vs. )
Respondent. )
Case No. 01-3693
A formal hearing was conducted in this case by video teleconference on December 3, 2001, before the Division of Administrative Hearings with Administrative Law Judge Suzanne F. Hood, Respondent's counsel, and witness located in Tallahassee, Florida, and Petitioner, Petitioner's counsel, and witness located in Daytona Beach, Florida.
For Petitioner: Shawnee S. Lawrence, Esquire
For Respondent: Lynne T. Winston, Esquire
The issue is whether Petitioner should be granted an exemption from employment disqualification, thereby allowing him to work in a position of special trust or responsibility.
By letter dated June 21, 2001, Respondent Department of Juvenile Justice (Respondent) denied Petitioner D'Cardell Tanorris Miller's (Petitioner) request for an exemption from employment disqualification pursuant to Section 435.07, Florida Statutes. On or about August 21, 2001, Petitioner requested a formal hearing to contest the denial of his request for an exemption from employment disqualification. Respondent referred Petitioner's request to the Division of Administrative Hearings on September 19, 2001.
A Notice of Hearing scheduled the case for hearing by video teleconference on December 3, 2001. During the hearing, Petitioner testified on his own behalf, presented the testimony of one additional witness, and offered one exhibit to be filed without objection after the hearing. Respondent presented the testimony of one witness and offered one composite exhibit which was admitted into evidence.
On December 6, 2001, Petitioner filed his exhibit as agreed during the hearing. The exhibit is a copy of an Announcement of
No Information in Case No. 99-30708CFAES, Circuit Court, Seventh Judicial Circuit, in and for Volusia County, Florida.
On December 24, 2001, the court reporter filed the transcript of the proceeding.
On January 3, 2002, Respondent filed a Proposed Recommended Order. As of the date of issuance of this Recommended Order, Petitioner has not filed proposed findings of fact and conclusions of law.
When Petitioner was a very young child, his mother was a drug addict with a criminal history for stealing. When Petitioner was in the fifth grade, he went to live with his father, a public school teacher, and his grandmother in Palm Beach County, Florida.
In December 1989, Petitioner was a 13-year-old middle school student. Petitioner became involved with other boys who had a bad influence on him. On one occasion, Petitioner was present when the group tried to bully another student into giving up his lunch money. The victim did not sustain any significant physical injury. As a result of that incident, Petitioner was charged with attempted strong arm robbery.
In a subsequent trial in juvenile court, a circuit judge in Palm Beach County, Florida, determined that Petitioner had committed the delinquent act of battery on a minor as the
lessor included charge of attempted strong arm robbery. The judge withheld adjudication of a delinquent act, placing Petitioner in a community control program under the supervision of a counselor. The judge required Petitioner to complete 20 hours in a community service work program. Most importantly, the judge instructed Petitioner to have no further contact with certain people.
On August 13, 1990, the circuit judge entered an Order terminating Petitioner's supervision in Case No. CJ-90-0281-JK. The Order states that Petitioner had successfully fulfilled all conditions of the community control program for a reasonable period of time.
After graduating from high school, Petitioner went to college in August 1995. From June 1995 through June 1998, Petitioner worked for Target Department Stores in West Palm Beach, Florida. His job title was loss prevention specialist, which involved monitoring the store for shoplifting and preparing data on the inventory losses.
Petitioner quit his job with Target Department Stores to attend college at Bethune-Cookman College in Daytona Beach, Florida. While he was enrolled at Bethune-Cookman College, Petitioner became the primary custodian of his infant son.
On February 12, 1999, Petitioner was on his way home from class in Daytona Beach, Florida. Based on a case of
mistaken identity, Petitioner was stopped and arrested for robbery. Soon thereafter, the authorities realized that Petitioner was not the perpetrator of the robbery.
On March 23, 1999, the state attorney for Volusia County, Florida, filed an Announcement of No Information in Case No. 99-30708CFAES, in the Circuit Court, Seventh Judicial Circuit, in and for Volusia County, Florida. The state attorney directed the police department to hold all physical evidence because charges were to be filed against the actual perpetrator.
Petitioner's mother was released from prison in 1998.
Petitioner and his sister, a public school teacher, decided that they would try to help rehabilitate their mother.
