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
The Issue The ultimate issues are whether ACT Corporation (ACT) engaged in unlawful employment practices by discriminating against Petitioners Rosa Gibson (Gibson) or Lillian Brown (Brown) on account of race. More specifically, both Petitioners allege that they were terminated based on race.
Findings Of Fact ACT Corporation is a comprehensive community mental health provider. In 1989, it had five major clinical departments and employed approximately 500 people, of whom 24% were minority employees and 18% were black. One of the clinical departments includes two residential facilities for mentally ill clients, Big Pine and Big Tree. The Petitioners herein have been employed at both facilities, but were on the staff of Big Tree at the time of their terminations. Brown began working for ACT on September 14, 1982. She worked at several different facilities, but was working at Big Pine in 1987 as a Residential Specialist or Residential Advisor (RA) under the immediate supervision of the house manager, Myra Morris, who is black. Gibson began working for ACT in November, 1987, as Residential Specialist or Residential Advisor (RA) at Big Pine under Morris. Gibson was often tardy for work and Morris counseled with her about the problem. During one discussion between Morris and Gibson about tardiness, Gibson became haughty and verbally aggressive toward Morris. Morris would have terminated Gibson for this aggression, but she knew Gibson needed the job. Instead, Morris had Gibson transferred to Big Tree. In early 1988, Morris was transferred to another position with ACT. She was replaced as house manager by Kenneth Polite, a black employee. Brown continued as an RA at Big Pine. Brown was transferred to Big Tree and promoted to House Manager on September 30, 1988. Gibson continued as an RA at Big Tree under Brown. In January, 1989, Ann Turley became the Clinical Administrator for Adult Services and the immediate supervisor over both facilities. Brown was still on probation in the House Manager position because Turley's supervisor, Chris Kennedy, had extended Brown's probation. The extension resulted from Brown's poor performance, including poor follow through on assignments, incorrect preparation of reports and paperwork, inability to communicate effectively, and inability to conceptually grasp and carry out programs. Turley kept Brown on in the House Manager position despite the poor performance because Brown told her that Kennedy and she just did not understand all that Brown was doing. Turley told Brown to keep a written record to show what she was doing. In July, 1989, Polite left employment with ACT. Turley made some organizational changes at that time. ACT and her department needed to come up with $100,000 in revenue or in expense reduction. Turley made the decision to cut back one staff person at Big Pine. The position of house manager at Big Pine was eliminated. The two facilities were reorganized to have a Team Leader at Big Pine and a Residential Coordinator at Big Tree. Turley told Brown of these changes before they were announced. Brown was promoted to the Residential Coordinator position. Donna Dooley, a white employee was made Team Leader at Big Pine. She received a 5% raise, not a raise to the salary level of House Manager. Turley made the selection for Team Leader from the five eligible employees remaining at Big Pine. All five had been employed at ACT by Turley's predecessor. Turley examined the personnel files of the five employees, including performance evaluations. The employee with the best evaluation, within the most recent evaluations made by Polite, was Dooley. Polite noted in her evaluation that Dooley had filled in for him and had done a good job at it and that the other staff at Big Pine came to Dooley for leadership and advice. Turley's decision was poorly received by some of the staff. Polite had wanted the house manager position to go to his roommate, a black employee. Other staff thought the position should have been awarded based on seniority. Staff from the various facilities of ACT asked Turley by letter to meet with them to discuss the position. Turley met with the staff, but no real discussion occurred. The staff in attendance was racially mixed. Individual staff members, including Gibson, verbally attacked Turley because they failed to understand that the house manager position had been eliminated and that the Team Leader position was not its equivalent. Turley was quite emotionally upset about the hostile tone displayed at the meeting. She was also concerned that Brown had signed the staffs' letter requesting a meeting and had attended the meeting, because Brown was a supervisor and not a member of the supporting staff. Brown also had