The Issue At issue is whether respondent should have a $200 civil penalty imposed for the alleged violation set forth in the administrative complaint. Based upon all of the evidence, the following findings of fact are determined:
Findings Of Fact Respondent, Almira C. Morgan, operates an adult congregate living facility under the name of Morgan Retirement Home at 432 South F Street, Lake Worth, Florida. The facility is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), and as such, is subject to that agency's regulatory jurisdiction. On or about February 17, 1986, James Valinoti, an HRS program analyst, conducted a routine inspection of respondent's facility. During the course of the inspection, Valinoti requested documentation verifying that Morgan's employees were free of communicable diseases. This documentation is normally presented in the form of a certificate from a medical doctor. The requirement that employees be free of communicable disease was then embodied in Rule 10A- 5.19(5)(g), Florida Administrative Code [now renumbered as Rule 10A-5.019(5)(g) Since Morgan had no documentation to comply with the rule, Valinoti prepared a "Notification of Deficiencies" which recited the deficiency, class of violation, and date on which the deficiency had to be corrected. Morgan acknowledged receiving a copy of the same on March 14, 1986. According to the notice, Morgan had until April 12, 1986, in which to comply with the regulation. Sometime in April 1986 a nurse who was employed by Dr. David H. Kiner, a West Palm Beach internist, visited Morgan's facilities and administered skin tests for tuberculosis to Morgan and another employee named Violet Shepard. As agreed to by the parties, and for purposes of this proceeding only, this test was all that Morgan needed to comply with the rule. Dr. Kiner then prepared two small typewritten notes stating that the two were "free from communicable diseases." Through inadvertence, he did not place a date on the notes. When Valinoti returned to reinspect the facility on May 21, 1986, Morgan gave him the two notes. Because they were undated, Valinoti would not accept the notes. He did agree, however, that Morgan was making a good faith effort to comply with the rule. Nonetheless, he cited her for a Class III violation, a violation which "indirectly" or "potentially" threatens the safety, health or security of the residents. The administrative complaint was thereafter issued proposing that respondent be fined $200. Shortly after the administrative complaint was issued, Morgan obtained a third note from Dr. Kiner stating that the date had been omitted by "inadvertence." Morgan then contacted an HRS dietary inspector (Ms. Perez) who advised her to mail the notes to her, and she would give them to Valinoti. Although Morgan mailed the dated notes to Perez, the agency did not consider this to be timely correction of the deficiency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Rule 10A- 5.19(5)(g), and that a $100 civil penalty be imposed. DONE AND ORDERED this 27th day of March 1987 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 27th day of March 1987. COPIES FURNISHED: K. C. Collette, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue, Third Floor West Palm Beach, Florida 33401 James A. Cassidy, Esquire 120 South Olive Street Suite 711 West Palm Beach, Florida 33401
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The licensee At all times material hereto, Respondent, Jill Sousa Barker, was licensed by Petitioner, Department of Insurance (Department), as a general lines agent. Such licensure dates to May 10, 1993, and, but for the pending action, Respondent has suffered no other complaint or disciplinary action. The violations On February 11, 1997, an Information was filed in the Circuit Court, Twentieth Judicial Circuit, Lee County, Florida, Case No. 97-0058CF, charging Respondent with two counts of trafficking in cocaine (28 grams or more), contrary to Section 893.135(1)(b), Florida Statutes, and one count of sale or delivery of cocaine, contrary to Section 893.13(1)(a), Florida Statutes. Specifically, the Information alleged that: Count 1 [Respondent] did unlawfully and knowingly sell, manufacture, or deliver a controlled substance, to-wit: 28 grams or more of cocaine or of any mixture containing cocaine, on or about November 7, 1996 Count 2 [Respondent] did unlawfully and knowingly have in her actual or constructive possession, a controlled substance, to-wit: 28 grams or more of cocaine or of any mixture containing cocaine, on or about January 8, 1997 Count 3 [Respondent] did unlawfully sell or deliver a controlled substance, to-wit: cocaine, on or about December 18, 1996 The offenses alleged in Counts 1 and 2 constituted the commission of a felony of the first degree, and the offense alleged in Count 3 constituted the commission of a felony of the second degree. On September 3, 1997, Respondent entered a plea of nolo contendere to Count 3, as charged, and a plea of nolo contendere to the lesser included offense (Counts 1 and 2) of sale and delivery of cocaine (contrary to Section 893.13(1)(a), Florida Statutes), a second degree felony.1 The court entered an order withholding adjudication of guilt on each count, placed Respondent on probation for a period of four years under the supervision of the Department of Corrections (with early termination after two years if in compliance with all terms and conditions imposed), and assessed a fine and costs totaling $561. Respondent successfully completed her probation within one year, and was granted early termination by the court on June 15, 1998. At no time did Respondent inform the Department in writing of having pled nolo contendere to the aforesaid felonies.2 Aggravating and mitigating factors Here, the seriousness of Respondent's criminal acts cannot be gainsaid, nor may they be casually dismissed (as counsel suggests in Respondent's Proposed Recommended Order at page 2) as "part of a sting operation and as such . . . a 'victimless' act." Rather, Respondent acted as a middleman on three occasions, purchased cocaine (up to one ounce) for a dealer (a "person involved in the regular purchase and sale of . . . cocaine") who she believed was otherwise unable to acquire the product, and for which service she was paid a fee ($300 to $500 for the one ounce transaction). That the cocaine was not sold or further distributed, since the dealer was (unbeknownst to Respondent) operating under cover as an informant for the police department, does not render the crime less offensive. Notwithstanding, Respondent has suffered and paid a criminal penalty for her conduct and has demonstrated, based on objective evidence of right conduct, that she is truly remorseful for her actions and that she is worthy of holding a position of trust and confidence. Consequently, although suspension may be mandatory for a violation of Subsection 626.611(14), Florida Statutes, as discussed infra, it will serve no useful purpose. Therefore, any suspension should be de minimus. In reaching the foregoing conclusion, it is observed that, while serious, the isolated events which gave rise to the criminal charges filed against Respondent do not fairly reflect her character. Rather, history reveals that Respondent, age 34 at the time of hearing (date of birth September 17, 1964), has been gainfully employed (at various times, in various capacities) in the insurance industry since age 18, and that she suffered a brief, abusive marriage in the late 1980s, which resulted in the birth of a son, Trent. When Trent was 10 months of age, Respondent left her abusive husband, and moved (from Miami, Florida) to North Carolina to reside with her sister. There, Respondent successfully gained licensure as a property and casualty agent, as well as a life and health agent, and was employed by State Farm. Respondent was then, and continues to be, the primary support for herself and her son, and she enjoys little or no assistance from her former husband. Respondent remained in North Carolina approximately two years, and then returned to Miami, Florida, where she was employed by the Simons and Rose Insurance Agency. Following Hurricane Andrew (August 24, 1992), and the loss of all her possessions, she moved to Fort Meyers, Florida, to reside with her brother. There, Respondent successfully completed the 240-hour course and examination to qualify for licensure in Florida, and on May 10, 1993, was licensed as a general lines agent. Following licensure, Respondent was employed by AAA Insurance for two and one-half years, and thereafter by Tim Shaw Insurance Group, Inc. Respondent was, and continues to be, a model employee, a heavy producer, and is highly regarded among those who know of her. Apart from her continued employment, and support and participation in her son's activities (school, karate, hockey, baseball, and Cub Scouts), Respondent has, since the incidents in question, also committed to regular attendance at Lighthouse Baptist Church. There she has also taught vacation bible school, and has sat as a member of the building committee, as well as the finance committee. Moreover, Respondent has continued to attend night school at Edison Community College, and expects to receive an associate degree (A.S.) in computer programming on December 10, 1999. In all, Respondent has evidenced admirable traits, including resilience, tenacity, and character, which should not be overlooked or ignored because of the isolated incident in question. Given those traits, as well as her evident remorse, there is no reason to believe Respondent would engage in any further misconduct. Moreover, Respondent is painfully aware that, absent licensure, she would lose the means to support her family, and would most likely lose her home and the opportunity to complete her college program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds the Respondent guilty of violating the provisions of Subsections 626.611(14) and 626.621(8), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint, and guilty of violating the provisions of Subsection 626.621(11), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. All charges that Respondent's conduct also violated the provisions of Subsections 626.611(1), (7), or (13), and 626.621(2), Florida Statutes, should be dismissed. It is further RECOMMENDED that, as a penalty for such violations, Respondent's license be suspended for one day, followed by a one-year term of probation. DONE AND ENTERED this 9th day of September, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 September, 1999.