On November 11, 1999, Petitioner went to a department store in Volusia County, Florida, with his girlfriend, his mother, his mother's boyfriend, and one of his mother's male friends. Petitioner was the last member of the group to enter the store.
Petitioner spoke to his mother and went to the restroom in the store. Petitioner then shopped for a shirt but left the store with the group without buying anything. Clear and convincing evidence indicates that Petitioner and his girlfriend were not engaged in shoplifting while they were in the store. Petitioner's testimony that he was unaware that his
mother, his mother's boyfriend, and his mother's other male friend were shoplifting is also clear and convincing.
As the group left the store, the store's security officer approached the group, demanding the return of all stolen merchandise. Petitioner immediately showed the security officer that he did not have any merchandise. The security officer gave Petitioner permission to leave the premises.
Petitioner's mother, her boyfriend, and her other male friend were in possession of stolen merchandise. The two male friends took off running through the parking lot. Petitioner's mother returned the stolen merchandise in her possession to the security officer and got in the car with Petitioner and his girlfriend.
As Petitioner left the parking lot with his two passengers, the police arrived on the scene. Petitioner admitted during the hearing that it was wrong to let his mother leave the premises with him after he learned about her theft of merchandise.
Petitioner's girlfriend subsequently returned to the department store to inquire about the boyfriend and other male friend of Petitioner's mother. Petitioner's girlfriend also went to the police station to determine whether the two men had been arrested. After she began to make these inquiries, Petitioner's girlfriend was arrested. About a month after the
incident, a warrant was issued for Petitioner's arrest for grand theft. Petitioner turned himself in to the authorities as soon as he learned about the warrant.
Petitioner's arrest for grand theft was based on a statement in a police report that merchandise valued at approximately $600 was stolen from the store on November 11, 1999. However, there is no persuasive evidence as to the actual value of merchandise stolen from the store.
In regard to the charges against Petitioner for grand theft, Petitioner subsequently entered into a pretrial intervention agreement with the state attorney in the Seventh Judicial Circuit, in and for Volusia County, Florida, in
Case No. 99-35807-CFAES. After successfully complying with the terms of the agreement, the state attorney issued a Notice of Completion of Pretrial Intervention and Nolle Prosequi in that case on March 12, 2001.
Petitioner graduated from Bethune-Cookman College in July 2000. He earned a bachelor of science degree in criminal justice.
On or about May 2, 2001, Petitioner applied for employment with Respondent as a senior juvenile detention officer. He applied for vacant positions at the Volusia County Regional Juvenile Detention Center in Volusia County, Florida, and the St. Johns River Juvenile Detention Center in
St. Augustine, Florida. The position of senior juvenile detention officer requires caretaker/direct contact with juveniles.
In Petitioner's employment application, he indicated that he had never had the adjudication of guilt withheld to a crime which was a felony or a first-degree misdemeanor. This was not a true statement because adjudication was withheld in Palm Beach County Circuit Court Case No. CJ-90-0281-JK for battery on a minor, which is a first-degree misdemeanor pursuant to Section 784.03, Florida Statutes. Petitioner signed the application, certifying the following in relevant part:
I am aware that any omissions, falsifications, misstatements, or misrepresentations about may disqualify me for employment consideration and, if I am hired, may be grounds for termination at a later date . . . I certify that to the best of my knowledge and belief all of the statements contained herein and on any attachments are true, correct, complete, and made in good faith.
By letter dated May 3, 2001, Petitioner advised Respondent's Inspector General that a background investigation would reveal Petitioner's 1990 conviction for battery on a minor as a lesser included offense of strong arm robbery, both of which are disqualifying offenses for employment with Respondent. The purpose of writing this letter was to request an exemption
from employment disqualification. Respondent received this letter on or about May 9, 2001.
On May 10, 2001, Petitioner signed a notarized application affidavit, which states as follows in pertinent part:
I fully understand that in order to qualify as a Juvenile Justice direct care employee, I must comply with the provisions of Section 985.406, Florida Statutes, as follows:
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3. Not have been convicted of any felony or of a misdemeanor involving perjury or false statement, not have received a dishonorable discharge from any of the Armed Forces of the United States. Any person who, after October 1, 1999, pleads guilty or nolo contendere to or is found guilty of a felony or of a misdemeanor involving perjury or false statement shall not be eligible for employment or appointment as a direct care employee, not withstanding suspensions of a sentence or withholding of adjudication.
