The Issue The issue in this case is whether the Respondent’s certifications as a Correctional and Law Enforcement Officer should be disciplined and, if so what penalties should be imposed.
Findings Of Fact Respondent, Fedrick Williams, was certified as a Correctional and Law Enforcement Officer on June 26, 1992, holding Certificate Numbers 55153 Correctional and 55152 Law Enforcement. He was employed by the Leon County Sheriff’s Office in 1992 as a Deputy. From 1992 until 1996 he served without incident. In 1996, Respondent took a leave of absence for two years. In 1998 he returned to the Sheriff’s Office and served without incident until he was criminally charged with Aggravated Child Abuse by Malicious Punishment, a second degree felony, pursuant to Section 827.02(2), Florida Statutes. The alleged violation of the lesser included offense of child abuse under that statute forms the basis for the discipline sought by the Department in this proceeding. B.B. is the biological son of Lisa Williams and stepson of Respondent. B.B. suffers from a growth hormone deficiency. Because of the deficiency, B.B. is required to take hormones as well as adhere to a special diet to help with his condition. However, even with treatment, B.B. is unusually small for his age and, during the time of these events, B.B. was approximately four feet, four inches tall and weighed approximately 63 pounds. The B.B. and his mother had a history of physical confrontation that, at times, resulted in both Department of Children and Family Services and police intervention. Indeed, in 2001, B.B. received two permanent scars from his mother’s beating him. B.B. was arrested for hitting his mother with a pogo stick. When B.B. was released from the Department of Juvenile Justice (DJJ) his mother refused to pick him up. Respondent picked up B.B. from DJJ. B.B. also stole and forged checks from his mother on at least two occasions. Additionally, he threatened his cousin with a knife when he became angry at him. Things were so strained between B.B. and his mother that after the criminal actions involved with the incident related to this proceeding, B.B.’s mother voluntarily terminated her parental rights and gave up custody of B.B. to a relative. On the other hand, Respondent and B.B. had a good relationship. They did many things together and B.B. often came to Respondent for advice, help or just to talk. The termination of his wife’s parental rights and loss of his stepson greatly distressed Respondent and causes him heartache to this day. In fact, Respondent still communicates with B.B. and wishes he were home with him. Respondent’s disciplinary style was not generally physical. Witnesses described him as a gentle man. In fact, Respondent preferred to talk things out if there was a problem. He rarely utilized corporal punishment and always exercised restraint if he had to resort to such. Indeed, Respondent talked to B.B. and placed him on restrictions when B.B. forged his mother’s checks and threatened his cousin with a knife. On November 8, 2002 at about 6 p.m., B.B.’s mother discovered that B.B was sneaking and hiding candy and junk snack food in his bedroom. There were crumbs and packages from his food stash in his dresser drawers and around his room. As indicated above, the reason B.B.’s behavior was serious was that B.B.’s health required that he adhere to a diet that did not include junk food. B.B. had been warned on multiple occasions about eating candy and other junk foods. He had also been on restriction multiple times for such behavior. On November 8, 2002, B.B was either on or had just gotten off of restriction Respondent had placed him on for eating such junk foods. B.B.’s mother called Respondent into B.B.’s bedroom. Respondent first talked to B.B. and then got his service belt and swatted him at most four or five times across B.B.’s buttocks. There was no injury to B.B. at this time. He then talked to B.B. some more and left the room to take care of B.B.’s younger brother in the living room where the TV was on. Respondent has consistently denied injuring B.B. and has consistently reported the same facts as above. After Respondent left the room, B.B.’s mother entered the room. Respondent’s teenage daughter, who was doing her homework at the dining room table and could hear what was happening in B.B.’s room, heard B.B’s mother yelling and cursing at B.B., things falling off the furniture and loud banging noises around the room. Respondent was not in a position to hear what was occurring in B.B.’s room. B.B.’s mother testified that B.B. was not injured when she left B.B.’s room. Eventually, B.B. was sent to bathe and get ready for bed. Respondent’s daughter did not see any injuries to B.B.’s