The Issue The issue in this case is whether to impose sanctions against Respondent, Brooke Braly, up to, and including, revocation of her Educator’s Certificate.
Findings Of Fact The Commissioner is responsible for monitoring each person who holds a Florida Educator Certificate and who is working in any school district within the State. Part and parcel of the Commissioner’s duties is the determination of whether any teacher violated any of the Principles of Professional Conduct for the Education Profession. At all times relevant hereto, Ms. Braly held Florida Educator Certificate No. 1106771, covering the areas of elementary education and English for speakers of other languages. The certificate is valid through June 30, 2021. Ms. Braly is employed as a teacher in the Volusia County School System, teaching at the School in the area of Modified ESE with Varying Exceptionalities. Her students were those with physical and/or mental disabilities which resulted in learning difficulties. Ms. Braly had served in that position for seven years as of the date of final hearing, including the 2017-2018 school year. An incident occurred at the School on December 5, 2016, i.e., the 2016-2017 school year, involving the Student. Based on that incident, the Commissioner issued an Administrative Complaint on November 21, 2017 (some 10 months later), which contained the following allegations: On or about December 5, 2017, [Ms. Braly] failed to notify school administrators after she confiscated a BB gun from a student at the beginning of the school day. [Ms. Braly] also failed to properly secure the BB gun to prevent the student from regaining possession of it while still on school property. The Salient Facts From the evidence presented, it is clear that on December 5, 2016, the Student approached Ms. Braly at the beginning of the school day. The Student told Ms. Braly that he had inadvertently failed to remove his BB/airsoft pistol from his backpack before leaving for school that morning. He asked her what he should do, and Ms. Braly took the gun from him to secure it for the day. At no time was she worried that the Student had intentions of using the BB gun or that it was a serious problem. In fact, Ms. Braly did not even believe it was a BB gun, but thought it was a plastic toy gun. At the end of the day, the Student took the gun home with him. As the Student was exiting the school bus at his stop that afternoon, another student sitting on the bus saw the BB gun, which the Student had stuck into his waistband under his shirt. The Student’s shirt was lifted for some reason and the other student spotted the gun. That student went home and immediately sent an email to several School administrators to report what he had seen. The administrators reviewed surveillance videos from the bus and identified the Student as the person carrying the gun. An investigation ensued and the Administrative Complaint was filed. The less clear and/or less persuasive “facts” of this case are set forth below. The Gun The Commissioner presented a picture of a BB gun at final hearing which was purported to be the same gun Ms. Braly had confiscated from the Student on December 5, 2016. The black and white picture shows a replica Smith & Wesson handgun of small to average size. Ms. Braly says that the gun depicted in the picture is not the gun she took from the Student. The Student’s father brought a handgun to final hearing that he said was the gun at issue. It was plastic, lightweight, and tan and black in color. There was a clip (presumably for holding BBs) that could slide into the handle of the gun. The father demonstrated how to insert the clip and how to “cock” the gun by sliding back the top portion. That action would engage a spring that would release once the trigger was pulled, i.e., it was a spring-fired pistol, not a recoil action weapon. According to the Student, the gun fired plastic pellets rather than BBs. Ms. Braly, who only saw the gun for a few moments on the morning of December 5, 2016, remembers it to be black with an orange tip, unlike the gun produced at final hearing. At some point, the Student was asked to identify the gun from a picture depicting several different handguns. The Student pointed out to an investigator which of the depicted guns looked most like his BB pistol. The photographic line-up was not offered or admitted into evidence, so no finding is made as to what it may have shown, vis-à-vis what the gun looked like. At the final hearing, the Student’s father acknowledged that he had previously told School administrators he had destroyed his son’s gun back in December when the event occurred. The gun he produced at final hearing was obviously not destroyed; in fact, it looked very new and barely used. The Student said the gun produced at hearing was the same gun he gave to Ms. Braly on December 5, 2016. Mr. Starin, an investigator for the Volusia County School District, was tasked with looking into the incident. He