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In addition, I attest to the following:
Yes No I understand that by executing this document I am attesting that I have met the qualifications as specified and have provided documentation of proof of my qualifications to the above listed employing agency.
Yes No I have read my employment application and it is true and correct, and all other information I will furnish in conjunction with my application is true and correct.
NOTICE: This document shall constitute an official statement within the purview of Section 837.06, Florida Statutes, and is subject to verification by the employing agency and/or the Florida Department of Juvenile Justice. Any international [sic] omission when submitting application or false execution of this affidavit shall constitute a misdemeanor of the second degree and disqualify you from employment as a juvenile justice direct care employee.
I hereby certify that to the best of my knowledge and belief, the information that I entered on this form is true.
Petitioner signed this affidavit and circled the word "Yes" in the above referenced attestation.
On May 10, 2001, Petitioner signed a form giving his consent for Respondent to perform background screening of Petitioner's criminal history, driver's license history, and delinquency reports (juvenile criminal history). The form clearly states that Respondent has access to all criminal records, even those which have been sealed or expunged.
On May 10, 2001, Petitioner signed a form entitled Affidavit of Good Moral Character. In this affidavit, Petitioner acknowledged that his record contained "one or more of the disqualifying acts or offenses" listed in the affidavit. Specifically, Petitioner's conviction for battery on a minor in 1990 was a violation of Section 784.03, Florida Statutes. That statute was listed in the affidavit as a disqualifying offense.
On or about May 21, 2001, Respondent completed the investigation of Petitioner's background. In addition to the 1999 conviction for battery on a minor, the investigation revealed Petitioner's arrests in 1999 for robbery and grand theft.
By letter dated May 25, 2001, Respondent advised Petitioner that he could request a desk review of his background screening application. The letter requested Petitioner to submit the desk review request form and any supporting documentation within 30 days. Specifically, Respondent requested Petitioner to furnish the following in pertinent part:
CERTIFIED police reports and/or arrest reports and CERTIFIED judgement/disposition from the Clerk of Courts for disqualifying criminal offense, as well as for any other criminal offenses to which the [sic] you have either pled guilty or no contest or been found guilty. If these documents cannot be obtained, you will need to present certified statements from the courts and law enforcement agencies indicating the records is [sic] not available or does [sic] not exist.
Offense Date Authority Arrest 1:
Robbery, Reduced 1/16/90 Juvenile to Battery on Adj. W/H Minor
A detailed, written and notarized description of the circumstances leading up to and surrounding the disqualifying criminal offense. The time period which has elapsed since the offense. Whether there was any harm caused to victims and the
nature of that harm. Your personal history since the offense (work, education, civic, religious history, etc.) And, such other circumstances as shall be sufficient to indicate that you will not present a danger to the safety or well being of juveniles.
A statement as to whether you have been involved in any other criminal offenses either prior to subsequent to the commission of the disqualifying offense. . . .
Petitioner received this letter on or about June 5, 2001.
Petitioner subsequently sent Respondent a form dated June 5, 2001, seeking a desk review of his request for an exemption from disqualification based on the fact that he had clear and convincing evidence to support a reasonable belief that he was of good moral character. Respondent received Petitioner's request on or about June 19, 2001.
By letter dated June 13, 2001, Petitioner advised Respondent as follows in pertinent part:
Since the commission of the disqualifying offense in my middle school years, I have not been convicted or had adjudication withheld against me on any charges.
This letter did not refer to Petitioner's arrests in 1999.
By letter dated June 13, 2001, Petitioner provided Respondent with a detailed explanation of the circumstances surrounding the disqualifying offense. Petitioner did not reference his 1999 arrests in this letter.
By letter dated June 13, 2001, Petitioner advised Respondent as to his qualifications and desire to work with juveniles. Petitioner did not reference his 1999 arrests in this letter.
At Petitioner's request, three professors at Bethune- Cookman College sent Respondent letters of reference for Petitioner. The Mayor of Daytona Beach and Petitioner's then current employer also wrote letters in support of Petitioner's application for employment with Respondent. At least one of the Bethune-Cookman College professors was aware of Petitioner's criminal history, including his arrests in 1999.
