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 Rules 33ER91-1 and 33ER91-2, Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners, Donald Eugene Halpin and Richard Edward Jackson, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are subject to the rules of the Respondent, including the emergency rules at issue in this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing the rights of inmates, the operation and management of correctional institutions, classification of inmates and all other aspects of the operation of the prison system in Florida. Chapter 33-6, Florida Administrative Code. Chapter 33-6, Florida Administrative Code, governs, among other things, the classification of inmates. Rule 33-6.009, Florida Administrative Code, governs the classification of inmates for purposes of determining the type of custody an inmate should be subjected to. Pursuant to Rule 33-6.009(3), Florida Administrative Code, inmates may be classified in one of five custody classifications: minimum, medium-out, medium-in, close or maximum. History of Changes in Custody Grade Classification of Inmates Since 1990. In June of 1990, Donald D. Dillbeck, an inmate of the Respondent, was classified and placed in a minimum custody classification, which is the least restrictive custody classification. While outside of the institution in which he was housed and while working at a vocational center, Dillbeck escaped from custody of the Respondent and murdered a woman in the parking lot of a shopping center in Tallahassee, Florida. In response to this murder, then Governor Bob Martinez issued an executive order ordering that all medium or minimum custody classifications of capital-life felons be revoked and that all capital-life felons be classified as close custody, the second most restrictive custody classification. Governor Martinez's executive order was followed by the promulgation by the Respondent of Rule 33ER90-4, Florida Administrative Code, amending Rule 33-6.009, Florida Administrative Code. Effective January 23, 1991, the Respondent promulgated Rule 33ER91-1, Florida Administrative Code, amending Rule 33-6.009, Florida Administrative Code. Effective April 23, 1991, at approximately the same time that Rule 33ER91-1 expired, the Respondent promulgated Rule 33ER91-2, Florida Administrative Code, amending Rule 33-6.009, Florida Administrative Code. Rule 33-6.009, Florida Administrative Code, Prior to the First 1991 Emergency Rule. Rule 33-6.009, Florida Administrative Code, prior to its amendment by Rule 33ER91-1, and other subsequent amendments, contained the following general provisions, pertinent to this proceeding: Section (3) contained provisions concerning the manner in which custody grades of inmates were determined; Section (4) contained provisions placing restrictions on the placement of certain inmates into the community; and Section (5) contained provisions placing restrictions on the assignments that certain inmates could be given. In general, Rule 33-6.009(3), Florida Administrative Code, provided the following: Five classes of custody were established. Rule 33-6.009(3)(a), Florida Administrative Code; An initial questionnaire and reclassification questionnaires were required to be completed for all inmates. Rule 33-6.009(3)(b), Florida Administrative Code; Inmates were awarded a numerical score as a result of the completion of the initial and reclassification questionnaires. Each inmate's custody classification was initially determined based upon this numerical score. For example, an inmate with an initial score of six or more and an inmate with a reclassification score of eight or more was classified as close custody. Rule 33-6.009(3)(c), Florida Administrative Code; If an inmate's numerical score was below the score for close custody and the inmate was not within thirty-six months of release, the inmate's custody classification had to be raised to close custody if any of a number of factors referred to as a "custody checklist" applied to the inmate. For example, an inmate serving a sentence for first or second degree murder had to be classified as close custody even if that inmate's questionnaire score was below six points (on an initial questionnaire) or below eight points (on a reclassification questionnaire). Rule 33-6.009(3)(d), Florida Administrative Code; Additionally, an inmate had to be classified as close custody even if the inmate's score was below six or eight points until the minimum mandatory portion, if any, of the inmate's sentence was satisfied or the inmate was within thirty-six months of release, if the inmate was serving time for certain specified offenses. Rule 33-6.009(3)(d)4, Florida Administrative Code; An inmate's custody grade questionnaire score could also be modified upward based upon consideration of other factors specified in Rule 33- 6.009(3)(d)5, Florida Administrative Code, such as whether the inmate's primary offense had been reduced as a result of a plea bargain. Custody grade scores could be modified downward based upon the same factors but only if the custody checklist was met. Rule 33-6.009(3)(d)5, Florida Administrative Code; Finally, all custody assignments had to be reviewed and approved by the superintendent or his designee. Rule 33-6.009(3)(d)6, Florida Administrative Code. Rule 33-6.009(4), Florida Administrative Code, prohibited the placement of an inmate on work release or other community contract bed if the inmate met any of a number of specified factors, including conviction of 1st or 2nd degree murder (unless the inmate had completed the mandatory portion of the inmate's sentence and was within twelve months of release). Rule 33-6.009(5), Florida Administrative Code, prohibited inmates from being assigned to a road prison, vocational center, forestry camp or to a work camp not adjacent to a major institution if the inmate met any of a number of specified factors, including conviction of 1st or 2nd degree murder. Rule 33ER91-1, Florida Administrative Code. Rule 33ER91-1, Florida Administrative Code, amended the substance of Rule 33-6.009(3), (4) and (5), Florida Administrative Code. Rule 33ER91-1 did not amend the five classes of custody established in Rule 33-6.009(3)(a), Florida Administrative Code. Rule 33ER91-1 did not amend the requirement that initial and reclassification questionnaires be completed for all inmates contained in Rule 33-6.009(3)(b), Florida Administrative Code. Rule 33ER91-1 did not amend the manner in which inmates are awarded a numerical score as a result of the completion of the initial and reclassification questionnaires. Each inmate's custody classification is still initially determined based upon this numerical score. Rule 33-6.009(3)(c), Florida Administrative Code. Rule 33ER91-1 did amend Rule 33-6.009(3)(d), Florida Administrative Code, by eliminating the requirement that the custody classification of an inmate with a grade below the score for close custody had to be raised if any of the factors on the "custody checklist" applied to the inmate. Therefore, for example, an inmate serving a sentence for first or second degree murder is not automatically classified as close custody even if that inmate's questionnaire score is below the six points (on an initial questionnaire) or below eight points (on a reclassification questionnaire). Rule 33ER91-1 also amended Rule 33-6.009(3)(d), Florida Administrative Code, by eliminating the requirement that an inmate be classified as close custody even if the inmate's score was below six or eight points until the minimum mandatory portion, if any, of the inmate's sentence was satisfied or the inmate was within thirty-six months of release based upon the specified offenses formerly contained in Rule 33-6.009(3)(d)4, Florida Administrative Code. Rule 33ER91-1, also amended Rule 33-6.009(3)(d)5, Florida Administrative Code. In essence, the amendment to Rule 33-6.009(3)(d)5, Florida Administrative Code, requires that the Respondent consider a number of factors to either increase or decrease an inmate's custody grade questionnaire score. Generally, all of the factors which the Respondent was required to consider under Rule 33-6.009(3)(d), Florida Administrative Code, and all of the factors which required close custody under Rule 33-6.009(3)(d), Florida Administrative Code, must only be considered by the Respondent under the emergency rule. Rule 33ER91-1, eliminated the requirement contained in Rule 33- 6.009(3)(d)6, Florida Administrative Code, that all custody assignments be reviewed and approved by the superintendent or his designee. The superintendent of a prison is now required under the emergency rule to review and approve all modifications to the custody classification resulting from an inmate's questionnaire. Rule 33ER91-1 repealed Rule 33-6.009(4), Florida Administrative Code, and its prohibition on the placement of an inmate on work release or other community contract bed if the inmate met any of the factors specified in this portion of the rule. Finally, Rule 33ER91-1 repealed Rule 33-6.009(5), Florida Administrative Code, and its prohibition on inmates being assigned to a road prison, vocational center, forestry camp or to a work camp not adjacent to a major institution if the inmate met any of the factors specified in this portion of the rule. The weight of the evidence failed to prove that the requirements of Rule 33ER91-1, Florida Administrative Code, are arbitrary or capricious. Rule 33ER91-2, Florida Administrative Code. Rule 33ER91-2, Florida Administrative Code, is for all practical purposes identical to Rule 33ER91-1, Florida Administrative Code. Rule 33ER91-2, Florida Administrative Code, was declared invalid in a Final Order entered on October 1, 1991, in Darryl James McGlamry v. Department of Corrections, Division of Administrative Hearings Case No. 91-2804R.
