STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROFF JOEY, )

)

Petitioner, )

vs. ) Case No. 00-2637

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case by video teleconference on August 22, 2000, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings. Petitioner participated from the Orlando, Florida site. Counsel for the Department and the Administrative Law Judge appeared at the Tallahassee site.

APPEARANCES

For Petitioner: Joey Broff, pro se

4960 West Key Largo Drive Titusville, Florida 32780

For Respondent: Lynn T. Winston, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Petitioner should be granted a request for exemption from employment disqualification with the Department of Juvenile Justice.

PRELIMINARY MATTERS

By letter dated March 29, 2000, Perry S. Turner, Inspector General for the Department of Juvenile Justice, advised Joey Broff, Petitioner herein, that his request for exemption from employment disqualification with the Department had been denied. Mr. Broff thereafter requested a formal hearing on the denial and this hearing ensued.

At the hearing, Petitioner testified in his own behalf and introduced Petitioner's Composite Exhibit A. Respondent presented the testimony of Mr. Turner, its Inspector General, and introduced Respondent's Exhibits 1 through 5.

A transcript of the proceedings was furnished, and thereafter only counsel for Respondent submitted matters in writing which were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Department of Juvenile Justice was the state agency in Florida responsible for the custodial care of juvenile offenders either in agency-run facilities or in facilities operated under contract to the Department.

2. Prior to February 21, 1999, Petitioner had applied for a position with the Okechobee Youth and Development Center which had requested a review of this application. Petitioner was advised that he was disqualified from employment because of his

   prior criminal record, and on February 21, 1999, he requested a desk review of his application. The request for desk review was granted, and in the letter notifying him of that he was also advised of the his responsibility to provide certain matters in support of his request.

3. On March 8, 1999, Mr. Broff filed an application for employment with Eckerd Youth Alternatives, Inc., an institution which provides services to youth under contract to the Department of Juvenile Justice, and by letter dated March 11, 1999, Petitioner attempted to explain the background surrounding several of the disciplinary actions taken against him. However, by letter dated March 29, 1999, the Department's Inspector General, Mr. Turner, advised Petitioner that his request for exemption had been denied.

4. Mr. Turner based his decision to deny the exemption based upon his conclusion that the matters submitted by Mr. Broff in support of his request did not constitute sufficiently "compelling evidence" upon which to base the granting of an exemption. Mr. Turner indicated that as a criminal justice agency, the Department must exercise great care and caution in selecting those persons who are allowed to work with the juveniles in its care and custody, and at the hearing, he defined what standards were applied in the selection process. These include the applicant's affidavit of good moral character and disclosure of all court action.

5. Mr. Broff's criminal record is extensive. On November 29, 1985, he was arrested by the Rockledge Police Department and charged with shoplifting. Adjudication of guilty was withheld by the court. On May 28, 1986, he was arrested for grand larceny and four charges of failure to appear. He was convicted of the grand larceny charge, but the disposition of the failure to appear charge is unknown. On June 24, 1987, he was again arrested in Rockledge for shoplifting and was convicted.

6. On June 28, 1988, Mr. Broff was arrested in Volusia County on a charge of possession of cocaine and narcotics equipment. The disposition of those charges is unknown. On November 27, 1988, he was arrested by the Brevard County Sheriff's Office on a charge of possession of dangerous drugs and two charges of possession of narcotics equipment. Disposition is unknown. On November 30, 1988, he was again arrested in Volusia County on a charge of possession of narcotics and a charge of possession of narcotic equipment. Disposition is unknown.

7. Mr. Broff's seventh arrest came in Brevard County on March 17, 1991, when he was charged with retail theft and shoplifting. Pursuant to his plea of guilty, he was convicted of the charges. On June 6, 1991, he was arrested by the Cocoa Police Department and charged with grand larceny. He was convicted of the charge after a plea of guilty. Then, on October

   23 and 25, and again on December 26, 1991, he was arrested by the Cocoa Police Department for shoplifting. It is not known what

   the outcome of the first and third charges was, but the second charge was dropped.

8. On April 3, 1992, Mr. Broff was arrested by the Brevard County Sheriff's Office on charges of petty larceny and possession of narcotics equipment. Disposition of the charges is unknown. On May 8, 1992, he was arrested in Cocoa on a charge of shoplifting. Disposition of the charge is unknown. On May 19, 1992, the Brevard County Sheriff arrested Petitioner on a charge of burglary, grand larceny, and vehicle theft. The disposition of the burglary charge is unknown, but the grand larceny charge was reduced to larceny. He pleaded guilty to the lesser charge and to the vehicle theft charge and was convicted of both.

9. On June 4, 1992, he was arrested in Brevard County on a charge of failure to appear. The disposition of that charge is unknown. On August 20, 1992, he was again arrested in Brevard County on four charges of failure to appear regarding allegations of burglary, grand theft, battery, and petty theft. The disposition of all four charges is unknown. However, on September 1, 1992, he was arrested in Rockledge on a charge of burglary and of grand larceny. He was convicted of the burglary and no action was taken on the grand larceny charge.