been told before anyone else the reasons for the reorganization and she knew that she was being promoted to Residential Coordinator. Turley had made the decision to promote Brown as Residential Coordinator because the reorganization had to go through and Brown's duties would not change that dramatically. The Residential Coordinator would work closely with the Team Leader to organize and coordinate the operation of both facilities. The position of House Manager ceased to exist at either facility. Brown's inadequate performance continued while she was on probation as Residential Coordinator. The same problems were apparent and some new ones arose. One significant problem was in Brown's supervision and discipline of Gibson. Gibson was repeatedly late for work and she brought her child to work with her. Brown was told by Turley to take certain corrective and disciplinary actions with Gibson, but she failed to do so. Gibson also was rude to a case manager at medication clinic (med clinic), refused to get a client's chart for a case worker, and repeatedly yelled at, demeaned and was uncooperative with the staff at med clinic. Turley instructed Brown to give a counseling statement to Gibson for this behavior, but again Brown did not do so. Because of Brown's lack of appropriate job performance, Turley demoted her from Residential Coordinator to Residential Advisor at Big Tree on September 7, 1989. Turley assumed Brown's job duties temporarily. Brown and Gibson were very upset over this demotion. The evidence taken as a whole shows that Brown and Gibson developed an "us versus them" attitude which significantly interfered with their job performance thereafter. After Brown's demotion, Turley discovered a new fiscal problem. One option for addressing the problem was to change Big Tree from a level two to a level one facility. That change would require a change in staffing patterns such that licensed practical nurses would be required around the clock and a registered nurse as the supervisor of the LPNs. Turley rewrote the job description for the Residential Coordinator position to require a registered nurse's license. In October, 1989, Darlene Hasenkamp, who is white, was hired as the Residential Coordinator because she was an RN and had experience with mentally ill patient care. As Residential Coordinator, Hasenkamp supervised all staff at both Big Tree and Big Pine. Donna Dooley, the Team Leader at Big Pine was the person immediately below Hasenkamp in the supervisory chain. While the staff at Big Tree were not immediately responsible to Dooley, Dooley did have some supervisory responsibilities over the staff at both facilities when Hasenkamp was not there. Brown and Gibson did not like working for Hasenkamp or Dooley. Both were subtly resistant and uncooperative with Hasenkamp and Dooley. Mentho Saafir is another black Residential Advisor with ACT. Her observation is that Brown and Gibson were part of a small tight group of black employees. The group got mad because Dooley was made Team Leader. Then when Brown was demoted and Hasenkamp was hired, they became openly oppositional to any encounter with Dooley. Gibson was especially hostile and uncooperative with Dooley. On a Saturday during November, 1989, Dooley and Hasenkamp were both off work, but they were on call for their respective facilities. A client at Big Pine was suicidal. The one staff person working at Big Pine was managing the client and called Dooley for assistance in getting the van and transporting the client to the hospital. The van was parked at Big Tree because Big Tree always had two staff persons on duty and Big Pine only had one. Therefore in an emergency, one staff person could leave Big Tree to take the van to Big Pine to assist. Dooley was at home and called Big Tree to get the van delivered to Big Pine. Gibson answered the telephone at Big Tree. She was evasive and refused to answer Dooley's questions about who was working at Big Tree and where that person was. Dooley told Gibson that she needed the van for a suicidal client. Gibson kept saying that her coworker wasn't there and finally told Dooley that if she needed the van "I suggest you come and get it yourself." After much pressing by Dooley, Gibson acknowledged that her coworker was Brown and Brown was not there. Dooley called Hasenkamp and explained the problem and described Gibson's evasiveness and lack of cooperation. Hasenkamp told Dooley to meet her at Big Tree. When Dooley arrived at Big Tree, Hasenkamp was discussing with Gibson her rude and uncooperative behavior toward Dooley on the telephone. As Dooley walked in to Big Tree, Gibson jumped up, leaned over the desk and shouted that Dooley was not her supervisor and she did not have to report (or listen) to Dooley. In order to avoid