did not speak to the Student’s parents nor did he attempt to locate the gun (other than having the Student identify what the gun looked like from the pictorial lineup). The most persuasive evidence is that the gun given to Ms. Braly on December 5, 2016, was the same as or similar to the one depicted in the Commissioner’s exhibit and proffered at final hearing. It was very light and obviously a toy, but was designed to resemble a real gun. Though it looked somewhat like a real weapon from afar, it is hard to believe anyone who held the gun or saw it up close would think it real or capable of causing serious harm to a person. December 5, 2016 As the Student was walking to his bus stop, he told his sister he had forgotten to remove the BB gun from his backpack after carrying it with him to the park the night before. His sister advised the Student to give the gun to his teacher so as not to get in trouble at school. Upon arrival at the School, the Student immediately approached Ms. Braly, who he trusted and believed would help him do what was most appropriate in this situation. When no other students were nearby, the Student told her about the gun. Ms. Braly took the gun and placed it in her office in a desk drawer. The Student remembers her placing the gun in a cardboard soda can box. Ms. Braly remembers just placing it in a desk drawer. It is patently obvious by his actions that the Student had no intentions of displaying the gun at school for any purpose. He very intentionally tried to diffuse any danger or unease that might have arisen due to his mistake. Ms. Braly took the Student’s actions and demeanor into account when deciding what to do. Ms. Braly thought the toy gun would be safe in her locked office as that was where she kept her purse and car keys during the school day. Normally no one had access to the office during the day, except that construction was going on and some of the workers did have access to the office. Ms. Braly did not consider those workers a threat to steal anything or to rifle through her desk during the day. She also did not consider the toy gun worthy of anyone’s interest. She believed her response to the situation was reasonable, based on all the circumstances and her knowledge of the Student. At the end of the day, the Student retrieved the gun. How that occurred is not entirely clear from the evidence. The Student says that he asked Ms. Braly at the end of the day if he could get his gun. She was very busy at the time and just told him, “yes,” so he went into the office and retrieved it. He remembers Ms. Braly telling him to put it in his backpack so that no one else would see it. He did so, but then transferred it to his waistband later. An ESE co-teacher with Ms. Braly remembers Ms. Braly being completely absorbed in the preparation of an Individual Education Plan for another student that afternoon. The co-teacher had instructed students not to bother Ms. Braly and does not remember the Student or anyone else talking to Ms. Braly that afternoon. Ms. Braly does not remember being asked by the Student whether he could get his gun from the office. She simply did not even think about the gun after acquiring it that morning. To her, the gun was a toy and did not warrant much attention. Sometime the next day, she realized the gun was gone and surmised that the construction workers must have left the door open so that the Student was able to get his gun. She did not explain why she thought the Student – rather than the workers – had taken the gun from her office. At any rate, the Student retrieved his gun before he left for home. As he was exiting the school bus, the other student noticed the gun in his waistband and notified School administrators. That action is very understandable considering the school shootings across the nation in recent times. December 6, 2016 Once the school administrators got word about the gun and identified the Student, they contacted Ms. Braly. The School resource officer, Deputy Abato, went to Ms. Braly’s class and asked to talk to her. They went into her office, away from the students, and she was asked about the gun. The conversation lasted only a few moments. Deputy Abato was only concerned with whether the gun was real or not. Convinced it was not, he did not pursue the matter. Later, Ms. Braly was asked by assistant principal Feltner to write a statement concerning the incident. Her statement reiterated what had happened, i.e., the Student showed her the gun, she identified it as a toy and placed it in her office, and the Student later retrieved it. Again, how she knew that the Student retrieved the gun rather than someone else getting it is not clear. Deputy Abato’s statement from that same day mirrored Ms. Braly’s statement. Deputy Abato said that if a student pulled a gun on him that looked like the one in the picture offered into evidence, he would order the student to put the gun down. If they did not do so, he would likely shoot