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 Whether Petitioner is entitled to an exemption from her disqualification to work in positions of special trust.
Findings Of Fact Petitioner applied to Respondent for a license to operate a child care center out of her home. Section 402.305(2), Florida Statutes, provides, in pertinent part, as follows: Personnel.--Minimum standards for child care personnel shall include minimum requirements as to: Good moral character based upon screening. This screening shall be conducted as provided in chapter 435, using the level 2 standards for screening set forth in that chapter. The department may grant exemptions from disqualification from working with children or the developmentally disabled as provided in s. 435.07. Section 435.04, Florida Statutes, sets the Level 2 screening standards referred to in Section 402.305(2), Florida Statutes, as follows: All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. For the purposes of this subsection, security background investigations shall include, but not be limited to, employment history checks, fingerprinting for all purposes and checks in this subsection, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies. The security background investigations under this section must ensure that no persons subject to the provisions of this section have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction: * * * (w) Chapter 812, relating to theft, robbery, and related crimes, if the offense is a felony. The required background screening revealed that on August 3, 1993, Petitioner was found guilty by a jury of 15 counts of grand theft. Each of these counts was a third degree felony in violation of Section 812.014(1), Florida Statutes. 2/ For these felony offenses, Petitioner was incarcerated for a period of one year and placed on probation for a period of five years. Respondent notified Petitioner by letter dated May 28, 1999, that she ". . . may be [sic] ineligible for continued employment in a position of special trust working with children . . ." based on her conviction of 15 counts of grand theft. Section 435.07(1)(a), Florida Statutes, provides for the following exemption from the disqualification from employment in positions of special trust: The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: Felonies committed more than 3 years prior to the date of disqualification. . . . Section 435.07(3), Florida Statutes, places the following burden on the person seeking the exemption from the disqualification: (3) In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120. During the course of a lengthy investigation of a burglary ring spanning approximately four years, Petitioner was found to have in her possession at her home 3/ large quantities of stolen property from burglaries dating from 1987 to 1993. Petitioner was alleged to have purchased this stolen property, as opposed to having committed the actual burglaries. Respondent's letter dated May 28, 1999, advised Petitioner of her right to seek an exemption from her disqualification from employment in positions of special trust. Petitioner thereafter timely applied for such an exemption. Respondent appointed a three-person committee who investigated the Petitioner's criminal background and conducted an informal hearing on June 15, 1999, at which Petitioner appeared with witnesses. The three members of the screening committee were Susan K. Barton (Respondent's District Screening Coordinator), Laura Williams (a foster parent liaison employed by Respondent), and Laura Cohn (Respondent's District Legal Counsel). The members of the committee did not find Petitioner to be remorseful or forthcoming about her involvement in the criminal conduct that led to her felony convictions. Petitioner has a college degree in early childhood education. At the time of her arrest she was employed by the School Board of Palm Beach County. Because of her felony convictions, she lost that employment and has not been able to find comparable employment. At the formal hearing, Petitioner's only evidence as to her entitlement to an exemption was her own testimony. She presented no other witnesses and no exhibits. Petitioner testified that she was remorseful and that she had responded truthfully to the questions asked at the informal hearing by the members of the committee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for an exemption from her disqualification from employment in positions of special trust. DONE AND ENTERED this 28th day of December, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 December, 1999.
The Issue The Petitioner has applied for exemption from disqualification for licensure as a foster parent. The Respondent has denied the application. The issue in the case is whether the Petitioner’s request for exemption from disqualification should be approved.
