STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRYANT L. LEE,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 01-4858

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 27, 2002, in Orlando, Florida, before T. Kent Wetherell, II, the designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bryant L. Lee, pro se

725 Grand Street

Orlando, Florida 32805

For Respondent: Richard B. Cato, Esquire

Department of Children and Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782 STATEMENT OF THE ISSUE

Whether Petitioner should be granted an exemption from disqualification pursuant to Section 435.07, Florida Statutes.

PRELIMINARY STATEMENT

On August 30, 2001, the Department of Children and Family Services (Department) informed Petitioner that he was ineligible for employment in a position of special trust working with children because of two disqualifying offenses identified by the Department through its background investigation of Petitioner.

Subsequently, Petitioner requested an exemption from disqualification pursuant to Section 435.07, Florida Statutes. On November 19, 2001, the Department informed Petitioner that his request for an exemption was denied. Petitioner timely requested a formal hearing to challenge the Department’s decision and, on December 18, 2001, the case was referred to the Division of Administrative Hearings (Division) for the assignment of an administrative law judge to conduct the hearing requested by Petitioner.

The hearing was held on March 27, 2002. At the hearing, Petitioner testified in his own behalf, and Petitioner’s Exhibits P1-P6 were received into evidence. The Department's objection to Petitioner's Exhibit P7 on the ground that it is unduly repetitious evidence was sustained, and that exhibit was not received. The Department presented the testimony of Nianza Green, a background screening coordinator with the Department, and the Department’s Exhibits A-F were received into evidence.

No transcript of the hearing was ordered. The Department requested and the parties were granted 30 days from the date of the hearing to file their proposed recommended orders. However, neither the Department nor Petitioner filed a proposed recommended order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the hearing, the following findings are made:

1. In July 2001, Petitioner and his wife filed an application with the Department for a license to operate a family day care home.

2. As part of the license application process, Petitioner was required to undergo background screening. The screening process was conducted in August 2001, and through that process, the Department obtained documents showing numerous criminal charges against by Petitioner between 1992 and 1997. The charges included driving under the influence, aggravated battery, aggravated assault with a firearm, armed robbery, and grand larceny.

3. On August 30, 2001, the Department informed Petitioner that he was ineligible for employment in a position of trust working with children because of two disqualifying offenses identified through the background screening process, i.e.,

   “larceny general – felony” and “robbery with firearm.” The letter identifies the date of the offenses as February 13, 1997.

4. That date corresponds to the date that Petitioner was arrested on the charge of conspiracy to commit armed robbery. The case number for that offense was CR97-1756.

5. On March 5, 1997, the State Attorney for the Ninth Judicial Circuit (State Attorney) filed a "No Information Notice" in case number CR97-1756 because the "case [was] not suitable for prosecution [because the] evidence submitted by [the] law enforcement agency [was] insufficient to prove guilt beyond a reasonable doubt."

6. On March 11, 1997, while Petitioner was still in custody, the State Attorney filed charges against Petitioner in two separate cases.

7. In the first case, number CR97-1735, Petitioner was charged with one count of robbery with a firearm (with a mask), three counts of aggravated assault with a firearm (with a mask), and one count of grand theft third degree. The offenses allegedly occurred on January 22, 1997.

8. In the second case, number CR97-1736, Petitioner was charged with one count of attempted robbery with a firearm (with a mask). The offense allegedly occurred on January 31, 1997.

9. On July 25, 1997, Petitioner accepted a plea bargain to resolve both of the cases. In case number CR97-1735, Petitioner

   pled guilty to grand theft, third degree. In case number CR97- 1736, Petitioner pled guilty to the lesser included offense of attempted robbery. In exchange, the State Attorney filed a nolle prosequi as to the other counts in case number CR97-1735, and Petitioner was sentenced to time served (163 days), placed on probation for two years, and assessed court costs and fines of approximately $800.

10. The circumstances surrounding the offenses are not entirely clear. The credible evidence indicates that Petitioner and two of his friends (Jimmy Briggs and Jermane Dixson) fit the description of persons involved in a series of robberies in late January 1997, and an aborted robbery attempt on February 13, 1997. In this regard, the arrest report states:

    On 2-13-97 at 0329 hours, encountered three individuals, who had just plotted to commit an armed robbery. There was a sawed off shotgun, a toy gun, binoculars and several articles of clothing recovered from their vehicle. There was also another gun and a black shirt recovered from the residence of Jimmy Briggs. All three defendants confessed to planning the robbery and almost carrying it out, but got on the scene and changed their minds. Defendant Bryant Lee did confess to an armed robbery, that he said that he and defendant #2 (Briggs) and #3 (Dixson) participate [sic] in. [Lee] said it occurred at the Food Lion on Oakridge Rd. but would not be specific on the time, however indicated about three weeks ago. Defendant #2 (Briggs) and #3 (Lee) both confessed to plotting a robbery tonight and both wrote sworn statement [sic] to this effect.

11. Despite his confession and his subsequent guilty pleas, Petitioner continues to deny any involvement in the crimes. He testified at the hearing that he was a victim of circumstances and poor judgment through his association with a bad crowd of friends. Petitioner further testified that he only agreed to the plea bargain because he wanted to get out of jail and go home to his son.