them. Whether the gun the Student had was like the picture is not clearly established in the record. The best evidence is that the gun could have looked like that, but even that evidence is neither clear nor convincing. The gist of the Commissioner’s argument in this case is that: IF an armed deputy saw the Student with the gun, and IF the deputy ordered him to put it down, BUT the student did not immediately comply, THEN the deputy MIGHT be inclined to fire on the student. Though completely plausible in general terms, that eventuality seems very unlikely under the facts of this case. Later Developments On December 15, 2016, Investigator Starin issued an “Investigative Summary” describing his findings after conducting a brief investigation. The report did little more than recite what other people had said. Mr. Starin concluded that the Student brought the gun to school, gave it to his teacher, and retrieved it at the end of the day. The summary provides little substantive information and makes no recommendation or assertion of wrongdoing by Ms. Braly. The investigator only talked to three people as part of his minimal investigation into the incident on December 5, 2016: Ms. Braly; Deputy Abato, who had only secondhand knowledge; and the Student. It is remarkable that Mr. Starin did not interview Ms. Braly’s co-teacher or her paraprofessional, both of whom were in the classroom that day, or the Student’s parents. The overall level of the investigation is consistent with the degree of seriousness of the events. That is, there was a slight breach of protocol, but no probability of harm to the Student or others at the School. The Board decided that the incident nonetheless warranted some discipline. The School Board notified Ms. Braly that a letter of reprimand would be issued and she would be suspended for three days without pay. Although this was a fairly low level of discipline, Ms. Braly has challenged it; the matter is currently in arbitration. Notwithstanding the discipline imposed, the Board has re-hired Ms. Braly for the 2018-2019 school year in the same position she has held for the past seven years. In fact, she has continued teaching at the School since the December 5, 2016, incident. She is an effective teacher and has not had any other disciplinary actions against her, and the School recognizes her as an effective ESE teacher. The Commissioner also seeks to discipline Ms. Braly, noting that she failed to report the incident and did not adequately secure the toy gun. Both of these allegations are true, whether they violate any particular policy or not. The Commissioner proposes a letter of reprimand, suspension of Ms. Braly’s Educator Certificate for six months, and two years of probation. However, based on the best evidence available, Ms. Braly’s conduct was both reasonable and essentially benign. If any sanction against Ms. Braly was warranted, it should be minimal at worst.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pam Stewart, as Commissioner of Education, dismissing the Administrative Complaint filed against Respondent, Brooke Braly, in its entirety. DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2018. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether it is appropriate for Petitioner to discipline Respondent's Florida educator's certificate for acts alleged in Petitioner's Administrative Complaint dated July 16, 2009.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent holds Florida Professional Educator's Certificate No. 1045332, covering the area of music, which is valid through June 30, 2011. At the time of the incident alleged in the Administrative Complaint, he was employed as a band teacher at Memorial Middle School, Orlando, Florida. Petitioner is the head of the state agency responsible for certifying and regulating public school teachers in Florida. On December 12, 2007, Respondent, pursuant to his teaching responsibility, was conducting the seventh-grade band ensemble which was performing in the school cafeteria. Apparently, this is where the band class meets. C.F., a sixth-grade band student, was in the cafeteria as a part of the class. Students who were not actively performing had been instructed to remain quiet, to read music, to be courteous and not to distract the performing ensemble. Notwithstanding the admonition to remain quiet, C.F. became "bored" and began "banging" rhythmically on a lunch table. Initially, Respondent attempted to get C.F.'s attention. Another student also attempted to stop C.F. Respondent moved across the cafeteria as he continued to conduct the ensemble, reached out and "tapped" C.F. on the wrist/forearm with a conductor's baton "to get his attention," and instructed him by facial expressions to stop banging on the table. A conductor's baton is approximately eight inches long, has a cork end that allows it to be grasped between the thumb and forefinger, and is smaller in circumference than a pencil. It looks similar to a small knitting needle, only shorter. When the ensemble concluded the musical selection it was performing, Respondent returned his attention to C.F. who began arguing with him. Respondent told C.F. to remove himself from the cafeteria and stand in the hallway. Instead of standing in the hallway as instructed, C.F. went to the assistant principal, Mr. Campbell, and complained that Respondent had struck him. Mr. Campbell called Mr. Longmire, the sixth-grade dean of men, to his office, and Mr. Longmire observed a small red mark on C.F.'s arm.