ANTHONY L. BRYANT,
vs.
Respondent.
) Case No. 02-0378
A video teleconference hearing was conducted in this case on March 29, 2002, between Tallahassee, Florida, and Jacksonville, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
The issue is whether Petitioner should be granted an exemption from employment disqualification pursuant to Section 435.07(3), Florida Statutes.
By letter dated December 31, 2001, Respondent Department of Children and Family Services (Respondent) denied the request of Petitioner Anthony L. Bryant (Petitioner) for an exemption from disqualification under the background screening statutes.
Petitioner requested a formal hearing to contest the denial.
Respondent referred the case to the Division of Administrative Hearings on January 31, 2002. A subsequent Notice of Hearing By Video Teleconference scheduled the hearing for March 29, 2002.
During the hearing, Petitioner testified on his own behalf and presented the testimony of three witnesses. Petitioner offered seven exhibits, which were accepted into evidence.
Respondent did not present the testimony of any witnesses.
Respondent offered eight exhibits, which were accepted into evidence.
A transcript of the proceeding was not filed with the Division of Administrative Hearings. The parties had an opportunity to file proposed recommended orders on or before April 9, 2002. As of the date of this Recommended Order, neither Petitioner nor Respondent has filed a proposed recommended order.
Petitioner is forty-three years old. His wife, Margaret Bryant, has applied for a license to operate a family day care home.
In March 1987, a law enforcement officer detained Petitioner on suspicion of robbery, placed Petitioner in the backseat of a patrol car, and transported him to the police station. Petitioner was the last person to ride in the patrol car before the law enforcement officer found cocaine in a matchbox in the back seat of the patrol car. Subsequently, Petitioner was arrested and charged with robbery and possession of cocaine.
In April 1987, Petitioner pled guilty to aggravated assault pursuant to Section 784.021, Florida Statutes, and possession of cocaine pursuant to Section 893.13, Florida Statutes. He was adjudicated guilty of a third-degree felony for aggravated assault and a second-degree felony for possession of cocaine. The court sentenced Petitioner to 24 days, time served.
In January 1992, Petitioner was living with a former girlfriend, Gloria Sanderford. Petitioner and Ms. Sanderford had an argument over some marijuana. During the argument, Petitioner hit the wall then left the residence. When he
returned to the residence, Petitioner broke a window in an attempt to gain entry.
In February 1992, Petitioner was charged with assault pursuant to Section 784.011, Florida Statutes, and with criminal mischief pursuant to Section 806.13, Florida Statutes. After pleading no contest to these charges, Petitioner was adjudicated guilty of a second-degree misdemeanor on both counts. Petitioner was sentenced to 16 days, time served, and 90 days' probation. The court ordered Petitioner to make restitution to Ms. Sanderford in an amount not to exceed $250.
During the hearing, Petitioner admitted that he was convicted of burglary in 1994. Petitioner testified that he was sentenced to three years in jail and was eventually released on parole. The record does not reflect any additional details about this conviction.
In September 1996, Petitioner and a former girlfriend, Janet McClendon, fought over some money resulting in a bruised lip and eye for Ms. McClendon and a cut on Petitioner's wrist. Petitioner and Ms. McClendon were using drugs at the time of the incident.
In October 1996, Petitioner pled no contest and was adjudicated guilty of a first-degree misdemeanor battery pursuant to Section 784.03, Florida Statutes. The court sentenced Petitioner to 45 days in jail with credit for 18 days,
time served. Subsequently, Petitioner returned to jail for violation of parole.
On August 8, 1998, Petitioner and Margaret Bryant were not married, but were living together; they had an argument during which Petitioner pushed her. Ms. Bryant called the police resulting in Petitioner's arrest for battery pursuant to Section 784.03(1), Florida Statutes.
On August 28, 1998, the court adjudicated Petitioner guilty of a first-degree misdemeanor battery for violating Section 784.03(1), Florida Statutes. Based on this conviction, the court sentenced Petitioner to five months' incarceration with credit for 21 days, time served. The court also ordered Petitioner to complete the Door Program and to participate in family counseling.
After Petitioner was released from jail the last time, he began attending church. Petitioner continues to be active in his church, serving as the camera person and participating in the on-going family enrichment and marriage counseling program. Petitioner's pastor considers Petitioner to be a church leader, a loving husband, and devoted stepfather to Ms. Bryant's two children. The pastor's opinion of Petitioner is supported by many of the church members.
Petitioner's mother confirms that Petitioner has turned his life around since he stopped abusing drugs and
alcohol, and he often helps his mother with household chores. According to Petitioner's mother, Petitioner is a good husband and father to his stepchildren and his goddaughter.
Ms. Bryant and Petitioner have been married for almost three years, but they have lived together for several years longer. She testified that Petitioner is a loving husband and stepfather. She asserts that as a couple, they have learned how to deal with the challenges of married life. According to Ms. Bryant, she and Petitioner now have the skills to keep their marriage healthy.
Petitioner has a general education diploma and is an electrician by trade. He worked for one electric company for about 14 years; he has been employed as an electrician with his current employer for over two years. Petitioner's employer regards him as a hard worker who is trusted with jobsite responsibilities and recommends Petitioner as a person of character.