The Issue Whether the Respondent should grant the Petitioner an exemption from disqualification from employment in positions of special trust.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Thomas seeks employment at the Everglades Youth Development Center, which is a 102-bed residential treatment facility for high-risk male juvenile offenders aged 13 to 18 years. Because of Mr. Thomas's criminal background, he is disqualified from working in positions of trust with the Department and can only work in such positions if he is granted an exemption from the disqualification. Criminal History Mr. Thomas was arrested in August 1987 and charged with lewd and lascivious behavior with a minor. In an Information dated October 7, 1987, issued by the State Attorney for the Sixth Judicial Circuit in Pinellas County, Florida, Mr. Thomas was charged with three counts of handling and fondling two girls under the age of 16 years in or about July or August 1987, in violation of Section 800.04(1), Florida Statutes (1987).1 At the time, Mr. Thomas was known as Anthony Lee Sanders, "Sanders" being his father's surname. Count I of the Information named Carolyn Coston, a/k/a Carolyn Gordon, as an alleged victim, and Counts II and III of the Information named Lonnette Frazier as an alleged victim. Mr. Thomas first met Ms. Frazier when he played basketball at Gibbs High School in St. Petersburg, Florida; she used to attend the games. Mr. Thomas also knew Ms. Frazier's parents. At the times set forth in the Information, Mr. Thomas was a counselor in the summer recreation program of the Police Athletic League, where he was responsible for supervising and working with children enrolled in the program. Ms. Coston and Ms. Frazier were enrolled in the program and under Mr. Thomas's supervision. Mr. Thomas and Ms. Frazier had dated more than six months before the incident in August 1987 that resulted in his arrest. At the time, Ms. Frazier was 14 or 15 years of age; Mr. Thomas was 19 years of age and a student at Manatee Junior College. Mr. Thomas admits that he and Ms. Frazier had one encounter of a sexual nature in August 1987, but he denies that he and Ms. Frazier had a second such encounter. Mr. Thomas knew Ms. Coston only as a client in the Police Athletic League summer recreation program. He denies ever having had an encounter of a sexual nature with her. After his arrest, Mr. Thomas was jailed for two weeks, then released on his own recognizance. He was represented by a public defender, who advised him and his mother that, if he were convicted of any one of the charges, he could be sent to prison for 25 years. Mr. Thomas was afraid of being sentenced to prison, and he agreed to accept a plea bargain offered by the State Attorney's office. It was his understanding that his attorney tried to convince the State Attorney to dismiss the count in the Information involving Carolyn Coston but was unsuccessful. As a result, Mr. Thomas pleaded guilty to all three counts of the Information, although he insists that he was actually guilty of engaging in only one sexual encounter with Ms. Frazier and that he never had a sexual encounter with Ms. Coston. In an Order Withholding Adjudication of Guilt and Placing Defendant on Probation, dated January 15, 1988, the court found that Mr. Thomas was "not likely again to engage in a criminal course of conduct, and that the ends of justice and the welfare of society do not require that [he] should presently be adjudged guilty and suffer the penalty authorized by law." Accordingly, the court withheld adjudication of guilt and placed Mr. Thomas on two years of community control and five years of probation. Mr. Thomas was permitted to continue attending classes and athletic games and practices, and he was allowed to travel with his athletic team. He was also required to pay for the duration of his community service and probation $12.00 per year to First Step, Inc., an organization whose function is not explained in the order. In an order entered May 12, 1988, the court modified the terms of Mr. Thomas's community control by changing the remainder of the community-control period to probation, with the sentence of five years of probation previously imposed to follow. Supervision of Mr. Thomas's probation was transferred to Sioux City, Iowa, where Mr. Thomas had received a scholarship to attend Morningside College. The May 12, 1988, order further provided that, "upon the Defendant's arrival in Sioux City, Iowa, he shall be evaluated to determine whether counseling as a sex offender is needed and, if needed, sex offender counseling shall be made a condition of Defendant's probation." Mr. Thomas did not graduate from Morningside College, but transferred to Bethune Cookman in Dayton Beach, Florida. In an undated affidavit prepared on or around August 25, 1992, Mr. Thomas's Florida probation officer stated that Mr. Thomas had violated the terms of his probation in the following respects: Violation of Condition (8) which states: "You will promptly and truthfully answer all inquiries directed to you by the Court or the Probation Officer, and allow the Officer to visit your home, at your employment site or elsewhere, and you will comply with all instructions he may give you." In That, the aforesaid has violated this condition by willfully refusing to attend and successfully complete a Sexual Offender Treatment Program as instructed by his Probation Officer throughout his probation and as ordered by Judge Crockett Farnell on 5-12-88.[2] Violation of Condition (9) which states: "You will pay to First Step, Inc. the sum of Twelve Dollars ($12) per year for each year of probation ordered, on or before ninety days from the date of this order." In That, the aforesaid has violated this condition by willfully refusing to pay to First Step, Inc. the sum of $84 or $12 per year as evidenced by a balance of $84.00 as of 8-12-92. Mr. Thomas was at the time attending Bethune Cookman College. He did not enroll in sex offender counseling because he could not afford the fee; he did not make the payments to First Step, Inc., because he believed that these payments were waived because all of the other fees related to his probation had been waived. Mr. Thomas sold his car, paid the monies owing First Step, Inc., and enrolled in the counseling program. On November 6, 1992, Mr. Thomas entered a plea of guilty to the charges that he had violated the terms of his probation. An order was entered in which Judge Grable Stoutamire accepted the plea, continued Mr. Thomas on probation, and imposed the conditions that Mr. Thomas would "[s]uccessfully complete sex offender counseling now enrolled in" and that Mr. Thomas's "[f]our years DOC [Department of Corrections] suspended sentence is reinstated and will be imposed if defendant deliberately fails to complete sex offender course." Mr. Thomas successfully completed counseling, and he was granted early termination of probation on July 26, 1994. Employment history since 1994. Todd Speight, who is currently the Program Director of the Everglades Youth Development Center, has known Mr. Thomas since they met in 1989, when they both attended Morningside College in Iowa. Mr. Speight observed Mr. Thomas work with children when he was in college, and, in 1994, Mr. Speight recruited Mr. Thomas to work as a youth care worker at the Victor Cullen Academy, which is a residential treatment facility for high risk juveniles located in Maryland. At the time he recommended Mr. Thomas in 1995 for employment at the Victor Cullen Academy, Mr. Speight was aware that Mr. Thomas had pleaded guilty to charges of inappropriate sexual conduct with a girl who was a client of an agency that employed him.3 Mr. Speight was also aware that Mr. Thomas, nonetheless, successfully passed the Maryland employee screening process after he was hired at the Victor Cullen Academy. Mr. Thomas ended his employment at the Victor Cullen Academy when he moved back to Florida in 1995. In 1995 and 1996, Mr. Thomas