STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LLOYD SLAUGHTER, )

)

Petitioner, )

)

vs. ) Case No. 99-5007

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for a disputed-fact hearing on

April 13, 2000, in Ocala, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lloyd Slaughter, pro se

210 Huntington Lodge Drive Inverness, Florida 34453

For Respondent: Lynne T. Winston, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

Whether Petitioner may be granted an exemption from employment disqualification, pursuant to Section 435.07(3), Florida Statutes, which would allow him to work in a position of special trust (i.e. youthful offender counseling) for the Department of Juvenile Justice.

PRELIMINARY STATEMENT

In a letter dated June 22, 1999, the Department of Juvenile Justice (DJJ) informed Petitioner that he was ineligible for continued employment in his caretaker/direct contact position based upon his conviction for assault and battery on a minor.

This letter also informed Petitioner of his right to request a departmental exemption hearing and of his burden of proof and duty to go forward with the specific elements of

Section 435.07(3), Florida Statutes.

Petitioner timely requested a departmental exemption hearing. By a September 8, 1999, letter, Petitioner was notified of the date and time of his hearing, which letter reiterated the five statutory factors on which he must focus his presentation.

Petitioner presented his evidence at the hearing. The Departmental Exemption Hearing Committee recommended against the exemption. The committee's recommendation was adopted as proposed final agency action by DJJ.

Petitioner timely requested a Section 120.57(1), Florida Statutes, disputed-fact hearing, and the cause was referred to the Division of Administrative Hearings on or about December 7, 1999.

After a delay occasioned by a faulty notice, the disputed- fact hearing was convened on April 13, 2000.

Petitioner presented the oral testimony of Sonne Slaughter and Samantha Slaughter and testified on his own behalf. He had two exhibits admitted in evidence.

Respondent had 14 exhibits admitted in evidence.

The parties' Joint Prehearing Stipulation was admitted as Joint Exhibit A.1

A Transcript was filed with the Division on April 26, 2000. Respondent timely filed its Proposed Recommended Order on

May 3, 2000. Petitioner waived filing a proposal.

FINDINGS OF FACT

1. On February 16, 1999, a request for a Preliminary Florida Criminal Information Center/National Criminal Information Center (FCIC/NCIC) and Division of Highway Safety and Motor Vehicle (DHSMV) Screening Check was submitted on behalf of Petitioner by Dawn Torres of Youth Service International, Cypress Creek Academy.

2. The screening package contained an Affidavit of Good Moral Character signed by Petitioner and notarized on January 11, 1999, in which Petitioner indicated that he did not have a disqualifying criminal history.

3. There is every reason to believe that this affidavit was actually signed by Petitioner on January 8, 1999, at the same time he signed a consent to background screening and a job application which described a prior "misdemeanor" of assault on

   an ex-girlfriend. (Respondent's Composite Exhibit 1). This means the affidavit was notarized improperly.

4. Cypress Creek Academy is a youth rehabilitation facility located in LeCanto, Florida.

5. On February 19, 1999, Petitioner's preliminary screening was rated as "favorable" based upon an FCIC (Florida) check only.

6. Petitioner was therefore employed by Cypress Creek Academy on April 12, 1999. (Petitioner's Exhibit 1).

7. An FBI Identification Record dated May 9, 1999, indicated Petitioner had pled guilty to, and been found guilty of, assault on June 30, 1994, and that he had been sentenced to six months' jail time (suspended), 12 months' probation, and attendance at the Mens' Anger Program.

8. In a letter dated May 17, 1999, Petitioner was asked by DJJ to provide, within 30 days of receipt of the letter, certified copies of arrest reports and judicial dispositions referencing the assault charge.