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Michael Allen Simmons, be found not guilty of the violations alleged in the Administrative Complaint and that no disciplinary action be taken. DONE AND ENTERED this 29th day of April, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2010. COPIES FURNISHED: Deborah Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Edward T. Bauer, Esquire Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Michael Allen Simmons 6004 Westgate Drive, Apartment 102 Orlando, Florida 32835
The Issue The issue in this case is whether Petitioner had just or good cause to reject the Superintendent's recommendation that Respondent be re-appointed on probationary status to a one- semester teaching position as agriculture teacher.
Findings Of Fact Background Ms. Lee graduated from Florida State University in 1973 with a bachelors degree in art education. She received a masters degree in agriculture education from the University of Florida in 1984. She has served as an extension director for the Seminole Tribe and was a teacher in the Pahokee Junior Senior High School for about 14 years. She also held a position in the Ft. Pierce school system for a short time. She was initially employed by the Hamilton County School Board as a substitute teacher in March of 1998. Subsequently she was hired on an annual contract as the agriculture teacher at Hamilton County High School for the 1998- 1999 school year. Ms. Lee was issued a temporary-non-renewable certificate as a teacher, by the Florida Department of Education on October 17, 1998. This certificate covered the period July 1, 1998 through June 30, 2000. Pursuant to a favorable recommendation by Superintendent Parks, Ms. Lee was hired as the agriculture teacher for the school year 1999-2000. This contract required that she complete required college semester hours by September 1999, and receive a passing score on the Florida Teachers Certification Examination. This contract expired on May 31, 2000. Ms. Lee bought a used recreational vehicle with her own funds so that she could transport her students to agricultural events. Ms. Lee invested a lot of her own time and money into trying to enhance the agriculture program. Her husband helped her in this regard. During a time shortly before March 16, 2000, some of her students applied spray paint to Ms. Lee's recreational vehicle. Subsequently, when Ms. Lee learned that her vehicle had been vandalized, she used inappropriate language in front of an agriculture student, Ruben Perez, who was 18 years of age at the time. This occurred in her classroom and in the vicinity of her classroom. Ruben Perez surreptitiously tape-recorded this language. Ruben Perez stated that Ms. Lee had used inappropriate language prior to this incident which included vulgar language delivered in a loud voice. The Superintendent of Schools, Ms. Patricia Parks suspended Ms. Lee, without pay, on March 16, 2000. On March 24, 2000, Superintendent Parks, sent a letter to Ms. Lee advising that her suspension was reversed and that she would be reinstated with back pay and benefits. This action was taken subsequent to having been advised of the illegality of using the surreptitious tape-recording by Ms. Lee's attorney. The letter further advised Ms. Lee that there would be no record of the incident. Action by the Board At the end of the school year, Ms. Cheri Landry recommended to Superintendent Parks, in an undated letter, that Ms. Lee be given a contract for a one-semester position as "agriculture instructor/FFA advisor," for the period August 8, 2000 to December 20, 2000. This appointment was to be a probationary appointment. This recommendation noted that Ms. Landry had talked with Ms. Lee regarding, "areas in which she needs to improve which include "Climate/Learning Environment and Administration/Management." Superintendent Parks recommended to the Board that Ms. Lee be appointed to the position of agriculture teacher. A copy of a letter from Ms. Landry to Ms. Lee was appended to the recommendation. This letter summarized the areas in which Ms. Lee needed to improve. These documents represent the entirety of the information provided to the board with regard to Ms. Lee at the June 19, 2000, meeting. On June 19, 2000, the Board decided by a three-to-two vote, not to appoint Ms. Lee as recommended by Superintendent Parks. No record of the discussion of the reason for the Board's rejection was