worked briefly for Bridges of America, a drug and alcohol treatment program that was under contract with the Department of Corrections. He left his position with that organization because the Department of Corrections required that employees of the program be released from probation for at least three years. In the latter part of 1996, Mr. Thomas began working as a residential instructor at the Hope Center, which is a residential center for persons with developmental disabilities that operates under contract with the Department of Children and Families. The Hope Center serves males and females from the age of 12 years to the age of 70 years. Most of the residents are adults, but the Hope Center also serves children. Mr. Thomas disclosed his criminal background when he applied for the job at the Hope Center, and he discussed his background during his employment interview. Mr. Thomas worked at the Hope Center for a short time but was let go when the background screening done by the Department of Children and Families confirmed his criminal background. Mr. Thomas requested an exemption from disqualification from employment, and the exemption was granted in May 1997. Mr. Thomas was rehired by the Hope Center, where he worked from 1997 until the summer of 2002, when he was laid off due to budget cuts. At the time of the final hearing in January 2003, Mr. Thomas was employed at the Bayview Center of Mental Health, a residential program for mentally ill persons aged 18 through 60 years that is funded by the Department of Children and Families. Mr. Thomas was hired as a horticulture assistant, but, after six months of employment, he was promoted to a residential supervisor, effective January 20, 2003. First request to the Department for an exemption from disqualification from employment. In 1995, a request was made to the Department for a background check on Mr. Thomas, and, in July 1995, Mr. Thomas submitted to the Department an Affidavit of Good Moral Character in which he failed to disclose his criminal record. The Department learned through its background investigation that Mr. Thomas had pleaded guilty to three counts of lewd and lascivious behavior with two girls under the age of 16 years, offenses that disqualified him from working in positions of trust and responsibility. The Department also determined that Mr. Thomas did not have good moral character based on the submission of the false affidavit. Mr. Thomas did not request an exemption from disqualification. In 1996, Mr. Thomas was offered a job of trust and responsibility at the Everglades Youth Development Center, and Outreach Broward, Inc., submitted a request to the Department for a background check of Mr. Thomas. A form entitled Consent to Background Screening that was signed by Mr. Thomas on October 8, 1996, accompanied the request, and Mr. Thomas completed an Affidavit of Good Moral Character on October 8, 1996, in which he disclosed that he had a disqualifying criminal offense. The screening resulted in a determination that Mr. Thomas had an unfavorable/disqualifying sex offense of fondling a child. Mr. Thomas requested an exemption from disqualification from employment, and, after he was notified of the Department's intent to deny his request for an exemption, he requested an administrative hearing before an administrative law judge of the Division of Administrative Hearings. The hearing was conducted on May 5, 1998, and a Recommended Order was entered in which the administrative law judge found that Mr. Thomas had established by clear and convincing evidence that he was entitled to an exemption from disqualification from employment in a position of trust. The administrative law judge accordingly recommended that the Department grant Mr. Thomas an exemption so that he could work at the Everglades Academy with youthful male offenders. The Department entered a Final Order dated July 1998, in which it disagreed with the administrative law judge's recommendation and denied the request for an exemption. Second request to the Department for an exemption from disqualification from employment. In or around June 2002, Mr. Thomas wrote to Governor Jeb Bush regarding his efforts to obtain an exemption from disqualification from employment. In a letter dated June 7, 2002, the Secretary of the Department, W.G. Bankhead, responded to Mr. Thomas and advised him that, because more than three years had passed since his 1996 exemption request was denied, he would be allowed "to request an exemption via the desk review process." Secretary Bankhead directed Ray Aldridge, supervisor of the Background Screening Unit, to notify Mr. Thomas in writing of the requirements of the desk review process. Mr. Thomas was further advised that he would be required to undergo a criminal history background and driver's license screening. In early July 2002, Mr. Thomas submitted a Request for Desk Review on Disqualification, in which he checked the statement: "I request a Desk Review of my request for an exemption from disqualification based on the fact that I have clear and convincing evidence to support a reasonable belief that I am of good moral character." As part of the desk review, persons requesting exemptions are required to submit a letter describing the nature of their criminal offenses and their life since they committed the offenses. The following paragraph is contained in a letter to Mr. Aldridge dated July 28, 2002, and signed by Mr. Thomas: On August twenty second, nineteen eighty- seven, I Anthony L. Thomas was charged with sex offenses: two counts against a child, fondling/lewd and lascivious acts. On January fifteenth, nineteen eighty-eight I was found guilty of the two counts against a child, fondling/lewd and lascivious acts. I was sentence to complete seven years probation, which included attending counseling for sex offenders. In the next paragraph of the letter, Mr. Thomas refers to a single victim.4 The results of the Department's background screening were sent to the Department's Inspector General in a memorandum dated August 13. 2002. In the memorandum, Mr. Thomas's criminal history is described as "Sex offense - Against Child Under 16 - Lewd and Lascivious Act," with an arrest date of August 22, 1987. The false Affidavit of Good Moral Character submitted July 10, 1995, was noted in the memorandum as "Other history, which is not disqualifying." On September 9, 2002, the Department's Inspector General indicated on the memorandum that Mr. Thomas's request for an exemption from disqualification from employment was again denied. Subsequent to notice of the intent to deny the exemption request, Mr. Thomas requested the instant administrative hearing. Work record and character of Mr. Thomas. Mr. Speight was a team leader at the Victor Cullen Academy in 1994-1995, and Mr. Thomas worked on his team. Mr. Speight observed Mr. Thomas's job performance and found that the children in his charge were comfortable with Mr. Thomas and that Mr. Thomas did an excellent job with the children. Mr. Speight did not observe Mr. Thomas engage in any inappropriate conduct during his time at the Victor Cullen Academy. During the years he was employed at the Hope Center, from 1997 until the fall of 2002, Mr. Thomas worked in both the residential program supervising the residents and as an assistant in the social services program, arranging for services to residents, planning and supervising residents on outings and field trips, and communicating with residents' families. Aileen Phelan and David Chiverton, two of his supervisors at the Hope Center, consider Mr. Thomas an exemplary employee: He worked exceptionally well with the residents of the Hope Center, was attentive to the needs of the residents, was very caring, had a good work ethic, and was always willing to help where help was needed. Neither Ms. Phelan nor Mr. Chiverton observed Mr. Thomas engage in any inappropriate behavior during the seven years he worked there. Both were aware of his criminal