9. Petitioner submitted the requested information to DJJ. It showed that Petitioner was arrested on June 3, 1994, by the Fairfax, Virginia, Police Department for abduction and assault and battery on a minor (17 years of age). On June 30, 1994, Petitioner pled guilty to assault and battery in the Fairfax County, Virginia, Juvenile and Domestic Relations District Court and was then found guilty. He was sentenced to a six months' jail sentence (suspended) and 12 months' active

   probation; ordered to attend the Mens' Anger Program; and instructed to have "no violation towards victim."

10. A Show Cause Summons (Criminal) was issued by Fairfax County, Virginia, on June 23, 1995, to Petitioner concerning his failure to attend the Mens' Anger Program and his failure to contact his probation officer from September 26, 1994, to March 20, 1995. On September 21, 1995, the Fairfax County, Virginia, Juvenile and Domestic Relations District Court found Petitioner guilty of contempt based upon his plea of guilty. He was sentenced to a jail term of 60 days (with 57 days suspended), placed on probation for an additional 12 months, and again ordered to attend the Mens' Anger Program.

11. By departmental letter of June 22, 1999, DJJ notified Petitioner of his ineligibility for continued employment and his right to request a departmental exemption hearing. Simultaneously, Cypress Creek Academy was notified that Petitioner was ineligible/disqualified from employment as a youth counselor and that he must be immediately removed from direct contact with juveniles.

12. However, according to Petitioner's evidence presented at hearing, Petitioner only worked at Cypress Creek Academy from April 12, 1999, until June 3, 1999. (Petitioner's Exhibit 1).

13. Also, the Academy's director was unable to assess Petitioner's performance fully, since he had worked there less than two months, but the director felt Petitioner would be an

    asset, and if exempted, that Petitioner would be eligible for rehire. (Petitioner's Exhibit 1).

14. Petitioner timely requested an exemption, which was denied by DJJ. He then timely requested this disputed-fact hearing.

15. The circumstances surrounding the June 3, 1994, incident giving rise to disqualification were described by Petitioner as follows: In 1994, Petitioner, who was barely 21 years old, was living with his 17-year-old girlfriend and her mother. He and the girlfriend got into a dispute and she kicked him in the stomach. He instinctively lashed out and hit her, even though intellectually, he knew it was wrong to hit a woman. Petitioner believed that his girlfriend also should have been criminally charged, but that did not happen. Petitioner claimed that although his girlfriend bailed him out of jail and wanted to drop the charges, his public defender made him plead guilty against his own better judgment.

16. Petitioner maintained that his "instinctive" reaction to hit back was due to having been a battered child. His sister confirmed a dysfunctional and abusive family history.

17. Petitioner's NCCI report does not reveal any criminal charges against Petitioner since 1994.

18. Petitioner completed the Mens' Anger Program in Virginia as of June 26, 1996, pursuant to the Court's 1995 suspended sentence, by attending 22 out of 24 sessions. His

    only excuse for his delay in attending this program (see Finding of Fact 10, above) was that he was trying to straighten himself out.

19. Petitioner testified that he has completed his probation in Virginia, but he presented no corroboration thereof, either from his probation officer or from any other Virginia authority. This defect in Petitioner's presentation is of concern because he has had nearly 10 months since the exemption process began in which to obtain these records, if they exist.

20. Petitioner denied that he attempted to camouflage his prior criminal record from either Cypress Creek Academy or DJJ. He reasonably pointed-out that if he had been actively attempting to hide his prior criminal record when he signed the January 11, 1999, affidavit stating that he had no prior criminal record, he would not also have signed a consent to background screening on January 8, 1999 and on the same date disclosed the details of the assault on his ex-girlfriend to his potential employer, describing it as a misdemeanor. (Respondent's Composite Exhibit 1).

