The Issue The issue in this case is whether Petitioner, John Harris, should be granted an exemption from disqualification from employment pursuant to Chapter 435, Florida Statutes.
Findings Of Fact Petitioner, John Harris, was employed at the Florida State Hospital in Chattahoochee, Florida, from October 1977 to January 15, 1998. The Florida State Hospital is a residential facility for mentally ill adults. Mr. Harris was employed as a Unit Treatment and Rehabilitation Specialist. Mr. Harris was involved in the provision of direct care to residents of Florida State Hospital. During 1997 the Department of Children and Family Services (hereinafter referred to as the "Department") pursuant to Chapter 435, Florida Statutes, conducted background screening of employees involved in the provision of direct care to residents of Florida State Hospital. As a result of a background screening check of Mr. Harris, it was determined that Mr. Harris had pled nolo contendere to possession of cocaine, a felony pursuant to Chapter 893, Florida Statutes, in 1989. As a result of the determination that Mr. Harris had pled nolo contendere to a felony under Chapter 893, Florida Statutes, Mr. Harris was notified by the Department that he was disqualified from employment in his position with Florida State Hospital. The following are the pertinent facts concerning the 1989 nolo contendere plea: During the afternoon of September 11, 1989, Mr. Harris was traveling by automobile from Tallahassee, Florida, where he had picked up the automobile from his wife, to Quincy, Florida, where he lived; Mr. Harris was traveling at a speed of 100mph while being chased by law enforcement. He was stopped by other law enforcement personnel waiting for him just outside Quincy; The automobile that Mr. Harris was driving was searched and cocaine was discovered; Mr. Harris was charged with possession of a controlled substance in violation of Chapter 893, Florida Statutes, and reckless driving in violation of Chapter 316, Florida Statutes; Mr. Harris pled nolo contendere to the charge of possession of cocaine, a felony, and was adjudicated guilty of the offense on or about February 21, 1990; and Mr. Harris was sentenced to probation for a period of one year. Although not listed in the letter informing Mr. Harris of the results of his background screening, Mr. Harris also was charged and pled nolo contendere to the offense of possession of cocaine with intent to sell in 1981 and driving under the influence of alcohol and possession of cannabis in 1995. The following are the only pertinent facts concerning the 1981 offense offered at hearing: On or about May 24, 1982, Mr. Harris pled nolo contendere to possession with intent to sell cocaine in violation of Chapter 893, Florida Statutes, a second degree felony, as a result of an incident that took place in 1981; and Mr. Harris was adjudicated guilty and was sentenced to probation for a period of eight years. The following are the pertinent facts concerning the 1995 offenses for driving under the influence of alcohol and possession of cannabis: Mr. Harris was driving an automobile in or near Bainbridge, Georgia, when he was stopped by law enforcement; Mr. Harris was charged with driving under the influence of alcohol and possession of cannabis that was found in the glove compartment of the automobile; Mr. Harris was adjudicated guilty of both offenses; and Mr. Harris was sentenced to probation for a period of one year and a number of week-ends in jail. At the time of the formal hearing Mr. Harris was 44 years of age. Mr. Harris' immediate supervisor, Rollean Lloyd (Ms. Lloyd indicated at the hearing that her first name is spelled "Rollean") testified at the formal hearing in support of Mr. Harris' continued employment at Florida State Hospital. Ms. Lloyd also signed a letter (Ms. Lloyd's first name is spelled "Rollene" on the letter) supporting his continued employment at Florida State Hospital. Ms. Lloyd's supervisor also testified at the formal hearing and signed a letter supporting his continued employment at Florida State Hospital: I have known John Harris for approximately eight years as an employee of Unit 4, Florida State Hospital. I have observed Mr. Harris over this time and he had become a concientious [sic] worker who relates well to the residents and to the staff in Unit 4. His recent attendance record has been good and Mr. Harris performs his job to the best of his ability. Mr. Harris is cooperative with his supervisors and supportive of his co-workers. For the past eleven years Mr. Harris has been, and was at the time of the formal hearing, married to Ollie Harris. Mr. Harris has two sons, one twenty years of age and the other eighteen years of age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Children and Family Services denying John Harris' request for an exemption from disqualification from employment pursuant to Section 435, Florida Statutes. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 29th day of May, 1998. COPIES FURNISHED: Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 John Perry, Esquire District 2 Legal Office Department of Children and Family Services 2639 North Monroe Street Tallahassee, Florida 32399-2949 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Mr. Mirvis is eligible to receive a Florida teacher's certificate.