Findings Of Fact On April 26, 1991, Joan Goldhammer (Petitioner) entered a plea of nolo contendere to the offense of grand theft in Case Number 91-1131, Circuit Court, Thirteenth Judicial Circuit, Hillsborough County, Florida. As a result of her plea, the Petitioner was placed on probation for 15 years, was ordered to complete 250 hours of community service, and was ordered to continue with counseling. The court withheld an adjudication of guilt. The Petitioner was also ordered to make restitution in the amount of $24,408 to the victim of the theft. The Petitioner continues to make restitution and has approximately five more years of scheduled payments before restitution will be completed. The Petitioner’s probationary period is continuing. She has performed the required community service requirement and has completed the counseling. There is no evidence that the Petitioner’s compliance with the terms of her probation has been other than appropriate. Early in 1999, the Petitioner began the process of becoming licensed by the State of Florida as a foster parent. The impetus for her application to become licensed as a foster parent was the suggestion by her pastor that she foster a child with whom the pastor was familiar. She completed the application process. Both she and her husband completed a state-mandated training course (MAPP-Model Approach to Partnership in Parenting). As part of the application process, the Petitioner was fingerprinted and a criminal background check was conducted. The Petitioner’s uncontradicted testimony was that she disclosed the 1991 incident to investigators at the time of the application process. The Respondent asserts that the information was revealed as a part of the criminal background check. There is no evidence that the Petitioner ever attempted to conceal the 1991 incident. Licensure as a foster parent is a "position of special trust" as defined by Florida statute. Based on the 1991 incident, the Respondent notified the Petitioner that she was disqualified from holding a "position of special trust" and therefore was ineligible for licensure as a foster parent. The Petitioner filed a request for exemption from the disqualification. By letter dated March 23, 1999, the Respondent denied the request for exemption from disqualification. The March 23 letter cites the statute that governs the granting of exemption from disqualification. As grounds for the denial of her request for exemption, the letter states as follows: It is the District’s policy that individuals currently serving a probation sentence, recently released for less than one year (misdemeanor offense), or for less than three years (felony offense), cannot demonstrate that they meet this standard. Consequently, your request for exemption from disqualification has been denied. There is no credible evidence supporting the policy stated in the March 23 letter. The Respondent’s sole witness acknowledged that the District Administrator established the District Five policy, and that each of the Department’s 15 District Administrators may have established different policies. The statute governing exemptions from disqualification provides that the applicant must provide "sufficient evidence of rehabilitation" and includes specific factors that should be considered. At the time of the 1991 offense, the Petitioner was a single mother, was newly divorced, was raising three children, and was financially needy. For various reasons, she was unable to take advantage of public assistance programs. Her employment provided access to the financial records and accounts of her employer. She took advantage of the situation and embezzled money from her employer, to whom she continues to make restitution. Other than the 1991 incident, the Petitioner has had no criminal involvement. Although the embezzlement was clearly illegal and inappropriate under any circumstances, the sole harm to the victim of her crime was financial loss. She has consistently met her obligation to make restitution of the money she embezzled. There is no evidence of any kind that the Petitioner currently poses, or has ever posed, a danger to any child.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services grant the request of Joan Goldhammer for exemption from disqualification. DONE AND ORDERED this 25th day of August, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 25th day of August, 1999. COPIES FURNISHED: David L. Partlow, Esquire David L. Partlow, P.A. Transworld Center, Suite 210 4100 West Kennedy Boulevard Tampa, Florida 33609-2244 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner has presented clear and convincing evidence that she is of good moral character so as to receive an exemption from disqualification from employment with children or adults who are severely developmentally disabled, pursuant to Section 435.07(7), Florida Statutes (1997).
