Findings Of Fact Respondent is comprised of 12 physicians and three members of the public. Respondent carries out the provisions of Chapter 458, Florida Statutes (the "Medical Practice Act"). Respondent's primary purpose is to ensure that physicians who practice medicine in the state meet the minimum requirements for safe practice and to prohibit the practice of medicine by those who are incompetent or unsafe. Respondent is not an employer for the purposes of this proceeding. Respondent does not employ anyone, does not serve as an employment agency or job training service, and is not a labor organization or trade association. Petitioner is a Cuban born, foreign trained individual who is seeking licensure by endorsement. Respondent graduated from the University of Camaguey, a Cuban medical school. Background When Petitioner initially applied for licensure on October 26, 1983, the University of Camaguey was not listed in the World Health Organization World Directory Of Medical Schools. The University of Camaguey was listed in a subsequent edition published after Petitioner was denied licensure in 1983. Petitioner, received a valid certificate from the Educational Commission on Foreign Medical Graduates on August 16, 1984. Respondent denied Petitioner's initial application for licensure on the ground that Petitioner failed to show that he possessed a valid certificate from the Educational Commission on Foreign Medical Graduates. A formal hearing was conducted on August 29, 1984, by Hearing Officer R.T. Carpenter, in Case No. 84- 2684. The Recommended Order issued on October 3, 1984, found that Petitioner had graduated from a recognized medical school and had obtained a valid certificate. Respondent was to consider the Recommended Order at its regularly scheduled meeting on February 3, 1985. In July, 1984, Petitioner was working at a medical clinic when a patient suffered a cardiac arrest while being administered anesthesia by Petitioner. Petitioner was charged with a felony violation of practicing medicine without a license. Petitioner entered into a plea bargain agreement in the criminal case in which Petitioner withdrew his application for licensure, entered a plea of nolo contendere, and was placed on probation. Respondent permitted Petitioner to withdraw his application for licensure and took no action on the application. Respondent satisfactorily completed his criminal probation and re- applied for licensure on January 27, 1987. Respondent denied the application on June 7, 1987, on the grounds that the criminal conviction rendered Petitioner morally unfit to practice medicine, that Petitioner had not demonstrated he could practice medicine with skill and safety, and that Petitioner had not graduated from an accredited medical school. A formal hearing was conducted on January 5, 1989, by Hearing Officer Linda M. Rigot, in Case No. 88-0270. A Recommended Order was issued on March 30, 1989, finding that Petitioner had graduated from an accredited medical school, that Petitioner had been rehabilitated, and that Petitioner should be licensed to practice medicine. Before Respondent considered the Recommended Order in Case No. 88-0270, Petitioner was charged with practicing medicine without a license in the field of plastic surgery. A subsequent formal hearing was conducted by Hearing Officer Rigot on December 21, 1990. The Supplemental Recommended Order issued on March 6, 1991, found that Petitioner had knowingly practiced medicine without a license in April, 1989, and that Petitioner was not rehabilitated from his prior conviction. The Supplemental Recommended Order recommended that Respondent deny Petitioner's application for licensure. Respondent adopted the Supplemental Recommended Order in a Final Order issued on May 24, 1991, which is currently pending appeal. No Unlawful Discrimination Respondent did not unlawfully discriminate against Petitioner in denying Petitioner's licensure application. Respondent did not act with any bias or animus against Petitioner. Respondent's denial of Petitioner's licensure application was based upon Petitioner's failure to satisfy applicable statutory criteria for licensure, his commission of acts constituting violations of the Medical Practice Act, and his failure to demonstrate rehabilitation and good moral character. From 1987-1991, Respondent has certified 10,963 applicants for licensure as physicians by endorsement. Approximately 3,479, or 31.7 percent, were foreign-trained applicants.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 14th day of January, 1993, at Tallahassee, Florida. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1021 Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted in finding 1. 2. Accepted in finding 2. 3. Accepted in finding 10 4. Rejected as conclusion of law. 5. Accepted in finding 4. 6. Accepted in finding 5. 7. Accepted in finding 7. 8. Accepted in finding 9. 9.-10. Accepted in finding 10. 11. Rejected as irrelevant and immaterial. 12. Accepted in finding 11 13. Rejected as irrelevant and immaterial. COPIES FURNISHED: Marcelino D. Mata 158 East 47th Street Hialeah, Florida 33013 Ann Cocheu Assistant Attorney General Department of Legal Affairs PL01, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Department of Professional Regulation/Board of Medicine 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement based on their mutual interests. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the Sf day ot PAGO Co013, in Tallahassee, Florida. Che ELIZABETH DUDEK, SECRETARY are Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRCIT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Filed November 5, 2013 11:15 AM Division of Administrative Hearings Copies furnished to: William M. Blocker II, Esq. Agency for Health Care Administration (Inter-office Mail) Oertel, Fernandez, Bryant & Atkinson, P.A. Attn. Segundo Fernandez 2060 Delta Way Tallahassee, Florida 32303 Shutts & Bowen, LLP. Attn. Joseph Goldstein 200 East Broward Boulevard Suite 2100 Fort Lauderdale, Florida 33301 Blank & Meenan, P.A. Attn. F. Philip Blank 204 South Monroe St. Tallahassee, Fl. 32301 Blank & Meenan, P.A. Attn. David S. Osborne 204 South Monroe St. Tallahassee, Fl. 32301 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregging document has been furnished to the above named addressees by U.S. Mail on this the 2/>"aay oto fra 013 Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, FL 32308-5403 (850) 412-3630
The Issue Whether Respondent, Russell Spencer, willfully abandoned his employment with Petitioner, South Florida Water Management District, by unauthorized absence and failure to call-in or report to work for a three day period, without extenuating circumstances.