The Issue The issue is whether Petitioner should be granted an exemption from employment disqualification, thereby allowing him to work in a position of special trust or responsibility.
Findings Of Fact When Petitioner was a very young child, his mother was a drug addict with a criminal history for stealing. When Petitioner was in the fifth grade, he went to live with his father, a public school teacher, and his grandmother in Palm Beach County, Florida. In December 1989, Petitioner was a 13-year-old middle school student. Petitioner became involved with other boys who had a bad influence on him. On one occasion, Petitioner was present when the group tried to bully another student into giving up his lunch money. The victim did not sustain any significant physical injury. As a result of that incident, Petitioner was charged with attempted strong arm robbery. In a subsequent trial in juvenile court, a circuit judge in Palm Beach County, Florida, determined that Petitioner had committed the delinquent act of battery on a minor as the lessor included charge of attempted strong arm robbery. The judge withheld adjudication of a delinquent act, placing Petitioner in a community control program under the supervision of a counselor. The judge required Petitioner to complete 20 hours in a community service work program. Most importantly, the judge instructed Petitioner to have no further contact with certain people. On August 13, 1990, the circuit judge entered an Order terminating Petitioner's supervision in Case No. CJ-90-0281-JK. The Order states that Petitioner had successfully fulfilled all conditions of the community control program for a reasonable period of time. After graduating from high school, Petitioner went to college in August 1995. From June 1995 through June 1998, Petitioner worked for Target Department Stores in West Palm Beach, Florida. His job title was loss prevention specialist, which involved monitoring the store for shoplifting and preparing data on the inventory losses. Petitioner quit his job with Target Department Stores to attend college at Bethune-Cookman College in Daytona Beach, Florida. While he was enrolled at Bethune-Cookman College, Petitioner became the primary custodian of his infant son. On February 12, 1999, Petitioner was on his way home from class in Daytona Beach, Florida. Based on a case of mistaken identity, Petitioner was stopped and arrested for robbery. Soon thereafter, the authorities realized that Petitioner was not the perpetrator of the robbery. On March 23, 1999, the state attorney for Volusia County, Florida, filed an Announcement of No Information in Case No. 99-30708CFAES, in the Circuit Court, Seventh Judicial Circuit, in and for Volusia County, Florida. The state attorney directed the police department to hold all physical evidence because charges were to be filed against the actual perpetrator. Petitioner's mother was released from prison in 1998. Petitioner and his sister, a public school teacher, decided that they would try to help rehabilitate their mother. On November 11, 1999, Petitioner went to a department store in Volusia County, Florida, with his girlfriend, his mother, his mother's boyfriend, and one of his mother's male friends. Petitioner was the last member of the group to enter the store. Petitioner spoke to his mother and went to the restroom in the store. Petitioner then shopped for a shirt but left the store with the group without buying anything. Clear and convincing evidence indicates that Petitioner and his girlfriend were not engaged in shoplifting while they were in the store. Petitioner's testimony that he was unaware that his mother, his mother's boyfriend, and his mother's other male friend were shoplifting is also clear and convincing. As the group left the store, the store's security officer approached the group, demanding the return of all stolen merchandise. Petitioner immediately showed the security officer that he did not have any merchandise. The security officer gave Petitioner permission to leave the premises. Petitioner's mother, her boyfriend, and her other male friend were in possession of stolen merchandise. The two male friends took off running through the parking lot. Petitioner's mother returned the stolen merchandise in her possession to the security officer and got in the car with Petitioner and his girlfriend. As Petitioner left the parking lot with his two passengers, the police arrived on the scene. Petitioner admitted during the hearing that it was wrong to let his mother leave the premises with him after he learned about her theft of merchandise. Petitioner's girlfriend subsequently returned to the department store to inquire about the boyfriend and other male friend of Petitioner's mother. Petitioner's girlfriend also went to the police station to determine whether the two men had been arrested. After she began to make these inquiries, Petitioner's girlfriend was arrested. About a month after the incident, a warrant was issued for Petitioner's arrest for grand theft. Petitioner turned himself in to the authorities as soon as he learned about the warrant. Petitioner's arrest for grand theft was based on a statement in a police report that merchandise valued at approximately $600 was stolen from the store on November 11, 1999. However, there is no persuasive evidence as to the actual value of merchandise stolen from the store. In regard to the charges against Petitioner for grand theft, Petitioner subsequently entered into a pretrial intervention agreement with the state attorney in the Seventh Judicial Circuit, in and for Volusia County, Florida, in Case No. 99-35807-CFAES. After successfully complying with the terms of the agreement, the state attorney issued a Notice of Completion of Pretrial Intervention and Nolle Prosequi in that case on March 12, 2001. Petitioner graduated from Bethune-Cookman College in July 2000. He earned a bachelor of science degree in criminal justice. On or about May 2, 2001, Petitioner applied for employment with Respondent as a senior juvenile detention officer. He applied for vacant positions at the Volusia County Regional Juvenile Detention Center in Volusia County, Florida, and the St. Johns River Juvenile Detention Center in St. Augustine, Florida. The position of senior juvenile detention officer requires caretaker/direct contact with juveniles. In Petitioner's employment application, he indicated that he had never had the adjudication of guilt withheld to a crime which was a felony or a first-degree misdemeanor. This was not a true statement because adjudication was withheld in Palm Beach County Circuit Court Case No. CJ-90-0281-JK for battery on a minor, which is a first-degree misdemeanor pursuant to Section 784.03, Florida Statutes. Petitioner signed the application, certifying the following in relevant part: I am aware that any omissions, falsifications, misstatements, or misrepresentations about may disqualify me for employment consideration and, if I am hired, may be grounds for termination at a later date . . . I certify that to the best of my knowledge and belief all of the statements contained herein and on any attachments are true, correct, complete, and made in good faith. By letter dated May 3, 2001, Petitioner advised Respondent's Inspector General that a background investigation would reveal Petitioner's 1990 conviction for battery on a minor as a lesser included offense of strong arm robbery, both of which are disqualifying offenses for employment with Respondent. The purpose of writing this letter was to request an exemption from employment disqualification. Respondent received this letter on or about May 9, 2001. On May 10, 2001, Petitioner signed a notarized application affidavit, which states as follows in pertinent part: I fully understand that in order to qualify as a Juvenile Justice direct care employee, I must comply with the provisions of Section 985.406, Florida Statutes, as follows: * * * 3. Not have been convicted of any felony or of a misdemeanor involving perjury or false statement, not have received a dishonorable discharge from any of the Armed Forces of the United States. Any person who, after October 1, 1999, pleads guilty or nolo contendere to or is found guilty of a felony or of a misdemeanor involving perjury or false statement shall not be eligible for employment or appointment as a direct care employee, not withstanding suspensions of a sentence or withholding of adjudication. * * * In addition, I attest to the following: Yes No I understand that by executing this document I am attesting that I have met the qualifications as specified and have provided documentation of proof of my qualifications to the above listed employing agency. Yes No I have read my employment application and it is true and correct, and all other information I will furnish in conjunction with my application is true and correct. NOTICE: This document shall constitute an official statement within the purview of Section 837.06, Florida Statutes, and is subject to verification by the employing agency and/or the Florida Department of Juvenile Justice. Any international [sic] omission when submitting application or false execution of this affidavit shall constitute a misdemeanor of the second degree and disqualify you from employment as a juvenile justice direct care employee. I hereby certify that to the best of my knowledge and