Findings Of Fact Laurence Mirvis completed an application for a Florida teacher's certificate on January 23, 1989, which the Department received on January 27, 1989. In 1981, Mr. Mirvis was charged in the circuit court with carrying a concealed weapon by the state attorney in Martin County, Florida, in the case styled State of Florida v. Larry Mirvis, Case No. 80-751CF. The matter was refiled as a misdemeanor prosecution in the county court, as State of Florida v. Mirvis, Case No. 80-19232MM. Mr. Mirvis was found guilty by the county judge based upon plea of guilty he entered after discussing the matter with his attorney, was sentenced to 60 days in the county jail, one year of nonreporting probation conditioned upon leaving Martin County. A little over three years later, on January 22, 1984, Mr. Mirvis was arrested in Delray Beach, Florida for threatening an employee at a convenience store who had followed Mr. Mirvis into the parking lot because he believed Mr. Mirvis had taken items from the store without paying for them. In the parking lot Mr. Mirvis had pointed a handgun at the employee and then fled. On August 7, 1985, Mr. Mirvis was adjudged guilty of carrying a concealed firearm, a third degree felony, in violation of Section 790.01(2), Florida Statutes, upon entering a plea of guilty. He was sentenced to time served.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Commissioner of Education denying the application of Laurence Mirvis for a Florida teacher's certificate. DONE and ENTERED this 12th day of February, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 12th day of February, 1991. Copies furnished: Robert J. Boyd, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Laurence Mirvis Post Office Box 6821 Delray Beach, Florida 33484 Karen B. Wilde, Executive Director Education Practices Commission 325 West Gaines Street, #301 Tallahassee, Florida 32399 Martin Schaap, Administrator Professional Practices Services 325 West Gaines Street, Room 352 Tallahassee, Florida 32399 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
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 Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing, under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Petition for Relief was not timely filed pursuant to Sections 760.11(8) and 760.11(4), Florida Statutes.
Findings Of Fact Petitioner is a 57-year-old male and a former employee of the Respondent. Respondent is an executive agency of the State of Florida with more than 15 full-time employees and is, therefore, an employer under Sections 760.02(6) and (7), Florida Statutes. On May 19, 1995, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations. He charged his former employer, Respondent, with gender and age discrimination for failure to promote him. The Florida Commission on Human Relations conducted an investigation of the charges. It did not issue a Notice of Determination. The staff of the Commission misled or lulled Respondent into inaction, for a period of time, as follows: Day 0000 - 19 May 1995: Charge of Discrimination submitted to Commission. Day 0061 - 19 July 1995: FCHR Notice of Receipt, Docketing and Dual Filing with EEOC. Day 0110 - 6 September 1995: Respondent submitted response to Commission request for information. Day 0255 - 29 January 1996: Petitioner drove from Orlando to FCHR in Tallahassee and met with Iliana Haddock, who advised him that she had just been assigned to investigate the Discrimination Complaint. Haddock took the opportunity to interview the Respondent relative to the complaint. Day 0312 - 26 March 1996: Telephone conversation between Haddock and Petitioner. Haddock stated that she had reviewed all the applications submitted for the Environmental Manager position and had found evidence of age discrimination. Day 0340 - 23 April 1996: Telephone conversation between Haddock and Petitioner. Haddock stated the investigation was almost complete, but they were waiting for Respondent to submit criteria used for determining who would be interviewed for the Environmental Manager position. Day 0431 - 23 July 1996: Petitioner drove from Orlando to FCHR headquarters in Tallahassee and met with Haddock and her supervisor, Harry Lamb. They told Petitioner that Haddock's investigation was completed and that her report would be submitted to Lamb in 30 to 45 days and from there Lamb would submit it to the FCHR legal staff and then it would go to the Executive Director for his approval and determination. Day 0494 - 24 September 1996: Assistant Enforcement Director Singleton sent Petitioner a letter stating that the Commission had not been able to complete the investigation in this case and stated four options of proceeding, (1) file a civil action in civil court; (2) file petition to have case heard by ALJ in DOAH; (3) request a right to sue so I could bring an action in Federal Court; or (4) allow the commission to continue with the processing, investigation and final action in this matter. Day 0509 - 9 October 1996: Petitioner responded to Singleton's letter by pointing out the contradictions between her letter and what Petitioner had been told at the meeting with Haddock and Lamb on 7/23/96. Petitioner requested more information in order to make a decision concerning the future course of this case. Petitioner submitted 11 questions to Singleton. Day 0521 - 21 October 1996: Commission Investigator Iliana Haddock submitted her report to the FCHR Office of General Counsel. Day 0573 - 12 December 1996: Petitioner sent follow-up letter to FCHR Executive Director advising him that he had not received a reply to the 10/9/96 letter to Singleton. Day 0644 - 21 February 1997: Mathis sent Petitioner a letter about the status of the original complaint of discrimination. Mathis stated that Haddock had submitted her report of investigation, with a recommendation for a cause finding to Harry Lamb; that Haddock was no longer with the Commission; that Lamb was no longer with the Commission but had not forwarded the investigation report before he left; and that the report was now in the hands of Otis Mallory. Day 0795 - 22 July 1997: Mathis sent Petitioner a letter advising that the "initial charge is still located in Mr. Mallory's office and will be reviewed." Day 0805 - 1 August 1997: Assistant Director Snell sent Petitioner a letter stating: "The investigation of your first case has been completed and is in the Employment Enforcement Manger's office for review". Day 0809 - 5 August 1997: The EEOC State and Local Coordinator advised Petitioner by letter that the cases were still being processed by the FCHR. Day 0852 - 27 September 1997: Petitioner sent letter to FCHR Executive Director advising him that Otis Mallory had Discrimination Report for almost a year; that Mallory also had received the Retaliation Report in August 1997; and since Mallory now had both reports, he ought to be able to complete his review and move this matter forward. Day 0986 - 29 January 1998: Petitioner sent letter to FCHR Executive Director attempting to get Investigators' Reports through the internal FCHR review system. Day 1076 - 29 April 1998: Commission issued Notice of Determination on Retaliation Complaint. No action on original discrimination complaint. Day 1252 - 22 October 1998: Petitioner mailed Petition for Relief and Administrative Hearing concerning Discrimination Complaint to FCHR. After filing the Complaint of Discrimination with the FCHR, Petitioner actively pursued the progress and status of the Discrimination Complaint with the Commission. In response to his pursuit, the staff of the Commission told the Petitioner throughout the above time-line, that his Complaint was being investigated; the investigation was completed; the report would be submitted; the report was submitted; the report was in for review; and the report would be reviewed. Thus, the Petitioner was misled or lulled into believing by the staff of FCHR not only that the Complaint was going to result in a Determination, but also that the Determination was going to be a cause-finding. On September 24, 1996, a year and four months after filing the Complaint, the Commission advised Petitioner that he had four options relating to the charges, including having the Commission continue with the processing, investigation, and final action in this matter. When Petitioner requested further information so he could make an informed choice, the staff of the Commission failed to respond to his letter. In addition, other staff took no further action on his case. However, Petitioner waited more than two years from issuance of the letter of September 24, 1996, to the filing of his Petition for Relief, dated October 22, 1998. Although Petitioner was misled or lulled into inaction for a period of time by the staff of the FCHR, the Petitioner has failed to demonstrate equitable estoppel or excusable neglect in his failure to file the Petition within a reasonable period of time after the statutorily mandated time limit.