Findings Of Fact Respondent was employed by the District as a title examiner in its Real Estate Division. Respondent felt aggrieved and dissatisfied with his employment as a result of the denial of two promotions, which he believed he was entitled to receive. Most recently, in February, 1985, his application to fill the position of "Director of the Real Estate Division" was denied. (P-4) The Directorship of the Real Estate Division was vacated on January 31, 1985, as a result of the retirement of Jack W. Braun, who had held that position for approximately 12 years. Upon Mr. Braun's retirement, William C. Brannen, Jr., Director of the Land Management Department (which includes the Real Estate Division) assumed the position of Acting Director of the Real Estate Division until a new director could be hired. As Acting Director, he was Respondent's immediate supervisor during the interim period. The District has a long-standing written policy regarding annual leave, which requires prior written authorization from the immediate supervisor. The policy in effect in November 1982 and continuing through February 1985, states: Use of Annual Leave: a. * * * b. The use of annual leave shall require the prior approval of the employee's Supervisor or Division Director. Annual leave requests for more than 30 calendar days shall require prior written approval of the employee's Department Director. (p-10) The District's attendance and leave policy was revised on February 28,n 1985, but not with regard to the use of annual leave. The District developed and utilized a standard form for requesting annual leave. (P-11, P-12) On February 26, 1985, Respondent approached a co- worker, Andrew DuBois, and asked him to forward to Mr. Brannen (Acting Division Director) the following memorandum dated that day: In reference to the above subject matter, I have, at this writing, 200 plus hours of annual leave accrued and I intend to use whatever necessary to retain legal counsel to file suit on my behalf against this District. (P-1) He also asked Mr. DuBois to submit blank time sheets on his behalf. Mr. DuBois declined to become involved because he believed the matter was between Respondent and his supervisor. He did, however, remind Respondent of the need to obtain prior approval for annual leave. Respondent replied that he would not submit a leave request "for legal reasons." (P-34) He then left the District's offices and went home. Upon receipt of Respondent's memorandum, Mr. Brannen consulted with Mark Chapman, Director of the District's Personnel Department, as to the appropriate response. Mr. Chapman advised Mr. Brannen that Respondent was subject to disciplinary action under the District's Corrective Action Policy for taking unauthorized leave. (P-18, Section F.2.; Testimony of Brannen, Chapman Section C.7. of the District's Attendance and Leave Policy) Instead of initiating disciplinary action, Mr. Brannen telephoned Respondent and asked him to meet with him at 1:00 p.m. that day, February 26, 1985, to discuss his use of leave. At 1:00 p.m., Respondent, Mr. Brannen and the District's legal counsel, Thomas Schwartz, met at the District's offices. Mr. Brannen reminded Respondent that he was his acting supervisor and that his prior approval was required before Respondent could use annual leave. In reply to Respondent's expressed desire to seek legal counsel to file suit against the District, attorney Schwartz told him that his reasons for taking leave were immaterial with regard to whether a leave request would be granted. Respondent then asked for five days leave, through March 1, 1985. He completed the required leave forms and they were approved at the meeting. (P-2 Testimony of Brannen, Schwartz) Two days later, Mr. Brannen prepared a memorandum for the files summarizing the February 28, 1985, meeting. The memorandum, a copy of which was sent to Respondent by certified mail on March 1, 1985, and received on March 2, 1985, contains the following statement: We met at the appointed time and I explained to Russ that us of annual leave must have prior approval by me as his acting supervisor. We discussed how long he felt he needed to be on leave. Russ said he needed to be off through March 1, 1985. He filled out leave slips and I approved use of annual leave through March 1. (P-2) On February 28, 1985, Respondent returned to pick up his paycheck. On that date, Mr. Brannen and Mr. Dubois observed that Respondent's desk and office had been emptied of all personal materials and assumed that Respondent