STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARCUS A. PATRICK, )

)

Petitioner, )

)

vs. ) Case No. 00-0531

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge held the hearing in the above-styled case by videoconference on April 11, 2000; Administrative Law Judge Mary Clark presided from Tallahassee, Florida; Respondent's counsel and witnesses participated in Tallahassee, Florida; Petitioner appeared in Orlando, Florida.

APPEARANCES

For Petitioner: Marcus A. Patrick, pro se

2734 Fireside Court

Orlando, Florida 32839

For Respondent: Lynne T. Winston, Esquire

Inspector General's Office 2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

The issue for resolution in this proceeding is whether Petitioner, Marcus A. Patrick, should be granted an exemption from employment disqualification which would allow him to work in

a position of special trust or responsibility with Respondent, Department of Juvenile Justice.

PRELIMINARY STATEMENT

After receiving denial of his request for an exemption from the Department of Juvenile Justice (DJJ) pursuant to Chapter 435, Florida Statutes, Mr. Patrick requested a formal administrative hearing. The request was forwarded to the Division of Administrative Hearings where it was assigned and scheduled as described above.

At the hearing Mr. Patrick testified on his own behalf and presented no exhibits. DJJ, through counsel, cross-examined Mr. Patrick and presented the additional testimony of Perry Turner, Inspector General for DJJ. DJJ also presented 20 exhibits, all received in evidence without objection. These

exhibits included court documents, Mr. Patrick's screening file, and related documents.

The Transcript of hearing was filed on April 19, 2000. DJJ filed its Proposed Recommended Order on April 24, 2000.

FINDINGS OF FACT

1. Petitioner, Marcus Patrick, resides in Orlando, Florida, and is attending college in the field of criminal justice/criminology. He anticipates that he will receive his Bachelor of Science degree from Florida A&M University in August 2000.

2. In December 1998, during the process of applying for a position with a Department of Juvenile Justice (DJJ) facility in Longwood, Florida, Mr. Patrick filed the necessary forms for background screening. These included an affidavit of good moral character which he signed and had notarized on December 18, 1998. The affidavit states that Mr. Patrick has not been found guilty nor pled guilty or no contest, regardless of whether adjudication was imposed or withheld, of any of a series of offenses listed on the affidavit. The listed offenses included violations of Chapter 812, Florida Statutes, relating to theft, robbery, and related crimes.

3. The statement on the affidavit form immediately above Mr. Patrick's signature provides:

   I attest that I have read the above carefully and state that my attestation here is true and correct that neither my adult nor juvenile record contains any of the listed offenses. I understand that it is my responsibility to obtain clarification on anything contained in this affidavit which I do not understand. I am aware that any omissions, falsifications, misstatements or misrepresentations may disqualify me from employment consideration and, if I am hired, may be grounds for termination at a later date.

4. Contrary to his affidavit, the background screening revealed certain offenses by Mr. Patrick. In 1990, while employed as a cashier at Wal-Mart, he passed store merchandise through the counter without scanning it, thus allowing his friends to obtain items without paying for them. Mr. Patrick and

   co-defendants entered a pre-trial intervention program and the case was dismissed with a nolle prosequi by the State Attorney on May 5, 1992.

5. On February 3, 1997, Mr. Patrick pled nolo contendere to two counts of grand theft, a felony described in Section 812.014, Florida Statutes. He was placed on probation, was fined, and was ordered to make restitution. Adjudication was withheld. The date of the actual charge was October 6, 1996.

6. When DJJ learned of the disqualifying offenses it offered Mr. Patrick an opportunity to explain them and to explain why he lied on the affidavit. In response, Mr. Patrick submitted documents explaining his criminal history and other documents relevant to his fitness for employment. He also submitted a revised affidavit.

7. DJJ Inspector General Perry Turner denied Mr. Patrick's request for an exemption from disqualification on February 1, 1999. At that time Mr. Patrick was still on probation.

   Mr. Turner denied a second request in June 1999, when Mr. Patrick submitted evidence of his early termination from probation, but his felony (dating back to October 1996) was still within the three-year prohibition period. Mr. Turner denied Mr. Patrick's third request on December 14, 1999. It is this most recent denial that is the subject of this proceeding.

8. Mr. Turner's final denial was based on the pattern of theft, the falsification of an affidavit, and the mere lapse of four years since the most recent offense.

9. At the hearing Mr. Patrick admitted he falsified his affidavit but said that he was misled by his lawyer who he admits did not read the affidavit. Apparently the lawyer told him that he could answer "no" if the question asked whether he was convicted. That was not the question, and the affidavit form is quite clear that the questions also included pleas of guilty or no contest and circumstances where adjudication was withheld.

10. Perhaps more troubling is the discrepancy between

    
    

    Mr. Patrick's explanation at hearing and his written explanation submitted to DJJ on January 22, 1999, regarding his 1996 grand theft offense.

11. In 1996, Mr. Patrick was working at the Courtyard by Marriott in Tallahassee, Florida. In his 1999 version of the events, an acquaintance of his from Florida A&M University came to the hotel on several occasions allegedly to escape from his many girlfriends. The acquaintance would check in with a credit card and Mr. Patrick would check him in. The hotel policy was not to question why the name on the card did not match the reservation as long as the card cleared. The acquaintance was caught using bad cards and when it was discovered that

    Mr. Patrick had checked him in they both were in trouble.

