STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALECIA FUGATE-SMITH,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-1000

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on June 20, 2002, in West Palm Beach, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alecia Fugate-Smith, pro se

914 East Eighth Street Stuart, Florida 34994

For Respondent: Colleen Farnsworth, Esquire

Department of Children and Family Services

111 South Sapodilla Avenue Suite 201

West Palm Beach, Florida 33401 STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner should be exempted from employment disqualification, thereby allowing her

to work in a position of special trust at the Hobe Sound Child Care Facility or a like facility.

PRELIMINARY STATEMENT

The Petitioner was determined by the Department of Children and Family Services ("Department") to be disqualified for employment in a position of special trust based on the Petitioner's criminal history. The Petitioner then requested an exemption pursuant to Section 435.07, Florida Statutes. When advised of the Department's intent to deny her request for exemption, the Petitioner requested an evidentiary hearing and the matter was referred to the Division of Administrative Hearings for final hearing.

At the final hearing on June 20, 2002, the Petitioner testified on her own behalf. She did not call any other witnesses, nor did she offer any exhibits. The Respondent presented the testimony of three witnesses, and offered eight exhibits, all of which were received into evidence.

At the conclusion of the hearing, the parties were allowed ten days from the date of the hearing within which to file their proposed recommended orders. No transcript was ordered. The Respondent filed a timely Proposed Recommended Order. As of the date of this order, the Petitioner has not filed any post- hearing documents.

FINDINGS OF FACT

1. Sometime during 2001, the Petitioner applied for employment with the Hobe Sound Child Care Facility. The position she applied for would have brought the Petitioner into direct contact with children. The Petitioner's desire to work at the Hobe Sound Child Care Facility is in part because at least one of her own children attends that facility, and she would have an opportunity to interact with her own children while working with other children.

2. By letter dated December 6, 2001, the Petitioner was advised of the results of the preliminary screening, and was also advised of the procedure for requesting an exemption from employment disqualification. The Petitioner thereafter filed a timely request for exemption.

3. Following the Petitioner's request, a committee designated by the Department conducted an informal hearing. The Petitioner participated in the informal hearing. Following the informal hearing, the committee voted to deny the requested exemption. The committee's decision to deny was based primarily on the committee members' impression that the Petitioner failed to show rehabilitation by failing to accept responsibility for the crime for which she was convicted. The committee felt that the Petitioner's continuing insistence that she was innocent of the crime and had been wrongfully convicted of crimes committed

   by others constituted a failure to accept responsibility for what she had done.

4. By letter dated January 23, 2002, the Petitioner was advised that her request for exemption from employment disqualification pursuant to Section 435.07, Florida Statutes, was denied. Thereafter, the Petitioner timely filed a request for a hearing to challenge the denial of her request for exemption.

5. The disqualification of the Petitioner is based solely on her being found guilty of the crime of third degree grand theft. When the Petitioner was charged with third degree grand theft, she entered a plea of "not guilty" and went to trial on the criminal charges. At the conclusion of the criminal trial the jury found the Petitioner to be guilty as charged, and on July 18, 1994, the Circuit Court of Martin County entered an Order Withholding Adjudication of Guilt and Placing Defendant on Probation.

6. The events which underlie the Petitioner's criminal trial took place at the Payless Shoes store in Stuart, Florida, during the several months immediately preceding December of 1993. During that time period, the Petitioner and several other people worked at the Payless Shoes store and had access to the merchandise and to the cash register. Some, but not all, of the employees were stealing cash and merchandise from the shoe

   store. An audit was conducted at the subject store, and on December 3, 1993, a Loss Prevention Investigator employed by Payless Shoes interviewed the Petitioner regarding her knowledge of thefts in the store where she worked. The Petitioner cooperated with the investigator and explained to him how the employees had been stealing cash and merchandise from the store. During the interview, the investigator prepared a written statement in his own handwriting. At the end of the interview the investigator told the Petitioner that he had prepared a written statement of everything she had told him and asked her to sign the statement. The Petitioner signed the statement without reading it.

7. Later the same date the Petitioner was arrested. At the time of her arrest she told the arresting officer that she was innocent. During the arrest process the Petitioner became aware that the statement she had signed without reading implicated herself as one of the participants in the thefts she had described to the investigator. The Petitioner contended then, and continued to contend at the hearing in this case, that the investigator who took her statement either misunderstood what she said or incorrectly wrote what she said. The Petitioner admits that she had guilty knowledge of the fact that other employees where stealing merchandise and money from the store, and she now realizes that she should have told her

   employer about the thefts by others. However, the Petitioner has always contended that she never participated in any thefts from the store.

8. Without at this late date trying to determine whether the jury's finding of guilty was correct, it is sufficient to note that, her assertions of innocence of the crime charged, notwithstanding, the Petitioner presently appears to be sincerely remorseful regarding her failure to timely report to here employer the criminal actions of other employees. Further, the Petitioner now appears to understand the importance of being honest in all matters concerning one's employment.

9. In the many years that have passed since 1993, the Petitioner seems to have made sincere efforts towards rehabilitation. She is now active in her church and is involved in raising her own children, as well as trying to be of assistance to other children in her community. She is highly motivated to work in child care. To that end she has taken numerous courses to learn how to provide good child care. She enjoys working with children and can be expected to do a good job in such a position.

10. Following her sentence on the criminal charge, the Petitioner made good faith efforts to timely comply with all conditions of her probation. She had occasional difficulties

    making the financial payments required by her sentence due to difficulties in obtaining steady employment.

11. In sum, the Petitioner is a decent and honorable person who enjoys working with children, appears to be good at working with children, and should not be disqualified from employment positions working with children.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

13. By reason of her conviction, the Petitioner is disqualified from employment in the position she seeks to work in. The sole issue here is whether the Petitioner is entitled to an exemption from that disqualification pursuant to Section 435.07, Florida Statutes, which reads as follows, in pertinent part.

    1. Exemptions from disqualification.–- 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;

    
    

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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.

    
    

14. Upon consideration of the facts in this case in light of the statutory language quoted immediately above, it is concluded that the Petitioner, by the required quantum of proof, has demonstrated that she "will not present a danger if continued employment is allowed," and that there is "sufficient evidence of rehabilitation" to demonstrate entitlement to the exemption sought by the Petitioner. Accordingly, her request for exemption should be granted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's

request for an exemption from disqualification in a position of special trust.

DONE AND ENTERED this 19th day of July, 2002, in Tallahassee, Leon County, Florida.

MICHAEL M. 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 19th day of July, 2002.

COPIES FURNISHED:

Colleen Farnsworth, Esquire Department of Children and

Family Services

111 South Sapodilla Avenue Suite 201

West Palm Beach, Florida 33401

Alecia Fugate-Smith 914 East Eighth Street Stuart, Florida 34994

Paul F. Flounlacker, Jr., Agency Clerk Department of Children and

Family Services

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

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

Kathleen A. Kearney, Secretary Department of Children and

Family Services

1317 Winewood Boulevard, Room 202

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: 02-001000

Orders for Case No: 02-001000