belief, the information that I entered on this form is true. Petitioner signed this affidavit and circled the word "Yes" in the above referenced attestation. On May 10, 2001, Petitioner signed a form giving his consent for Respondent to perform background screening of Petitioner's criminal history, driver's license history, and delinquency reports (juvenile criminal history). The form clearly states that Respondent has access to all criminal records, even those which have been sealed or expunged. On May 10, 2001, Petitioner signed a form entitled Affidavit of Good Moral Character. In this affidavit, Petitioner acknowledged that his record contained "one or more of the disqualifying acts or offenses" listed in the affidavit. Specifically, Petitioner's conviction for battery on a minor in 1990 was a violation of Section 784.03, Florida Statutes. That statute was listed in the affidavit as a disqualifying offense. On or about May 21, 2001, Respondent completed the investigation of Petitioner's background. In addition to the 1999 conviction for battery on a minor, the investigation revealed Petitioner's arrests in 1999 for robbery and grand theft. By letter dated May 25, 2001, Respondent advised Petitioner that he could request a desk review of his background screening application. The letter requested Petitioner to submit the desk review request form and any supporting documentation within 30 days. Specifically, Respondent requested Petitioner to furnish the following in pertinent part: CERTIFIED police reports and/or arrest reports and CERTIFIED judgement/disposition from the Clerk of Courts for disqualifying criminal offense, as well as for any other criminal offenses to which the [sic] you have either pled guilty or no contest or been found guilty. If these documents cannot be obtained, you will need to present certified statements from the courts and law enforcement agencies indicating the records is [sic] not available or does [sic] not exist. Offense Date Authority Arrest 1: Robbery, Reduced 1/16/90 Juvenile to Battery on Adj. W/H Minor A detailed, written and notarized description of the circumstances leading up to and surrounding the disqualifying criminal offense. The time period which has elapsed since the offense. Whether there was any harm caused to victims and the nature of that harm. Your personal history since the offense (work, education, civic, religious history, etc.) And, such other circumstances as shall be sufficient to indicate that you will not present a danger to the safety or well being of juveniles. A statement as to whether you have been involved in any other criminal offenses either prior to subsequent to the commission of the disqualifying offense. . . . Petitioner received this letter on or about June 5, 2001. Petitioner subsequently sent Respondent a form dated June 5, 2001, seeking a desk review of his request for an exemption from disqualification based on the fact that he had clear and convincing evidence to support a reasonable belief that he was of good moral character. Respondent received Petitioner's request on or about June 19, 2001. By letter dated June 13, 2001, Petitioner advised Respondent as follows in pertinent part: Since the commission of the disqualifying offense in my middle school years, I have not been convicted or had adjudication withheld against me on any charges. This letter did not refer to Petitioner's arrests in 1999. By letter dated June 13, 2001, Petitioner provided Respondent with a detailed explanation of the circumstances surrounding the disqualifying offense. Petitioner did not reference his 1999 arrests in this letter. By letter dated June 13, 2001, Petitioner advised Respondent as to his qualifications and desire to work with juveniles. Petitioner did not reference his 1999 arrests in this letter. At Petitioner's request, three professors at Bethune- Cookman College sent Respondent letters of reference for Petitioner. The Mayor of Daytona Beach and Petitioner's then current employer also wrote letters in support of Petitioner's application for employment with Respondent. At least one of the Bethune-Cookman College professors was aware of Petitioner's criminal history, including his arrests in 1999. At some point in time, Petitioner provided Respondent with certified copies of the 1990 Order and Order Terminating Supervision relating to the disqualifying offense. Petitioner also furnished Respondent with copies of the 1999 Announcement of No Information relating the robbery charge and the 1999 Notice of Completion of Pretrial Intervention and Nolle Prosequi relating to the grand theft charge. Additionally, Petitioner provided Respondent with a copy of the police report relating to the grand theft charge. Petitioner never provided Respondent with a written statement explaining his arrests in 1999. By memorandum dated June 20, 2001, Respondent's staff requested Respondent's Inspector General to review Petitioner's background screening file and indicate whether Petitioner's request for an exemption was granted or denied. The Inspector General denied Petitioner an exemption. By letter dated June 21, 2001, Respondent advised Petitioner that his request for exemption from employment disqualification was denied. Petitioner was 25 years old at the time of the hearing. He is currently working as a licensed security guard.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is ORDERED: That Respondent enter a final order finding that Petitioner is entitled to an exemption from disqualification. DONE AND ENTERED this 28th day of January, 2002, 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 28th day of January, 2002. COPIES FURNISHED: Shawnee S. Lawrence, Esquire 1010 West 4th Street Rivera Beach, Florida 33404 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Did Respondent violate the provisions of Section 817.567, Florida Statutes (2004), or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statutes (2004), and Florida Administrative Code Rule 11B-27.0011(4)(b) and/or (c), by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes (2004), requiring maintenance of good moral character?
Findings Of Fact Undisputed Facts: Respondent was certified by the Criminal Justice Standards and Training Commission on September 5, 1995, and was issued Correctional Certificate Number 157626. Additional Facts: Petitioner's Exhibit numbered A11 is a copy of an interoffice memorandum from Respondent to the "Personnel Dept." This reference to the personnel department is taken to refer to the Florida Department of Corrections, in view of other proof in this record. The interoffice memorandum goes on to describe as the subject "transcript and diploma." The interoffice memorandum says "I have enclosed a copy of my diploma and transcript. Please place these in my personnel file and update my records and incentive. Thank you, W.S.D." The exhibit reflects in a handwritten note of unknown origins, "This diploma & transcript are ineligible for CJIP because this is not an accredited college." Nothing else in this record describes the nature of the transcript and diploma referred to in the interoffice memorandum concerning the particulars of the transcript and diploma that was mentioned on January 31, 1999, nor can it be reasonably inferred. As evidenced by Petitioner's Exhibit numbered A15, Respondent prepared and signed an employment application with the Florida Department of Corrections for the position of Correctional Probation Officer on June 14, 2004. In the course of this application Respondent listed under the section related to college university or professional school "Southern Mississippi" at "Hattiesburg, Mississippi", which he allegedly attended from August 1996 through August 2003, participating in a course of study referred to as "Criminal Justice" at which, according to the application, he earned an M.S. degree. In fact Respondent had never attended the University of Southern Mississippi as explained in correspondence dated July 6, 2004, from Greg Pierce, University Registrar at the University of Southern Mississippi directed to Terry Foskey, a payroll specialist with the Department of Corrections, Region I Service Center, who had inquired of the University of Southern Mississippi concerning Respondent's status as a student. This correspondence is Petitioner's Exhibit numbered A9. Moreover, a transcript, Petitioner's Exhibit numbered A3, which Mr. Foskey had supplied a verification specialist in the registrar's office at the University of Southern Mississippi, Trudy Stewart or Steward, was found not to resemble a transcript from that university, as explained by Mr. Pierce in his correspondence. The transcript, Petitioner's Exhibit numbered A3, had been received by Mr. Foskey on June 28, 2004. Mr. Foskey was uncertain of the information contained in the transcript. This led to his inquiry to the University of Southern Mississippi, with the determination being made that the transcript did not come from that university. While Mr. Foskey was attempting to clarify the status of the transcript with the University of Southern Mississippi, he was contacted by Respondent who asked if Mr. Foskey had received the transcript. Mr. Foskey replied that he had and asked what Respondent wanted done with that transcript. Respondent answered that he had pulled up information on a program known as ATMS, which the Florida Department