local restaurant for around 18 months. On May 3, 1999, she received an exemption from disqualification from the Department of Health, and since June 1999, she has worked as a "home nurse" for a local home health care firm. She is seeking an exemption from DCFS so that she can apply for a position at a day care center operated by Tallahassee Memorial Hospital.

8. To demonstrate good moral character and rehabilitation, Petitioner pointed out that she has received an exemption from disqualification from employment from the Department of Health. In addition, despite her conviction, she was authorized to adopt two minor children in 1995. In March 1998, Petitioner attended a

   foster parenting class. Petitioner says she has "changed [her] life around" since the incident.

9. Given the foregoing considerations, it is found that Petitioner poses no threat to elderly or disabled persons through continued employment with elderly persons at a nursing facility. However, by Petitioner's being less than candid regarding the circumstances surrounding her arrest, denying that her conduct constituted a crime, and minimizing the seriousness of her offense by claiming that the revolver used during the commission of the crime was unloaded, her testimony raises sufficient doubt as to whether she is truly rehabilitated at this time. Accordingly, the evidence is less than clear and convincing that the statutory criteria have been satisfied.

   CONCLUSIONS OF LAW

   
   

10. 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 (1999).

11. Section 435.07(3), Florida Statutes (1999), 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.

    
    

12. Had Petitioner acknowledged that she committed a crime, given a full and candid disclosure about the circumstances surrounding her arrest, and shown some remorse, she would qualify for an exemption. Indeed, she has a blemish-free record since her arrest in July 1994, and she has obtained an exemption from another licensing agency. But exemptions granted by one licensing agency "are not binding on the subsequent licensing agency." See Section 435.07(5), Florida Statutes (1999). Therefore, DCFS is not bound by the actions of the Department of Health.

13. Given the foregoing evidentiary shortcomings, it is concluded that there is less than clear and convincing evidence that the statutory criteria have been satisfied. This being so, the request for an exemption should be denied. Such denial, however, is without prejudice to Petitioner's refiling a request at a later time.

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 19th day of November, 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 19th day of November, 1999.

COPIES FURNISHED:

Samuel C. Chavers , Acting 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

Charlotte Bouie 2937 Greenon Court

Tallahassee, Florida 32304

John R. Perry, 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 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: 99-003734

Orders for Case No: 99-003734