STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 25, 2009, in Ocala, Florida, before Barbara J. Staros, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Flora Osborne, pro se

1425 Northwest 109th Avenue Ocala, Florida 34482

For Respondent: Kimberly Sisko Ward, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

The issue is whether Petitioner should receive an exemption from employment disqualification pursuant to Section 435.07, Florida Statutes.

PRELIMINARY STATEMENT

By letter dated July 1, 2009, Respondent, Department of Juvenile Justice (DJJ), denied the request of Petitioner, Flora Osborne, for an exemption from disqualification from employment under the background screening statutes. Petitioner filed a request for an administrative hearing to contest the denial.

Respondent referred the case to the Division of Administrative Hearings on or about July 21, 2009.

The undersigned issued a Notice of Hearing on August 3, 2009. The notice scheduled the hearing for September 25, 2009. The case was heard as scheduled.

At hearing, Petitioner testified on her own behalf.

Petitioner did not offer any exhibits. Respondent presented the testimony of Myra Burks. Respondent's Exhibits numbered 1 through 13 were admitted into evidence. Official Recognition was taken of Sections 435.04, 435.07, and 985.644, Florida Statutes.

A one-volume Transcript was filed on October 30, 2009.

Petitioner timely filed a post-hearing letter, and Respondent timely filed a Proposed Recommended Order, which have been considered in the preparation of this Recommended Order. All references to the Florida Statutes are to 2009 unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner is seeking this exemption from dis- qualification because she desires to work at Arnette House, a DJJ contract provider.

2. Myra Burks is the manager of DJJ’s background screening unit. Ms. Burks reviewed all of the background screening information received regarding Petitioner, including her criminal history.

3. Petitioner’s criminal history included two disqualifying offenses. In 1982, Petitioner was charged with Grand Larceny. She pled guilty and was placed on probation for two years and was ordered to pay restitution and court costs. Also in 1982, Petitioner was charged with Obstructing a Law Enforcement Officer with Violence. She was found guilty and sentenced to five years in prison. Petitioner served six months in prison and then worked in a work release program in Gainesville, Florida.

4. Initially, Ms. Burks considered two other offenses to be disqualifying: a 1985 charge of Parole Violation-Aggravated Assault, and a 1992 charge of grand larceny. At hearing,

   Ms. Burke acknowledged that neither of these offenses was disqualifying as there was no documentation of conviction as to the 1985 parole violation-aggravated assault charge, and the 1992 grand larceny charge was reduced to petit theft.

5. After being released from prison, Petitioner moved to Alabama where she worked as a 911 dispatcher for the Lowndes County Sheriff’s Department. She returned to Florida in 1991.

6. Petitioner was arrested in 2002 for False Report of Child Abuse or Neglect. She pled guilty and adjudication of guilt was withheld. She was placed on probation for two years, which she completed in one year.

7. At hearing, Petitioner offered some explanation as to the two disqualifying offenses, which occurred 27 years ago. Petitioner explained that she was only 19 at the time of those offenses. The resisting arrest incident happened at her parents’ home where an officer came to arrest her. Petitioner and her sister resisted Petitioner's being arrested and taken from the home.

8. As to the 2002 incident, Petitioner explained that while working at a doctor’s office, a child patient told her things which others ignored. She maintains that she did not falsify the report, believed the child was in trouble, and was trying to help the child when she made the report. Despite her having entered a plea of guilty, her testimony regarding this incident is deemed credible and is accepted.

9. In 2003, Petitioner obtained employment at the Centers, Inc., and worked there for six years until she resigned. She has also worked for Timbrook of Ocala and Genesis House of

   Ocala. These facilities assist youth who are homeless or their parents cannot handle on their own.

10. Petitioner has taken classes and has obtained certification as a NAPPI trainer, completed child care training and certification through Central Florida Community College in working with angry and resistant youth, and holds various certificates from other entities. She also completed various training classes while working at the Centers. The Program Manager at the Centers wrote a letter of recommendation for Petitioner stating that she was dependable, punctual, detailed, and helpful.

11. Petitioner has received exemptions from employment disqualification from the Agency for Persons With Disabilities to work with children and persons with developmental disabilities; the Department of Children and Family Services making her eligible to be considered for employment/licensing in a caretaker position; and the Agency for Health Care Administration for patient care employment. On September 14, 2007, her civil rights were restored by the Office of Executive Clemency.

12. Petitioner is a mother and grandmother. She volunteers to work with “kids” in the community including being involved with Sunday school with the youth in her church. Petitioner is a member of the choir in her church.

13. Based upon her review of Petitioner's file, Ms. Burks recommended that Petitioner be disqualified. Ms. Burks’ recommendation, however, was based on her initial belief that Petitioner had four disqualifying offenses. As noted above, Ms. Burks acknowledged at hearing that Petitioner only had two disqualifying offenses, both of which occurred 27 years ago.

14. Petitioner presented meaningful evidence of rehabilitation. She has attended many classes to receive training in areas of caring for others and in troubled youth. She is active in her community as a volunteer and at church, and she genuinely likes to work with youth.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 435.07(3), Florida Statutes.

16. Section 985.644(1)(b), Florida Statutes, provides that DJJ shall require employment screening pursuant to Chapter 435, Florida Statutes, using the level 2 standards set forth in that chapter for personnel in programs for children or youths.

17. Paragraphs 435.04(2)(y) and (ii), Florida Statutes, provide respectively that no person subject to level 2 screening requirements can have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to,

    an offense prohibited under Chapter 812, Florida Statutes, relating to theft, robbery, or related crimes if the offense is a felony, or an offense relating to resisting arrest with violence.

18. Section 435.07, Florida Statutes, states in pertinent part as follows:

    435.07 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;

    
    

    * * *

    
    

    (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.

    (emphasis added)

    
    

19. The hearing contemplated in Section 435.07(3) set forth above is de novo. § 120.57(1)(j), Fla. Stat.

20. Petitioner’s 1982 offenses of grand larceny/theft and resisting arrest constitute disqualifying offenses. The other charges enumerated above do not constitute disqualifying offenses.

21. It has been 27 years since the disqualifying offenses of theft and resisting arrest with violence. Since that time, she has not committed a disqualifying offense. The only offense that occurred in the recent past is the 2002 charge of making a false report in which adjudication was withheld. Petitioner sufficiently explained the circumstances surrounding that incident in which she acted in a manner in which she believed was in the best interest of a child.

22. Petitioner has demonstrated rehabilitation by clear and convincing evidence. It has been 27 years since the disqualifying offenses. It has been 17 years since the non- disqualifying offense of petit theft. Since that time, with the exception of the 2002 incident referenced above, she has taken training classes for which she has received certificates. There do not appear to be any victims who were harmed as a result of her past offenses. There is no evidence to indicate that the

employee will present a danger to the youth in a DJJ facility or contract facility.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That Respondent enter a final order granting Petitioner an exemption from disqualification.

DONE AND ENTERED this 15th day of December, 2009, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 15th day of December, 2009.

COPIES FURNISHED:

Flora Osborne

1425 Northwest 109th Avenue Ocala, Florida 34482

Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399

Frank Peterman, Jr., Secretary Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399

Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399

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: 09-003862

Orders for Case No: 09-003862