given other than Board member Ottis M. Cercy's statement that the firing was for "just cause." Ms. Lee was not given prior notice that the Board had under consideration the rejection of Superintendent Parks' recommendation. On June 19, 2000, Ms. Lee was in Texas with some of her agriculture students at a Future Farmers of America event. She was not under contract with the Board on that date and she was not paid by the Board for this activity. At the hearing, Board members Larry Carver, Martha Butler, and Ottis M. Cercy, stated that they had voted against the motion to enter into a new contract with Ms. Lee because they had received information, prior to the meeting of the Board, that Ms. Lee had cursed in the presence of students, and had permitted tobacco use and card playing in the classroom. Subsequently, Board Members Larry Carver, Martha Butler, and Otis M. Cercy sought additional information in an effort to ratify their action. Allegations of Misbehavior Mr. Wendell Hill, a retired teacher, had seen agriculture students smoking and dipping in an area where Ms. Lee could have seen them. Despite the fact that Hamilton County High School was officially a tobacco-free campus, students, as well as teachers, smoked on campus, and used smokeless tobacco. Mr. Hill also heard Ms. Lee speaking in a loud voice while in class. Jane Lowe, a history teacher and president of the teachers' union, observed that adults employed at Hamilton County High School occasionally smoked behind the boiler room. Evidence of smokeless tobacco use in Ms. Lee's room had been observed by Mr. Pinello, assistant principal of the high school. This observation occurred when he was the dean of students. Mr. Pinello did not relay this information to the principal. Mr. Pinello received some complaints with regard to the cleanliness of Ms. Lee's "environment" and classroom. He checked on this and relayed information regarding his findings to the principal. He received oral complaints that Ms. Lee had used inappropriate language but took no steps to confirm the reports. Allegations concerning Ms. Lee smoking, or permitting the use of tobacco products, were not presented to Ms. Landry prior to the June 19, 2000, Board meeting. Ms. Lee does not smoke nor did she knowingly permit students to use tobacco products. Moreover, she taught her students about the evils of tobacco use and encouraged them to refrain from tobacco use. The only witness who alleged vulgar conduct on the part of Ms. Lee during the incident precipitated by the vandalism of her recreational vehicle was Ruben Perez. He was also the only witness, with claimed personal knowledge, who alleged that Ms. Lee was vulgar at any time. The Board's minutes of May 22, 2000, revealed that Superintendent Parks had actively sought students as witnesses to the events described by Ruben Perez, but none could be found. No evidence was adduced demonstrating that the School Board or Hamilton County High School had a policy addressing vulgar language for either students or teachers. One student was suspended for a year for using vulgar language subsequent to June 19, 2000. The football coach has used vulgar language in front of school children but the Board has not fired him or taken any disciplinary action against him. Ms. Lee was first appointed to the position of agriculture instructor for the school year 1997-1998. Subsequently, for the school year 1998-1999, her appointment was subject to passing the Florida Teacher Certification Examination and passing additional course work. She held a temporary, non- renewable certificate from the Florida Department of Education for the period October 17, 1998 through June 30, 2000. She submitted an application for a new certificate dated June 12, 2000. At the time of the June 19, 2000, meeting of the Board, she had not completed the required semester hours of continuing education or taken the required certification examination. She successfully completed the requirements prior to the beginning of the 2000-2001 school year. The Board has often approved the appointment of teachers with temporary certificates. At the time of the hearing in this case, there were many teachers in the Hamilton County School system teaching under the authority of temporary certificates. Matters in Mitigation The agriculture operation at Hamilton County High School had in previous years, "gotten out of hand." The agriculture class had been a problem for 20 years. Ms. Lee improved the operation of the agriculture program by introducing new activities so that more students could be involved in the program. She promoted the Supervised Agricultural Experience Program and had winners in Future Farmers of America programs. She has involved the students in many projects including supporting the Farm Bureau in their annual dinner. The students provided a barbecue for the rodeo. She was heavily involved with her students and enhanced the agriculture program in many ways. Ms. Landry, the