Petitioner admits that his drug and alcohol abuse caused him problems in the past, and he does not deny his criminal history. However, Petitioner stopped using drugs and alcohol after his last incarceration in August 1998. He now has a strong marriage to Ms. Bryant and a commitment to his church and has accepted the responsibility for helping Ms. Bryant raise her children. Petitioner serves as a mentor for other young
children. Petitioner's church and family provide him with a solid support system.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569, 120.57(1), and 435.073, Florida Statutes.
Section 402.313(3), Florida Statutes, provides as follows in pertinent part:
(3) Child care personnel in family day care homes shall be subject to the applicable screening provisions contained in ss. 402.305(2) and 402.3055. For purposes of screening in the family day care homes, the term includes any member over the age of
12 years of a family day care home operator's family, or persons over the age of 12 years residing with the operator in the family day care home. . . .
Section 402.305(2), Florida Statutes (1999), sets forth the following minimum standards for child care personnel, in relevant part:
Good moral character based upon screening. This screening shall be conducted as provided in chapter 435, using the level 2 standards for screening set forth in that chapter.
Section 435.04, Florida Statutes (1999), states as follows regarding the Level 2 screening standards, in pertinent part:
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. . . .
The security background investigations under this section must ensure that no persons subject to the provisions of this section have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provision of the Florida Statutes or under any similar statute of another jurisdiction.
* * *
Section 784.011, relating to assault, if the victim of the offense was a minor.
Section 784.021, relating to aggravated assault.
Section 784.03, relating to battery, if the victim of the offense was a minor.
* * *
(mm) Chapter 893, relating to drug abuse prevention and control, only if the offense was a felony or if any other person involved in the offense was a minor.
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Standards must also ensure that the person:
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(b) Has not committed an act that constitutes domestic violence as defined in s. 741.30
Section 741.30, Florida Statutes, does not contain a definition of domestic violence. Rather, the statute states as follows in relevant part:
There is created a cause of action for an injunction for protection against domestic violence.
Any person described in paragraph (e), who is the victim of any act of domestic violence, or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence, has standing in the circuit court to file a sworn petition for an injunction for protection against domestic violence.
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(6)(a) Upon notice and hearing, the court may grant such relief as the court deems proper, including an injunction:
Restraining the respondent from committing any acts of domestic violence.
Awarding to the petitioner the exclusive use and possession of the dwelling that the parties share or excluding the respondent from the residence of the petitioner.
On the same basis as provided in chapter 61, awarding temporary custody of, or temporary visitation rights with regard to, a minor child or children of the parties.
On the same basis as provided in chapter 61, establishing temporary support for a minor child or children or the petitioner.
Order the respondent to participate in treatment, intervention, or counseling services to be paid for by the
respondent. . . .
Referring a petitioner to a certified domestic violence center. . . .
Ordering such other relief as the court deems necessary for the protection of a victim of domestic violence, including injunctions or directives to law enforcement agencies, as provided in this section.
Section 435.07, Florida Statutes (1999), states as follows in relevant part:
435.07 Exemptions from
disqualification.--Unless otherwise provided by law, the provisions of this section shall apply to the 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 jurisdictions;
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(e) 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 may be contested through the hearing procedures set forth in chapter 120.
Petitioner's 1987 convictions for aggravated assault under Section 812.13, Florida Statutes, and for possession of cocaine under Section 893.13, Florida Statutes, are the disqualifying offenses in this case. See Sections 435.04(2)(g) and 435.04(2)(mm), Florida Statutes. It has been 14 years since Petitioner committed these offenses.
Petitioner's conviction for the 1992 assault under Section 784.011, Florida Statutes, and for the 1996 and 1998 batteries under Section 784.03, Florida Statutes, do not disqualify him because the victims of these offenses were not minors. See Sections 435.04(2)(f) and 435.04(2)(h), Florida Statutes. Nevertheless, the assault and batteries committed by Petitioner must be considered in determining whether Petitioner is rehabilitated.
Petitioner's 1992 conviction for criminal mischief under Section 806.13, Florida Statutes, and his 1994 conviction for burglary under Section 810.02, Florida Statutes, do not disqualify him under the screening standards. Even though Section 435.04(2), Florida Statutes, does not list commission of
these crimes as disqualifying offenses, they must be considered in determining whether Petitioner is rehabilitated.
Petitioner has not committed an act that constitutes domestic violence as defined in Section 741.30, Florida Statutes. That section does not apply here because there is no evidence that a court ever issued an injunction for protection against domestic violence against Petitioner.
Petitioner has not committed a crime since he was arrested in August 1998, almost four years ago. He presented persuasive evidence that all of his offenses occurred during the time that he abused alcohol and drugs, and he has not consumed alcohol or illegal drugs since his last arrest. The change in Petitioner's life since 1998 is obvious to all who know him, including his family, his employer, his friends at church, and his friends in the community.
Only one of Petitioner's victims, Janet McClendon, suffered any significant physical violence, a bruised eye and lip. Petitioner and his wife have been married since August 24, 1999, with no history of marital discord since the earlier incident in August 1998.
Petitioner presented clear and convincing evidence of his rehabilitation. The facts of this case indicate that Petitioner will not present a danger as a household member of Ms. Bryant's family day care home.
That Respondent enter a final order granting Petitioner an exemption from disqualification.
DONE AND ENTERED this 18th day of April, 2002, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 2002.
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.