of Law Enforcement uses to track certified officers, Respondent among them. As a result Respondent said that he needed this document, meaning the transcript, entered into the ATMS because he was transferring from his present position into another position he referred to as security. There was a series of e-mails as reflected in Petitioner's Exhibit numbered A8 from Respondent to Mr. Foskey. The first was on July 1, 2004. It says "Per telephone call, please place information in ATMS 2 and in my personnel file Thanks." Then the name and position of Respondent as Classification Officer at Santa Rosa CI-119 is provided. On that same date another e-mail was dispatched from Mr. Foskey back to Respondent which said "Thank you for the follow-up." As reflected in the exhibit, on July 7, 2004, Respondent sent an e- mail to Mr. Foskey, with the subject line being "Re: Transcript," which said in its text, "Mr. Foskey, how long does it take for the information to be entered into ATMS 2?" The change in employment position by Respondent that was being described for Mr. Foskey related to the application, Petitioner's Exhibit numbered A15. Pertinent to this inquiry, the Correctional Probation Officer job being sought by Respondent required a bachelor's degree level of education as a prerequisite to filling the position. The reference made by Respondent to the M.S. degree from University of Southern Mississippi is perceived as Respondent's attempt to show that he had the necessary level of education to apply for the job. In relation to his pursuit of the Correctional Probation Officer position, on June 8, 2004, Respondent had filed a request for demotion with the Regional I Service Center Department of Corrections for personal reasons, requesting permission to move from his position of Senior Classification Officer to that of Correctional Probation Officer. This is reflected in Petitioner's Exhibit numbered A15A. As a result of the incident concerning the purported transcript from the University of Southern Mississippi, the Department of Corrections, Office of the Inspector General investigated. That investigation was conducted by David Ellis. In a discussion between Mr. Ellis and Respondent concerning the subject transcript, Respondent acknowledged that he had the documentation sent to personnel, taken to mean the personnel office with the Department of Corrections. Respondent told Mr. Ellis that he had requested that the transcript be sent to personnel and had supplied information to a company to have it sent. Respondent did not remember the name of the company, as he explained to Mr. Ellis. Respondent told Mr. Ellis that he had read a personnel memorandum on the Department of Corrections website about a university in southern Florida that would accept life experience for college credits and that he, meaning Respondent, searched the web and found that the University of Southern Mississippi did likewise. The memorandum about the university in southern Florida, refers to Florida Southern College, and is found to be that as reflected in Respondent's Exhibit numbered A5. Respondent then sent an e-mail to the internet company requesting information about college degrees. The company sent him a package explaining the process and he sent something back about his life experiences, with a check of $800.00 and a list of other college credits earned elsewhere. Respondent told Mr. Ellis that he then received the subject transcript at his home from the University of Southern Mississippi on a later date. This is found to be as arranged through the internet company. The transcript that he received at home, Respondent compared to the one that had been received by Mr. Foskey and Respondent told Mr. Ellis they were the same with the exception that his transcript copy had a seal in the middle. Respondent acknowledged to Mr. Ellis that he had not taken any of the courses on the transcript that has been described and had not earned any grades for any of those courses reflected on the transcript. When Mr. Ellis asked Respondent why he would send something to personnel that he had never officially done, Respondent replied because he thought it was all right. Mr. Ellis asked Respondent to give him information about the internet company that Respondent had referred to and any information regarding payment to that company by Respondent. Respondent called Mr. Ellis back and told him that the name of the company was CustomDegrees.com. It is found that Respondent's Exhibit numbered 4 is information from CustomDegrees.com that Respondent relied on. Nothing about this information from CustomDegrees.com provided to Respondent, and for which Respondent paid a service fee, could reasonably be interpreted to serve as the functional equivalent of having earned the degree from the University of Southern Mississippi for which Respondent intended to take credit. Petitioner's Exhibit numbered A3A constitutes a handwritten educational history which Respondent provided to CustomDegrees.com for them to provide the degree which was falsely portrayed as having been issued by the University of Southern Mississippi.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered finding violations of the Statutes and Rules referred to and suspending Respondent's Correctional Certificate Number 157626 for 60 days. DONE AND ENTERED this 12th day of April, 2006, in Tallahassee, Leon County, Florida. S 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 12th day of April, 2006. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 R. John Westberry, Esquire Holt & Westberry, P.A. 1308-B Dunmire Street Pensacola, Florida 32504 Michael Crews, Program Director Criminal Justice Standards and Training Commission 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 Whether the Petitioner should be disqualified to work in a position of special trust.
Findings Of Fact The Department disqualified the Petitioner to work in a position of special trust and denied the Petitioner an exemption from that denial. Subsequently, the Petitioner timely challenged the agency's decision. The Petitioner is employed by Eckerd Youth Alternatives, Inc. (EYA) an entity that operates the Eckerd Youth Development Center at Okeechobee, Florida. He has worked as a youth counselor at that facility since 1993. EYA contracts with the state of Florida to provide facilities for the juvenile justice system and, as such, must comply with employment qualifications for persons working with the juveniles assigned to the facility. The screening of EYA employees must be updated every five years. As part of the background screening process, EYA submitted paperwork for the Petitioner in 1998. The Department did not issue its disqualification decision until February 25, 2000. Thereafter, the Petitioner sought an exemption from the disqualification decision which was also denied by the Department on April 7, 2000. The delays in the re-screening decisions were not attributable to the Petitioner. The Department based its disqualification of the Petitioner and denial of the exemption on the criminal history set forth below. In 1995, the Petitioner entered a plea of nolo contendere to the possession of a weapon charge. Adjudication of guilt on this charge was withheld by the court. Based upon the plea on the weapon charge, the Petitioner received a two-year probation, the weapon was forfeited, and he was ordered to pay court costs and fees. He successfully completed all aspects of the sentence. In 1994, the Petitioner entered a plea of nolo contendere to a charge of domestic violence, a misdemeanor. The Petitioner was adjudicated guilty on this charge and sentenced to one year of probation. He successfully completed all aspects of the sentence on this case. The Department contends that domestic battery/violence is a disqualifying offense which precludes the Petitioner's employment in a position of special trust at the Eckerd Youth Development Center. At all times during his employment by EYA, the Petitioner has served as an outstanding employee. EYA timely filed all the necessary paperwork to have the Petitioner re-screened for employment purposes. At all times during his employment by EYA, the Petitioner has been an excellent role model. He has not exhibited any conduct that would suggest minors would be placed at risk of physical harm if placed in his care. According to Mr. Timko, the Petitioner is "probably one of the most mild- mannered, positive role models that we have out there." The Petitioner's explanations regarding his criminal record have been deemed sufficient and persuasive as to the facts of the underlying incidents. In particular as to the domestic battery/violence incident, it is found that the Petitioner did not harm the alleged victim.
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 either granting the Petitioner the exemption sought or finding that he has not committed an act of domestic violence such that he must be disqualified from employment in a position of special trust. DONE AND ENTERED this 9th day of November, 2000, 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 9th day of November, 2000. COPIES FURNISHED: Johnny R. Jenkins 3745 Northwest 27th Avenue Okeechobee, Florida 34972 Lynne T. Winston, Esquire Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue is whether the Petitioner forfeited his retirement benefits due to criminal convictions.