Conclusions The Division of Administrative Hearings has jurisdiction on the parties and the subject matter pursuant to Sections 120.569, 120.57(1) and 760.11, Florida Statutes. The Florida Commission on Human Relations has the authority to investigate a charge of discrimination with alleges that an employee has committed an unlawful employment practice by its failure to promote Petitioner based on his sex and/or age. Section 760.10(1) and 760.11, Florida Statutes. When a complaint has been filed with the Commission, it has the duty to investigate the allegations in the complaint and make a determination within 180 days of the filing of the Complaint, if there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992. After a determination is made, the Commission is charged with the duty to notify the aggrieved person and the Respondent of the determination, the date of such determination, and the options available under the law. Section 760.11(3), Florida Statutes. In this case, the Commission failed to make a reasonable cause determination; and three and one-half years after first filing his Complaint, Petitioner requested a formal administrative hearing under Sections 120.569 and 120.57(1), Florida Statutes. Therefore, Sections 760.11(8), (4) and (6), Florida Statutes, applied to this case. These sections read, in pertinent part: In the event that the commission determines that there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992, the aggrieved person may either: Bring a civil action against the person named in the complaint in any court of competent jurisdiction; or Request an administrative hearing under ss 120.569 and 120.57. The election by the aggrieved person of filing a civil action or requesting an administrative hearing under this subsection is the exclusive procedure available to the aggrieved person pursuant to this act. * * * (6) Any administrative hearing brought pursuant to paragraph (4)(b) shall be conducted under ss. 120.569 and 120.57. . . . An administrative hearing pursuant to paragraph (4)(b) must be requested no later than 35 days after the date of determination of reasonable cause by the commission. . . . * * * (8) In the event that the commission fails to conciliate or determine whether there is reasonable cause on any complaint under this section within 180 days of the filing of the complaint, an aggrieved person may proceed under subsection (4), as if the commission determined that there was reasonable cause. Although it appears unjust that Petitioner's case should be dismissed because of the failure of a state agency to complete its statutory duty to make a reasonable cause determination, nevertheless, the court in Milano v. Moldmaster, Inc., 703 So. 2d 1093 at 1094 (Fla. 4th DCA 1997) held that the 35-day limitation on requesting an administrative hearing begins to run at the expiration of the 180-day period in which the Commission was to make a reasonable cause determination. Therefore, the Petition for Relief is untimely because it was filed nearly three years after the presumed date of determination of cause by the Commission. See Section 760.11(6), Florida Statutes (1997); Wright v. HCA Central Florida Regional Hospital, Inc., 18 FALR 1160 (1995); Pusey v. George Knupp, Lake County Sheriff's Office, 20 FALR 791 (1997); cf. St. Petersburg Motor Club v. Cook, 567 So. 2d 488 (Fla. 1st DCA 1990) and Milano v. Moldmaster, Inc., 703 So. 2d 1093 (Fla. 4th DCA 1997). This procedure has been determined to be constitutional, under Florida law. McElhath v. Burley, 707 So. 2d 836 (Fla. 1st DCA 1998). The record does establish some evidence of excusable neglect, which might, under certain circumstances, excuse delinquent filing. See, for example, Machules v. Department of Administration 523 So. 2d 1132 (Fla. 1988). In Machules, the Florida Supreme Court described the parameters of the "equitable tolling" doctrine as follows: Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum. 523 So. 2d at 1134. Petitioner asserts that the staff of the Commission lulled him into inaction. That assertion is accepted as true for purposes of ruling on the Motion for Summary Recommended Order. However, Petitioner is claiming he was lulled into inaction for two additional years after he was advised of his options under the statute. The District Court of Appeal has held that Petitioner may not enjoy a manipulable open-ended time extension which could render the statutory limitation meaningless. It held that a Petitioner should be required to assume some minimum responsibility himself for an orderly and expeditious resolution of his dispute. Milano v. Moldmaster, Inc., supra, at 1095. Although this result is harsh, two other district courts have followed this precedent and it is, therefore, binding on this tribunal. Joshua v. City of Gainesville, So. 2d , 1999 WL 71523 (Fla. 1st DCA, February 17, 1999) and Adams v. Wellington Regional Medical Center, Inc., So. 2d , (Fla. 4th DCA, March 17, 1999).