Findings Of Fact Autumn Nichols is a 20 year-old woman living in her mother's home. She dropped out of school at age 16, and is currently studying to obtain a high school equivalency diploma (GED). Petitioner was arrested and charged with domestic violence-battery in October 1995. She was subsequently adjudicated delinquent in the circuit court (juvenile division) and was placed on community control for a year, attended a law awareness class and a jail tour, performed 25 hours of community service and participated in an anger management class. Petitioner successfully completed her sanctions. On or about October 10, 1995, Petitioner became involved in a verbal argument with her brother. The argument escalated into a physical fight. Petitioner made threats to kill her brother and attempted to get a knife. The police arrested her and she was placed in the Juvenile Detention Center. Two days later, Petitioner was hospitalized due to severe emotional problems. Following the hospitalization, Petitioner was in residential treatment at Devereaux treatment center. She remained at Devereaux for six months and then attended the out- patient program. The episode with her brother, when she was 17, was her last episode of violence. Petitioner no longer verbalizes her anger. Petitioner has never had violent episodes outside the home. Petitioner was diagnosed with bi-polar disorder. She has been hospitalized at least five times. Two of those hospitalizations were involuntary commitments (Baker Act). Petitioner, as recently as six months ago, checked herself into a residential treatment facility for depression. Petitioner's job experience has been limited due to her age. She worked for her mother caring for children in her mother's family daycare for one to two years in her early teens. When Petitioner was 18, she worked a summer job for her father in a restaurant, and at 19, Petitioner worked for three months as a telemarketer. In January 1998, Petitioner was hired by Tutor Time daycare center. She worked at the daycare for three months until she was disqualified from employment. Although Petitioner has demonstrated a sincere desire to work with children, she has failed to prove by clear and convincing evidence that she is rehabilitated. Insufficient time has elapsed since the incident, her mental health issues are too extensive and her work history is inadequate to show that she no longer presents a danger to children.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request for exemption from disqualification for employment in a child care facility be DENIED. DONE AND ENTERED this 3rd day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1998. COPIES FURNISHED: Carmen Sierra, Esquire Department of Children and Family Services 400 West Robinson Street Orlando, Florida 32801 Autumn Nichols 513 Teakwood Drive Altamonte Springs, Florida 32714 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner is eligible for an exemption from disqualification from working with children.
Findings Of Fact The evidence presented at hearing established the facts that follow. In 2000, Petitioner Sonia Leggs-Stewart (“Leggs- Stewart”) sought employment with at least two entities that provide services under contract to Respondent Department of Juvenile Justice (“DJJ”). These two providers are the Dade Marine Institute, Inc. (the “Institute”) and Youth Services International/Everglades Academy (the “Academy”). The positions that Leggs-Stewart sought entailed contact with children. As a condition of applying for such employment, she was required to consent to a background investigation. Further, the employment applications that Leggs- Stewart completed and submitted to these two providers included queries pertaining to the applicant’s criminal record. Finally, Leggs-Stewart, as required for employment, executed and delivered to each prospective employer an Affidavit of Good Moral Character (the “Affidavit”). The Affidavit is a DJJ form. In it are listed 45 consecutively numbered criminal offenses, each identified by a citation to the applicable section of the Florida Statutes and a brief description of the crime. The affiant must either (a) attest that she has not been convicted of any of these disqualifying offenses “or of any similar offense in another jurisdiction” or (b) disclose any such convictions.1 Above the notary’s signature line on the Affidavit are two separate statements. The affiant is supposed to certify the accuracy of one or the other by signing below the applicable statement. These are the options: 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, under penalty of perjury, all employees in such positions of trust and responsibility shall attest to meeting the requirements for qualifying for employment and agreeing to inform the employer immediately if arrested of any of the disqualifying offenses. I also understand that it is my responsibility to obtain clarification on anything contained in this affidavit which I do not understand prior to signing. 