Findings Of Fact According to the Petition for Hearing, the Petitioner was an educator employed with the Brevard County School Board and taught in a public elementary school when he was charged with lewdly molesting six minor female students during the 2000/2001 academic year by patting or touching them on their clothed buttocks or clothed breasts. The charges were filed in March 2001. The Petitioner denied the charges and stood trial by jury. In January 2005, the Petitioner was adjudicated guilty on three second-degree felony counts of lewd molestation and one first-degree felony count of lewd molestation in violation of section 800.04(5), Florida Statutes. The former investigator for the State Attorney’s Office that prosecuted the Petitioner testified at the final hearing in this case that the alleged victims made statements to him about the Petitioner’s crime and its relation to his employment as a teacher, and that he went to the school to document the setup of the Petitioner’s classroom. The investigator had no personal knowledge, and it was unclear from his testimony whether he received information about the Petitioner’s crime and its relation to his employment from anyone other than the alleged victims. The Petitioner was a member of the Florida Retirement System (FRS) at the time of the criminal charges against him and would have been entitled to retirement benefits if it were not for the criminal convictions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order: denying the Petition for Hearing; and holding that the Petitioner forfeited his retirement benefits, except for the return of any accumulated contributions, when he was convicted of felonies for lewd or lascivious molestation of minor female students at the school where he was employed. DONE AND ENTERED this 21st day of October, 2016, 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 21st day of October, 2016. COPIES FURNISHED: Thomas D. Sommerville, Esquire Law Offices of Thomas D. Sommerville, P.A. 820 North Thornton Avenue Orlando, Florida 32803 (eServed) Thomas E. Wright, Esquire Office of the General Counsel Department of Management Services Suite 160 4050 Esplanade Way Tallahassee, Florida 32399 (eServed) Elizabeth Stevens, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) J. Andrew Atkinson, General Counsel Office of the General Counsel Department of Management Services Suite 160 4050 Esplanade Way Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue for determination is whether Petitioner’s request for exemption from employment disqualification should be granted.
Findings Of Fact On April 30, 1996, James L. Wilson was arguing with his wife. Mr. Wilson’s stepson entered into the argument. The stepson was 15 years old. Mr. Wilson, using his open hands, pushed his stepson in the chest, causing his stepson to fall over a chair and onto the floor. This incident occurred in Richmond County, Georgia. As a result of Mr. Wilson’s action against his stepson, Mr. Wilson was arrested and charged with a misdemeanor offense of simple battery. On May 1, 1996, Mr. Wilson pled guilty to the simple battery charge before the court in Richmond County, Georgia, and was sentenced to 12 months' probation and ordered to pay a fine of $150. As conditions for his probation, Mr. Wilson was ordered to have no violent contact with his stepson and to pay $20 per month for probation supervision fees. Subsequently, Mr. Wilson’s relationship with his stepson greatly improved. Mr. Wilson and his stepson get along well with one another. In July 1997, Mr. Wilson began employment with Corrections Corporation of America (CCA) in the State of Florida to assist CCA in the establishment of a program for juveniles in Florida. He was transferred by CCA from the State of South Carolina where he worked with juveniles for CCA. CCA is a contract provider with the State of Florida, Department of Juvenile Justice (Department). Working in Florida, Mr. Wilson was a shift commander at CCA’s Okeechobee Youth Offender Camp in Okeechobee, Florida. As shift commander, he supervised six staff members, supervisors of two main shifts, and 50 juvenile offenders. Mr. Wilson worked directly with juveniles. Subsequently, Mr. Wilson became the assistant maintenance/training officer, training staff at CCA’s Okeechobee Redirect Center for Juvenile Offenders. Mr. Wilson worked directly with juveniles. Mr. Wilson was in a caretaker position with CCA at both locations. Being in the positions with CEA in Florida, Mr. Wilson was required to make application for a caretaker position with CCA. In conjunction with the application, the Department required Mr. Wilson to submit to a background screening conducted by the Department’s Background Screening Unit, Bureau of Investigations (Screening Unit). Only a Florida criminal history check was conducted by the Screening Unit, which revealed no criminal history for Mr. Wilson. As part of the background screening process, Mr. Wilson was required to sign and submit two notarized affidavits (Affidavit of Good Moral Character), which were dated July 7, 1997, and December 31, 1997, respectively. On both affidavits, Mr. Wilson indicated that he had no disqualifying offenses that would deem him ineligible to work in direct contact with juveniles. Listed on each affidavit, as one of the disqualifying offenses, was "battery, if the victim of the offense was a minor," which is the offense for which Mr. Wilson was convicted in May 1996 in Richmond County, Georgia. Neither affidavit stated as to whether the offense was a misdemeanor or felony. Before signing each affidavit, Mr. Wilson communicated with his supervisor at CCA. He explained to his supervisor about the misdemeanor and queried his supervisor as to whether he should indicate that he had a disqualifying offense. Mr. Wilson’s supervisor advised him that the focus of the affidavits was on felonies. Even though neither affidavit stated that the offenses were misdemeanors or felonies, Mr. Wilson indicated that he had no disqualifying offense. In completing the affidavits, Mr. Wilson had no intention to deceive. However, the responsibility was upon Mr. Wilson to complete the affidavits and to complete them accurately and honestly. He should have known to indicate on the affidavits that he had a disqualifying offense in the absence of the affidavits stating whether the offenses were misdemeanors or felonies. After Mr. Wilson began working in Florida with CCA, he was also required to undergo a state and federal fingerprint check. The fingerprint checks revealed the simple battery on his stepson and also revealed a 1995 arrest for a misdemeanor simple battery in the State of Georgia, which was nolle prossed. By letter dated February 22, 1999, Mr. Wilson was notified by the Screening Unit’s supervisor of his potential disqualification from employment based upon the two arrests revealed by the fingerprint checks. The letter included identifying information regarding the arrests. The Screening Unit's supervisor requested that Mr. Wilson submit certified copies of arrest reports, court dispositions, and other court documents regarding the two arrests. Mr. Wilson complied and subsequently submitted the requested information. The Department reviewed the information. The Department determined that Mr. Wilson was ineligible for continued employment in a position of special trust based upon the May 1, 1996, misdemeanor simple battery against his stepson. By letter dated April 29, 1999, the Screening Unit’s supervisor notified Mr. Wilson that he was ineligible and that he could request an exemption from disqualification. CCA was also notified simultaneously of Mr. Wilson’s ineligibility and was instructed to immediately remove him from direct contact with juveniles. CCA removed Mr. Wilson from direct contact with juveniles. Mr. Wilson requested an informal exemption hearing, which was held on June 8, 1999. The hearing was conducted by a committee of two individuals, who only had the authority to make a recommendation to the Inspector General who had final decision-making authority. In a report dated June 16, 1999, the committee recommended that, although Mr. Wilson had rehabilitated himself, his exemption be denied based upon his falsification of the two notarized affidavits. 1/ The committee’s recommendation, along with the entire background screening file, was forwarded to the Department’s Inspector General. After reviewing the recommendation and the file, the Inspector General denied Mr. Wilson’s request for exemption. The Inspector General denied the exemption on three grounds. First, Mr. Wilson’s falsification of the two notarized affidavits was proof of Mr. Wilson’s lack of good moral character and of rehabilitation. Second, an insufficient amount of time had elapsed since Mr. Wilson’s commission of simple battery on his stepson, a minor, to establish good moral character and rehabilitation. Third, Mr. Wilson failed to show that he had successfully completed his probationary period regarding his conviction of simple battery on his stepson. By letter dated June 22, 1999, the Inspector General notified Mr. Wilson that his request for exemption was denied.
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 denying James Wilson an exemption from disqualification of employment to work in a position of special trust or responsibility with it. DONE AND ENTERED this 26th day of January, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 January, 2000.