Recommendation Based on the foregoing facts and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the petition of Donald A. Garrepy in DOAH Case No. 98-5090; FCHR Case No. 95-5752. DONE AND ENTERED this 9th day of April, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 9th day of April, 1999. COPIES FURNISHED: Gary C. Smallridge, Senior Attorney Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 600 Tallahassee, Florida 32399-3000 Donald A. Garrepy Post Office Box 276 Portsmouth, New Hampshire 03802 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Dr. Lawrence A. Hall is licensed by the Florida State Board of Dentistry and the Hearing Officer has jurisdiction over the Respondent and the offenses alleged. During the time periods alleged Respondent smoked marijuana in the office after office hours in company with employees including a 16-year-old employee. During the time periods alleged Respondent wrote numerous prescriptions in the names of employees for controlled substances or drugs to be used for his personal use or for the use of his wife or friends. These drugs consisted of Eskatrol, Dexadrine, Dexamyl, Percodan, and Quaalude and were taken by Hall during office hours while he was performing work on dental patients. Some of these drugs made Respondent nervous and irritable and adversely affected his practice of dentistry. During the period between March, 1974 and July, 1975 Hall habitually used controlled substances add drugs. On many occasions he would be late getting to the office for morning appointments and late returning from lunch for afternoon appointments. Occasionally he would fail to come to the office at all and scheduled appointments would have to be cancelled - usually after the patient had appeared for the appointment. Hall wrote prescriptions for his wife and for his employees for controlled substances and drugs for uses not related to the practice of dentistry. These drugs consisted of amphetamines, Quaalude, and Percodan, and were often picked up from the pharmacy by one of his office employees not named in the prescription. Hall knew that his federal narcotics license did not authorize him to write prescriptions for drugs not intended for use in the practice of dentistry. Amphetamines are listed as Class II controlled substances in Chapter 893 F.S. On one occasion, while treating a small child, Hall became exasperated, threw a syringe across the room, then ran out of the office to jog around the adjacent shopping center for about 15 minutes to regain his composure. On another occasion a patient reacted adversely to an anesthetic and was thereafter properly treated by Hall to restore her breathing to normal. The dental procedure for which the anesthetic was given was then performed satisfactorily. The patient involved remained a patient of Hall until she moved to a location too far away to continue to use Hall as her dentist. She was satisfied with the dental treatment received from Hall. Hall sought help in his personal and drug related problems from his minister. No evidence was presented that Hall performed unsatisfactory dental work. To the contrary, all evidence presented in this regard was to the effect that Hall's dental work was above average. At the time of the hearing and for some months prior thereto Hall was not taking drugs.
The Issue Whether Petitioner is disqualified for employment, and, if so, should she be granted an exemption.
Findings Of Fact Petitioner, Angela Harris, is a 39-year-old divorced black woman who is the mother of two children, including a 16-year-old daughter who remains dependent upon her. Petitioner is a high school graduate who is a certified nursing assistant. Petitioner was employed by Respondent at Florida State Hospital on June 29, 1990, as a Human Services Worker I-F/C, a career service position. She worked continuously for Respondent until she was dismissed on July 30, 2001. Petitioner attained permanent status in the Career Service System as a Human Service Worker I, Human Services Worker II, and Unit Treatment Rehabilitation Specialist. She was working as a unit treatment rehabilitation specialist at the time of the termination. Petitioner’s duties as a unit treatment rehabilitation specialist involved the supervision of residents or patients as they did their laundry and monitoring patients engaged in classes and physical exercise groups. The patients were ambulatory adults who were being treated at the Florida State Hospital. She did this for more than fours hours each day. Subsequent to her discharge, Ms. Harris has been employed as a dishwasher for the Cracker Barrel Restaurant. Petitioner was terminated from her employment on July 30, 2001, because the Department determined that the plea of nolo contendere that she had entered to simple battery was a disqualifying offense under the provisions of Chapter 435, Florida Statutes. The court withheld adjudication of guilt when it accepted Petitioner’s plea. The court noted that it was unlikely that she would engage in a criminal conduct in the future. The alleged victim of the battery to which Ms. Harris plead was Frank Martin. Mr. Martin was born in 1950. He is not a minor. Mr. Martin testified in this proceeding. On the morning of August 11, 2000, Ms. Harris took Mr. Martin in her vehicle to an employment training class held by Kirby Vacuum Cleaners in Tallahassee. The two had an argument during the trip. After Petitioner dropped him off in the vicinity of his class, Mr. Martin