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. SIGNATURE OF AFFIANT OR To the best of my knowledge and belief, my record contains one or more of the disqualifying acts or offenses listed above. (If you have previously been granted an exemption for this disqualifying offense, please attach a copy of the letter granting exemption.) (Please circle the offense(s) contained in your record.) SIGNATURE OF AFFIANT (emphasis added). Leggs-Stewart applied for employment with the Academy in March 2000. On the employment application, she answered “yes” to the question: “Have you ever been convicted of a felony or a first degree misdemeanor?” Leggs-Stewart explained that she had been convicted in February 1991 of “possession with intent to distribute cocaine.” On the corresponding Affidavit, however, which she executed on March 13, 2000, Leggs-Stewart incongruously signed below the first certificate (meaning no convictions) and failed to circle any of the listed offenses, including this one: [Chapter 893, Florida Statutes,] relating to drug abuse possession and control if the offense was a felony or if any other person involved in the offense was a minor (this includes charges of possession of controlled substances, the sale of controlled substances, intent to sell controlled substances, trafficking in controlled substances, and possession of drug paraphernalia, etc.) The record is silent as to whether the Academy offered Leggs-Stewart a job; there is no evidence that she worked for the Academy. In December 2000, Leggs-Stewart applied for a job with the Institute. The employment application asked: “Have you ever been committed [sic] or convicted of a crime, pled guilty or nolo contendere, had a pretrial intervention or withheld adjudication? Yes NO If yes, give dates and type of action: .” Leggs-Stewart left these lines blank. Also, as before in connection with her application to the Academy, Leggs-Stewart signed the Affidavit below the first certificate and circled none of the listed offenses. The Institute hired Leggs-Stewart to work in a program for youth called W.I.N.G.S. for Life South Florida. Some months later, in June 2001, DJJ notified Leggs- Stewart that an investigation of her background had uncovered arrests for, on one occasion in 1990, federal charges involving the importation and possession of cocaine with intent to distribute and, on another in 1989, an unrelated state aggravated assault charge.2 She was asked to furnish DJJ with a detailed description of the circumstances surrounding the disqualifying offenses, to complete a new Affidavit, and to explain why the previous Affidavit failed to indicate any disqualifying offenses. On July 3, 2001, Leggs-Stewart executed a new Affidavit on which she circled the disqualifying offenses of aggravated battery and drug trafficking. In a letter of that same date, Leggs-Stewart wrote to DJJ: In regards to the Affidavit of Good Moral Character and providing a detailed explanation as to why the original affidavit was not truthful, to be honest I completed the affidavit in accordance to what my supervisor, at that time instructed me to do. I diligent [sic] explained the incidents to him and I personally did not identify which offense to circle for the Arrest #2 [aggravated assault] due to nothing never happen [sic] in court to my knowledge. In regards to Arrest #1 [drug trafficking], I believe that we, (both my supervisor and I) focused on the second part of the offense description that mentioned involving a minor which was his primary concern. I did not intentionally mean to mislead anyone regarding these offenses. The basic material facts concerning Leggs-Stewart’s arrest and conviction on drug-related criminal charges were not disputed. Leggs-Stewart was arrested in late 1990 by federal authorities for bringing cocaine into the United States from Panama. She was charged with two counts relating to this criminal activity. In February 1991, Leggs-Stewart pleaded guilty before the United States District Court for the Southern District of Florida to one count of possession with intent to distribute cocaine. (The second count relating to importation was dismissed.) The court sentenced Leggs-Stewart to four years in prison followed by five years of supervised release. Leggs- Stewart served her time and successfully completed probation. She has not been in trouble with the law since her arrest for the federal drug crime. Leggs-Stewart requested an exemption from disqualification from employment. As a result, an informal hearing on the matter was conducted on August 8, 2001, by a committee of three individuals whose responsibility was to make a recommendation to the ultimate decision maker, DJJ’s Inspector General. In a report dated August 9, 2000, the committee unanimously recommended that Leggs-Stewart be granted an exemption from