At some point in time, Petitioner provided Respondent with certified copies of the 1990 Order and Order Terminating Supervision relating to the disqualifying offense. Petitioner also furnished Respondent with copies of the 1999 Announcement of No Information relating the robbery charge and the 1999 Notice of Completion of Pretrial Intervention and Nolle Prosequi relating to the grand theft charge. Additionally, Petitioner provided Respondent with a copy of the police report relating to the grand theft charge. Petitioner never provided Respondent with a written statement explaining his arrests in 1999.
By memorandum dated June 20, 2001, Respondent's staff requested Respondent's Inspector General to review Petitioner's background screening file and indicate whether Petitioner's
request for an exemption was granted or denied. The Inspector General denied Petitioner an exemption.
By letter dated June 21, 2001, Respondent advised Petitioner that his request for exemption from employment disqualification was denied.
Petitioner was 25 years old at the time of the hearing. He is currently working as a licensed security guard.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.
Petitioner has the burden of proving by clear and convincing evidence that he is entitled to an exemption from employment disqualification. Section 435.07, Florida Statutes.
Section 39.001(2), Florida Statutes (2000), provides as follows:
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, the chapter.
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.
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.
Under Section 435.04(1), Florida Statutes, level 2 screening standards include, but are not limited to, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement. The person being screened must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any prohibited offense, including Section 784.03, Florida Statutes, relating to battery, if the victim of the offense was a minor. Section 435.04(2)(h), Florida Statutes.
Section 435.07, Florida Statutes, states as follows in pertinent part:
Unless other wise provided by law, the provisions of this section shall apply to exemptions from disqualification.
The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:
Felonies committed more than 3 years prior to the date of disqualification;
Misdemeanors prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdiction;
Offenses that were felonies when committed but are now misdemeanors;
Findings of delinquency; or
Commissions of acts of domestic violence as defined in s. 741.30.
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(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 my be contested through the hearing procedures set forth in chapter 120.
In this case, Petitioner was disqualified due to the finding that he was delinquent for committing a battery on a minor in 1990. During the hearing, Petitioner presented persuasive evidence showing that his involvement in the 1990 incident was primarily caused by his association with other middle high school students who temporarily exerted a bad influence on Petitioner. The victim of the battery did not sustain significant physical harm. Since the disqualifying
event nine years ago, Petitioner graduated from college and assumed responsibility for his son.
Petitioner was arrested for robbery in 1999 based on a case of mistaken identity. Petitioner has fully explained the circumstances which led to the issuance of an Announcement of No Information.
Petitioner was not involved in the shoplifting incident in 1999. However he was arrested and completed a pretrial intervention agreement in order to avoid trial. A nolle prosequi was entered in that case in March 2001, just a couple of months before he applied for employment with Respondent. Petitioner's explanation of the circumstances of the shoplifting incident included a candid acknowledgment that he should not have allowed his mother to leave the parking lot in his car just as the police arrived.
When Petitioner applied for a job with Respondent in May 2001, he made a false statement by denying that he had ever had the adjudication of guilt withheld to a crime which is a first-degree misdemeanor. This incorrect statement could not have been intentional because Petitioner sent Respondent's Inspector General a letter dated May 3, 2001, disclosing the disqualifying offense and requesting an exemption from disqualification.
Petitioner eventually sent Respondent a written explanation of the 1990 battery together with appropriate documentation. He also sent some court documents and/or a police report relating to his 1999 arrests, but he failed to provide Respondent with a more detailed explanation of his 1999 arrests as requested by Respondent's May 25, 2001, letter.
During the hearing, Petitioner presented clear and convincing evidence that he should not be disqualified from employment. He has provided sufficient evidence of rehabilitation since the 1990 disqualifying offense. The totality of the evidence indicates that Petitioner will not present a danger if Respondent hires him as a senior juvenile detention officer.
That Respondent enter a final order finding that Petitioner is entitled to an exemption from disqualification.
DONE AND ENTERED this 28th day of January, 2002, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2002.
Shawnee S. Lawrence, Esquire 1010 West 4th Street
Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive
William G. Bankhead, Secretary Department of Juvenile Justice Knight Building
Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building
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.