face when he left his room to bathe. While in the bathroom, B.B. went to the bathroom window and climbed out. The bathroom window was high as it relates to the B.B.’s height of four feet and four inches. The window was not large enough for B.B. to have crawled through in an upright manner so that he could land on his feet once outside. On the outside and under the window there was a three foot wide thorny rose bush and a brick ledge. It is highly likely that B.B. hit both the bush and the ledge on his way down from the window. Both obstacles could have caused long strap-like bruises to B.B.’s body as well as injury to his eye and other abrasions. Respondent’s home was surrounded by fairly thick forest. The forest appears to be thick enough to have also caused bruising or other injuries to B.B. B.B.’s foot prints were found leading away from the house towards the woods. B.B. traveled about six miles through thick forest to the James’ property. He climbed into Mr. James’ truck and went to sleep. At some point, B.B.’s absence was discovered. B.B.’s mother reported B.B. as a runaway on the evening of November 8, 2002. A lengthy search by Respondent and the police ensued which was not successful. B.B. was discovered the next morning by Mr. James when he was leaving for work. Mr. James brought B.B into his home and left him with his wife. Both neighbors observed that B.B. had several bruises on his arms and a very swollen black eye. According to Ms. James, B.B. had an eye that was swollen shut and had red marks above his eye extending to his hairline. One of the James’ called the police to report that they had found a child. When asked by Ms. James’ who had hit him. B.B. reported that his mother had hit him and caused his injuries. B.B. was not present and did not testify at the hearing. The effort used by the Department to secure B.B.’s presence at the hearing was minimal given the importance of B.B.’s role in these events. The Department’s efforts consisted of four telephone calls on Friday, August 25, 2006 that resulted in a message being left. There was no response to these calls. On Monday, August 28th and on Tuesday, August 29th, the Department again unsuccessfully called and left messages. One such call seemed to be interrupted by the phone being picked up and then hung up. Other than that one interruption, the Department offered no proof that anyone actually received the messages left on the answering machine. No subpoena of B.B. was attempted by Petitioner. No certified letter was sent to secure the presence of B.B. by Petitioner. Counsel for the Respondent made Petitioner aware of B.B.’s whereabouts several weeks before the hearing. No one from the Department traveled to that location to try to find B.B. No continuance was requested in order to locate B.B. The Department’s efforts, or lack of effort, to secure B.B.’s presence at the hearing do not demonstrate that B.B. was unavailable for the hearing. Instead the Department offered into evidence the transcripts from B.B.’s deposition taken as part of Lisa Williams’ criminal case, case number 2202 CF 4227-B1. This deposition was taken Tuesday, October 14, 2003, and was offered as Petitioner’s Exhibit numbered three. The deposition indicates that Respondent was responsible for B.B.’s injuries. Although Respondent was criminally charged based on similar fact evidence, the deposition of B.B. was not part of Respondent’s case and Respondent was not a party to that criminal case. The motive for Respondent to fully and adequately develop the testimony of B.B. was not as vital as it would be had the deposition been conducted for Respondent’s own case. Moreover, B.B.’s accounts of the evening of November 8 vary widely as to which parent was responsible for his injuries. Little credit is given to any of B.B.’s statements regarding the events of November 8, 2002. Deputy Hunter picked B.B. up from the James’ residence. He took B.B. to Tallahassee Memorial Hospital’s emergency room where the child was interviewed and extensively photographed. The photographs showed a variety of bruises and abrasions over B.B.’s body and a very swollen eye. Some of the bruises were long strap-like marks. Crime Scene Detective Patrick Lyons met with B.B., Deputy Hunter, and a member of the Child Protection Team at the emergency room. There were dozens of photos taken by Detective Lyons. One of the interviewers was Cynthia Y. Burns, RN. She stated that B.B. stated that his step father hit him in the eye. B.B. was also interviewed by Elain Sofkis, RN. He made a similar statement to her. The lead investigator was Detective Derek Terry of the Leon County Sheriff’s Department. On November 9, 2002, B.B. variously told Detective Terry that his