The Issue Whether the Agency for Persons with Disabilities’ (Agency) intended action to deny Petitioner’s application for exemption from disqualification for employment is an abuse of the Agency’s discretion.
Findings Of Fact Parties and Background Petitioner is a 41-year-old male residing in Gainesville, Florida. For the last four months Petitioner has been employed by Plane Techs, where he has been contracted out to Haeco Aviation for repair of interior aviation mechanics. Petitioner wishes to become employed by Successful Living II, an Agency provider which operates residential treatment group homes serving people with both moderate and severe behavioral disabilities. Respondent is the state agency responsible for licensing and regulating the employment of persons in positions of special trust. Specifically, the Agency’s mission includes serving and protecting vulnerable populations, including children and adults with developmental disabilities. Disqualifying Offenses Petitioner’s record contains two felony offenses which automatically disqualify him from employment in any position of special trust with children or vulnerable adults. The first offense is the armed robbery of an Arby’s restaurant in Lake City, Florida, in May 1998. Petitioner conspired with his two male cousins, then employees of the subject Arby’s, to rob the restaurant. A first attempt was scrapped due to the number of customers in the restaurant, but Petitioner returned and finished the job just prior to closing. Petitioner was tried and convicted by a jury of both armed robbery and burglary of an occupied structure. He was sentenced to 32 months in prison, followed by eight months of probation. In the second offense the same month as the first, Petitioner and the same two cousins robbed a man in the parking lot of a hotel in Gainesville. The trio held up the man at gunpoint and deprived him of a duffle bag containing a computer and other valuables, as well as his wallet containing cash and credit cards. Petitioner was tried and convicted by a jury of aiding and abetting robbery while armed with a deadly weapon. He was sentenced to 64 months in prison, to be served concurrently with the sentence from the first offense. Petitioner was 22-years old at the time of the disqualifying offenses. Petitioner served 64 months (approximately five years) in a state correctional facility and eight months’ probation. The Department of Corrections terminated his supervision on December 13, 2010. At hearing, Petitioner denied that he and his co- conspirators used a gun during the Arby’s robbery. He failed to appreciate that adjudication of the offense had established a weapon was utilized. At hearing, Petitioner downplayed his involvement in the robbery of the man in the hotel parking lot. Petitioner insisted that he had no idea his cousin was going to rob the man until the robbery was underway. However, Petitioner admitted that he participated in the robbery by ordering the victim to kick over his duffle bag, while his cousin threatened the victim at gunpoint. Subsequent Non-Disqualifying Offenses Petitioner’s background screening revealed several non- disqualifying offenses subsequent to Petitioner’s incarceration.1/ Respondent alleges Petitioner had three probation violations: (1) driving with a suspended license on October 14, 1998; (2) an unspecified violation on March 23, 2004; and (3) failure to appear on May 26, 2004.2/ No court records concerning these alleged probation violations were offered in evidence. According to a letter from the Columbia County Clerk’s office, no records of the alleged violations could be located. Respondent submitted no evidence of the source of information for the alleged probation violations. The record does contain an Affidavit of Probation Violation dated March 3, 2004, in which Probation Officer Aaron Robert attested to Petitioner’s violation of a condition of his probation requiring Petitioner to complete 100 hours of community service within one year of his release from prison. The affidavit states that, as of that date, Petitioner had submitted proof of completion of only 28 hours. The record also contains an Order of Modification of Probation entered on July 8, 2004, finding Petitioner admitted to the violation, was found in violation, and adjudicated guilty of the violation. However, the same terms of probation were reinstated. The record supports a finding that Petitioner is guilty of only one probation violation subsequent to commitment of the disqualifying offenses. 20. (DWLS) in Petitioner was cited for driving with license November and December 2006; October 2009; and suspended February, July, and August 2011. 21. With regard to the November and December 2006 DWLS adjudications, Petitioner’s license had been suspended for lack of insurance. Petitioner claimed not to have known his license had been suspended when he was first stopped in November 2006. For the November 2006 DWLS charge, Petitioner pled guilty and was sentenced to serve 12 months’ probation and ordered to pay court costs, fines, and fees. Columbia County Court Judge Tom Coleman presided over Petitioner’s case, and terminated Petitioner’s probation on January 31, 2008, finding Petitioner had satisfied all conditions of probation. Petitioner likewise plead guilty to the December 2006 DWLS charge, was placed on 12 months’ probation, and ordered by Judge Coleman to complete 50 hours of community service and produce a valid driver’s license within 10 months. Judge Coleman allowed the probation to run concurrent with the November sentence. Judge Coleman terminated Petitioner’s probation on January 31, 2008, finding Petitioner had satisfied all conditions of probation. On October 4, 2008, Petitioner was cited for violating a municipal open container ordinance, and ordered to appear in Columbia County Court on October 30, 2008. Although the citation was admitted in evidence, no court record of the violation was produced in response to Petitioner’s records request. Again in 2009, Petitioner’s automobile insurance was canceled for nonpayment, leading to the suspension of his driver’s license. On October 27, 2009, Petitioner was again charged with DWLS and ordered to appear in county court on November 10, 2009. On March 11, 2010,3/ Petitioner was ordered to pay court costs, fines, and fees in the amount of $373.50 by September 9, 2010, or return to court on that date. On November 16, 2010, Petitioner appeared before Judge Coleman on the October 27, 2009 DWLS charge. Judge Coleman withheld adjudication and again sentenced Petitioner to 12 months’ probation and payment of court costs (of which $343.50 was remaining from the partial payment plan), allowing for early termination within six months, if all conditions were met. In 2011, Petitioner became employed at Target and assumed the risk of driving to and from work without a valid license in order to earn an income. Petitioner was stopped by police three separate times that year and cited for driving with a suspended license.4/ During the February 2011 traffic stop, Petitioner falsely identified himself as his cousin, and gave his cousin’s address, in an effort to avoid another citation. However, the police officer discovered Petitioner’s Target employee badge which revealed his correct identity. Petitioner was charged with both giving a false name to law enforcement (Count I) and DWLS (Count II). On March 29, 2011, Judge Coleman entered an order withholding adjudication on Count I, but adjudicating Petitioner guilty on Count II. As to Count I, Judge Coleman sentenced Petitioner to 12 months’ probation and ordered Petitioner to write a letter of apology to the arresting officer, pay court costs and fees, complete 15 community service hours per month until Petitioner either became employed or completed 150 hours, and produce a valid driver’s license within 10 months. As to Count II, Petitioner was also sentenced to 12 months’ probation to run concurrently with the sentence for Count I. Unfortunately for Petitioner, the March 29, 2011, adjudication constituted a violation of the probation order entered on September 16, 2010. On January 24, 2012, Judge Coleman entered a new judgement on the 2009 DWLS violation, sentencing Petitioner to 20 days in county jail, but allowing him to serve the sentence in consecutive weekly installments of 48 hours from 5 a.m. Sundays to 5 