did not intend to return to work. (P-34; Testimony of DuBois, Brannen) Respondent's apparent intention not to return to work disturbed Mr. Brannen because there was a significant backlog of title examination work. Due to recruitment procedures it would have taken considerable time to hire a new title examiner, and recruitment could not be initiated until Respondent expressed a definite intention to resign. (Testimony of Brannen) Respondent's leave expired at 5:00 p.m. on Friday, March 1, 1985, but he did not return to work on Monday, March 4, 1985, the next working day. At 8:09 a.m. that date, Respondent telephoned Mr. DuBois, asking him to relay to Mr. Brannen his request for an additional week of annual leave through March 8, 1985. Mr. DuBois immediately relayed the request to Mr. Brannen, who telephoned Respondent at 8:21 a.m. at his residence, but received no answer. (P-3, P-34; Testimony of Brannen, DuBois) Mr. Brannen discussed Respondent's further unauthorized absence with Personnel Director Chapman, who again suggested that he take disciplinary action against Respondent for failure to follow instructions. Mr. Brannen, however again declined to take disciplinary action and instead decided to approve—after-the-fact—Respondent's verbal request for additional annual leave. On March 4, 1985, he mailed a letter to Respondent advising: Although you did not contact me as I instructed you to do, your use of annual leave through 5 p.m., March 8, 1985, is approved. You will be expected to return to work no later than 8 a.m., March 11, 1985. We have a backlog of title work to complete which requires your help; therefore, even though you have accrued annual leave, any further request for its use must be denied at this time. If you do not report to work as instructed you will be placed on an unauthorized leave without pay status until you return to work. After three days on unauthorized leave you'll be considered to have abandoned your job. (e.s.) Respondent received the letter on March 6, 1985. (P-3; R-2) On March 5, 1985, Respondent sent a letter to Stanley Hole, Chairman of the District's Governing Board, expressing dissatisfaction with the denial of certain promotions and alleging that the District had a policy of affording preferential treatment to friends and relatives. Respondent then stated that "I will interpret no reply or an adverse reply as an involuntary termination of 18 years of employment with District." (P-4) Although this direct communication with the Board circumvented the District's grievance procedures, the Executive Director of the District, fowarded a copy of the letter to the members of the Governing Board with a cover memorandum dated March 8, 1985. On that day, the District's Deputy Executive Director, Tilford C. Creel, sent Respondent a certified letter, which stated in relevant part: We do not agree with the general content of your letter and particularly we do not agree that you will be terminated due to "no reply or an adverse reply" to your letters. The authority to terminate employees resides in the executive office and in your case, Mr. Brannen informs me that you have been granted annual leave through Friday, March 8, 1985. He further informed me that the workload in the title examination area is such that we are in great need of your services and cannot extend your leave any further. There is only one other title examiner and the backlog of work continues to increase. Therefore, we will expect you to report to work on Monday, March 11, 1985, as you were adivsed by Mr. Brannen. (e.s.) (P-5; P-9) Respondent, however, failed to report to work on March 11, 1985. Neither did he telephone District officials, prior to or on that date to request an extension of his annual leave. Respondent also failed to report to work or telephone the District on Tuesday, March 12, 1985 or Wednesday, March 13, 1985. He was not ill or incapacitated or otherwise unable to reach a telephone. (Testimony of Brannen, Spencer) On Thursday, March 14, 1985, the District notified Respondent by certified letter that, effective at 5:00 p.m. on March 13, 1985, he was deemed to have abandoned his employment pursuant to Section C.7. of the District's Corrective Action Policy for failure to report to work for three consecutive working days. Personnel action was initiated that same date by Mr. Brannon. On March 29, 1985, the District notified Respondent by certified mail of his right to petition for an administrative hearing pursuant to Section 120.57, Florida Statutes, after first