STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT L. BRUNSON, II, )

)

Petitioner, )

)

vs. ) Case No. 99-4032

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on December 16, 1999, by means of a video teleconference at sites in Tallahassee and Fort Lauderdale, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert L. Brunson, II, pro se

828 Second Street, West

West Palm Beach, Florida 33401

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 in this case is whether the Petitioner should be exempted from employment disqualification, thereby allowing him

to work in a position of special trust or responsibility with the Department of Juvenile Justice (Department).

PRELIMINARY STATEMENT

The Petitioner was determined by the Department to be disqualified for employment in a position of special trust or responsibility based on the Petitioner's criminal history. The Petitioner then requested an exemption pursuant to Section 435.07, Florida Statutes. When advised of the Department's intent to deny his request for exemption, the Petitioner requested a hearing and the matter was referred to the Division of Administrative Hearings for final hearing.

At the final hearing on December 16, 1999, the Petitioner testified on his own behalf and also presented the testimony of two other witnesses, Richard Barr and Luretha Hunt. The Petitioner also offered three exhibits, all of which were received in evidence. The Respondent presented the testimony of Perry Turner, the Department's Inspector General, and offered eight exhibits, all of which were received into evidence.

At the conclusion of the hearing, the parties were allowed ten working days from the filing of the transcript within which to file their proposed recommended orders. The transcript of the hearing was filed with the Division of Administrative Hearings on February 3, 2000. Both parties timely filed post- hearing documents in support of their respective positions. 1/

Those documents have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. On September 23, 1994, the Petitioner was arrested by the Broward County Sheriff's Office and was charged with the crimes of aggravated assault with a firearm and carrying a concealed weapon. On November 8, 1994, on the advice of counsel, the Petitioner entered a plea of nolo contendere to the

   charge of aggravated assault with a firearm. On August 22, 1995, the Petitioner was sentenced to a five-year period of probation, and as a special condition of his probation was ordered to pay $250.00. The charge of carrying a concealed weapon was not processed.

2. In April of 1999, the Petitioner applied for the position of coordinator with Atlantic Coast Marine Institute (ACMI). This position would have brought the Petitioner into direct contact with juveniles. On April 28, 1999, ACMI submitted to the Office of the Inspector General (OIG) a Request for Preliminary FCIC/NCIC and DHSMV Screening on the Petitioner. As a result of his criminal history, on May 2, 1999, the Petitioner was rated "Unfavorable/Disqualifying" on his preliminary screening.

3. By letter dated July 22, 1999, the Petitioner was advised of the results of the preliminary screening, and was

   also advised of the procedure for requesting an exemption from employment disqualification. The Petitioner thereafter filed a timely request for exemption with supporting documents.

4. By letter dated August 26, 1999, the Petitioner was advised that his request for exemption from employment disqualification pursuant to Section 435.07, Florida Statutes, was denied. Thereafter, the Petitioner filed a timely request for a hearing to challenge the denial of his request for exemption.

5. The disqualification of the Petitioner is based solely on his entry of a plea of nolo contendere to the charge of aggravated assault with a firearm, and the court sentence based on that plea. The Petitioner's plea of nolo contendere, which was based on the advice of legal counsel, was a plea of convenience to bring about a prompt resolution of the criminal charges and to avoid the possibility of a prison sentence. The Petitioner did not enter that plea because he believed he was guilty of the offense of aggravated assault with a firearm. To the contrary, the Petitioner has at all times believed, and continues to believe, that he is innocent of the criminal offense to which he pled nolo contendere.

6. The Petitioner's belief in this regard is well-founded, because at the time of the incident which led to the filing of criminal charges against the Petitioner, he did not have a

   firearm in his possession and, therefore, could not have assaulted anyone with a firearm. 2/

7. Following his sentence on the criminal charge, the Petitioner made good faith efforts to timely comply with all conditions of his probation. He had occasional difficulties making the financial payments required by his sentence due to difficulties in obtaining steady employment. Ultimately, the Petitioner fulfilled all conditions of his probation and, as of September 13, 1999, the Petitioner's probation was terminated early by court order.

8. Both before and after the incident that led to the Petitioner's arrest, he has worked in positions involving the care and supervision of young people. The Petitioner enjoys working with young people and appears to be quite good at such work. 3/

9. The Petitioner was raised in a military family. He also served for four years in the military. He is a self- disciplined person who takes his personal and professional responsibilities seriously. He is active in his community and does his best to be an upstanding citizen. In sum, the Petitioner is a decent and honorable person who enjoys working with youth, is good at working with youth, and should not be disqualified from employment positions working with youth.

   CONCLUSIONS OF LAW

   
   

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

11. It is conceded that, by reason of his plea of nolo

    
    

    contendere, the Petitioner is disqualified from employment in the position he seeks to work in. The sole issue here is whether the Petitioner is entitled to an exemption from that disqualification pursuant to Section 435.07, Florida Statutes, which reads as follows, in pertinent part:

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

    
    

12. Upon consideration of the facts in this case in light of the statutory language quoted immediately above, it is concluded that the Petitioner, by the required quantum of proof, has demonstrated that he "will not present a danger if continued employment is allowed," and that there is "sufficient evidence of rehabilitation" to demonstrate entitlement to the exemption sought by the Petitioner. Accordingly, his request for exemption should be granted.

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

DONE AND ENTERED this 25th day of April, 2000, 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2000.

ENDNOTES

1/ The Petitioner filed a two-page document captioned Closing Arguments. The Respondent filed a document titled Respondent's Proposed Recommended Order.

2/ The Petitioner's version of the events that led to his arrest are set forth in a sworn statement that comprises part of Respondent's Exhibit No. 4, as well as in the Petitioner's testimony at the final hearing. The Petitioner's statements are clear and convincing.

3/ Two of the Petitioner's former supervisors testified that, in his position as case manager at Pompano Academy and at Everglades Academy, the Petitioner's performance was "above satisfactory." One of those former supervisors also testified: "My experience with Mr. Brunson is that his interactions with the youth were appropriate and would not be cause for concern for us or for me as a supervisor." The finding that the Petitioner is good at such work is also corroborated by the letter from Ms. Angela M. Davis, which is included in Respondent's Exhibit No. 6.

COPIES FURNISHED:

Robert L. Brunson, II 828 Second Street, West

West Palm Beach, Florida 33401

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

Tallahassee, Florida 32399-3100

William G. "Bill" 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: 99-004032

Orders for Case No: 99-004032