went to a McDonald's Restaurant that was across the street from Kirby's. While inside the dining room, he observed that Ms. Harris had not left and was in her car in the parking lot of McDonald’s. When he exited McDonald's, Ms. Harris drove around the block and approached him in her vehicle. As they met, they were headed in opposite directions. Mr. Martin did not stop to talk to Petitioner but continued to walk in the direction he had been going opposite from the direction the vehicle was heading. To continue the conversation, Petitioner backed up her car. To avoid further conversation, Mr. Martin crossed behind her vehicle as it was backing up and his foot was touched by the rear tire. There is conflicting evidence regarding which side of the car, passenger or driver, struck Mr. Martin. Mr. Martin suffered no injury and his clothing was unsoiled and reflected no contact with the vehicle. He did, however, call the police and reported that Ms. Harris had hit him with her vehicle. This led to criminal charges being filed against Ms. Harris. David Sims, an officer with the Tallahassee Police Department, interviewed Mr. Martin. Based upon the information obtained from Mr. Martin, Officer Sims prepared an offense report. This report indicates the victim, Mr. Martin, was not a minor and that he lived with the Petitioner, who was his girlfriend. There was no evidence presented that the employer had this record when it disqualified the Petitioner, because it would not be a document generated by screening. The parties stipulated to this relationship. After Mr. Martin spoke to a police officer, Mr. Martin proceeded to attend the full and complete training session at Kirby's. As Petitioner and Mr. Martin had previously agreed, Petitioner arrived to pick up Mr. Martin when his training session ended at approximately 4:30 p.m. It was raining and Mr. Martin and another person loaded a vacuum cleaner into the back seat of Petitioner's car. From there, Petitioner drove Mr. Martin to the home of Mr. Martin’s sister in Tallahassee. At no time did Mr. Martin tell Ms. Harris that he had called the police and reported to them that she had purposely hit him with her car. Subsequent to August 11, 2000, and before Ms. Harris was notified of any pending criminal charges, Mr. Martin attempted to withdraw his complaint. The authorities decided to prosecute anyway, and Ms. Harris was notified on or about September 11, 2000, of the charges. Thereafter she retained an attorney to represent her and paid $1,000 to Ms. Gardner to serve as her attorney. The agreement that she had with Ms. Gardner required her to pay an additional $1000 if the case was tried. October 1, 2000, Mr. Martin executed an Affidavit in which he states, "Ms. Angela Harris accidentally bumped into my foot with her car. I was not injured during this accident and do not wish to pursue any criminal charges against Ms. Harris." At hearing Mr. Martin explained that their argument had influenced his initial conclusion that Petitioner struck him on purpose. Upon reflection, he felt it was an accident and not an intentional act. Petitioner also testified she did not intentionally strike Mr. Martin. In May 2001, Ms. Gardner informed Petitioner of a plea bargain offer. If Petitioner agreed to a plea of no contest to a simple battery charge, she would be placed on probation for a year and there would be no adjudication of guilt. Ms. Gardner represented to Petitioner that there would be no consequences to her employment from the plea. Petitioner also understood that she would not have to pay an additional $1000 to Ms. Gardner to represent her at trial. Petitioner chose to enter a plea of no contest to a charge of simple battery. Petitioner is a friendly person who performed her job duties satisfactorily and related well to both staff and fellow employees. She attends church regularly and is liked and respected in her community. Her employment record shows some minor infractions; however, there is no indication that she ever has been abusive to any patient or suspected of any abusive treatment. There is no evidence that an injunction pursuant to Section 741.30, Florida Statutes, was ever entered against Petitioner. There was and is no reasonable cause for the employer to believe there were grounds to disqualify Petitioner from employment based upon Sections 435.04(2) or 435.04(4), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent failed to establish a factual predicate for Petitioner’s disqualification. There is no basis for Petitioner needing an exemption and no impediment to her employment pursuant to Chapter 435, Florida Statutes. That Respondent failed to prove Petitioner intentionally struck her boyfriend with her car. There is no basis for Petitioner needing an exemption and no impediment to her employment pursuant to Chapter 435, Florida Statutes. DONE AND ENTERED this 13th day of March, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 13th day of March, 2002. COPIES FURNISHED: Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street 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 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