10. On May 21, 1993, Mr. Broff was arrested by the Brevard County Sheriff's Office on a charge of battery and probation violation resulting out of a charge of retail theft. The battery charge was not prosecuted and the disposition of the probation

    violation is unknown. On June 11, 1993, he was again arrested in Brevard County on a charge of shoplifting on which adjudication was withheld. On December 18, 1993, he was arrested in Melbourne on a charge of aggravated assault with a knife. He was convicted pursuant to his plea of guilty.

11. On May 28, 1994, he was again arrested in Melbourne of a charge of spousal battery. The charge was dropped. On April 24, 1995, he was again arrested on a charge of domestic battery. This time he was convicted pursuant to his plea of guilty. He was arrested again on October 25, 1995, in Brevard County on a third charge of domestic battery and was convicted pursuant to his plea. On November 12, 1995, he was arrested for violating his probation on the domestic battery charge and for cruelty toward his wife. He pleaded guilty and was convicted. Finally, on December 7, 1995, he was arrested in Brevard County on a charge of failure to appear on a retail theft charge and, pursuant to his plea, was found guilty.

12. A review of the court records pertaining to those arrests reveals that little punishment of substance was imposed on the Petitioner as a result of his convictions. As to the battery charges he was placed on probation each time with no confinement imposed. The only confinement was imposed as a result of the first grand theft charge, for which he was sentenced to 150 days in the county jail; for the possession of drug paraphernalia charge, for which he was sentenced to 33 days

    in the county jail; and for the five-count charge involving burglary, vehicle theft, and the related offenses. In that case, he was sentenced to 24 months in prison on each of three charges, to serve concurrently, and was credited with 65 days.

13. According to Mr. Turner, Petitioner did submit the affidavit of good character and a written explanation for some of the offenses he committed, along with background information which he believed might shed some insight onto his behavior. Based on the information submitted by the Petitioner, including his personal history, his explanation of the offenses, and the testimonials submitted in his behalf, Mr. Turner denied Petitioner's request for an exemption because of the serious nature of some of the offenses committed by Petitioner; several of the offenses involved his own family; by his own admission, most of his offenses were drug related; and, the overall length of the Petitioner's criminal history--25 arrests over ten years. Those factors were considered in conjunction with what Turner described as insufficient time having elapsed since Petitioner's last offense.

14. In a telephone conversation between Petitioner and Mr. Turner, Mr. Turner is alleged to have indicated the Department's policy to require a period of five years without offenses as evidence of rehabilitation. At the hearing Mr. Turner indicated he considered a minimum of ten years without offenses as acceptable. No evidence of a written department rule or policy

    defining the length of time required without offense was presented, and it is found there is no defined standard. Mr. Turner admits there is no set period required by the Department. Each case is viewed on its own merits. He considers Petitioner's criminal record the worst he has seen and it is his confirmed opinion that Petitioner should not be permitted to work with the type of clients served by the Department. This is not to say Petitioner should not be allowed to work elsewhere.

15. Petitioner does not deny his criminal history or his former drug addiction. In fact, he contends, the criminal activity was to support his drug addiction. He contends, however, that before he became addicted to drugs and alcohol he had no problem with the law. He was an A/B student in high school and looked toward the possibility of a career in professional baseball. Once the substance abuse began, however, he quickly became addicted and fought for ten years to get clean. It was only when he was in prison that he realized the depths to which he had descended. By this time his self-image was at its worst. He contends that alcohol and drug abuse are manifestations of an inner problem. His mother suffered from a bipolar disorder and his father was an alcoholic who died when Petitioner was 15 years old. Petitioner admits he became just like them.

16. Once Petitioner hit bottom he realized that he had to stop his self-destructive behavior. Fortunately for him, he

    found Faith Farm Ministries which reached out to him and he entered its long-term program, 18 months in a residential setting followed up by several years in an outpatient setting. It was there he was given back his sense of self-worth and an ability to set goals.

17. Mr. Broff claims he got married when he should not have done so. He married a woman with addictions, and it was a mistake. He attended Brevard Community College where he earned a certificate in heating and air-conditioning repair and installation. That was not what he wanted to do, however. He wanted to become a counselor. For that, he needed further education and he was fortunate to find the help to get it. He continued counseling with his minister, with Alcoholics Anonymous, and with other agencies, all of which caused him to open himself to himself. He went to college and got both an associate and bachelor's degree.

18. Mr. Broff contends that his criminal record is not a true picture of who he is. It reflects an acting-out of his thinking at the time. He is thankful there was someone there for him who gave him a sense of self-worth which allowed him to succeed. Based on his experiences, he believes he can give back to society and wants to do so.

19. Petitioner has been granted an exemption by the Department of Children and Families based on more than three years without problem, as well as his demonstrated personal

    growth and rehabilitation. More than five years has passed since his last criminal activity, and, in fact, the last two entries were for incidents which took place well before the 5-year period began. He is confident he has rehabilitated himself and could serve as a role model for youth in the various programs conducted by the Department. He is currently working on a master's degree in counseling.