background, including the charges of sexual misconduct with a minor client while he was a counselor in the Police Athletic League and the violation of probation for failing to complete sex offender counseling. They were not, however, aware that Mr. Thomas had pleaded guilty to charges involving two girls under the age of 16 years; Mr. Thomas had told them he had sexual contact with one girl. The knowledge that the criminal charges involved two girls did not alter Ms. Phelan's and Mr. Chiverton's opinions, based on their long association with Mr. Thomas and their familiarity with him as a person and as an employee working with developmentally disabled persons, that he is suitable for employment in a position of trust and that he should be granted an exemption from disqualification from such employment. Mr. Chiverton has such a high opinion of Mr. Thomas and his contributions to the community that, in April 2000, he extended an invitation to Mr. Thomas to serve as a trustee of the Foundation of Community Assistance and Leadership, of which Mr. Chiverton is the Executive Director. As the Program Director of the Everglades Youth Development Center, Mr. Speight would hire Mr. Thomas in an appropriate position at the Everglades Youth Development Center were the Department to grant him an exemption from disqualification from employment in a position of trust. In addition to being familiar with Mr. Thomas's work with children at the Victor Cullen Academy, Mr. Speight has spoken with some of Mr. Thomas's supervisors and co-workers over the past seven or eight years. Although Mr. Speight is aware that Mr. Thomas engaged in a sexual act with a minor in 1987, Mr. Thomas has been a good citizen during the years Mr. Speight has known him. In Mr. Speight's opinion, based on his personal knowledge of Mr. Thomas's character and of his work with high-risk juveniles and on the references from his co-workers, Mr. Thomas would be a highly desirable employee at the Everglades Youth Development Center, and he should be granted the exemption from disqualification from employment in a position of trust that will enable him to work at the Everglades Youth Development Center. Mr. Thomas acknowledges that, even though they had been dating for some time and he cared for her, he was wrong to engage in sexual behavior with Lonnette Frazier. He has been in touch with Ms. Frazier over the years and understands that she has been to college and is doing well.5 Mr. Thomas has been married since November 1999 to Francia Thomas, whom he met when he attended Bethune Cookman College in 1990-1991. Ms. Thomas is a high school business education teacher, and she and Mr. Thomas have a four-year-old son. Ms. Thomas has been aware of her husband's criminal history since shortly after they met. Mr. Thomas is currently attending college to complete his bachelor's degree. He believes that he can be a good example to youthful offenders and can show them that life does not end when you get in trouble as long as you change and use your life to do good. Summary The credible and persuasive evidence submitted by Mr. Thomas is sufficient to establish clearly and convincingly that he is rehabilitated, that he is of good moral character, that he is currently fit for employment in a position of trust and responsibility with the Department, and that he should be granted an exemption from disqualification from employment: Mr. Thomas was 19 years of age when he was arrested and charged with three counts of lewd and lascivious behavior with two girls under the age of 16 years, and 15 years have passed since he pleaded guilty to these offenses. At the time, the criminal court judge believed that Mr. Thomas was unlikely to engage in criminal behavior in the future, and he withheld adjudication of guilt. The only subsequent criminal violation in Mr. Thomas's background is the violation of probation in 1992. Mr. Thomas's failure to comply with two conditions of his probation was not the result of a bad and purposeful disobedience. Rather, Mr. Thomas's failure to attend sex offender counseling was the result of a lack of money to pay for the counseling, and his failure to pay a total of $84.00 to First Step, Inc., was the result of a misunderstanding of his obligation to pay the $12.00 per year fee. Mr. Thomas was granted early release from probation in July 1994, having successfully completed all of the conditions of his probation. Mr. Thomas long ago fulfilled the requirements imposed on him by Florida's criminal justice system, and he has no criminal history since the probation violation in 1992 but has, by all accounts, lived a good and productive life. Mr. Thomas has worked in positions of special trust with young people and with developmentally disabled children and adults since his release from probation in 1994: He worked with juveniles in a high-risk treatment facility in Maryland before returning to Florida in 1995; he was employed for seven years at the Hope Center as a residential instructor; and he is currently working as a residential supervisor at a center in Pembroke Pines that serves mentally ill residents. Mr. Thomas has the respect and loyalty of former supervisors and co-workers in these programs, and they describe a man who was an exemplary employee and a caring social service worker with whom adults and children were comfortable. The evidence is, therefore, sufficient to support a firm and unhesitating belief that Mr. Thomas would not pose a threat to children were he permitted to work with juveniles committed to the care of the Department.6 Mr. Thomas is married, he has a child and a stable home life, and he is completing his college education. Mr. Thomas admits that, in 1995, he submitted a false Affidavit of Good Moral Character in which he failed to disclose that he had pleaded guilty to a disqualifying offense. Although the false affidavit Mr. Thomas prepared in 1995 could reasonably serve as a basis for denying his 1996 request for an exemption from disqualification from employment, seven and one-half years have elapsed and Mr. Thomas has fully disclosed and discussed his criminal history with the Department. In light of his personal and employment history since 1995, Mr. Thomas's failure to disclose this criminal history in 1995 is not sufficient to support a finding of fact that Mr. Thomas lacks good moral character. Mr. Thomas's failure to state in the July 28, 2002, letter to Mr. Aldridge that he was charged with three counts of lewd and lascivious behavior with two separate girls under the age of 16 years is, likewise, not sufficient to support a finding of fact that Mr. Thomas lacks good moral character. Although Mr. Thomas pleaded guilty to the three counts of lewd and lascivious behavior in 1987, when he was 20 years old, the credible and persuasive evidence establishes that he did so as part of a plea bargain to avoid what he feared could be a prison sentence of 25 years. Throughout the hearing, Mr. Thomas proclaimed his innocence with respect to the charge that he engaged in lewd and lascivious conduct with Carolyn Coston, and he repeatedly asserted that he had actually engaged in conduct of a sexual nature only with Lonnette Frazer, and the omission in the letter of reference to the third count of and the second girl named in the Information is a minor error of omission that is insufficient to outweigh Mr. Thomas's personal and employment history during the past nine years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order granting Anthony L. Thomas an exemption from disqualification from employment in a position of trust or responsibility with the Department of Juvenile Justice. DONE AND ENTERED this 17th day of March, 2003, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 March, 2003.
The Issue Whether the Respondent’s group home license issued by the Agency for Persons with Disabilities (APD) should be revoked or otherwise disciplined on charges stated in an Administrative Complaint, APD License 5604-6GA.