disqualification, citing factors showing her rehabilitation. DJJ’s Inspector General disagreed with the committee, however, and decided that the exemption should be denied. Ultimate Factual Determinations The undisputed circumstances surrounding Leggs- Stewart’s conviction for drug possession demonstrate that the offense was more than a mere youthful indiscretion. Smuggling cocaine into the United States from a foreign country with intent to distribute is a serious crime. While there are no identifiable victims of Leggs-Stewart’s criminal misconduct, trafficking in cocaine is an offense that both the federal and state governments have deemed, as a matter of public policy, to be harmful to society as a whole. The gravity of Leggs- Stewart’s offense clearly “raises the bar” in terms of establishing rehabilitation. To her credit, Leggs-Stewart by all appearances has turned her life around. She is married and raising a family, owns a home, has attended community college, and has been gainfully employed since being released from prison. In short, she is now leading a stable and responsible life. These factors demonstrate that Leggs-Stewart has been largely, if not completely, restored to the capacity of law-abiding citizen. In addition, more than 11 years have passed since Leggs-Stewart’s arrest and conviction, and she has not been arrested during that time. This consideration also favors a finding of rehabilitation. Leggs-Stewart does not presently pose a danger to the safety or well being of children. However, the Affidavits that Leggs-Stewart signed—— wherein she attested, incorrectly, that her criminal record was clean——are a problem. Even if Leggs-Stewart’s explanations for nondisclosure are accepted3, the inescapable fact is that the Affidavits were not truthful, and she reasonably should have known that.4 Leggs-Stewart knew when she executed the Affidavits that she had served time in a federal prison on a serious drug charge. She knew (or reasonably should have known) that the list of disqualifying offenses in the Affidavit specifically included “possession of controlled substances” and “intent to sell controlled substances”——plainly apposite descriptions of the crime to which she had pleaded guilty. And she knew that any omissions or misstatement might be grounds for disqualification or termination. Yet, she attested under oath that her criminal record contained none of the listed disqualifying offenses. Thus, it is determined that while Leggs-Stewart did not intend to defraud her prospective employers, she nevertheless culpably misrepresented her past. In failing to disclose her criminal record, Leggs-Stewart committed acts tinged with dishonesty.5 Considered in light of all the relevant facts and circumstances, Leggs-Stewart’s willingness to be untruthful in applying for a position of trust and responsibility in a program for youth or children, regardless of her motivation, causes the trier of fact some hesitancy about the completeness of her rehabilitation.
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 Leggs-Stewart an exemption from disqualification from working with children. DONE AND ENTERED this 20th day of March, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 20th day of March, 2002.
The Issue The issue is whether Petitioner should be exempt from disqualification for employment in a position of trust, pursuant to section 435.07, Florida Statutes.1/
Findings Of Fact AHCA is authorized to conduct certain background screenings for employees providing specific types of services within health care facilities licensed by AHCA. See § 408.809(1)(a), Fla. Stat. (employees subject to screening); § 408.803(9), Fla. Stat. (definition of “licensee”). Petitioner was required to participate in Respondent’s background screening process because he sought employment in a position providing direct services to residents of a health care facility licensed by AHCA under chapter 400, Florida Statutes. Petitioner underwent the required background screening, which revealed: On or about May 6, 1996, in Case No. 1995MM007600, Petitioner was adjudicated guilty of Battery under section 784.03(1)(a)1., Florida Statutes. At the time of this offense, Petitioner and Teresa Poole, the alleged victim, resided together or shared the same dwelling. On or about May 15, 2002, in Case No. 2002CF000065, Petitioner pled no contest to Battery under section 784.03(1)(a)1., a misdemeanor. Adjudication was withheld. At the time of this offense, Petitioner was residing with or was sharing the same dwelling with Erica Goode, the alleged victim. On or about July 6, 2009, in Case No. 2009MM000294, Petitioner pled no contest to Battery under section 784.03(1)(a)1. Christine Crowley, the alleged victim, and Petitioner are related by blood and have previously resided together in the same dwelling. Christine Crowley is Petitioner’s biological sister. Each of the above-referenced battery charges