pursuing the normal grievance procedures. (P-6, P-7, P-8) Respondent requested a grievance hearing by letter dated April 5, 1985. The hearing was held by the Grievance Review Board on April 17, 1985. The Review Board consisted of two supervisory personnel and two non-supervisory personnel, selected at random by Respondent. After Respondent failed to appear at the hearing, the Board concluded that Respondent had ample notice and opportunity to return to work and that termination of his employment was justified and consistent with District policy and procedure. (P-13) Respondent then appealed the Grievance Review Board determination to the Executive Director, who affirmed it. It was a long-standing District policy that unau- thorized absence from work for three consecutive days would result in termination of employment. On March 14, 1985, the District had in effect an interim written guideline, stating: Any employee who fails to report to work for three (3) consecutive working days without notifying the division office or fails to report to work after a leave of absence has expired or after the leave has been disap- proved, revoked, or cancelled will automati- cally be considered to have resigned his/her employment with the District, barring the supervisors consideration of extenuating circumstances. (P-15,P-18, Section C.7.) This interim guideline was ultimately adopted as a rule, effective April 7, 1985. The District policy in effect prior to the adoption of the interim guideline on February 1, 1985, had a similar provision: Any employee who fails to report to work for three (3) full consecutive working days without notifying the District may be considered to have abandoned the position. (P-15,P-16,P-17) In implementing this long-standing policy, the District routinely terminated the employment of employees who failed to report to work for three consecutive days. The revised (interim and final) policy contains an exception for "extenuating circumstances," which is reasonably interpreted by the District to cover situations where a sudden emergency or physical impairment prevents an employee from reporting to work. In any event, the employee was still expected to telephone the District, except where prevented by a physical impairment. (P- l9,P-20,P-21,P-22, P-23,P-24,P-26 Testimony of Chapman Thomas) The District uniformly requires adherence to attendance and leave regulations throughout its work force. At its West Palm Beach Field Station, which is responsible for maintaining District projects in the West Palm Beach area, em- ployees are routinely given written notices of any lateness in reporting to work, even if only a few minutes. Repeated tardiness or other cumulative infractions of the District's attendance and leave regulations, which do not involve a failure to report to work for three consecutive days, have also resulted in discharge. It is also a common District practice to deny leave requests when work duties require an employee or supervisor to be at work. (P-25, P-27, P-29, P-31; Testimony of Thomas; Chapman) Respondent participated in the development of the revised Corrective Action Policy. Several meetings were held among the employees of his division, wherein the employees were given an opportunity to comment on various aspects of the proposed policy. Copies of the policy were distributed to the employees of his division prior to February 1, 1985, when it became effective as an interim guideline. (Testimony of Chapman; Braun; DuBois) Respondent's acting supervisor, Mr. Brannen, did not act in a retaliatory manner against Respondent in terminating his employment for failure to report to work for three consecutive days. On the contrary, on two prior occasions, Mr. Brannen had refrained from disciplining Respondent for violating the Attendance and Leave Policy. He valued Repondent's capabilities and long-term service to the District, and went to considerable lengths to accommodate him. Respondent was not in any way impeded by Petitioner in his attempt to seek legal counsel. He was able to confer with six attorneys during his leave of absence. (Testimony of Respondent)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent be deemed to have abandoned his employment (by failing to report to work for three consecutive working days, without authorized leave or extenuating circumstances) and his employment be thereby terminated effective 5:00 p.m. on March 13, 1985. DONE and ORDERED this 6th day of December, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1985.