Findings Of Fact The Respondent, Aspiring Ambitions, LLC, is owned and operated by Tanya Warren. The Respondent holds APD license 5604- 6GA to operate a group home for developmentally disabled residents on Spillers Avenue in Tampa. The license was issued in April 2017 and had no prior incidents of any kind until September 2017. Tanesha Clarke3/ was listed on the Respondent’s license application as a “director,” but the evidence was that Ms. Clarke was not an owner or director, but rather an employee providing direct care to residents and performing some additional duties for the Respondent. Count I On September 12, 2017, Ms. Clarke and another employee of the Respondent were on duty at the Spillers Avenue home. Ms. Clarke became frustrated when H.B., a resident in the home, urinated on the floor and couch. In her frustration, Ms. Clarke struck and kicked H.B., who was defenseless due to his disability. The other employee on duty did not immediately call the abuse hotline or report the incident to Ms. Warren. The next day, the incident was reported via the abuse hotline. The identity of the reporter is confidential by statute. It was not Ms. Warren, who still did not know about the incident. A sheriff’s office child protective investigator responded to the group home to investigate on behalf of the Department of Children and Families (DCF). It was quickly established that Ms. Clarke had physically abused H.B., and she was arrested. Ms. Warren could not be contacted immediately, and APD sent a licensing specialist to the home to help take care of the residents in Ms. Clarke’s absence until Ms. Warren arrived about 20 minutes later. Ms. Warren fully cooperated with the investigation. She denied having any reason to be concerned that Ms. Clarke would abuse a resident. Two of the three other staff interviewed, plus a social worker who provided services to residents of the group home, also denied ever seeing Ms. Clarke behave in an abusive manner towards a resident and denied having any reason to be concerned that Ms. Clarke would abuse a resident. The staff member who was on duty with Ms. Clarke on September 12, 2017, stated that she had seen similar behavior by Ms. Clarke previously but did not report it to Ms. Warren or to anyone else. The investigation verified the abuse by Ms. Clarke, and APD licensing explained to Ms. Warren that her license would be in jeopardy if Ms. Clarke continued to work at the group home. Ms. Warren understood and fired Ms. Clarke. Ms. Warren also provided additional in-service training to the rest of her staff on the Respondent’s zero tolerance for abuse and on what to do and how to report incidents of abuse against residents of the facility. No further follow-up by the child protective team was deemed necessary. Count II On November 24, 2017, which was the Friday after Thanksgiving, a resident of the Spillers Avenue group home bit another resident, A.S., on the shoulder. The bite was fairly severe and resulted in a red bite mark. On that evening, there were five residents and only one direct care employee at the home. A second employee who was scheduled to work that evening called in sick and arrangements were not made to replace the sick employee for the evening. Because of their disabilities, the Respondent’s residents that evening were considered in moderate need of supervision, and two direct care employees were required to be on duty to meet staffing requirements. The Respondent’s employee on duty that evening noticed the bite mark while bathing A.S. and made a record of it in the home’s log. She did not call the abuse hotline or report the incident to Ms. Warren. The employee, who had been working for the Respondent for a few months, had not been trained on the policy of zero tolerance for abuse, including what to do and how to report in the event of an incident causing injury to a resident. On the following Monday, A.S. went to school, where the bite mark was noticed, and A.S. was seen and treated by a physician. The physician reported the abuse, and a DCF investigation was opened. At first, it was not clear how or when the bite was inflicted. Ms. Warren was contacted and fully cooperated. She discovered the bite incident entry in the home’s log, and the investigation was converted to an investigation of the Respondent. The DCF investigation was closed as substantiated for inadequate supervision by the Respondent (i.e., Ms. Warren) for two reasons: first, inadequate staffing; and, second, inadequate training of staff on what to do and how to report in the event of an incident causing injury to a resident. No findings were made against the employee on duty at the time of the bite incident because she had not been trained adequately, which was the responsibility of the Respondent (i.e., Ms. Warren). In response to the incident, Ms. Warren expressed her intention to ensure proper staffing and to train staff on the policy of zero tolerance of abuse, including what to do and how to report in the event of an incident causing injury to a resident. On follow-up by APD on December 27, 2017, it was determined that staffing was correct, the required zero tolerance training had been delivered, and there were “no other concerns at this time.” Count III In December 2017, APD conducted an annual licensing survey of the Respondent’s group home. It was determined that there was a broken window in one of the bedrooms. The Respondent had the window fixed before the follow-up inspection in January 2018. Shortly before (perhaps the night before or morning of) the re-inspection, a resident broke the window again, punching it completely out this time. When the inspector arrived, the bedroom was cold (well below 68 degrees Fahrenheit), as the temperature had gone down into the 30s overnight. Ms. Warren promptly had the window fixed again. The Respondent did all that could reasonably be expected under the circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that APD enter a final order dismissing Counts I and III, finding the Respondent guilty under Count II, and fining the Respondent $1,000. DONE AND ENTERED this 20th day of August, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 20th day of August, 2018.
The Issue Whether Petitioner's application for licensure as a Class "D" Security Officer should be denied on the grounds set forth in the Department of State, Division of Licensing's (Department's) March 26, 1992, letter to Petitioner?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner is 56 years of age. He has had numerous brushes with the law, many of them alcohol-related, dating back to 1956, but he has never been convicted of a felony. In June of 1956, Petitioner attempted to purchase a beer in Sacramento, California. He was 19 years old at the time and, although in the military, under the legal drinking age. Petitioner was arrested and charged with a misdemeanor violation of California's alcoholic beverage control law. He received a ten-day suspended sentence. In November of 1956, when Petitioner was stationed on a military base in Amarillo, Texas, he and friend, without authorization, went into a room on the base where weapons were stored. They took possession of a .38 calibre firearm and started "playing with it." Petitioner was arrested and charged with the misdemeanor offenses of unlawful entry and wrongful appropriation. He received a bad conduct discharge, which was suspended. After attending a rehabilitation training program, he returned to active military service. In May of 1962, Petitioner was arrested for operating a motor vehicle under the influence of alcohol, a misdemeanor. He was subsequently convicted of the offense. His license was suspended for ten days and he was ordered to pay $25 in court costs. In the early part of 1964, Petitioner, along with several others, charged $700 worth of merchandise in a department store in Indianapolis, Indiana using credit card slips they had forged. Petitioner was arrested and charged with the felony offense of uttering a forged instrument. Adjudication of guilt on this charge was withheld and Petitioner was placed on three years probation. In October of 1968, while in Anderson Indiana, Petitioner was arrested and charged with theft by deception for having written checks in amounts that exceeded the balance of his checking account. The checks were actually written by Petitioner's estranged wife without his knowledge. The charge against Petitioner was dropped after restitution was made. In January of 1969, Petitioner was again arrested in Anderson, Indiana and charged with theft by deception for having written bad checks. These checks were written by Petitioner, but he did not realize at the time he wrote them that, because of his wife's check writing, he had insufficient funds in his account. Adjudication of guilt on this charge was withheld and Petitioner was placed on probation for a year. In February of 1970, Petitioner stayed in a Naples, Florida hotel for approximately three or four days. When he checked out, he did not have enough money to pay his bill. Petitioner was arrested and charged with the misdemeanor offense of defrauding an innkeeper. Less than a week later, Petitioner made restitution and the charge against him was dropped. The following month, while in Miami Beach, Florida, Petitioner