12. In addition to the two cited disqualifying offenses, the record reflects that in December 1996, Petitioner pled nolo contendre and was adjudicated guilty of discharging a firearm in public, a misdemeanor. Petitioner was sentenced to time served (1 day) and assessed costs in the amount of $115.

13. Petitioner was 24 years old at the time of his arrest in 1997. He is now 29 years old, and by all accounts, he has begun to turn his life around. He successfully completed his probation on July 24, 1999. He has not been charged with any criminal offenses since his 1997 arrest, and he has not even received a traffic citation.

14. Petitioner has been married to his current wife for the past three years. They have two children together, and his wife's nine year-old daughter, Keyanna, also lives with them. Petitioner shares custody of his six year-old son from a previous relationship, and he is “getting current” on his child support obligation for that child.

15. Petitioner is currently unemployed, but over the past five years he has worked as a chef in various restaurants. Petitioner testified that he is no longer working as a chef because he feels that his calling is to work with children in his community to steer them away from the path of criminal activity with which he was associated in his youth.

16. The record includes glowing character references for Petitioner. One reference describes him as “a well rounded good hearted person, and one of the nicest people I know.” Another reference details Petitioner’s active participation in Keyanna’s school and states that he “has proven to be a model parent.”

17. In November 2001, Petitioner successfully completed the 30-hour Family Child Care Training Course developed by the Department pursuant to Sections 402.305(2)(d), Florida Statutes, and Rule 65C-22.003, Florida Administrative Code.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57, and 435.07(3), Florida Statutes. (All references to Sections and Chapters are to the Florida Statutes.)

19. Applicants for a family day care home license are required to undergo Level 2 background screening pursuant to Section 435.04. See Sections 402.305(2)(a), 402.313(1)(a)5.

20. The purpose of the background screening is to determine whether the applicant has been "found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to" certain crimes--commonly referred to as disqualifying offenses--including "Chapter 812, relating to theft, robbery, and related crimes, if the offense is a felony." See Section 435.04(2)(w).

21. Where the background screening identifies a disqualifying offense, the applicant is disqualified from employment in the family day care home. See Sections 402.305(2)(a), 435.06.

22. Of the offenses to which Petitioner pled guilty, i.e., attempted robbery and grand theft, only grand theft is a felony violation of Chapter 812. See Section 812.014(2)(c)1. (grand theft-third degree is a third degree felony). Attempted robbery is not a violation of Chapter 812; it is a violation of Section 774.04, but it is also a third degree felony. See Section

    774.04 (4)(d)1. (if the offense attempted is a second degree felony, then the attempt is a third degree felony) and Section 812.13(2)(c) (robbery is a second degree felony). Accordingly, only the offense of grand theft is a disqualifying offense under Section 435.04. See Section 435.04(2)(w).

23. Section 435.07(1)(a) authorizes the licensing agency to grant exemptions from disqualification for "[f]elonies

    committed more than 3 years prior to the date of disqualification." The disqualifying offense committed by Petitioner was a felony and it was committed in 1997.

    Accordingly, Petitioner is eligible for an exemption from disqualification if he demonstrates rehabilitation pursuant to Section 435.07(3).

24. Petitioner has the burden to demonstrate by clear and convincing evidence that he is rehabilitated based upon:

    . . . 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 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.

    
    

    Section 435.07(3). And see Heburn v. Dept. of Children &

    
    

    Families, 772 So. 2d 561 (Fla. 1st DCA 2000), rev. denied, 790 So. 2d 1104 (Fla. 2001); Phillips v. Dept. of Juvenile Justice, 736 So. 2d 118 (Fla. 4th DCA 1999).

25. Petitioner failed to meet his burden of proof.

    
    

    The record demonstrates that Petitioner has begun to turn his life around and that he now appears to be a good father to his children. However, the evidence is insufficient to conclude that Petitioner is fully rehabilitated for purposes of Section 435.07(3). The offenses to which Petitioner pled guilty were

    extremely serious in nature; they were not acts of youthful indiscretion. Petitioner was not an immature minor at the time of the offenses; he was a 24 year-old man.

26. Petitioner has not taken full responsibility for his actions. At the hearing, he denied any involvement in the crimes despite the fact that the arrest report indicates that he confessed to an armed robbery and the fact that he ultimately pled guilty to that crime as well as other offenses.

27. Only five years have passed since the date of the offenses, and less than three years have passed since the end of Petitioner’s probation. Given the severity of the disqualifying offense and Petitioner’s conviction of at least two other non- disqualifying offenses around the same time period, the passage of additional time is necessary to demonstrate that Petitioner has been fully rehabilitated. See Hepburn, 772 So. 2d at 563 (upholding the Department’s decision that three years between the release from prison and the exemption request is not enough time to demonstrate rehabilitation).

28. Petitioner should be commended for the steps that he has taken over the past several years to turn his life around and he should be encouraged to continue those steps. Petitioner should continue to act as a role model for his children and the

children in his community. If he does so, he will be in a better position to obtain an exemption from disqualification in

the future.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioner’s request for an exemption from disqualification.

DONE AND ENTERED this 14th day of May, 2002, in Tallahassee, Leon County, Florida.

T. KENT WETHERELL, II 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 14th day of May, 2002.

COPIES FURNISHED:

Richard B. Cato, Esquire Department of Children and

Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782

Bryant L. Lee 725 Grand Street

Orlando, Florida 32805

Paul Flounlacker, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700

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: 01-004858

Orders for Case No: 01-004858