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Bobby Jones, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a unit treatment rehabilitation specialist in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on an unknown date, a DCFS committee denied the request. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on June 4, 1989. On that date, Petitioner was arrested for the offense of "battery- domestic," a misdemeanor under Section 784.03(1)(a), Florida Statutes (1987). According to Petitioner, the victim in the incident was his former wife. Thus, the offense constituted domestic violence as it subsequently became defined in 1994 by Section 741.28, Florida Statutes. Petitioner entered a plea of guilty to the charge of "battery" on August 10, 1989. He was fined $75.00, and he was placed on probation for a period of "up to 9 months." In addition, the court retained jurisdiction "to [o]rder rest[itution]," and Petitioner was required to complete a mental health counseling program. Petitioner successfully completed all terms of his probation, including the counseling course which lasted around "six to nine months." In October 1989, Petitioner began working at FSH as a human services worker in a unit for developmentally disabled adults. Eventually, he attained the position of unit treatment rehabilitation specialist, a position involving supervision of developmentally disabled adults. Due to a change in the law, in 1996, he was required to undergo a background screening. That screening uncovered his 1989 offense, and on July 14, 1997, he was disqualified from working in a position of special trust with developmentally disabled adults. Petitioner was then offered a temporary assignment effective July 24, 1997, without any "direct care duties." Most recently, however, he has been employed at a Wal-Mart store in Tallahassee, Florida. Because of his desire to return to his former position, he has applied for an exemption from disqualification. Since the disqualifying incident in 1989, Petitioner worked continuously at FSH for almost eight years. Since leaving FSH, he has been steadily employed by Wal-Mart. Petitioner was described by a former supervisor at FSH as being "dependable," "very good" with residents, and someone who got along well with other staff. Three former co-workers echoed these comments. A present co-worker at Wal-Mart also described Petitioner as friendly, helpful, and courteous with customers. Except for the fact that a former wife was the victim, the circumstances surrounding the incident for which the exemption is sought are not of record, and the "harm [if any] caused to the victim" is unknown. Despite the glowing comments of other workers, the adverse testimony of a former supervisor at FSH must be taken into account. In December 1995, she found Petitioner engaged in a verbal confrontation with another worker. She then directed that Petitioner report to her office. On the way to the office, he told her that the other employee was "going to make [Petitioner] put a board on his ass." At the ensuing meeting, Petitioner became extremely upset and told the supervisor that he wished she were dead, that she would get killed in a traffic accident on the way home, and that he would "spit on her grave." Petitioner subsequently received a written reprimand for using "Threatening and/or Abusive Language" towards his supervisor. In another incident that occurred on May 22, 1997, Petitioner was observed by the supervisor "horseplaying with another employee" in the dining room. When told by the supervisor that such conduct was inappropriate for the workplace, Petitioner stated in a loud, hostile manner, in the presence of both co-workers and clients, that he "would choke the motherfucker out." For this conduct, he received another written reprimand for "Threatening and/or Abusive Language," and he was suspended from work for three days. According to the same supervisor, Petitioner has an "explosive" temper, and she would not want him returning to her unit. Given this testimony, it is found that Petitioner has failed to demonstrate by clear and convincing evidence that he will not present a danger if continued employment is allowed. Besides the disqualifying offense, Petitioner has a long string of misdemeanor convictions beginning in 1979 and continuing through 1992. The specific crimes are described in Respondent's Exhibits 1-7 and 9-31 received in evidence. Petitioner himself acknowledged that he has been convicted of passing worthless bank checks approximately thirty times. Most recently, he was convicted for the offense of disorderly conduct in November 1992. In addition, he was convicted for the offense of simple battery on a former wife in October 1990. These convictions, by themselves, are not disqualifying offenses, and many are so old as to be arguably remote and irrelevant. They do, however, establish a continuing pattern of misconduct, especially since Petitioner has at least eight convictions for various misdemeanors since the disqualifying offense in 1989. Given these circumstances, it is found that Petitioner has failed to demonstrate sufficient evidence of rehabilitation since the disqualifying event. This being so, his request for an exemption should be denied.
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 denying Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949
The Issue Whether the suspension of Petitioner by Respondent F.S.U. was in compliance with Chapter 110, Florida Statutes, and Chapter 22A-10, Florida Administrative Code.