stepfather beat him with a belt and hit him in the face with the belt, after which his mother immediately jumped on him and punched him in the face 20 or more times. A short time later, B.B. stated that he was hit 20 times with the belt, after which his mother entered his room and punched him in the stomach and chest, but not the face. Detective Terry never went to the house where the alleged abuse occurred. Again, B.B.’s statements are not credible. On November 9, 2002, Respondent was criminally charged with Aggravated Child Abuse of B.B. Shortly thereafter, Respondent was terminated from his position with the Leon County Sheriff’s Office at the recommendation of the Career Services Board. The termination was conditioned upon the Respondent pleading to or being convicted of Aggravated Child Abuse or any lesser included offense in his criminal case. At the conclusion of the criminal case Respondent plead to two counts of disorderly conduct, which are misdemeanors of the second degree. Respondent entered his plea because he could not financially afford to continue the legal process and he wanted to return to work at the Sheriff’s Office. Since disorderly conduct was not a lesser included offense of aggravated child abuse, Respondent was reinstated to his former position without pay for the time missed from work in 2004. In the final analysis, the evidence presented at this hearing did not demonstrate that Respondent committed any acts of aggravated child abuse or child abuse. The more credible evidence demonstrated that Respondent did not cause any injury to B.B. and that the injuries that B.B. had on November 9, 2002, were either inflicted by his mother or B.B.’s encounter with the environment outside the house and his subsequent long trek through the woods in the dark. Moreover, the evidence did not demonstrate that Respondent’s moral character was impaired or diminished by these events. The only thing Respondent did was spank his stepson with a belt. He did not injure him or maliciously punish him. Therefore, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding Respondent not guilty of violating Section 943.1325(6) or (7), Florida Statutes, and dismissing the Administrative Complaint. DONE AND ENTERED this 6th day of February, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2007. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Deveron L. Brown, Esquire Brown & Associates, LLC The Cambridge Center 223 East Virginia Street Tallahassee, Florida 32301 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Petitioner is eligible for exemption from disqualification from employment in a nursing home under Section 435.07(3), Florida Statutes.
Findings Of Fact Respondent is the agency responsible for conducting background screenings for employees of health care facilities under Chapter 400, Florida Statutes. Petitioner is licensed as a certified nurse's assistant. She began working as a nurse's aide at a nursing home in February 2000. A subsequent level 1 background screening revealed that Petitioner has an extensive criminal history including, but not limited to, the following violations of Section 812.014, Florida Statutes: In 1986, Petitioner was convicted of felony grand larceny (shoplifting) and sentenced to confinement in a state correctional facility for two years. In 1990, Petitioner pled nolo contendere, was convicted, and sentenced to eleven months, twenty-nine days in county jail for shoplifting (grand retail theft.) In 1995, Petitioner pled nolo contendere, was convicted, and sentenced to probation for shoplifting (felony petit theft.) During the hearing, Petitioner admitted to the above- referenced crimes. She fully discussed her history of theft and shoplifting which began when she was a young woman. She attributed her initial involvement in shoplifting to the improper influence of older women. Petitioner expressed her desire to work as a nurse's assistant so that she could earn a living and pay her bills. She did not present any persuasive evidence of remorse for her crimes or demonstrate rehabilitation sufficient to warrant exemption from disqualification at this time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioner's request for exemption from disqualification. DONE AND ENTERED this 27th day of December, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 27th day of December, 2000. COPIES FURNISHED: Shevette Clark 7488 Wren Drive Tallahassee, Florida 32310 Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration Building 3, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether the Agency’s intended action to deny Petitioner’s application for exemption from disqualification from employment is an abuse of the Agency’s discretion.