a confrontation and to get the van to the client in need, Hasenkamp told Dooley to take the van. Dooley left. Hasenkamp sat down and waited for Brown to return to work. When Brown came in 45 minutes later, she had a bag of fast food. Hasenkamp asked where she had been and Brown advised that she had been getting breakfast. Brown said she had only been gone 25 to 30 minutes. Hasenkamp told Brown that it was against normal procedures to leave like that while on duty. Brown simply said she didn't know that. Hasenkamp then took Brown to Big Pine to relieve Dooley who was there alone, having sent the staff person in the van with the client. On the way, Hasenkamp stopped at her home and at her mother's home. When they arrived at Big Pine, Hasenkamp's briefcase fell open to reveal a counseling statement to Brown regarding some furniture, however, that counseling statement was administered at a later time. The counseling statement about the furniture arose from Hasenkamp's direct instructions to Brown to inspect some furniture that was to be delivered before signing the invoice. Brown did not inspect the furniture, but did sign the invoice. When the furniture was finally inspected by Hasenkamp, a tear was discovered in one chair. Brown claimed that she had told the maintenance man to look at the furniture, but that was contrary to Hasenkamp's direct instruction. Brown was "written up" for this failure to carry out her supervisor's instructions. Brown and Gibson were also written up for the incident regarding the van. Gibson was also written up regarding another matter. Hasenkamp had sent a memo to all of the staff about eating pastry in the office. She instructed all staff to initial and sign-off on the memo by a certain date. Everyone signed the memo except Gibson, who refused. The time for signing the memo passed, but rather than write Gibson up for failing to carry out her instructions, Hasenkamp called Gibson to find out why she had not signed the memo. Gibson was off work at the time and Hasenkamp called her at home. Gibson was extremely rude, told Hasenkamp that she had no business bothering her at home, and refused to discuss the memo. Gibson gave Hasenkamp no choice except to write her up again. On December 12, 1989, at approximately 4:00 p.m., Hasenkamp and Dooley drove up to Big Tree. Dooley went in for Hasenkamp because Hasenkamp was on crutches. Brown came outside to the car and told Hasenkamp she needed to come inside regarding a problem. Dooley and Hasenkamp observed Gibson holding and comforting a client, Janice, who was suffering a locked jaw and an extremely painful muscular reaction as a side effect of her psychotropic medication. The patient had to have been in severe discomfort for a couple of hours. The side effects are counteracted by another medication, Cogentin. It was obvious to Hasenkamp that the client needed emergency medical care. Hasenkamp asked if the client had been given her Cogentin. The Cogentin is to be given every day at 9:00 p.m., so Hasenkamp asked to see the medication records from December 11, 1989, to see whether the client had received her Cogentin. Gibson and Brown were the staff people for the 4 to 12 p.m. shift on both December 11 and 12, 1989. Hasenkamp asked Gibson if she had given the client the Cogentin on December 11th. Gibson said yes. Hasenkamp then looked at the medication records and found that no one had initialed to show that they had given the Cogentin on December 11th. Hasenkamp again asked Gibson, but when Gibson was shown the unsigned medication record, she admitted that she did not know if she had given the medication. Hasenkamp sent Gibson to take the client to the emergency room. The client was given an injection of Cogentin. When Gibson asked Hasenkamp if she should give the December 12th dose of Cogentin to the client, Hasenkamp told her no, because the injection would serve in place of the dose. Hasenkamp told Gibson to initial the medication record for December 12th to show that Cogentin was given. Hasenkamp also instructed Brown to hold the client back from work the next morning and to make sure the client was sent to med clinic so that the psychiatrist could review and adjust her medications. The next morning, December 13, 1989, Hasenkamp arrived at Big Tree just as the van was leaving with clients for med clinic. She flagged down the van and asked the driver, Rosario Rizzo, if that client, Janice, was on the van. Rizzo said "no" because no one had told him to take that client. Hasenkamp told Rizzo what had happened the night before, because Rizzo is a nurse. She then sent Rizzo to find the client and take her to med clinic. When Rizzo had arrived that morning, he went to the office and spoke with Brown and Nadine Banning. Banning was the person who