Findings Of Fact Petitioner, Henry L. Curry, was employed by Respondent, Department of Health and Rehabilitative Services, from October 26, 1970 to March 3, 1988. Petitioner was employed at Florida State Hospital, Chattahoochee, as a Human Services Worker I, Forensics, Unit 20, during the winter of 1988. The position was part of the Career Service System in which the Petitioner had attained "permanent" status. On February 1, 1988, Petitioner telephoned a person named Grady James, another employee at Florida State Hospital. (R-1) Petitioner informed Mr. James that, due to illness, Petitioner was not able to work and would bring a "sick slip" when he was able to return to work. Petitioner had no further contact with Respondent until March 28, 1988, when Petitioner's letter, dated March 24, 1988, was received by Florida State Hospital. (P-1) In the letter, Petitioner stated that he was "an inpatient at the VA Medical Center" and that "a letter of verification" of his hospitalization was forthcoming. On March 30, 1988, Florida State Hospital received a letter from the Atlanta Veterans Administration Medical Center's Alcoholism and Drug Dependence Treatment Unit in Decatur, Georgia. The letter, dated March 28, 1988, stated that Petitioner had been hospitalized March 16 - 28, 1988, in said unit. (P-2) There is limited information indicating Petitioner's physical location or functional ability during the period of time between February 1, 1988, when he contacted Mr. James, and March 16, 1988, when he was hospitalized. Petitioner testified that he was not in his "right mind", that he "was possessed", "drugged out", and "couldn't cope". Petitioner slept "in the car, in the crack houses and everywhere". (Testimony of Petitioner) Petitioner was seen once during that time by his father in Quincy, Florida, (Testimony of Perman Curry) and apparently was hospitalized for unexplained reasons in "Montgomery" for some period (Testimony of Petitioner) While Petitioner states that he did not intend to resign from his position, no contact was made with his employer from February 1, 1988 to March 28, 1988, a period of 56 days. Prior to February 1, 1988, Petitioner had been counseled on several occasions, and his attendance had been closely monitored, due to unscheduled absences. (R-1) On February 9, 1988, Dorothy N. Stinson, the supervisor of the unit in which Petitioner worked, sent by certified mail, appropriately addressed, a letter to Petitioner noting the lack of communication from Petitioner and stating that, unless medical certification for the unauthorized absence was provided within three days of receipt of the letter, Petitioner would be considered to have abandoned his position and resigned from employment. The letter was returned as "unclaimed" by the postal service on February 25, 1988, after two unsuccessful attempts to effect delivery. (R-3) On March 4, 1988, Faye H. Alcorn, Deputy Hospital Administrator, sent by certified mail, appropriately addressed, a letter (dated March 3, 1988) to Petitioner which stated that due to his absence without authorized leave from February 2 - March 2, 1988, during which time there had been no contact with Petitioner, he was deemed to have abandoned his position and resigned from the state's career service system pursuant to rules related to separation from employment resulting from abandonment of position. The letter was returned as "unclaimed" by the postal service on March 20, 1988, after two unsuccessful attempts to effect delivery. (R-2) In or around December, 1987, Ms. Stinson became aware that Petitioner had a substance abuse problem. Ms. Stinson testified that it is possible to take "leave without pay" for a period of up to one year and that such leave could possibly be granted to an employee who is ill due to a drug and alcohol addiction. A person seeking to take such leave would either submit a written letter of request or would submit medical certification indicating that the employee was unable to work. Petitioner did not request to be placed on "leave without pay" status. The "leave without pay" status assigned to Petitioner during that period was assigned for administrative purposes and did not indicate that the leave had been authorized or approved. The medical certification submitted by Petitioner is for the period of March 16 - 28, 1988. No medical certification was submitted for the period of February 1 - March 16, 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued concluding that the Petitioner abandoned his position and resigned from the Career Service. DONE and ENTERED this 2nd day of August, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1988. APPENDIX The following constitute rulings on the proposed findings of fact submitted by the panties to this case. Petitioner Accepted. Accepted, however, letter indicated that continued absence would constitute abandonment. Accepted, insofar as the absence from 2/2/88 to 3/2/88, however, Petitioner did not notify Respondent of his situation until 3/28/88, (or 26 days following termination). Accepted. Accepted. Rejected, irrelevant. Accepted, however, such leave must receive prior approval. Accepted. Accepted. Accepted. Rejected, irrelevant. Rejected. If Petitioner was unable, as counsel asserts, to form the intent to resign from his position he was likewise unable to form the intent to return. Respondent Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected, irrelevant. Accepted. Accepted. Accepted. Accepted. Rejected, unnecessary. COPIES FURNISHED: Kathy R. Newman, Esquire Legal Services of North Florida, Inc. 211 East Jefferson Street Quincy, Florida 32351 Dennis X. Crowley, Esquire Florida State Hospital Administration Building Chattahoochee, Florida 32324 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