Findings Of Fact Background Petitioner is a 37-year-old female residing in Jacksonville, Florida. She desires to work as a Medicaid waiver provider, an independent solo provider of community-based services to the Agency’s clients with developmental disabilities. On October 12, 2009, the Agency granted Petitioner an exemption from disqualification from employment for an offense of grand theft committed on December 28, 2001. Between 2004 and 2009, Petitioner was a service provider for Agency clients both in a group home setting and as a solo provider of community-based services. On July 14, 2011, the Florida Department of Children and Families issued Petitioner a notice that she was ineligible for continued employment in a position of special trust working with children or the developmentally disabled based on a felony offense of aggravated assault committed on December 30, 2010. The Disqualifying Offense On December 30, 2010, Petitioner was driving by her boyfriend’s home and noticed a vehicle backing out of his driveway. Petitioner knew the vehicle belonged to another woman, Ms. Stevens. Petitioner called her boyfriend on his cellular phone, confirmed he was in the car, and began conversing with him. Petitioner and her boyfriend engaged in a series of calls with each other over the next few minutes while she followed Ms. Stevens’ vehicle. Petitioner wanted the driver of the car to pull off the road so she could talk to her boyfriend in person. Petitioner pulled her vehicle alongside Ms. Stevens’ vehicle. The situation escalated. The vehicles were traveling on a parallel path on a two-lane road in a residential subdivision. In her anger, Petitioner threw an open soda can through the rear window of Ms. Stevens’ vehicle. Finally, Petitioner’s vehicle struck Ms. Stevens’ vehicle. Shortly thereafter, both vehicles pulled off the road. Petitioner’s boyfriend exited the vehicle, but Ms. Stevens took off and returned with a law enforcement officer. The police report notes approximately $700 in damage to the two vehicles. During the entire incident, Petitioner’s two minor children were back seat passengers in Petitioner’s vehicle. Following an investigation, the police determined Petitioner was the primary aggressor. Petitioner was charged with one count of aggravated battery with a deadly weapon, and one count of criminal mischief and reckless driving. Petitioner served two days in jail. Petitioner pled nolo contendere to both charges, adjudication was withheld, and Petitioner was placed on 12 months’ probation, ordered to complete 75 hours of community service, attend anger management training, and pay fines and fees amounting to $1,068. Petitioner attended a one-day anger management class through the Salvation Army in 2011. Petitioner was released from probation on May 3, 2012. Employment Following the Disqualifying Offense Petitioner worked as an executive housekeeper for a Hilton Garden Inn in Jacksonville from June 2012 to November 2013. Petitioner worked briefly as a manager at a Subway restaurant between March and October 2014. In November 2014, Petitioner began employment as a manager at a Burger King restaurant in Jacksonville, where she remained employed on the date of hearing. Subsequent Criminal History Petitioner has had no disqualifying offense since the 2011 aggravated battery offense. Petitioner was cited for three traffic infractions between 2011 and 2013. One of the infractions was a criminal charge of driving without a valid driver’s license. The other two citations were for speeding and failing to yield the right- of-way. Petitioner’s Exemption Request Petitioner’s exemption package was slim. In addition to the exemption questionnaire, in which she provided little information regarding herself, Petitioner submitted a one-page narrative letter and two very brief character reference letters. On the questionnaire, Petitioner reported no damage to any persons or property from the disqualifying offense. Further, Petitioner reported no stressors in her life at the time of the offense. As to her current stressors, Petitioner reported none, and listed her family, church, and herself as her current support system. Petitioner reported no counseling other than the one- day anger management class completed in 2011. Petitioner listed no educational achievements or training. As for accepting responsibility for her actions, Petitioner wrote, “I feel very remorse [sic] for my actions and I take full responsibility for them.” One of the character reference letters was from a co- worker (perhaps even someone under her supervision) and did not identify the name of the employer or dates she worked with Petitioner. The letter described Petitioner as “dependable and committed to do her best” as well as “proficient in all cores of her profession.” The author further described Petitioner as a Christian who is very involved with her church and youth ministry, and who is considered a good and loving mother. The author of the second character reference letter did not identify her relationship to Petitioner, but indicated that she had known Petitioner for six years. She described Petitioner as “dependable and committed to the community as a youth leader and big sister to the children of her church.” Further, she wrote, “[Petitioner] is a compassionate and loving person, but above all she is a Christian who loves her children and her church.” In her personal statement, Petitioner described the events surrounding