a.m. Tuesdays. On June 5, 2012, Judge Coleman terminated Petitioner’s probation under the September 16, 2010, judgement as Petitioner had satisfied all conditions of probation. On April 30, 2013, Judge Coleman terminated Petitioner’s probation under the March 29, 2011, judgement as Petitioner had satisfied all conditions of probation. For Petitioner’s subsequent July 12, 2011, DWLS charge, and August 27, 2011, DWLS charge, he was adjudicated guilty and sentenced to two consecutive jail terms of 30 days, probation of 12 months, and ordered to pay court costs and fees. Judge Coleman allowed Petitioner to serve the jail time on subsequently designated weekends. Petitioner was released from probation on those charges on January 29 and March 31, 2015, respectively. Petitioner has subsequently obtained a restricted license which allows him to drive to and from work, as well as to pick up his children from school and other activities. Subsequent Employment History Petitioner has had varied employment since his release from prison. He worked for Hunter Panels in Lake City on the insulation assembly line for approximately two years, then Accurate Car Care as Assistant Manager of the detail shop for another year. Petitioner’s last job in Lake City was with Target, where he was terminated for tardiness. After his relocation to Gainesville, Petitioner worked for the Florida Farm Bureau in maintenance before becoming employed by Plane Techs. Petitioner anticipates being laid off by Plane Techs at the conclusion of the current contract with Haeco, due to lack of contract opportunities. In the summer of 2014, Petitioner was certified as a basketball referee by the Mid-Florida Officials’ Association. Petitioner officiates basketball games three to four times a week during basketball season, as well as post-season tournaments. Petitioner had to undergo background screening with Mid-Florida Officials’ Association, and was originally denied certification due to his criminal record. However, the association allowed him to proceed with certification following an exemption review. Subsequent Personal History Petitioner was divorced in late 2015. Petitioner has joint custody of his five children, who reside with him every other weekend, portions of each summer, and certain holidays. For the last ten years, Petitioner has volunteered as a football coach in Lake City (commuting from Gainesville) to remain involved in his son’s life. Additionally, Petitioner has volunteered as a coach for Columbia County little league football for approximately four years. In this capacity, he has worked with children ages five, six, and seven. Petitioner has completed some of his required community service by sharing his experiences with high school students, and encouraging them to make better life choices. Petitioner remarried on November 12, 2016. The couple met approximately four and a half years earlier. Petitioner revealed his criminal history to his new wife on their third date, approximately three years earlier. Petitioner met Diyonne McGraw a little over two years ago through her husband, who is also a volunteer football coach. Ms. McGraw became more familiar with Petitioner through his wife, who is Ms. McGraw’s hairdresser. Ms. McGraw owns Successful Living II, under which she operates three group homes and is working to license a fourth. She specializes in “intensive behavior focus,” meaning she serves clients with mental health issues, sexual issues, and physical and verbal aggression, some of whom have dual and triple diagnoses, and many of whom were recently released from incarceration. Ms. McGraw is a former probation officer. She testified, credibly, that, based on her observation of Petitioner’s interaction with her own children, as well as many other children involved in recreational sports, he has the patience to effectively deal with her clients. Further, she testified that Petitioner has demonstrated a commitment to her agency and a passion for the work it entails. Petitioner’s Exemption Request In his exemption request, in response to the question regarding the “degree of harm to victim or property (permanent or temporary), damage, or injuries,” Petitioner answered, “[n]one.” In response to the question regarding any stressors in his life at the time of the disqualifying offenses, Petitioner also stated, “[n]one.” Petitioner achieved a Graduate Equivalency Diploma (GED) while incarcerated. Petitioner reported no further educational pursuits. In his exemption request, Petitioner accepted responsibility for “poor and wrong decision[s] [he] chose early in [his] life.” He admitted that he is embarrassed by his charges, but is not ashamed to talk about his history and advise young people that such mistakes can change the course of your life. Petitioner’s request also demonstrates a dedication to providing life lessons for his children and preventing them from going down the path he chose. In the employment history section, Petitioner listed only his employment with Target in Lake City. Petitioner’s exemption request included two personal reference letters--one from his wife, then Dawn Teasley, and one from Matthew Dillard, a teacher at Lake City Middle School in Columbia County. The letter from Petitioner’s wife described Petitioner as “reliable, honest and responsible” both in his capacity as maintenance and groundskeeper for her salon and as a head coach for her nephew’s football team in Lake City. She also commented on Petitioner’s “ability, patience and genuine concern and care for youth” and his ability to “bring out the very best of every youth he coaches regardless of their skill set of level.” His wife further described Petitioner as an “enthusiastic leader,” as well as “reliable, honest and responsible.” Mr. Dillard’s letter was brief. In the letter, he stated that he has known Petitioner for ten years, has played recreational basketball with Petitioner, and has worked with Petitioner at a local community center volunteering with youth. He noted that he “has never seen [Petitioner] become overwhelmed by a given task or assignment.” Along with his exemption application, Petitioner also submitted a personal letter from Judge Coleman. Petitioner received the unsolicited letter in April 2015 following Petitioner’s release from court supervision. In the letter, Judge Coleman acknowledged that he “cannot remember writing a letter like this before” but wanted to congratulate Petitioner. The letter reads, as follows: As you know, I made several decisions to give you additional time and chances to succeed despite the opposition of others. I had faith in you because I saw something in you - a determination and focus. By your actions you have justified my faith in you and I admire you for that. I am very proud of you and I know that you will go on to accomplish great things with your life. As you know, I see many people daily and I cannot always remember faces, so I request this of you. If you see me somewhere and recognize me, come and see me so I can congratulate you in person. I wish you all the best life has to offer. Keep working hard. Ultimate Facts Many of Petitioner’s recent decisions and pursuits demonstrate a commitment to a life of responsibility to family and community, concern and respect for others, and the importance of steady and reliable work. Petitioner’s volunteerism is commendable, as well as his remarriage and support of his children. Judge Coleman’s letter is evidence of Petitioner’s determination to better himself and to overcome his prior poor decisions. However, many of the facts established about Petitioner are grounds for the Agency to question his fitness to work with the most vulnerable clients. Petitioner’s attempts to downplay his involvement in the 1998 felonies evidence a lack of true remorse for his actions. His willingness to lie to a police officer, as recently as 2011, evidence a lack of respect for law enforcement, and his lack of separation from his cousins, who have been a bad influence in his past, supports the Agency’s uneasiness concerning Petitioner’s future decisions.
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 25th day of January, 2017, 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 25th day of January, 2017.
The Issue Whether Petitioner should be given an exemption from employment disqualification pursuant to Section 435.07, Florida Statutes.