had been on duty from midnight to 8:00 a.m. He personally asked Brown and Banning who was scheduled to go to med clinic. Brown read him the names off of a list, but did not mention Janice. At Hasenkamp's instructions, Rizzo found Janice at the bus stop, waiting to go to work. He took her to med clinic. When Hasenkamp went into Big Tree, she immediately asked Brown why she had failed to hold Janice and send her to med clinic. Brown's only reply was "It doesn't matter anyway because the psychiatrist won't see Janice without an appointment." Hasenkamp then went to look at the medication records for Janice and discovered that Gibson had gone back and filled in her initials to show that she had given the missed dose of Cogentin to Janice on December 11th. When Hasenkamp asked Gibson about this, Gibson told her that she remembered that she had given the medication on the 11th. In fact, it is not possible for the client to have had such a severe side effect reaction on December 12th if she had been given her medication on the 11th. Hasenkamp determined that Gibson and Brown had endangered the safety and health of a client and had failed to follow her direct instructions, because Gibson did not properly given the medication and Brown did not hold Janice for med clinic. Gibson's late "memory" that she had given the medication further undermined her confidence in Gibson. She felt she could no longer trust their judgment and could no longer entrust the care of patients to them. Hasenkamp recommended that both be terminated. Turley took that recommendation and did an investigation. From that investigation, she determined that they had, in fact, endangered the client. Specifically, Turley found that Gibson had failed to ensure that the medication was taken and had then tried to cover up that failure and that Brown had failed to get the client to med clinic as instructed. Turley terminated Brown and Gibson on December 14, 1989. The reason given to each in the letter of termination was "insubordination." This reason was given in writing because the personnel director of ACT recommended that they not say "endangerment of a client's health and safety" for liability reasons. Both Gibson and Brown filed a grievance with ACT's affirmative action officer, Carolyn Fleming, a black employee. Fleming did an extensive investigation of all of Gibson's and Brown's allegations of harassment and termination based on racial discrimination. Fleming determined that there was no racial discrimination in ACT's actions. Based on an observation of the candor and demeanor of all the witnesses and on a review of the contradictions in the testimony, it is determined that the testimony of Brown and Gibson is less credible than that of the witnesses for ACT. Both Brown and Gibson gave testimony that was calculated to show them in the best light. While it is not determined that their testimony was untrue, it is found that their memories of these events are skewed so as to diminish the severity of their failures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitions for Relief filed by Rosa Gibson and Lillian Brown be DENIED and DISMISSED. DONE and ENTERED this 2nd day of April, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 2nd day of April, 1992. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Rosa Gibson 1129 Hillcrest Drive Daytona Beach, FL 32117 Reginald E. Moore Attorney at Law Post Office Box 1848 Daytona Beach, FL 32015 Mitchell A. Gordon Attorney at Law Post Office Drawer 9670 Daytona Beach, FL 32120
The Issue Should Petitioner's request for exemption from disqualification from employment in a position of special trust be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is charged with the responsibility under Chapter 394, Florida Statutes, of conducting a background screening on any individual applying for, or employed in, any position of special trust with children in a mental health facility or a drug and alcohol rehabilitation facility. The purpose of the background screening is to determine if the individual has committed an offense which would disqualify the individual from working in positions of special trust with children. At the time of background screening, Petitioner was employed by Central Florida Human Services, Inc. as a counselor and caretaker of children with substance abuse problems. Because Petitioner was employed in a position of special trust with children at Central Florida Human Services, Inc. he was required to undergo background screening. As a result of the background screening, the Department discovered that Petitioner had been convicted in 1974 of second degree murder, a disqualifying offense. Upon learning of this disqualifying offense, the Department notified Petitioner that he could no longer