20. Several individuals who are familiar with Petitioner's rehabilitation efforts, including representatives of rehabilitation facilities such as Faith Farm Ministries, Time for Freedom, Alpha Ministries, and Breakthrough Recovery Services, Inc.; representatives of the Department of Children and Families and the Department of Corrections; as well as individuals in the church and in business who know and have worked with him in later years, submitted letters of recommendation in his behalf reflecting his honesty, integrity, professionalism, and commitment to God and His Christian ministry. In these written testimonials, Petitioner is described as a stable and dependable individual whose efforts at counseling those still struggling are excellent. All are convinced of his complete rehabilitation.

21. None of these letters are sworn and none are notarized. As such, their evidentiary value is diminished. In addition, Petitioner did not present any testimony in support of his position other than his own. However, no evidence was presented by the Department to indicate any recurrence of misconduct or of

    his unworthiness other that his criminal record. Though more direct evidence of rehabilitation by the Petitioner would have reinforced his claim thereof, it is found nonetheless that absent any showing of continuing misconduct, the evidence of record is sufficient to establish rehabilitation.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

23. Respondent has denied Petitioner an exemption from disqualification from working with children and youth in any program operated under the auspices of the Department of Juvenile Justice based on his prior criminal record and a determination made by the Department that Petitioner has not shown himself to be sufficiently rehabilitated.

24. Section 39.001(2), Florida Statutes, requires all personnel who work in a facility or program for children or youth operated under contract with the Department of Juvenile Justice to be of good moral character. Periodic employment screening and re-screening of such personnel must be done upon hiring and every five years thereafter.

25. Section 435.04(2), Florida Statutes, provides that personnel being screened who have been found guilty of, regardless of adjudication, or entered a plea of guilty or nolo

    contendere to any of several offenses, including felony theft and domestic violence, are disqualified from employment.

26. However, an exemption process is provided for disqualified persons in Section 435.07(3), Florida Statutes.

    This section places the burden of proof upon the disqualified individual to present clear and convincing evidence of good moral character, including sufficient evidence of rehabilitation. In determining whether the person seeking the exemption has been rehabilitated, the Department must consider the circumstances surrounding the disqualifying criminal activity; the length of time that has elapsed since the last offense; the extent of harm caused to the victim by the criminal activity; the applicant's history since the last incident; and any other evidence or circumstances which might show the applicant will not present a danger if employment is allowed.

27. In the instant case, the Department contends not that Petitioner should be denied all forms of employment with children or youth, but that Petitioner's record of repeated instances of felony theft and domestic violence render him inappropriate for working with the type of client managed by the Department, and that he has failed to show sufficient rehabilitation.

28. To be sure, the record demonstrates an extensive criminal history throughout which incidents of felony theft and domestic violence occur. In addition, there is significant evidence, admitted by Petitioner, that during much of the time of

    his misbehavior, his conduct was the direct result of his drug and alcohol addiction. Clearly, such misconduct is disqualifying.

29. However, there is also extensive evidence of Petitioner's rehabilitation. It has been just shy of five years since his last misconduct. He has managed to make the originally unsuitable marriage work. He has remained clean of both drugs and alcohol, has continued with his education, and has remained gainfully employed in positions in which he has demonstrated professionalism and good character as a role model and counselor to others. The Department of Children and Family Services, which also initially determined him to be disqualified from employment working with children has, on the basis of his demonstrated efforts and success with rehabilitation, granted him an exemption from disqualification.

30. The Department of Children and Family Services, however, has, by rule, established a set time free of misconduct to be used in assessing an application for exemption. That Department has set a period of three years as its guideline. The Department of Juvenile Justice has not set any such time guide, and its failure to do so has resulted in an unclear window of opportunity. The evidence in this case shows, for example, that in one discussion with Petitioner, Mr. Turner indicated he considered five years an appropriate period, and yet, in another conversation claimed the time line to be ten years. Such an

    approach, one which does not afford an applicant any reasonable guideline to strive for, is inappropriate.

31. Mr. Broff without question has a dismal criminal record which is aggravated by the drug and alcohol addiction which contributed to it. Even worse, he has shown himself to be subject to episodes of domestic violence, even though none have been manifested in recent years. However, it is equally clear that, having reached a personal low in his life, through the help of several religious and social service organizations, he has turned his life around, conquered his addictions, and clearly seems to have rehabilitated himself. Whether the period of freedom from misconduct is over or just shy of five years, an issue to the Department, is not controlling in light of the failure of the Department to clearly define the time period on which it relies.

32. Review of Mr. Broff's evidence of rehabilitation clearly indicates he is not now the individual he was when his misconduct was a way of life for him. The fact that his wife did not testify at the hearing, an argument used by Respondent in opposition to Petitioner's application, is not probative of anything. Based on the evidence of record, it is clear that Mr. Broff is not likely to be a danger to the safety and well-being of juveniles, and he should be granted an exemption from disqualification.

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, Joey Broff, an exemption from disqualification from working with children or youth in programs operated by on under contract with this Department.

DONE AND ENTERED this 27th day of September, 2000, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

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) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2000.

COPIES FURNISHED:

Joey Broff

4960 West Key Largo Drive Titusville, Florida 32780

Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

William G. Bankhead, Secretary Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

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

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: 00-002637

Orders for Case No: 00-002637