12. Mr. Patrick's version at the hearing in this case involved the use of a credit card that belonged to someone else, but Mr. Patrick would not charge the card. Instead, he took cash from the acquaintance in an amount less than the full hotel rate. The testimony is not clear whether Mr. Patrick pocketed all or just part of the cash.

13. In his testimony on cross-examination Mr. Patrick said he thought he had given the whole story to DJJ earlier.

14. Mr. Patrick is working again for Marriott, now in Orlando, Florida. He acknowledges that he made some bad decisions and he believes that his experience and commitment to avoid crime now would enable him to be an effective role model for the troubled youth with whom he so anxiously wants to work.

15. Mr. Patrick worked in a juvenile residential program in Tallahassee, Florida, from April 1997 until December 1998, with promotions from counselor to treatment director to assistant program director. His letters of recommendation from staff at the program are highly laudatory of his character and his work. The record does not reveal how he eluded the screening process when he was hired or whether he was screened for that job, as he would have been on probation for his 1996 felony during that period.

16. Mr. Patrick also has an excellent letter of recommendation from his pastor who has known him since 1996. This letter and those from his co-workers and supervisors do not

    acknowledge any criminal history, but the individuals may be ignorant of the history.

17. The crimes themselves are of less consequence than

    
    

    Mr. Patrick's unwillingness to be fully candid. His training in criminal justice certainly has informed him of the solemnity of an affidavit. He should have known what a no contest plea is and should have been able to understand what he was required to disclose. He is 31 years old, and served in the Marine Corps for approximately 8 years, including Gulf War combat. He is very articulate and appears well-motivated in his pursuit of a career of working with problem youth, a career which does not promise great financial reward.

18. Such a talented, earnest young man should not be forever precluded from working in the field in which he could succeed in helping others avoid the mistakes he has made. For now, however, it is impossible to find sufficient evidence of rehabilitation to assure those mistakes are truly behind him.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

20. DJJ requires employment screening pursuant to Chapter 435, Florida Statutes, for all personnel in programs for children or youths. DJJ may grant exemptions from disqualification from

    working with children as provided in Section 435.07, Florida Statutes. See Section 39.001(2)(b), Florida Statutes.

21. Section 435.07, Florida Statutes, provides:

    
    

    435.07 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;

       2. Misdemeanors prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdictions;

       3. Offenses that were felonies when committed but are now misdemeanors;

       4. Findings of delinquency;

       5. Commissions of acts of domestic violence as defined in s. 741.30; or

       6. Confirmed reports of abuse, neglect, or exploitation of a vulnerable adult.

       
       

       For the purposes of this subsection, the term "felonies" means both felonies prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdictions.

    2. Persons employed by treatment providers who treat adolescents 13 years of age and older who are disqualified from employment solely because of crimes under s. 817.563, s. 893.13, or s. 893.147 may be exempted from disqualification from employment pursuant to this section without the 3-year waiting period.

    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.

    4. Disqualification from employment under subsection (1) may not be removed from, nor may an exemption be granted to, any personnel who is found guilty of, regardless of adjudication, or who has entered a plea of nolo contendere or guilty to, any felony covered by s. 435.03 solely by reason of any pardon, executive clemency, or restoration of civil rights.

    5. Exemptions granted by one licensing agency shall be considered by subsequent licensing agencies, but are not binding on the subsequent licensing agency.

    (emphasis added)

22. "Clear and convincing evidence" requires that the evidence must be found credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit; and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction without hesitance, as to the truth of the allegations sought to be established. In Re Davey, 645 So. 2d

    398 (Fla. 1994), citing Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

23. Mr. Patrick has not met his burden of proof. His testimony and the record before the Administrative Law Judge

    cause considerable hesitance and no firm belief or conviction that he is now rehabilitated and should no longer be disqualified from employment. His circumstances are very similar to the lawyer applicant who was denied Bar admissions in Florida Board of Bar Examiners RE MLB, No. SC95639 (Fla. Sup. Ct. April 13, 2000, WL 373764) (Fla).

24. In that case, in which the applicant was required to provide "clear and convincing evidence" of character and fitness and rehabilitation, the Florida Supreme Court held that proof of rehabilitation must be more than merely doing what should have been done before. Applicants attempting to overcome past misconduct must "show some extra effort." MLB was denied admission to the Bar because just before entering law school he assisted another person in stealing some compact discs. His explanation on his Bar application was misleading and he argued his plea was a plea of convenience. He continued to give false or misleading explanations to the Board of Bar Examiners. Although he had produced recommendations for his admission, most of those did not reflect any knowledge of the criminal behavior and were therefore given little weight.

25. Like MLB, Mr. Patrick earnestly assures that he will conduct himself in an exemplary fashion in the future. "Words of promise ring hollow where there is not recognition of the wrongfulness of the conduct established by the legal record." MLB, supra, p. 16.

26. Denial of Mr. Patrick's exemption at this time does not foreclose exemptions in the future. As he stated often in his testimony, "Time brings change." He needs that time to finish school, to continue community service, and to counsel with his pastor and other individuals regarding his past so that he may bring in effective corroborating witnesses on his behalf.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the agency enter its final order denying Marcus A. Patrick's request for exemption.

DONE AND ENTERED this 26th day of May, 2000, in Tallahassee, Leon County, Florida.

MARY CLARK

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 26th day of May, 2000.

COPIES FURNISHED:

Marcus A. Patrick 2734 Fireside Court

Orlando, Florida 32839

Lynne T. Winston, Esquire 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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 00-000531

Orders for Case No: 00-000531