continue to work in that position without an exemption from disqualification from employment in a position of special trust with children. Petitioner filed a request for exemption from disqualification from employment in a position of special trust with children with the Department. By letter dated January 22, 1996, the Department denied Petitioner's request for exemption from disqualification from employment in a position of special trust with children. Subsequently, Petitioner requested an administrative hearing under Chapter 120, Florida Statutes. In October 1973, Petitioner was involved in a shooting in a bar that resulted in another man, a known drug dealer, being killed with his own gun. During the time surrounding the shooting, Petitioner was a drug abuser, using cocaine and marijuana. At the time of the shooting, Petitioner was 26 years of age. Petitioner does not deny shooting this person. However, Petitioner contends that the person was killed by someone else after Petitioner shot this person. Apparently, there was insufficient evidence to support Petitioner's contention. Petitioner was tried before a jury in March 1974, and convicted of second degree murder. Petitioner was represented by counsel during this trial. Petitioner was sentenced by the court in May 1974, to one year in a drug rehabilitation program, followed by five years probation. From the time of his arrest in October 1973, until he was sentenced in May 1974, a period of approximately eight months, Petitioner was incarcerated in the county jail. Petitioner successfully completed both the drug rehabilitation program and the five years probation. Petitioner earned his GED during the time he was in the drug rehabilitation program. Also, while undergoing drug rehabilitation, Petitioner developed an interest in counseling and psychology. In furtherance of this interest, Petitioner earned an A. A. degree in Experimental Two-Year Counseling Program from Dade County Community College, Miami, Florida., a B.S. degree in Psychology from Nova University, Fort Lauderdale, Florida and a Master's degree in Mental Health Counseling from Valley State College, Fort Valley, Georgia. Petitioner worked full-time as a social worker while attending school. Subsequent to his completion of the drug rehabilitation program, excluding the time he has been disqualified, Petitioner has worked in the field of drug rehabilitation and counseling. Petitioner has not abused drugs or other illegal substances since he began in the drug rehabilitation program in 1974. Petitioner has never been disciplined for misconduct or poor job performance in his employment since he was sentenced in May 1974. Although Petitioner was arrested on an alleged shoplifting charge, the charge was dropped without any conditions being imposed. Petitioner has six children ranging in age from 6 years 31 years. Petitioner has been divorced and remarried. Although he and his first wife share parental responsibility for the children, Petitioner pays child support and is current with his child support payment. Petitioner has never been investigated by the Department or abuse investigators from any other state for suspected abuse or neglect of his children or any other children. Petitioner has been working in Florida since 1992. Petitioner has also worked in the State of Georgia and the State of New York. There is competent substantial evidence to establish facts to show that Petitioner has rehabilitated himself such that he will not present a danger to the safety or well being of children and that he is of good moral character so as to justify an exemption from disqualification.
Recommendation Based upon 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 from employment in a position of special trust. RECOMMENDED this 24th day of April, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, 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 24th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0741C The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case. Petitioner's Proposed Findings of Fact. Petitioner elected not to file and proposed findings of fact. Department's Proposed Findings of Fact. Proposed findings of fact 1, 2, and 4 through 13 are adopted in substance as modified in Findings of Fact 1 through 20. Proposed finding of fact 3 is neither material nor relevant. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Joseph R. Byrd, Pro se 4622 DeVon Avenue Lakeland, Florida 33803 Roland Reis, Esquire Department of Health and Rehabilitative Services District XIV 270 Bartow Municipal Airport Bartow, Florida 33830
The Issue Whether Petitioner's request for exemption from disqualification from mental health personnel employment should be granted pursuant to Section 435.07, Florida Statutes.