the disqualifying offense as follows: I was involved with a young man at the time of this incidence [sic]. What happen [sic] on that day was this young man had been calling my phone all day and we passed each other on the street in the same neighborhood and I followed him. We both at this time kept calling each others [sic] phone back to back. After a few blocks both cars came to a stop. Neither of us got out of the car. Each of us pulled off the same time and our cars bumped each other. After a few more blocks we stopped again. He got out of the car from the passenger side. I then realize [sic] that he was not the driver. A few minutes later the car came back. An off duty police officer with JSO wrote me a ticket for reckless driving, operating a vehicle with no insurance and criminal mischief. Mean while [sic] two more officers with JSO arrived on the scene and one of the officers decided to arrest me and charged me with aggravated assault with a deadly weapon (with no intent to kill). Petitioner offered nothing else related to the disqualifying offense. Petitioner’s narrative does not reveal an understanding of the seriousness of her offense or offer any explanation for her behavior. Nor does the narrative back up her statements on the questionnaire that she feels remorse and has accepted responsibility for her actions. In formulating its decision to deny Petitioner’s request for exemption, the Agency considered the following factors to be significant: Petitioner’s disqualifying offense occurred just a year after having been granted an exemption from a prior disqualifying offense of grand theft. The offense demonstrated a lack of good judgement and decisionmaking. Petitioner was the primary aggressor. Petitioner’s children were in the car at the time of the incident. Petitioner was 32 years old at the time of the incident. Petitioner reported no life stressors at the time of the disqualifying offense and no significant changes in her life subsequently. Petitioner was not forthcoming in her application about the damage to the vehicles incurred during the incident. Petitioner’s driving record raises a concern with her ability to safely transport Agency clients. The Agency also considered that Petitioner’s character references were not from past or current employers, that they revealed very little about the relationship between the author and Petitioner, and that they did not acknowledge the disqualifying offense or offer any indication of changes in Petitioner’s life. Final Hearing Petitioner’s attitude at hearing was defensive. Petitioner took issue with the description of events surrounding the disqualifying offense noted in the police report. Petitioner particularly stressed that the vehicles were stopped, rather than traveling down the one-lane road side by side, when she threw the soda can into Ms. Stevens’ vehicle. Petitioner denied that she intentionally struck Ms. Stevens’ vehicle, but rather insisted that the vehicles “bumped” as they were both pulling off the road at the same time. Petitioner offered no witnesses on her behalf. Petitioner introduced one additional character reference letter from Reverend Charles G. Skinner, Pastor, Twin Springs Missionary Baptist Church. Pastor Skinner stated that he had pastored Petitioner for 10 years and had witnessed “spiritual maturity” in her life. In the letter, Pastor Skinner described Petitioner as an active member of the church, a devout Christian and mother “with an humbling nature exhibiting a thirst for erudition.” Petitioner did not demonstrate her humble nature at the hearing. Petitioner was defensive, argumentative, and spent her time pointing out “inaccuracies” in the police report. Petitioner has no understanding of the seriousness of her offense, and was “baffled” that the charge included a reference to a deadly weapon when she had no weapon at the time. Petitioner downplayed the event, testifying that the whole incident took maybe 8 to 10 minutes, and that the vehicles were traveling slowly, perhaps 15 to 20 miles per hour. Petitioner acknowledged that her children were in the vehicle at the time of the incident, but insisted they were not in danger and that she would never do anything to put her children in danger. Throughout the hearing, Petitioner emphasized she had no idea Ms. Stevens was driving the vehicle in which her boyfriend was riding, until the vehicles pulled off the roadway. Apparently Petitioner believed that the facts were more favorable to her if it was only her boyfriend she was trying to run off the road, rather than her boyfriend and “the other woman.” Petitioner failed to appreciate that no matter who was driving the vehicle, Petitioner’s actions put them at risk.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 24th day of March, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 24th day of March, 2016.
The Issue Whether the Petitioner's claim should be dismissed.
Recommendation Based on the foregoing, it is RECOMMENDED that the Commission enter a Final Order dismissing this cause. DONE AND ENTERED this 19th day of March, 2008, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 19th day of March, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Elizabeth Coke, Esquire Richeson & Coke, P.A. Post Office Box 4048 Fort Pierce, Florida 34948 Dawn Shook Post Office Box 341 Scottsmoor, Florida 32775
The Issue Whether or not Petitioner may be granted an exemption to work in a position of special trust.