Findings Of Fact At the age of twenty-eight, Petitioner, Alexander Fonseca (Fonseca), was arrested for felony possession of marijuana on February 21, 1989. For this charge, adjudication was withheld, and Fonseca was credited for time served. Petitioner's other criminal history includes a 1983 arrest for misdemeanor possession of marijuana for which he was credited for time served; a 1988 arrest for driving with a suspended license for which adjudication was withheld; a 1988 arrest for driving with a suspended license for which he was found guilty; and a 1991 arrest for reckless driving for which adjudication was withheld. In April 1999, Fonseca sought employment as a Juvenile Probation Officer with the Department. In conjunction with his application for employment, Fonseca was required to submit to the Department's background screening process since he would be working with juveniles. Fonseca was told by a receptionist with the Department that if he had a criminal record he would not be hired. As part of the application and background screening process, Fonseca submitted a State of Florida application and an Affidavit of Good Moral Character. Fonseca failed to disclose on both of these documents his felony arrest for and adjudication withheld on felony possession of marijuana. The affidavit contained Fonseca's notarized signature dated April 27, 1999, attesting to the following statement: I attest that I have read the above carefully and state that my attestation here is true and correct that neither my adult nor juvenile record contains any of the listed offenses. I understand that it is my responsibility to obtain clarification on anything contained in this affidavit which I do not understand. I am aware that any omissions, falsifications, misstatements or misrepresentations may disqualify me from employment consideration and, if I am hired, may be grounds for termination at a later date. Fonseca did not disclose his criminal history because, based on what the receptionist told him, he did not believe that he would get the job if he revealed that he had a criminal history. His failure to disclose his criminal history was not an error or oversight. It was intentional. A Florida criminal history conducted by the Department revealed Fonseca's 1989 arrest for felony possession of marijuana. As a result, on May 6, 1999, Fonseca was determined to be disqualified and ineligible for a position in the Department working with juveniles. In a letter dated June 1, 1999, the Department advised Fonseca that he could request a desk review to pursue an exemption from employment disqualification. Fonseca was required to submit specified documentation, which he did. As Inspector General for the Department, Perry Turner makes the final departmental decision on exemption requests. In an interoffice memorandum dated July 29, 1999, Fonseca's exemption request was forwarded to Mr. Turner along with Fonseca's complete background screening file. In a desk review, Mr. Turner does not interview the applicant's seeking an exemption. Each applicant has an opportunity to submit to the Department documentation, which he desires the Department to consider in determining whether an exemption should be granted. In reaching his decision, Turner reviewed Fonseca's background screening file and the documentation submitted by Fonseca. On July 30, 1999, Turner denied Fonseca's request for an exemption. The denial was based upon the totality of the circumstances surrounding Fonseca's prior criminal history and his falsification of the notarized Affidavit of Good Moral Character. Mr. Turner notified Fonseca of the denial in a letter dated August 1, 1999. From his early teens until approximately ten years ago, Fonseca was heavily involved with drug and alcohol use and was chemically dependent. He sought help for his dependency and has been clean and sober since 1991. Fonseca is actively involved in the 12-Step Programs of Alcoholics Anonymous and Narcotics Anonymous. In 1992, Fonseca decided to go back to school. He graduated with a degree in criminal justice in 1998. Fonseca did not present any information to the Department concerning his addiction prior to the denial of his exemption request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Alexander Fonseca's application for an exemption from disqualification from employment pursuant to Section 435.07, Florida Statutes. DONE AND ENTERED this 27th day of April, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 April, 2000. COPIES FURNISHED: William G. "Bill" Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Alan K. Marcus, Esquire 7300 North Kendall Drive, Suite 540 Miami, Florida 33156 Lynne T. Winston, Esquire Department of Juvenile Justice Inspector General's Office 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact In July 1998, Petitioner held a position with the James E. Scott Community Association (Association) as a caretaker for juveniles. Petitioner had been employed with the Association since 1995. In July 1998, the Association, as a provider facility for Respondent, submitted a Request for Preliminary FCIC/NCIC and DHSMV Screening Check package (Screening Package) on Petitioner to the Respondent's Office of the Inspector General (OIG). Included in the Screening Package was an Affidavit of Good Moral Character (Affidavit). Petitioner executed the Affidavit on July 13, 1998. Petitioner indicated on the Affidavit that she had no disqualifying offenses that would deem her ineligible to work in direct contact with juveniles. The disqualifying offenses were enumerated on the Affidavit. The offense pertinent to Petitioner was an offense of Chapter 812, Florida Statutes, relating to theft, robbery and related crimes, if the offense was a felony. The OIG conducted a review of Petitioner's criminal history. OIG's review revealed that Petitioner had potential disqualifying criminal offenses. Her criminal record contained seven arrests by the Metro-Dade Police Department from 1975 to 1995, which were as follows: October 10, 1975, arrested and charged with shoplifting and fraud (insufficient funds check (IFC)). December 15, 1978, arrested and charged with shoplifting, felony; shoplifting; fraud (IFC); and a nonmoving traffic violation. December 10, 1983, arrested and charged with shoplifting, reduced to funds check, felony. April 18, 1984, arrested and charged with fraud (IFC), felony; fraud (IFC), misdemeanor; and larceny, grand, second degree. November 17, 1984, arrested and charged with shoplifting, petty. November 9, 1985, arrested and charged with larceny, grand. March 3, 1995, arrested and charged with fraud, welfare; and larceny, grand. By letter dated July 23, 1998, the supervisor of Respondent's Background Screening Unit notified Petitioner of the potential disqualification. Further, the Screening Unit's supervisor requested Petitioner to provide certified police reports and judicial dispositions on the arrests. Petitioner complied with the request and submitted certified documents regarding the arrests. The documents indicated that Petitioner's arrests in 1984, 1985, and 1995 for grand theft were disqualifying in nature because they involved violations of Chapter 812, Florida Statutes. Such violations were indicated in the Affidavit as being disqualifying offenses. Regarding the arrest on April 18, 1984, Petitioner, along with another person, exited a department store with clothing items for which she had not paid. The value of the clothing items was $630. The court made a finding of guilt, withheld adjudication, and imposed probation. As to the arrest on November 9, 1985, Petitioner and another person exited a department store with clothing for which they had paid. Petitioner's vehicle was searched, and additional clothing from a second department store was discovered. The court made a finding of guilt, withheld adjudication, and imposed probation and community control. Regarding the arrest on March 7, 1995, Petitioner and an accomplice received Aid to Families with Dependent Children (AFDC) benefits and Food Stamp benefits for which they were not entitled from August 1993 through August 1994. The value of the AFDC benefits was $3,111 and the Food Stamps benefits was $6,856. Petitioner pled guilty, and the court made a finding of guilt and adjudicated her guilty and, among other things, imposed probation, community service, and restitution. In completing the Affidavit, Petitioner had no intent to deceive. Petitioner’s employer advised Petitioner to complete the Affidavit indicating that she had no disqualifying offenses. However, the responsibility was upon Petitioner to complete the Affidavit and to complete it accurately and honestly. She should have known to indicate on the Affidavit that she had a disqualifying offense. Respondent reviewed the information. Respondent determined that Petitioner was ineligible for continued employment in a position of special trust or responsibility. By letter dated April 6, 1999, the Screening Unit’s supervisor notified Petitioner that she was ineligible based on the dispositions of the arrests on April 18, 1984, and March 7, 1995, and that she could request an exemption from disqualification. The Association was also notified simultaneously of Petitioner’s ineligibility and was instructed to immediately remove her from direct contact with juveniles. The Association removed Petitioner from direct contact with juveniles. Petitioner requested an informal exemption hearing, which was held on May 14, 1999. The hearing was conducted by a committee of three individuals, who only had the authority to make a recommendation to Respondent’s Inspector General who had final decision-making authority. In a report dated June 7, 1999, two of the committee’s members recommended that Petitioner’s exemption be denied, one member recommended granting the exemption. On May 14, 1999, Petitioner also executed a corrected Affidavit, indicating that she had disqualifying offenses. The committee’s recommendation and Petitioner’s file, along with the corrected Affidavit was forwarded to Respondent’s Inspector General. After reviewing the recommendation, the file, and the Affidavit, the Inspector General denied Petitioner’s request for exemption on June 9, 1999. By letter dated June 11, 1999, the Inspector General notified Petitioner that her request for exemption was denied. Respondent’s Inspector General denied Petitioner’s exemption because she failed to accurately complete the Affidavit; because of her recent conviction of welfare fraud and grand theft, regarding the March 7, 1995, arrest; and because she had not completed her obligations for the conviction of welfare fraud and grand theft. At the time of the denial and the hearing, Petitioner had not completed her probation, which would end in April 2000, and Petitioner had not paid restitution. Petitioner has performed in an exemplary manner during her employment with the Association. Petitioner’s witness provided support as to her good moral character. However, even Petitioner’s witness stated that Petitioner is unable to show good moral character until she completes her probation and pays restitution. Petitioner presented letters to support her position of good moral character. Respondent concedes that Petitioner does not present a threat to juveniles.
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 denying Earline Johnson an exemption from disqualification of employment to work in a position of special trust or responsibility with it. DONE AND ENTERED this 30th day of March, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 30th day of March, 2001. COPIES FURNISHED: Earline Johnson 1788 Northwest 58th Street Miami, Florida 33142-2422 Lynne T. Winston, Esquire Department of Juvenile Justice Inspector General’s Office 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