Findings Of Fact Petitioner, a career service employee of Florida State University, Tallahassee, Florida, was informed on February 21, 1975 that he was being suspended because of charges of entering without breaking with intent to commit a misdemeanor and because of conduct unbecoming a public employee. Three days later he was sent a letter containing the same information; that letter was sent by certified mail with return receipt requested. On February 27, 1975, Mr. Enriquez appealed his suspension. Mr. Clarence Stephens Hooker, Jr., Chief Investigator for the Florida State University Police Department, received a phone call on February 20, 1975 from Corporal Hornicker of the Florida State University Police Department informing Mr. Hooker that a white female had reported that she had been approached by a Puerto Rican or a Cuban male in the School of Business and it was Corporal Hornicker's understanding that the man was working as a janitor and had offered to open a professor's office for the purpose of the student to copy an examination. A meeting was due to be held between the student and the janitor in the School of Business building at about 8:00 p.m. in Room 241. Officer John Stephens was stationed in a room directly across from Room 241 with a portable radio so that he could hear conversations in Room 241. Room 241 was entered by Mr. Hooker and Mr. Stephens in which the student and the Petitioner were standing. The Petitioner was standing behind a desk and the student was standing to the left of the door as the officers entered. The Petitioner was arrested and was subsequently transported to the Leon County Jail. He was charged with the felony of entering without breaking with intent to commit a misdemeanor, to-wit: Petty larceny, the theft of the examination. Subsequently and pursuant to these events a judgment was entered with a charge of entering without breaking wherein the Petitioner was convicted of simple trespassing and sentence was to pay and forfeit to the State of Florida for the use and benefit of Leon County the sum of $100 or in lieu thereof be imprisoned by confinement in the Leon County Jail for one month. The fine was to be paid in one week under the judgment. The judgment was filed July 14, 1975, Minutes No. 96 by John A. Rudd, Circuit Judge, Case No. 75-179. Petitioner testified that he completed his sentence by serving time in the Leon County Jail. A statement was taken from the student involved, Marilyn Phillips, a white female. Said statement was taken by Captain Hooker and transcribed at his direction and was offered into evidence as the transcribed, signed and notarized statement of Miss Marilyn Phillips. Miss Phillips was not present in person and was not available as a witness for the Respondent. Miss Phillips, in her notarized statement, stated that she was studying for an exam in the School of Business on the evening of February 20, 1975. She stated the Petitioner, who was a university janitor, approached her sometime between 6:00 and 6:30 p.m. and said he would let her into her professor's room to see and copy the examination she was going to have the next day. She stated she said, "No." He then told her about another student that he had let in and that student had given him $50.00 to copy an examination. She stated that Mr. Enriquez then became personal with the student and offered her $20.00. She told him to get lost and he did. She then stated that she saw a professor she knew and discussed the incident with him. She stated the professor called the University Police and arranged a meeting between Mr. Enriquez and herself. She stated that the two met about 8:00 p.m. and Mr. Enriquez unlocked the door to the professor's office and began assisting her in looking for her examination. She stated that shortly thereafter the police arrived and arrested him for entering without breaking with intent to commit a misdemeanor. She further stated that Mr. Enriquez touched her body, tried to kiss her and asked her to go into a dark room and offered her money. The Petitioner testified that he was not guilty, that he had not offered a set of examination papers to anyone and that Miss Phillips, in fact, followed him into the room. He testified that he would not recognize an examination paper. The Petitioner is not fluent in the use of the English language and perhaps does not understand the English language well. He was employed as a janitor on the second story of the School of Business and he was employed to clean the offices including Room 241 in which he was arrested at the time of the incident and which the student was occupying at the same time. The university had issued him a key to the building and to the offices and his job was to clean the offices. No examination papers were found in his hands or in the hands of the student at the time of the arrest of the Petitioner. The Hearing Officer further finds: That although Petitioner may have been offering to sell examination papers to the student, Marilyn Phillips, and may have made improper advances toward her, no examination papers were found in his hands or in the hands of the student. The testimony of Office Clarence Stephens Hooker, Jr. was that Petitioner was offering the student different pieces of paper and ". . .what I had seen when I opened the door was, in fact, Mr. Enriquez in the drawer still attempting to locate the examination he was suppose to copy." This may have been an assumption on the part of the officer as to the actions of the Petitioner. There was no testimony of Officer Stephens that he actually heard an offer to sell examination papers or conversation involving personal advances of Petitioner toward the student from his station of surveillance in Room 241. The statement of the student that Petitioner attempted to sell her examination papers and seduce her is not sufficient inasmuch as she failed to appear in person to testify; there were no examination papers found in her possession nor in the possession of Petitioner; no substantiating testimony regarding Petitioner's misconduct was presented by anyone; and the Respondent agency had issued Petitioner keys to the floor and room in which he was found; Petitioner was employed as a janitor whose duties were to clean offices after hours. Petitioner, in person, denied that he attempted to sell examination papers to the student; he denied that he made improper advances; he stated that the student followed him into the room; he stated that he had keys to the floor and offices and that he, in fact, had a cart and clearing equipment with him and was attempting to dust the room as was his custom and that when he was apprehended he was in the place of his employment attempting to perform his job. As an outgrowth of the arrest of Petitioner, said Petitioner pled guilty to simple trespassing and served ten days in the Leon County Jail.
