STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARECIA S. JEFFERSON, )

)

Petitioner, )

)

vs. ) Case No. 04-2276

)

DEPARTMENT OF JUVENILE )

JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Winter Haven, Florida, on August 17, 2004.

APPEARANCES

For Petitioner: Marecia Jefferson

Post Office Box 102 Dundee, Florida 33838

For Respondent: M. Linville Atkins

Assistant General Counsel Department of Juvenile Justice 2737 Centerview Drive, Suite 312

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to an exemption from disqualification from employment in a position of special trust or responsibility with Respondent.

PRELIMINARY STATEMENT

By letter dated May 10, 2004, Petitioner requested a hearing on Respondent's denial of an exemption from disqualification from employment.

At the hearing, Petitioner called one witness and offered into evidence one exhibit: Petitioner Exhibit 1. Respondent called no witnesses and offered into evidence three exhibits: Respondent Exhibits 1-3. The parties jointly offered two exhibits: Joint Exhibits 1-2. All exhibits were admitted except Respondent Exhibit 3.

The parties did not order a transcript. Respondent filed a Proposed Recommended Order on September 1, 2004.

FINDINGS OF FACT

1. Petitioner was born on March 1, 1976. She has earned her bachelor's degree in elementary education and will soon earn her master's degree in educational leadership.

2. From 1999 through 2003, Petitioner worked as a substitute teacher for the Polk County School Board. During the 2004-05 school year, Petitioner is employed by the Polk County School Board as a fulltime classroom teacher; she is teaching a first-grade class.

3. From May 2002 through March 2004, while employed as a substitute teacher, Petitioner also worked part-time as a program technician for Sunshine Youth Services. Sunshine Youth

   Services is a contract provider of Respondent and, as such, is bound by Chapter 435, Florida Statutes.

4. In November 2003, Respondent learned that Petitioner had been convicted of simple battery on January 3, 1994, in Springfield, Georgia, when she was 17 years old. In March 2004, Sunshine Youth Services suspended Petitioner due to the 1994 incident, which Respondent determined was a disqualifying offense under Section 435.04, Florida Statutes. Petitioner subsequently initiated a proceeding to obtain an exemption from disqualification in employment.

5. As a program technician for Sunshine Youth Services, Petitioner provided direct care to youth aged 13-18 years. She worked 32 hours weekly, counseling and caring for the youth assigned to her. The youth were disabled and often presented behavior problems, but Petitioner never had any problems caring for the children or maintaining order.

6. The 1994 incident was an altercation between Petitioner and her female cousin, who was also 17 years old at the time, that took place during Christmas vacation while they were visiting at their grandmother's home. Neither girl was injured, but both were processed by the criminal justice system. The judge found each child guilty of simple battery and fined each of them $122.

7. Petitioner has long been active in her church, the New Mt. Zion AME church. She is currently the youth director and is a steward of the church. She has lived in Dundee since 1983 and has not been in trouble besides the 1994 incident.

8. Petitioner has long worked with children and the elderly and has never had any problems in providing care to these vulnerable groups. Although she did not reveal the Georgia conviction in an application for background screening, which she submitted to Respondent, Petitioner did not know, at the time, that she had been convicted of a crime in connection with her fight with her cousin when they were both 17 years old.

9. Petitioner has proved by clear and convincing evidence that she has rehabilitated herself since the 1994 juvenile incident and that she poses no threat to children or disabled persons, if she is permitted to work in her previous job as a program technician with Sunshine Youth Services or in a similar position with another service provider.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569, 120.57(1), and 435.07(3) Fla. Stat. (2004).

11. Section 984.01(2)(b), Florida Statutes, imposes an employment-screening requirement upon any entity that has entered into a contract with Respondent to provide services to

    children. The statute requires "level 2" screening, pursuant to Chapter 435, Florida Statutes. Section 984.01(2)(c), Florida Statutes, provides that Respondent may grant exemptions from disqualification, pursuant to Section 435.07, Florida Statutes.

12. Section 435.04(2)(j), Florida Statutes, requires, for level 2 screening, a determination of whether the employee has been guilty of violating Section 784.03, Florida Statutes, which is battery, but only if the victim were a minor. Nothing in Section 435.04, Florida Statutes, distinguishes between adult and minor perpetrators of the battery against a minor, so the fact that Petitioner was a minor is irrelevant to the disqualification determination.

13. Section 435.07(3), Florida Statutes, provides:

    
    

    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. . . .

    
    

14. The 1994 incident was a minor disturbance between two 17-year-old girls and caused no injury to either of the

children. Petitioner has not had any problems with children, disabled persons, or the elderly since then and has spent a considerable amount of time in direct contact with such persons. Petitioner has pursued her education and maintained active roles in her church.

RECOMMENDATION

It is

RECOMMENDED that the Department of Juvenile Justice enter a final order granting Petitioner an exemption from employment disqualification, pursuant to Section 435.07(3), Florida Statutes.

DONE AND ENTERED this 23rd day of September, 2004, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 23rd day of September, 2004.

COPIES FURNISHED:

Anthony Schembri, 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

Marecia Jefferson Post Office Box 102

Dundee, Florida 33838

M. Linville Atkins Assistant General Counsel

Department of Juvenile Justice 2737 Centerview Drive, Suite 312

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 04-002276

Orders for Case No: 04-002276