was again unable to pay a hotel bill and, as a result, arrested and charged with defrauding an innkeeper. This charge was also dropped after Petitioner made restitution. In May of 1970, Petitioner was arrested and charged with breaking and entering a Naples, Florida restaurant with intent to commit grand larceny. The charge was unfounded and it was subsequently dropped. In January of 1971, Petitioner was driving a motor vehicle in Fort Myers, Florida that had an expired inspection sticker affixed to it. He was stopped by the police and a firearm belonging to a passenger was discovered in the vehicle. Petitioner was arrested and charged with unlawful possession of a firearm and driving a vehicle with an expired inspection sticker. The former charge was dropped. With respect to the latter charge, Petitioner was fined $30 or $35. In October of 1971, Petitioner was arrested in Naples, Florida and charged with writing a worthless check. The check was in the amount of $20 or $25. At the time he wrote the check, Petitioner was unaware that he did not have enough money in his account to cover the check. Petitioner subsequently made restitution and the charge was dropped. In February of 1976, in Lauderhill, Florida, Petitioner was arrested and again charged with writing a worthless check. The amount of this check was less than $50. Petitioner pled guilty to this misdemeanor offense and was fined $10. In addition to paying the fine, Petitioner made restitution. That same month, Petitioner was arrested in Sunrise, Florida and charged with battery on his wife. The charge was unfounded and it was subsequently dropped. In July of 1976, in Fort Lauderdale, Florida, Petitioner was arrested and charged with aggravated assault, assault and battery and petty larceny. All of these charges were unfounded; however, as a matter of convenience and pursuant to a plea agreement, Petitioner pled no contest to the assault and battery charge. Adjudication of guilt on this charge was withheld. Petitioner received a 90-day suspended sentence and a $352 fine, which was also suspended. The remaining charges against Petitioner were dropped. In December of 1977, Petitioner was again arrested in Fort Lauderdale, Florida. On this occasion, he was charged with two counts of writing worthless checks under $50. Petitioner subsequently made restitution and the charges were dropped. In February of 1980, in Jasper, Florida, Petitioner was arrested and charged with driving while intoxicated, speeding, driving without a valid drivers license and refusing to sign a summons. The latter charge was dropped. Petitioner pled guilty to the remaining charges and was adjudicated guilty on these charges by the trial court. For speeding and driving without a valid drivers license, he was fined. For driving while intoxicated, he was also fined and, in addition, his drivers license was suspended and he was ordered to attend DWI school. In May of 1985, in West Palm Beach, Florida, Petitioner was arrested on a Dade County, Florida warrant that had been issued in 1980, when he had been charged with two felony counts of writing worthless checks. The checks had actually been written by Petitioner's daughter. After his arrest, Petitioner made restitution and the charges against him were dropped. In November of 1985, Petitioner was arrested in West Palm Beach, Florida and charged with driving while intoxicated. He pled guilty to this misdemeanor charge. The trial court adjudicated Petitioner guilty and suspended his license for six months and ordered him to attend DWI school. Petitioner has not been in trouble with the law since. He is now a law-abiding citizen, who is better able to control is intake of alcohol. In filling out Section 5 of his application for licensure, which addressed the subject of criminal history, Petitioner did not intentionally make any misrepresentations or omit any required information. It was his understanding that he was required to disclose information relating only to felony convictions in this section of the application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Petitioner should not be denied licensure as a Class "D" Security Officer on the grounds cited in the Department's March 26, 1992, denial letter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1992. STUART M. LERNER 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 18th day of August, 1992.
The Issue Whether the respondents’ foster home license should be renewed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Children and Families (formerly the Department of Health and Rehabilitative Services) is the state agency responsible for the regulation and licensing of family foster homes pursuant to section 409.175 (Florida Statutes (1995). On March 1, 1995, the Department issued a Certificate of License, number MCO395-001-2, to Carlos and Susan Del Valle to operate a foster home with a maximum capacity of two children of either sex between the ages of 6 and 18 years of age. This license expired February 28, 1996. The Del Valles had maintained a foster home license in Monroe County since 1991. On February 7, 1995, Mr. and Mrs. Del Valle signed the Department’s Agreement to Provide Substitute Care for Dependent Children. This document must be signed by foster parents each year as part of the relicensing procedure and each time a child is placed in the home. II. Providing care for a non-dependent child. In its Denial Notice, the Department alleged the following as the first reason for its decision not to renew the Del Valles’s foster home license: Agreement to Provide Substitute Care for Dependent Children (attached), Items 9 and 11. At the time of relicensing last year, it was brought to the department’s attention that you were providing care for a non-dependent child. This was discussed extensively with you during the relicensing visit at you home on February 7, 1995. You were informed at that time that caring for this child was in violation of your agreement with the department. Subsequently, it was brought to the attention of the department that this same child was ordered into Home Detention in your home on September 19, 1995, as a result of a juvenile offense. The child’s placement in your home was in no way related to your status as foster parents. Again, providing care for this child is in violation of your agreement with the department. In January, 1995, Mr. and Mrs. Del Valle took a child into their home who was not placed there by the Department and who lived there without the Department’s approval. C. P., a boy in his early teens, was living in the Del Valle home on February 7, 1995, when Helen Sample, a children and family counselor supervisor with the Department, made a home visit to conduct the annual interview that is a part of the Department’s procedure for renewal of a foster home license. At this visit, Ms. Sample told Mr. and Mrs. Del Valle that, because their home was a licensed foster home, they could not care for a child in their home who was not placed there or approved by the Department. Ms. Sample and Mr. and Mrs. Del Valle discussed C. P.’s family situation and the various facilities where he could be placed until his family situation improved and he could resume living at home. C. P.’s family began counseling shortly afterward, and he moved back into his family’s home several weeks after Ms. Sample’s home visit. The Del Valle home was relicensed as a foster home, effective March 1, 1995, however no foster children were placed in the home after March 6, 1995. In the late summer of 1995, C. P. got into trouble with the authorities, and he returned to live in the Del Valle home in September, 1995. A hearing involving C. P. was held on November 14, 1995, before a judge of the Juvenile Division of the Monroe County Circuit Court. At this hearing, Mr. and Mrs. Del Valle presented themselves to the court and offered to take C. P. into their home as an alternative to his being placed in detention. In the Order of Disposition dated November 22, 1995, the court withheld adjudication of delinquency and placed C. P. on community control under the supervision of the Department of Juvenile Justice. The court also stated in the Order that C. P. would be allowed to remain in the community control program as long as he abided by sixteen conditions enumerated in the order. Condition number 16 provides that C. P. is to “[s]tay with Foster Parent, Susan DeValle.” There is no question that the Del Valles are providing excellent care for C. P. and that he is doing well academically and socially. Nonetheless, the evidence is sufficient to prove that, because C. P. lives in their home, Mr. and Mrs. Del Valle have violated item number 9 of the Substitute Care Agreement, which provides: We will accept children into our home for care only from the department and will make no plans for boarding other children or adults. Failure to report law enforcement involvement. In its Denial Notice, the Department alleged the following as the second reason for its decision not to renew the Del Valles’s foster home license: 2. Agreement to Provide Substitute Care for Dependent Children, Item 11. The department has record of a Sheriff’s Department Internal Affairs investigation of an incident that occurred on March 23, 1995, where you interfered in a law