Recommendation Reverse the order of suspension. DONE and ORDERED this 30 day of April, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30 day of April, 1976. COPIES FURNISHED: Jean K. Parker, Esquire Associate University Attorney Florida State University Tallahassee, Florida 32306 Attorney for Respondent Demecio H. Enriquez 1701 Keith Street Tallahassee, Florida J. R. Robinson, Director University Personnel Relations Florida State University Tallahassee, Florida 32306 Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel 530 Carlton Building Tallahassee, Florida 32304
The Issue The issue is whether Petitioner should be granted an exemption from disqualification for working in a position of trust with disabled adults and children pursuant to the provisions of Chapter 435, Florida Statutes.
Findings Of Fact Since 1979, Petitioner, Vernon Jackson (Petitioner), has been employed by the Department of Children and Family Services (Respondent) or its predecessor government agency, with the exception of a period in 1996-97. He is presently classified as a psychiatric aide. Petitioner worked in a unit of the Florida State Hospital in Chattahoochee, Florida, which provides care to the patients of the facility, and he is a caregiver. It is in that capacity that he is subject to the employment screening requirements of Chapter 435 of the Florida Statutes. On August 23, 1980, Petitioner's girlfriend, Willie Thomas, got into an argument with a 17-year-old girl named Gwendolyn Arnold. When the argument between Thomas and Arnold escalated into a physical fight, Petitioner became involved in the fray. Arnold's 15-year-old brother also joined in the activity. As a result of the incident, Petitioner was charged with the misdemeanor offenses of disorderly conduct, resisting arrest without violence, and battery. Petitioner pled guilty to all three of the charged offenses. Adjudication of guilt was withheld by the court. Petitioner paid a fine of $50, plus costs, for the first two counts, disorderly conduct and resisting arrest without violence, and a fine of $100, plus costs, for the battery charge. In conjunction with the battery charge he was placed on probation for a period of one year. Petitioner's next criminal episode also involved Willie Thomas, his earlier girlfriend. On April 16, 1981, Petitioner was arrested and pled guilty to trespassing at Thomas’ home. He was required to pay a fine of $50. Although, adjudication was again withheld, he was placed on probation to run concurrently with his earlier probation sentence. Some months later, on November 19, 1981, Petitioner pled guilty to disorderly conduct involving a public brawl with two men. He paid a fine of $75 and adjudication of guilt was withheld. Employment screening at the Florida State Hospital was commenced in 1997 for positions of employment similar to that held by Petitioner. Petitioner's 1980 offense and 1981 plea was overlooked until this year. On or about April 20, 2002, after discovery of the battery offense, a decision was made to remove him from a caregiver position pending resolution of his request for an exemption. With a birth date of January 21, 1960, Petitioner was 20 years of age at the time of his first offense and 21 years of age when he last committed a criminal offense. Several supervisors of Petitioner testified that he was at all times a caring and diligent worker. Those supervisors included Karen Alford (“He was good.”); Freddie Culver (described Mr. Jackson as showing a lot of care and kindness); and Helen Conrad (“Excellent”). The parties stipulated that Julia Thomas and Barry Moore would testify to similar conclusion and opinions as to the quality of Petitioner's employment. Petitioner’s performance appraisals were at least satisfactory.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Petitioner an exemption from disqualification. DONE AND ENTERED this 17th day of October, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 17th day of October, 2002.
The Issue Is Petitioner lawfully entitled to work in a position of trust in an assisted living facility licensed by the State of Florida.