principal of Hamilton County High School, believes that Ms. Lee did a very good job and wants her to resume her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order appointing Ms. Lee, on probationary status, to a one-semester teaching position as agriculture teacher dating back to the beginning of school year 2000-2001. The order should reflect that she is to be awarded full pay and benefits for the contract period for which she was recommended. DONE AND ENTERED this 11th day of December, 2000, 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 11th day of December, 2000. COPIES FURNISHED: Steven C. Bullock, Esquire J. Rhett Bullard, Esquire Brannon, Brown, Haley, Robinson & Bullock, P.A. 10 North Columbia Street Post Office Box 1029 Lake City, Florida 32056-1029 Donald K. Rudser, Esquire Post Office Box 1011 Jasper, Florida 32052 Robert J. Sniffen, Esquire Moyle, Flanigan, Katz, Kolins, Raymond & Sheehan, P.A. The Perkins House 118 North Gadsden Street Tallahassee, Florida 32301 Patricia Parks, Superintendent Hamilton County School Board Post Office Box 1059 Jasper, Florida 32052-1059 Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 01 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
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, Damon L. Lee, for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner intends to work in a developmental services facility for retarded persons. Respondent, Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of approving or denying such requests. Petitioner is now barred from working in such a facility because of a disqualifying offense which occurred on June 1, 1994. On that date, petitioner was arrested for the offense of "battery on spouse, domestic violence," a misdemeanor. On the evening of June 1, 1994, petitioner went to the residence of his girlfriend in Baldwin, Florida, where he discovered that another male was present. As he started to leave the premises, his girlfriend, who was four months pregnant, followed him outside and an altercation ensued. She took a broom and began smashing the windows of petitioner's vehicle, causing $458.32 in damages. While attempting to stop her, petitioner grabbed his girlfriend and pushed her to the ground. Although not seriously injured, the girlfriend received marks on her body where petitioner grabbed her. After an investigation was conducted by local law enforcement officials, petitioner was arrested and charged with domestic violence. Whether petitioner pled guilty or nolo contendere to the charge is unclear. In any event, on July 13, 1994, he was given three months supervised probation and was required to enroll in, and complete, an anger control class. Thereafter, he successfully completed all terms of probation and a six-week anger control class. Other than this incident, petitioner has never been charged with any other crime. After being disqualified from employment, petitioner appeared before a three-person committee composed of local HRS employees seeking an exemption. At that time, he was told that his request was being denied because he had not brought to the hearing proof that he had successfully completed the terms of his probation and the anger control class. This proceeding followed. When the incident occurred, petitioner was employed by Jacksonville Electric Authority (JEA). Because of his arrest, however, JEA terminated his employment. For the same reason, he was denied employment with AT&T Corporation. He eventually obtained employment as a program assistant with Kincaid Cluster Homes, a facility for retarded persons in Jacksonville, Florida, where he worked for six weeks until the disqualifying offense was discovered. He is presently enrolled in a special HRS program known as the Project Independence Program for food stamp recipients since he has custody of, and is caring for, two small children. Petitioner, who is twenty-three years of age, has completed course work at Lake City Junior College and is now enrolled at Florida Junior College in Jacksonville seeking to attain a degree in computer programming. He desires an exemption so that he can work on a part-time basis at Kincaid Cluster Homes, which has promised to rehire him if his request for an exemption is approved. Besides needing the income for college, petitioner also has children who rely upon him for their support. Petitioner was described as a responsible, reliable worker at Kincaid Cluster Homes and is well-liked by the staff and clients. This was not contradicted. He will not present a danger to the safety or well-being of that facility's clients. Based on petitioner's own testimony, as corroborated by letters from third parties, and the testimony of his former co-worker at Kincaid Cluster Homes, it is found that petitioner has presented sufficient evidence of rehabilitation so as to justify approving the exemption.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 27th day of August, 1996. APPENDIX TO RECOMMENDED