Findings Of Fact Petitioner has been continuously employed with North Florida Evaluation and Treatment Center (NFETC) since November 9, 1994. NFETC is a facility operated by DCF. NFETC houses mentally unstable, criminally charged adult male patients. Petitioner began work at NFETC as a custodial worker. In 1996, he was sought out by his superiors to be trained as a Unit Treatment and Rehabilitation Specialist (UTR). UTRs have direct care and treatment of patients. He completed 180 training hours on or about December 31, 1996. In early 1997, he was promoted to the position of UTR. On January 10, 1997, Petitioner was certified as having completed ACT training. ACT involves DCF-approved methods for safely subduing violent patients. Since his promotion to UTR, Petitioner has performed adequately as a UTR. He has never been involved in a violent incident involving patients. He has not had any disciplinary actions taken against him. A letter from Petitioner's supervisor at NFETC was admitted in evidence without objection. That letter attests to a four-year working relationship with Petitioner during which he has always been "intelligent, creative, dedicated, energetic, and resourceful. . . . He has always remained calm and served as a stabilizing force for others." Prior to the summer of 1998, the position of UTR was not considered a "position of special trust." In the summer of 1998, DCF authorities at NFETC designated all UTR positions as "positions of special trust," and a screening revealed Petitioner's criminal record, which barred him from employment as a UTR. Since then, and pending resolution of the issue herein, Petitioner has continued to be employed at NFETC in a non-direct care position, at a lesser rate of pay. Petitioner's disqualifying criminal offense involved his plea of nolo contendere to a charge of domestic battery (statute number unspecified) on June 16, 1995. At that time, the court withheld an adjudication of guilt; placed Petitioner on probation for one year, with a special condition that he attend the Batterer's Intervention Program; and waived all court costs. On October 4, 1995, Petitioner was in court for violating his probation. Although Petitioner testified that this court appearance was the result of missing or being late for a scheduled meeting with his probation officer due to his brother's death, court documents indicate that Petitioner once again had been arrested for domestic battery (statute unspecified), a charge to which he plead guilty. Petitioner conceded that he spent seventeen days in jail on this occasion. Where Petitioner's version of the facts differs from the court documents admitted in evidence, I find the court documents to be more credible. However, the court documents also show that on this occasion, Petitioner was reinstated to supervised probation. By July 1996, Petitioner had completed all 26 sessions of the Batterer's Intervention Program, spanning six months. Apparently, he did not begin the program until after the last act of domestic violence. During these sessions, Petitioner participated in "acting out" possible physical altercation scenarios and was trained in new methods of avoiding them, new ways of dealing with anger, and how to anticipate ways in which to handle similar situations without violence in the future. On August 5, 1996, a Petition for Unsuccessful Termination of Probation was presented to the court, because Petitioner "would be unable to comply with the [probation] requirements in a timely manner." As a result of this petition, the court discharged Petitioner from probation unsuccessfully and waived the remaining costs of supervision. The most information that can be gleaned from the court documents and Petitioner's testimony concerning the reasons behind the unsuccessful termination of his probation in 1996, is that Petitioner was unable to pay all supervision costs on time, had lost some period of reporting to his probation officer due to his jail time in October 1995, and had unsuccessfully completed his probation due to the domestic battery guilty plea on October 4, 1995. Petitioner testified that he has not been arrested since October 4, 1995. However, he also acknowledged that prior to the initial June 16, 1995, domestic violence charge, there may have been as many as three other arrests as a result of physical altercations with his ex-wife. Petitioner testified that the nature of the June 1995 incident which gave rise to the disqualifying offense was merely that he "put his hands on" his wife to stop her from hitting him, during a period of time in which he was under great stress due to several deaths in his immediate family, the birth of a new baby, and his job as a long-haul trucker. His ex-wife confirmed each of these elements of stress in Petitioner's life at that time, but she was asked no questions concerning the physicality of the disqualifying June 1995 incident, and Petitioner's continuous employment at NFETC since November 