STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHNNY R. JENKINS, )

)

Petitioner, )

)

vs. ) Case No. 00-2078

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 26, 2000, by video teleconference with the parties appearing from West Palm Beach, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Johnny R. Jenkins, pro se

3745 Northwest 27th Avenue Okeechobee, Florida 34972

For Respondent: Lynne T. Winston, Esquire

Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive

Tallahassee, Florida 32399-3100

STATEMENT OF THE ISSUE

Whether the Petitioner should be disqualified to work in a position of special trust.

PRELIMINARY STATEMENT

This case began on April 7, 2000, when the Department of Juvenile Justice (Department) issued a letter to the Petitioner, Johnny R. Jenkins, advising him that a request for an exemption from employment disqualification had been denied. The notice further advised the Petitioner that he is ineligible for employment in a direct contact/caretaker's position with the Department. The Petitioner timely challenged the exemption denial and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on May 16, 2000.

At the hearing the Petitioner testified in his own behalf and presented testimony from Paul Timko. Petitioner's Exhibits 1 and 2 were admitted into evidence. The Respondent presented testimony from Perry Turner along with Respondent's Composite Exhibit 1 which was also received in evidence.

The Transcript of the proceedings was filed with the Division of Administrative Hearings on October 6, 2000. The Respondent filed a Proposed Recommended Order that has been considered in the preparation of this order. The Petitioner filed a letter together with other documents which have not been fully considered in this cause as they were not submitted during the course of the hearing in this matter. The Petitioner was not granted permission to late-file documentary evidence nor has the Respondent been provided an opportunity to respond to the matters addressed by such documents. Accordingly, documents submitted by

the Petitioner after the conclusion of the hearing have not been used to support a finding of fact in this case.

FINDINGS OF FACT

1. The Department disqualified the Petitioner to work in a position of special trust and denied the Petitioner an exemption from that denial. Subsequently, the Petitioner timely challenged the agency's decision.

2. The Petitioner is employed by Eckerd Youth Alternatives, Inc. (EYA) an entity that operates the Eckerd Youth Development Center at Okeechobee, Florida. He has worked as a youth counselor at that facility since 1993.

3. EYA contracts with the state of Florida to provide facilities for the juvenile justice system and, as such, must comply with employment qualifications for persons working with the juveniles assigned to the facility.

4. The screening of EYA employees must be updated every five years. As part of the background screening process, EYA submitted paperwork for the Petitioner in 1998. The Department did not issue its disqualification decision until February 25, 2000.

5. Thereafter, the Petitioner sought an exemption from the disqualification decision which was also denied by the Department on April 7, 2000. The delays in the re-screening decisions were not attributable to the Petitioner.

6. The Department based its disqualification of the Petitioner and denial of the exemption on the criminal history set forth below.

7. In 1995, the Petitioner entered a plea of nolo contendere to the possession of a weapon charge. Adjudication of guilt on this charge was withheld by the court.

8. Based upon the plea on the weapon charge, the Petitioner received a two-year probation, the weapon was forfeited, and he was ordered to pay court costs and fees. He successfully completed all aspects of the sentence.

9. In 1994, the Petitioner entered a plea of nolo contendere to a charge of domestic violence, a misdemeanor. The Petitioner was adjudicated guilty on this charge and sentenced to one year of probation. He successfully completed all aspects of the sentence on this case.

10. The Department contends that domestic battery/violence is a disqualifying offense which precludes the Petitioner's employment in a position of special trust at the Eckerd Youth Development Center.

11. At all times during his employment by EYA, the Petitioner has served as an outstanding employee.

12. EYA timely filed all the necessary paperwork to have the Petitioner re-screened for employment purposes.

13. At all times during his employment by EYA, the Petitioner has been an excellent role model. He has not

    exhibited any conduct that would suggest minors would be placed at risk of physical harm if placed in his care. According to Mr. Timko, the Petitioner is "probably one of the most mild- mannered, positive role models that we have out there."

14. The Petitioner's explanations regarding his criminal record have been deemed sufficient and persuasive as to the facts of the underlying incidents. In particular as to the domestic battery/violence incident, it is found that the Petitioner did not harm the alleged victim.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

16. Section 39.001(2), Florida Statutes, provides:

    
    

    1. DEPARTMENT CONTRACTS.–The department may contract with the Federal Government, other state departments and agencies, county and municipal governments and agencies, 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 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 shall require employment screening, and rescreening no less frequently than once every 5 years, pursuant to chapter 435, using the level 2 standards

          set forth in that chapter for personnel in programs for children or youths.

       3. The department may grant exemptions from disqualification from working with children as provided in s. 435.07.

          
          

17. Section 435.04, Florida Statutes, sets forth the level

    
    

    2 screening standards and 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.

    * * *

    
    

    1. Standards must also ensure that the person:

       1. For employees or employers licensed or registered pursuant to chapter 400, does not have a confirmed report of abuse, neglect, or exploitation as defined in s. 415.102(5), which has been uncontested or upheld under s. 415.103.

       2. Has not committed an act that constitutes domestic violence as defined in s. 741.30.

18. Section 435.07, Florida Statutes, governs exemptions from disqualification and provides, in 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;

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

    
    

    * * *

    
    

    (e) Commissions of acts of domestic violence as defined in s. 741.30;

    
    

    * * *

    
    

    (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.

19. The Petitioner has demonstrated more than five years have elapsed since he faced criminal charges. He explained the underlying factual matters leading to the charges in convincing and credible fashion. It is concluded he did not commit an act of domestic violence. Moreover, he has demonstrated an exemplary work record in a position of special trust. He has established that circumstances surrounding the charges complained of are so

remote in time and so unlikely in fact that he should be afforded an opportunity to continue this employment. The Petitioner will not present a danger if allowed to continue. That he has served as a positive role model to the youth at the EYA facility should be commended. It is concluded the Petitioner is of good moral character and should continue his employment in a position of special trust.

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 either granting the Petitioner the exemption sought or finding that he has not committed an act of domestic violence such that he must be disqualified from employment in a position of special trust.

DONE AND ENTERED this 9th day of November, 2000, in Tallahassee, Leon County, Florida.

J. D. 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 9th day of November, 2000.

COPIES FURNISHED:

Johnny R. Jenkins

3745 Northwest 27th Avenue Okeechobee, Florida 34972

Lynne T. Winston, Esquire Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive

Tallahassee, Florida 32399-3100

William G. Bankhead, Secretary Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building, Suite 300

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: 00-002078

Orders for Case No: 00-002078