enforcement situation involving a juvenile. You authorized your interference based on your licensure as a HRS Foster Parent. Your actions resulted in you receiving disciplinary sanctions that included a three-day suspension and three months added to your probation period as a corrections officer for Monroe County. You did not notify the department of this incident which is in violation of your agreement with the department. You also failed to immediately notify the department of another situation involving law enforcement. At a conference on February 14, 1996, with Ann Scurlock and Helen Samples, you and HRS discussed that incident. You stated that an allegation had been made that you spanked a child You also stated that the incident had been resolved and that the case was closed; “that it was no big deal, the Sheriff’s Office just wanted to get in my pocket.” The Sheriff’s Office has advised the department that the case is not closed, that the incident is still under review. Additionally, the Sheriff’s Office reported to HRS that there is a pending third additional Internal Affairs investigation. Item 11 of the Agreement to Provide Substitute Care for Dependent Children provides: We will notify the department immediately of any change in our address, employment, living arrangements, family composition, or law enforcement involvement. At all times material to the Department’s decision not to renew the foster home license issued to Mr. and Mrs. Del Valle, Mr. Del Valle was employed as a detention officer with the Monroe County Sheriff’s Office. At the February 7, 1995, home visit conducted by Helen Samples, which occurred not long after Mr. Del Valle began his employment with the Sheriff’s Office, Mrs. Del Valle asked Ms. Samples how the department defined “law enforcement involvement.” She asked this question because her husband would be continually “involved” with law enforcement because of his employment. Ms. Samples responded that the Department must be informed if Mr. or Mrs. Del Valle committed a crime or were arrested. 1 A. March 23, 1995, incident. Sometime between 9:00 p.m. and 11:00 p.m. on March 23, 1995, a teenage boy named N. J. told several friends that he intended to steal his mother’s car, run it into a tree, and kill himself. Someone notified N. J.’s mother, and she telephoned Michael Holler, a member of the Department’s Mobile Team Guidance Clinic and a psychologist who had been counseling N. J. and his mother for two or three weeks prior to this incident.2 Mr. Holler met N. J.’s mother in the parking lot of the commercial building in Tavernier, Florida, where N. J. and a few friends were hanging out. N. J. was extremely agitated, pacing back and forth and threatening to commit suicide. Mr. Holler was trying to get N. J. to talk to him, without much success, when Sergeant Bryant and Detective Sharpe of the Monroe County Sheriff’s Office arrived in response to a call from N. J.’s mother. Shortly thereafter, a third member of the Sheriff’s Office, Detective Koppins, arrived at the scene; he had been asked to look into the situation by Mr. Del Valle. Mr. Del Valle and N. J. had a close relationship which had developed over several years. N. J.’s mother approved of the relationship and frequently called on Mr. Del Valle to help her deal with her son. N. J. asked a friend to call Mr. Del Valle on the night of March 23, 1995, to let him know what was going on and to ask him to come to the scene. Detective Koppins and Detective Sharpe each spoke separately with N. J. and reported to Mr. Holler that N. J. did not want to talk to him, that N. J. did not like him, and that Mr. Del Valle was coming and would talk to him. Mr. Holler responded that the detectives were interfering with his relationship with N. J. and that he did not care if N. J. liked him, he was just trying to do his job. About this time, Mr. Del Valle arrived at the scene. He was very upset and agitated and began shouting as soon as he got out of his truck. He used profanity, accused the people at the scene of handling N. J. “all wrong”, and asserted that he was a foster parent and knew how to handle the situation. Sergeant Bryant took Mr. Del Valle aside and spoke with him, and Mr. Del Valle calmed down and talked quietly with Mr. Holler about N. J.’s situation. Mr. Holler’s supervisor, Dr. Matthews arrived at the scene a short time later, and the situation with N. J. was resolved. Dr. Matthews, who is the executive director of the Department’s guidance center, called Ms. Samples the day after the incident to report that Mr. Del Valle was present at the parking lot during the incident and had behaved inappropriately.3 The only knowledge Dr. Matthews had of Mr. Del Valle’s behavior on the night in question was the description of the incident provided to him by Mr. Holler. The day after the March 23, 1995, incident involving N. J., Ms. Samples also received telephone calls regarding the incident from “two Sheriff’s duty officers” whom she did not identify; Mr. Del Valle also notified her of the incident the day after it happened. There was insufficient evidence presented by the Department to support the first allegation in paragraph 2 of its Denial Notice that Mr. and Mrs. Del Valle “did not notify the department of this [March 23, 1995] incident which is in violation of [item 11 of] your agreement with the department.” Firstly, on the day after it occurred, Mr. Del Valle, Dr. Matthews, and two employees of the Sheriff’s Office notified Ms. Samples of the incident and of Mr. Del Valle’s part in it. Secondly, no reasonable explanation was given at the hearing to support the Department’s conclusion that Mr. Del Valle’s involvement in the events of March 23, 1995, constituted “law enforcement involvement” for purposes of the reporting requirement in item 11 of the Substitute Care Agreement.4 Rather, Mr. and Mrs. Del Valle were entitled to rely on Ms. Samples’s explanation at the February 7, 1995, home visit that the duty of foster parents to report “law enforcement involvement” to the Department involved situations where the foster parents were arrested or charged with commission of a crime. Finally, no credible evidence was presented at the hearing to support the Department’s allegations in the Denial Notice that, as a result of his involvement in the incident of March 23, 1995, Mr. Del Valle was the subject of an Internal Affairs Investigation by the Sheriff’s Office or that he was subject to employment-related disciplinary sanctions as a result of any such investigation. B. Investigation involving “spanking” incident. On April 7, 1995, N. J.’s mother made a complaint against Mr. Del Valle to the Monroe County Sheriff’s Office, alleging that sometime between September and December, 1994, he had committed a battery on her son. The Department was apparently referring to the investigation of this complaint, which involved an allegation that Mr. Del Valle had spanked N. J., when it alleged in the Denial Notice that Mr. and Mrs. Del Valle failed “to immediately notify the department of another situation involving law enforcement,” in violation of item 11 of the Substitute Care Agreement. Immediately upon receiving the complaint from N. J.’s mother, the Sheriff’s Office initiated a criminal investigation of the allegation and an inspector with the Office of Professional Standards was assigned to the case. She took the statements of N. J. and his mother in September, 1995, and May, 1995, respectively. In a document entitled “Internal Affairs Investigation 95-010 Criminal Notification,” which was dated October 5, 1995, and delivered to Mr. Del Valle on October 10, 1995,5 Mr. Del Valle was notified that he was the subject of an investigation of a complaint that he had committed a battery on N. J., a misdemeanor under section 784.03, Florida Statutes, and a violation of various policies and procedures of the Sheriff’s Office. At some point during the investigation, a determination was made that the case should not be pursued as a criminal matter, and it was subsequently treated as an administrative matter involving Mr. Del Valle’s status as an employee of the Sheriff’s Office. The evidence is not clear whether, at the time Mr. Del Valle was notified of the investigation, it was being handled as a criminal matter or as an administrative matter. The Department learned of the investigation when the Sheriff’s Office contacted the Department and requested the names of all of the foster children who had been placed in Mr. and Mrs. Del Valle’s home. The evidence is not clear as to who at the Department took this call, but Ms. Samples testified that, when asked the purpose for which the Sheriff’s Office needed the names, the Sheriff’s Office told the Department’s representative that an investigation was being conducted into an allegation that Mr. Del Valle had spanked a child. The Department learned of the investigation at some point before Mr. Del Valle was notified.6 On March 27, 1996, in the Management Review conducted as a result of the administrative investigation of Mr. Del Valle, it was found that the complaint of battery were not sustained by the evidence but that charges of perjury arising out of statements Mr. Del Valle made in interviews conducted January 5 and 19, 1996, were sustained. The recommended discipline was