1994, would seem to negate his story of being a long-haul trucker in June 1995. Upon all the evidence, I do not find Petitioner credible as to his description of the disqualifying incident. Upon all the evidence, I also do not find credible Petitioner's and his ex-wife's testimony that Petitioner did not strike his wife after 1994. At some point subsequent to October 1995, the couple divorced. Petitioner pays his child support regularly. His NFETC employment provides insurance for his two children. He visits his children regularly at his ex-wife's home and entertains them in his own home. He has a good relationship with both children. He has become friends with his ex-wife Petitioner lives with and cares for his aged and infirm mother. Petitioner attends no church regularly but does attend several churches occasionally. He contributes to the Boys and Girls Clubs of America through the United Way collection at NFETC. He has completed sixteen hours of a writing class in spelling and grammar, which should enhance his performance as a UTR.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying the requested exemption to work in a position of special trust at this time and specifying therein the earliest date that Petitioner may reapply (one year from his last application) if he chooses to do so. DONE AND ENTERED this 5th day of February, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. 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 5th day of February, 1999. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services 1000 Northeast 16 Avenue, Box 3 Gainesville, Florida 32601 Willie Williams, Jr. 821 Southeast 12th Avenue Gainesville, Florida 32601 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner should receive a General Lines Agent license, pursuant to Sections 626.611 or 626.621, Florida Statutes.
Findings Of Fact On April 10, 2003, Petitioner applied for licensure as a General Lines Agent. On May 22, 2003, Respondent denied Petitioner's application for licensure due to his criminal history. On May 30, 2003, Petitioner submitted a timely Election of Rights form, which requested a hearing before the Division of Administrative Hearings. On February 23, 1996, Petitioner was charged with two counts of Depositing Worthless Item with Intent to Defraud in the Circuit Court in and for Orange County, Florida. On July 2, 1996, Petitioner pled nolo contendere to two counts of Depositing Worthless Item with Intent to Defraud. Adjudication of guilt was withheld by the circuit court, and Petitioner was placed on supervised probation for one year and ordered to pay restitution. On March 31, 1997, Petitioner's probation was modified, and then on June 30, 1997, Petitioner's probation was terminated. Petitioner testified as to the circumstances surrounding his plea of nolo contendere to Depositing Worthless Item with Intent to Defraud. He stated that a cousin gave him two post-dated checks to repay a debt and that he deposited them on different days but sought and received permission from his credit union for the immediate release of the funds, in the total amount of $1,435.00. Upon receiving the funds, he used the proceeds to make payments on other accounts. Approximately 30 days later, the credit union informed him that the two checks were returned and marked "account closed" and demanded immediate reimbursement. Petitioner testified that he was only able to make a partial repayment, and, therefore, criminal charges were filed by the state attorney. On the advice of his counsel, he pled nolo contendere to both charges and was placed on probation. While on probation, he repaid approximately 40 percent of the debt and fines. Petitioner believes there is an outstanding balance due of $256.00 plus interest and penalties, for which he is unable to pay because he is presently unemployed. Petitioner testified that he is a trustworthy person and should be granted a waiver from the rules requiring a waiting period, following his conviction, before becoming eligible for licensure. The reason for this request is that he did not intentionally commit these crimes; that he previously worked 20 years successfully in the airline industry which required a background screening for his position; and that he has been studying hard and been offered employment by Liberty Mutual Insurance Group in Orlando, Florida, who did their own background check and approved him for employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a General Lines Agent in this state. DONE AND ENTERED this 24th day of September, 2003, in Tallahassee, Leon County, Florida. S 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 24th day of September, 2003. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph M. Santino 3201 South Semoran Boulevard Number 39 Orlando, Florida 32822-2678 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Is Petitioner entitled to an exemption from being disqualified to work in a position of trust or responsibility?