Findings Of Fact The Department is the state agency responsible for receiving, evaluating, and approving or denying applications for exemptions from disqualification to hold a position of trust, with regard to certain assisted living facilities. Petitioner worked in one of Ms. Weaver's assisted living facilities for a short period in late 2000. Ms. Weaver's facilities were licensed by the Department. Petitioner was required to undergo Level 2 screening pursuant to Section 435.04, Florida Statutes, in order to hold a position of trust in the facility. The screening revealed, among other things, that Petitioner entered a plea of nolo contendere on October 17, 1994, to theft of a firearm, pursuant to Section 812.014(2)(c)3 (1993), Florida Statutes, and carrying a concealed firearm, pursuant to Section 790.01, Florida Statutes. Both of these offenses are third degree felonies. Adjudication was withheld and he was sentenced to three years probation. On March 7, 1996, Petitioner was arrested on a charge of aggravated battery with a firearm and discharge of a firearm within the city limits, in violation of a city ordinance. These allegations were not prosecuted. Petitioner asserted that the incident of March 7, 1996, occurred as a result of a dispute with his brother and stated that he did not assault anyone. Petitioner further stated that it was not he who discharged a firearm within the city limits. Petitioner's version of the events of March 7, 1996, was not rebutted and his testimony in this regard is considered to be factual. Petitioner entered a plea of nolo contendere, on December 23, 1996, to domestic battery, a felony, pursuant to Section 784.03(2), Florida Statutes. He was adjudicated guilty. Petitioner's previously imposed probation was extended for a year as a result. Petitioner asserted that the incident which occurred on December 23, 1996, was occasioned as the result of a dispute with the mother of his children. The dispute concerned his children. He is not married to the mother of his children. Petitioner stated that he was angry and that he grabbed the woman's arm but that he did not hurt her. He stated that the woman complained to the law enforcement authorities with the result that he was thereafter arrested. This version of the events which transpired were not rebutted and his testimony in this regard is considered to be factual. Petitioner successfully completed his probation. During his probation he attended an anger management class. Pursuant to an invitation by Ms. Ware, his probation officer, he gave a presentation on anger management to a class in Tampa. During the time Petitioner worked in Ms. Weaver's facility he was in charge of bookkeeping and helped with the clients of the facility. He helped clients learn skills such as tying their shoes. The clients with whom he interacted were classified from level one to level six. Those that are classified as level four to level six are severely retarded. Those classified as level one to level three are less retarded. Petitioner enjoyed working with the facility's clients. He noted that they appreciated the attention that he gave to them. During the short time that Petitioner worked at the facility, someone filed an allegation to the effect that a client had been abused. Petitioner stated that Ms. Weaver was having a physical confrontation with a client and that he got involved in order to ensure that neither the client nor Ms. Weaver received injuries. Petitioner was not charged as a result of this incident and no evidence was presented which indicated that he engaged in unacceptable conduct. Petitioner currently attends Tallahassee Community College. He has been a student there for a year and a semester. He has not received his grades for the current semester at the time of the hearing but so far he has attained a 3.8 grade point average. He was on the dean's list. He is studying business and psychology. When he completes his associate of arts degree he plans to attend either Florida State University or the University of Central Florida. Petitioner's purpose in studying psychology is to gain the skills he needs to work in Ms. Weaver's assisted living facilities. He wants to eventually run the assisted living facility with Ms. Weaver and to open up more facilities. Petitioner has been licensed as a cosmetologist for five years. He currently works at Clipper's Hair Fashions in Tallahassee and manages a staff of 15 persons. Petitioner testified that he believed that he had been rehabilitated and that he had "learned his lesson." Curtiss D. Robbins, who serves as Chief of Police of Howey-in-the Hills, Florida, stated that he had previously been a deputy sheriff in Lake County and that he had become Petitioner's friend subsequent to the three incidents in which Petitioner ran afoul of law enforcement authorities. Chief Robbins opined that Petitioner was a fine young man. Petitioner had discussed with Chief Robbins his interest in working with mentally handicapped persons. Chief Robbins said that Petitioner was a patient person and that he had never observed him become angry. He described Petitioner as being honest, open, and respectful. He said that Petitioner attended church and that he had observed him interact with Petitioner's children and with his own children. Marland Bluhm is employed by the Department. He has a master's degree in psychology and had done post-masters work. He has worked in the field of mental retardation for over 45 years. Mr. Bluhm sat on a three-person committee appointed by the Department to review Petitioner's application for an exemption. Mr. Bluhm stated that the Petitioner appeared before this committee. He stated that he believed that it would be best to administer a Minnesota Multi-phasic Personality Inventory (MMPI) to determine Petitioner's fitness for working in an assisted living facility. However, he joined the rest of the committee in recommending to their superiors that an exemption be granted. Mr. Bluhm also said that working with mentally ill and mentally retarded persons required specific skills. He noted that mentally retarded persons could exhibit aberrant behavior and could try the patience of staff who were charged with taking care of them. He testified that the Petitioner was not a "fit," in his opinion. As noted before, the results of an MMPI could change his opinion.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered finding Petitioner to be qualified to work in an assisted living facility licensed by Respondent. DONE AND ENTERED this 6th day of March, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 6th day of March, 2002. COPIES FURNISHED: Candace A. Hawthorne, Esquire 319 East Main Street Tavares, Florida 32778 Ralph McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Peggy Sanford, 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 204 Tallahassee, Florida 32399-0700