the withdrawal of Mr. Del Valle’s appointment as an employee of the Sheriff’s Office. His employment was terminated in early April, 1996. The evidence is not sufficient to support the Department’s position that Mr. and Mrs. Del Valle breached item 11 of the Substitute Care Agreement by failing to report the Sheriff’s Office’s criminal and administrative investigation of the “spanking” allegation. Firstly, the weight of the credible evidence establishes that the Department knew of the criminal investigation of the battery complaint before Mr. and Mrs. Del Valle knew of it. The weight of the credible evidence also establishes that Mr. and Mrs. Del Valle learned that the Department had previously been informed of the investigation at or shortly before the time Mr. Del Valle received the Criminal Notification. Therefore, it would be reasonable for Mr. and Mrs. Del Valle to see no need to notify the Department of something it already knew. In addition, even if the Department had not been aware of the investigation at the time Mr. Del Valle received the Criminal Notification, Mr. and Mrs. Del Valle were entitled to rely on Ms. Samples’s representation at the February 7, 1995, home visit that “law enforcement involvement” constituted arrest or commission of a crime. Since the Criminal Notification advised Mr. Del Valle that an investigation had been initiated into the complaint that he had committed a crime, the Del Valles could reasonably assume that they were not required to notify the Department until such time as Mr. Del Valle was arrested or charged with having committed the battery. The Department also alleged in the Denial Notice that, even though Mr. Del Valle had represented to the Department in February, 1996, that the “incident had been resolved and that the case was closed,” The Sheriff’s Office has advised the department that the case is not closed, that the incident is still under review. Additionally, the Sheriff’s Office reported to HRS that there is a pending third additional Internal Affairs investigation. The Department was apparently referring to the administrative investigation of the battery allegation after the determination was made not to pursue the complaint as a criminal matter and to the administrative investigation of charges that Mr. Del Valle had committed perjury in the statements he gave to the internal affairs investigator on January 5 and 19, 1996. Since both of these investigations related solely to Mr. Del Valle’s employment by the Sheriff’s Office, he was not obligated under any circumstance to notify the Department of these investigations as “law enforcement involvement.” Although not alleged in the Denial Notice, Department witnesses asserted at the hearing that Mr. and Mrs. Del Valle were required to report the administrative investigations pursuant to item 11 of the Substitute Care Agreement as a “change in . . . employment” because of the possibility that Mr. Del Valle could be suspended or terminated from his employment. Even had this been alleged in the Denial Notice as a ground upon which the decision to deny the license renewal was based, the language of the agreement is unambiguous and requires only that a change in employment be reported. Since the investigations were not such a change, Mr. and Mrs. Del Valle were under no obligation to report them. Not willing to work in partnership with the Department. In its Denial Notice, the Department stated the following as the third basis for its decision to refuse to renew the Del Valle’s foster home license: 3. At the conference on February 14, 1995, your letter of October 15, 1995, regarding the KISS Christmas project was discussed. The letter stated that, “at this point we do not want to deal with most members of HRS any more than we have to.” You stated the reason for the statement was that you felt HRS should have advised you of the spanking allegation. As was discussed, since the allegation did not involve a HRS child, HRS was not in a position to share information with you. Also HRS was bound by the rules of confidentiality governing the Sheriff’s Department’s Internal Affairs Division. Your sentiment does not reflect a willingness to work in partnership with the department which could compromise the care of dependent children placed in your home. “KISS” [Kids in Special Situations] is a non-profit organization started by Mr. and Mrs. Del Valle; the Christmas project referred to in the Denial Notice is the annual project in which KISS provides Christmas gifts to foster children and underprivileged children in Monroe County. It had been the practice of the Department’s local office to assist Mr. and Mrs. Del Valle in the Christmas project by distributing letters to foster parents and collecting information from the foster parents regarding the children so Mr. and Mrs. Del Valle could purchase appropriate Christmas presents for each child. Mrs. Del Valle’s letter of October 15, 1995, was directed to Ms. Gibson, an employee of the Department, and requested her help in gathering the information necessary to purchase appropriate presents for the children and in collecting the children’s Christmas lists. In the letter, Mrs. Del Valle stated: I am not in a position this year to chase down these lists through your various offices and to be perfectly honest at this point we do not want to deal with most members of HRS any more than we have to. Just in case you are not aware there have been accusations floating about for 5-6 months of Carlos being unjustly accused of spanking a child and no one saw fit to inform us of these accusations. This statement is the only evidence presented by the Department to support its determination that Mr. and Mrs. Del Valle were not willing to work in partnership with the Department to insure that adequate care would be provided to any children who were placed in the Del Valle home. Given the context in which the statement was made and the lack of any evidence tending to demonstrate that the Del Valles had ever refused to cooperate with the Department when providing care for a foster child, the evidence is insufficient to establish that the Del Valles were not willing to work in partnership with the Department as foster parents. The evidence presented is sufficient to establish the allegations in the Denial Notice that the Del Valles breached item 9 of the Substitute Care Agreement by taking C. P. into their home. The evidence presented is not, however, sufficient to establish the remaining allegations in the Denial Notice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying the application of Carlos and Susan Del Valle for renewal of their foster home license for the period extending from March 1, 1996, through February 28, 1997, on the sole ground that a child was living in their home who had not been placed there by the Department and who was living in the home without the Department’s approval. DONE AND ENTERED this 4th day of February 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1997.
The Issue Whether Petitioner, Cassondra Davis, suffered an adverse employment action as a result of unlawful discrimination.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made. Petitioner, Cassondra Davis, is a female African- American. At all times material, Petitioner was employed by Respondent, Department of Corrections, at Brevard Correctional Institution (Department). Petitioner's last day of actual work at the Department was April 10, 1996. Susan Blais, Personnel Manager at Brevard Correction Institution during the relevant time frame, testified that because of medical problems, Petitioner was unable to return to work after April 10, 1996, until her physician released her to return to work. Petitioner never presented a medical return-to-work release. Instead, she utilized her entitlement to Family Medical Leave Act leave. Once this leave was exhausted, rather than terminate Petitioner, the Department wrote to her physician, Dr. F. F. Matuk, on September 16, 1996, requesting a diagnosis of Davis' condition, as well as an opinion as to whether she could perform the duties of a correctional officer as outlined in a job description enclosed with the request for opinion. (Respondent's Exhibit 1) Dr. Matuk responded to the Department by letter dated September 20, 1996, stating that Petitioner had several work restrictions, including no weight manipulation over 20 to 30 pounds, avoidance of driving over 30 to 40 minutes, avoidance of neck extension, and allowances for extended periods of rest. He did not believe that Petitioner was able to perform the duties of a correctional officer but stated that she would most likely be able to perform a sedentary desk job. (Respondent's Exhibit 2) Susan Blais testified that no such desk jobs were available at that time. Petitioner submitted a letter of resignation to the Department in July 1997, wherein she attributed the resignation to medical reasons. (Respondent's Exhibit 3)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 26th day of March, 2001. COPIES FURNISHED: Azizi M. Coleman, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cassondra A. Davis 1009 Cannes Drive Poinciana, Florida 34759-3918 Cassondra A. Davis 1216 Pua Lane, No. 107 Honolulu, Hawaii 96817-3821 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