21. I have weighed the fact that Petitioner is a high school graduate who has completed one year of college (Respondent's Exhibit 1) against his representation that he just did not read the good moral character affidavit he signed, and I have compared the lengthy and complex single-spaced

    disclosure forms involved, including the affidavit, which lists a variety of felonies by their Florida Statute numbers. I have also considered the detail of Petitioner's disclosure of the facts of the assault but mischaracterization of it as a "misdemeanor" rather than a felony. I accept that Petitioner's failure to disclose that his prior criminal history in Virginia was a disqualifying felony was careless and irresponsible rather than a deliberate attempt to conceal his criminal record from the employer and DJJ. On the other hand, his carelessness and lack of responsibility with regard to the affidavit/oath do not speak favorably for his current good character when it applies to a position of counseling young offenders.

22. Since 1995, Petitioner has married and fathered a child.

23. Since leaving Virginia, Petitioner has worked as a security guard in Reno, Nevada, dealing with cash, personal safety of casino patrons, and safety of patrons' vehicles.

24. Currently, Petitioner is a regular church-goer and is working 52 hours a week to support his family.

25. Petitioner's wife testified that he is non-violent toward her, even if she hits him; that he "scares me because he's so religious"; that she gets mad because he does so much for others; and that he is a "real caring person" and a "good father."

26. Petitioner's sister testified to Petitioner's being entirely non-violent since he became a church-goer.

    CONCLUSIONS OF LAW

    
    

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

28. The parties have stipulated that pursuant to Sections 435.04(2)(f) and (h) Florida Statutes, assault on a minor and battery are disqualifying offenses.

29. Petitioner had the duty to go forward to present clear and convincing evidence to support a reasonable belief that he is of good moral character upon the terms set-out in Section 435.07(3) Florida Statutes, which provides 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 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.

30. All the circumstances of the disqualifying offense are not clear on the record. On one hand, one could view the assault as little more than two youths squabbling and a significant sentence being meted-out to Petitioner merely because he was

    21-years-old and his girlfriend was still underage. However, there is no getting around the fact that as an adult male he seriously assaulted an underage female. This type of poor impulse control is not persuasive that he should be entrusted with the care of juveniles.

31. Petitioner has gone six years without further criminal involvement since the disqualifying offense, but he only completed the mandated anger management course four years ago. His excuse for his delay does not demonstrate respect for authority or a desire for rehabilitation, both of which traits are recognized components of good moral character.

32. Petitioner has not yet presented any official corroboration that he has completed his probation for the disqualifying offense.

33. It is commendatory that Petitioner seems to have established a stable family life and has embraced a religious faith designed to sustain that stable family life and his current law-abiding status in the community. These accomplishments are particularly commendatory in light of Petitioner's abusive upbringing, but there is only Petitioner's and his family's view of his situation. He has moved from state to state over the

    intervening six years since the offense and no members of his current community, no religious leaders, and no prior or current employers (except as discussed in Finding of Fact 12) submitted references or came to testify on his behalf.

34. While I accept Petitioner's assertion that when he signed a notarized affidavit he had no disqualifying criminal record, that he was just careless, and that he did not act with an active intent to conceal or defraud, I also must conclude that such carelessness is a sign of continued lack of responsibility.

35. As a result of all of the foregoing, I conclude that Petitioner has not met his burden to establish good moral character and rehabilitation by clear and convincing evidence.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Juvenile Justice enter a final order denying Petitioner an exemption at this time and clearly stating therein upon what date it will consider a new application for exemption.

DONE AND ENTERED this 30 day of May, 2000, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 May, 2000.

ENDNOTE

1/ The parties' Joint Prehearing Stipulation has been honored in substance as appropriate in the Preliminary Statement, Findings of Fact, and Conclusions of Law of this Recommended Order.

Because this is an exemption case, the reasoning behind the DJJ's exemption hearing committee's recommendation is immaterial and its Inspector General's adoption of that recommendation constitutes non-binding proposed agency action.

COPIES FURNISHED:

Lloyd Slaughter

210 Huntington Lodge Drive Inverness, Florida 34453

Lynne T. Winston, Esquire Department of Juvenile Justice 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: 99-005007

Orders for Case No: 99-005007