Findings Of Fact From December 17, 1993 through mid 1995, Petitioner was married to Johnny Coleman. The Colemans had one daughter by that marriage. At the time of the hearing in this cause the child was four years old. Following the dissolution of the marriage Mr. Coleman gained principal custody of the child. At present Petitioner is allowed to see their daughter one night during the week and every other weekend. At present Petitioner is married to Steve Cox and has been since November 8, 1996. On April 17, 1995, Petitioner and Johnny Coleman, who were still married, were returning from an outing at Chehaw Park in Albany, Georgia, to their home in Calvary, Georgia. They had been arguing on the return trip. During the course of the argument, Mr. Coleman threw a can of baby formula, striking their child. This upset Petitioner. When the Coleman's arrived home, Mr. Coleman hit Petitioner with his hand somewhere on her body other than her face. Petitioner responded in kind by striking Mr. Coleman on the back with her hand. In the altercation Petitioner attacked Mr. Coleman with a pocket knife. She admitted this attack to Deputy Kent Harvey, employed by the Grady County Sheriff's Office. Upon Deputy Harvey's request Petitioner produced the pocket knife to be taken as evidence by the investigating deputy. The extent of injuries which Mr. Coleman suffered by virtue of the assault with the knife were scrapes and cuts on his left arm, as observed by Deputy Harvey. But Petitioner denied the assault upon her former husband with a knife when testifying at hearing. Petitioner was arrested for aggravated assault in association with what was described in the offense report by the Grady County Sheriff's Department as involving "family violence." When Deputy Harvey placed Petitioner under arrest he advised Petitioner that he intended to contact the agency in the State of Georgia, comparable to the Florida Department of Children and Family Services. When this statement was made by the Deputy to Petitioner, she replied, "Oh well, if they take her, they take her." This refers to custody of her daughter. In his report Deputy Harvey went on to state that Petitioner "seems to have some kind of mental problems and does not worry about the safety of her child." At the time of the incident Petitioner had been having difficulty with her husband and Petitioner's child had been living with Petitioner's mother, Mrs. Elaine Dutton. Mrs. Elaine Dutton explained at the hearing that Petitioner had been distraught about the death of Petitioner's father sometime before the incident of April 17, 1995. As a consequence of her assault on Mr. Coleman with a knife, Petitioner appeared in the State Court of Grady County, Georgia in the case of the State v. Stacy Coleman, Criminal Action 95-SR-059. On October 9, 1995, Petitioner knowingly pled guilty to the offense of simple assault and was sentenced to a period of twelve months but was allowed to serve that sentence on probation which Petitioner successfully completed. Petitioner's testimony that she pled guilty to the offense of "slapping" her former husband, Mr. Coleman, is not credited. At the time of the hearing Petitioner had been working as a cashier at a Hardee's Restaurant in a full-time position for a period of three to four months. When not working Petitioner stays at home and spends time with her mother, in addition to the time spent with her daughter that has been described. At hearing Petitioner explained her encounter on April 14, 1995, with her former husband, as she perceived it, as an incident that she now realizes "how stupid it was." Petitioner testified that she was relieved that she does not have to be around her former husband anymore, even to the extent of going to pick her daughter up for visitations. Given a further confrontation between Petitioner and her former husband that took place beyond the dissolution of their marriage, the court has ordered that Petitioner's mother be responsible for coordinating the transportation of Petitioner's daughter from the former husband to Petitioner during visits between the daughter and Petitioner. Mrs. Elaine Dutton describes Petitioner's present demeanor as one of maturity compared to the Petitioner's past demeanor. The mother describes Petitioner as being more responsible and more interested in having a "good life." The conduct of a "good life," as Petitioner's mother perceives it, is in the interest of, "so she gets her baby back." Petitioner's mother sees the Petitioner every day. Petitioner's mother described an arrangement in which Petitioner sees a psychologist once a week to help Petitioner. The circumstances involving the April 17, 1995, assault by Petitioner on her former husband were discovered through the conduct of Level 2 screening in accordance with Section 435.04, Florida Statutes. In particular, the decision to disqualify the Petitioner that has been described in the preliminary statement was brought about by screening which determined that Petitioner had been disqualified by virtue of an act constituting domestic violence. See Section 435.04(3)(b), Florida Statutes.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which denies Petitioner's request to be exempt from disqualification to work in a position of trust or responsibility. DONE AND ENTERED this 6th day of April, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1999.