Findings Of Fact Petitioner, Jack V. Fulford, at the time of hearing, was twenty-nine years old. In June of 1997, he was hired as a member of the mental health personnel at the Heart of Florida Behavioral Center. In order to continue in the position, Mr. Fulford was subject to "level 2 screening," a type of security background check conducted under Chapter 435, Florida Statutes. The background check indicated that Mr. Fulford had been found guilty of a felony prohibited under one of the provisions of the Florida Statutes (or under any similar statute of another jurisdiction) listed in Section 435.04(2), Florida Statutes. It is not clear from the record whether Heart of Florida or the Department notified Mr. Fulford that he was disqualified for employment, but he was so notified. Mr. Fulford then sought an exemption from the disqualification. The Department of Children and Family Services is the licensing agency with discretionary power "to grant to any employee otherwise disqualified from employment [in this case, Mr. Fulford] an exemption from disqualification for . . . [f]elonies committed more than three years prior to the date of disqualification . . .". Section 435.07, Florida Statutes. The Department denied Mr. Fulford's request for the exemption following the recommendation by an Exemption Review Committee that the exemption be granted. An FBI record introduced into evidence shows that Mr. Fulford has a long history of drug and alcohol abuse. Mr. Fulford admitted as much in testimony in which he described in some detail the destructive consequences the abuse has caused to friends, family and himself. His use of drugs and alcohol, begun in high school, continued to the point of unquestionable abuse while he was in the United States Navy, from which he received a discharge classified by the Navy as "other than honorable." Mr. Fulford participated in several programs and different treatment centers after his discharge. Although successfully able to discontinue drug use in the early part of this decade after a fourteen to fifteen-month stint in prison for violation of probation, Mr. Fulford continued to drink. In February of 1997, a conviction for DUI convinced him that he could drink no more. At the time of hearing, Mr. Fulford had been drug and alcohol free for at least 15 months. During that fifteen months he had consumed "no drugs, alcohol or mind- altering substances, whatsoever." (Testimony of Mr. Fulford.) The FBI record introduced into evidence by the Department, although difficult to decipher without any supporting explanation, is full of arrests and convictions suffered by Mr. Fulford since 1987. The only item that reflects an offense that falls within the list for "level 2 screening" is a plea of nolo contendere with a disposition of "guilty/convicted" (Petitioner's No. 1, page 6) for the third degree felony of possession of cocaine. The arrest leading to the disposition occurred on March 2, 1990; the disposition, twenty days later, on March 22, 1990. During his service in the Navy, Mr. Fulford received training in the medical field. He worked as an orderly, emergency room technician, and a mental health facilitator. He was trained in CPR. The only meaningful employment he has enjoyed during his adult life has been in a hospital environment. In one of the treatment programs in which Mr. Fulford participated, one of the steps in the multi-step pdrocess was to participate as a facilitator providing therapy to other patients or participants. Mr. Fulford reached that step. When asked about his work experience, therefore, in the papers reviewed by the Exemption Review Committee, Mr. Fulford listed his "work" as a facilitator for other participants in the abuse program in which he was also a patient or participant. The Exemption Review Committee recommended that Mr. Fulford be granted an exemption. Prior to exemption becoming finalized, however, one of the department's employees, Mr. Miller, discovered that the "work" done by Mr. Fulford in the treatment program was not done as an employee of the program but as a patient/participant progressing along a multi-step process. Thinking that Mr. Fulford had filled out papers of the committee falsely, Mr. Miller advocated that the Department reject the review committee's recommendation. The Department did so. On February 25, 1998, the Department advised Mr. Fulford that his request for an exemption had been denied "because [he had] failed to show clear and convincing evidence that [he had] been sufficiently rehabilitated." Letter from Sue B. Gray, District 14 Administrator, filed with the Department Clerk on April 2, 1998.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department enter a final order either: Granting the exemption subject to a probationary period, (the terms of the probation could include participation by Mr. Fulford as an out-patient in a drug rehabilitation program, monitoring at work at the Heart of Florida Behavioral Center, and participation in regular attendance at Narcotics and Alcoholics Anonymous Groups;) or Denial of the exemption without prejudice to reapply and obtain an exemption upon a showing of rehabilitation by sufficient evidence at the appropriate time in the future. DONE AND ENTERED this 5th day of October, 1998, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 5th day of October, 1998.