constitutes Domestic Violence under section 741.28, Florida Statutes. Under sections 435.04(3) and 408.809(4)(e), Florida Statutes, the above-referenced criminal offenses disqualify Petitioner from providing services in a health care facility licensed by AHCA, unless AHCA grants Petitioner an exemption pursuant to section 435.07. In addition to his disqualifying offenses, Petitioner's background screening revealed: On or about September 18, 1998, in Case No. 1998CF000638, Petitioner was arrested for Aggravated Battery under section 784.045(1)(a)1. Although Petitioner was not ultimately convicted, at the time of this charged offense, Petitioner was residing with or had previously resided with the alleged victim, Christina McCullum, in the same dwelling. A conviction of this charge would constitute Domestic Violence under section 741.28. On or about September 21, 1998, in Case No. 1998CT003202, Petitioner pled no contest to Driving While License Suspended (With Knowledge) under section 322.34(2), Florida Statutes. Petitioner maintains that he did not actually have knowledge. On or about February 1, 1999, in Case No. 1999CT00187, Petitioner was adjudicated guilty of Driving While License Suspended (With Knowledge) under section 322.34(2). Petitioner maintains that he did not actually have knowledge. On or about February 24, 1999, in Case No. 1998CT004442, Petitioner was adjudicated guilty of Driving While License Suspended (With Knowledge) under section 322.34(2). Petitioner maintains that he did not actually have knowledge. On or about January 25, 1999, in Case No. 1999CF000264, Petitioner was arrested for Burglary under section 810.02(3)(b) and Battery under section 784.03(1)(a)1. At the time of these offenses, Petitioner had previously resided with the alleged victim, Christina McCullum, in the same dwelling. If convicted, this charge would constitute Domestic Violence under section 741.28. On or about April 14, 1999, in Case No. 1999MM000766, Petitioner was arrested for Assault under section 784.011. Petitioner was not ultimately convicted. On or about July 14, 1999, in Case No. 1999CF2483, Petitioner was arrested for Aggravated Battery under section 784.045. Petitioner was not ultimately convicted. At the time of this alleged offense, the Petitioner had previously resided with the alleged victim, Christina McCullum, in the same dwelling. If convicted, this charge would constitute Domestic Violence under section 741.28. On or about December 12, 1999, in Case No. 1999CF000727 (later transferred to 1999MM002249), Petitioner was arrested for Battery under section 784.03(1)(a)1. and Resisting without Violence under section 843.02. At the time, Petitioner had previously resided with the victim, Christina McCullum in the same dwelling. The battery charge constitutes Domestic Violence under section 741.28. Petitioner was adjudicated guilty of the above-referenced Resisting without Violence charge and sentenced to a year of probation with a special condition of completion of a Batterer’s Intervention Program. i. On or about July 30, 2002, in Case No. 2002MM007400, Petitioner was charged for giving a worthless check under section 832.05(2), but the charges were ultimately dismissed. On or about November 5, 2003, in Case No. 2003CF000692, Petitioner was charged with Aggravated Battery under section 784.045(1)(a)1. Petitioner was not ultimately convicted. On or about March 18, 2004, in Case No. 2004CF000185, Petitioner was charged with Dealing in Stolen Property, under section 812.019(1). Petitioner was not ultimately convicted. On or about June 3, 2009, in Case No. 2009CF000362, Petitioner was charged with Burglary under section 810.02(3)(c) and Petit Theft under section 812.014(3)(a), Florida Statutes. Petitioner was not ultimately convicted. At the time of the above- referenced charges, Petitioner was the former spouse of, and had previously resided with, the alleged victim, Erica Goode/Crowley in the same dwelling. On or about June 26, 2009, in Case No. 2009MM000678, Petitioner was arrested for Battery under section 784.03(1)(a)1. and Disorderly Conduct (Affray) under section 870.01(1). Petitioner was not ultimately convicted. On or about July 9, 2009, in Case No. 2009MM000721, Petitioner was charged with violating a No Contact Order issued by the first appearance judge in the case referenced above. Petitioner was not ultimately convicted. On or about August 21, 2009, in Case No. 2009MM000922, Petitioner was arrested for Battery under section 784.03(1)(a)1. Petitioner was not ultimately convicted. At the time of this arrest, Petitioner was residing in the same dwelling with the alleged victim, Michelle Vanhoose. On or about January 2011, in Case No. 2010CF000620, Petitioner was adjudicated guilty of Aggravated Stalking under section 784.048(3), Florida Statutes. Licensed professionals under the Department of Health may work at a facility licensed by AHCA, if granted an exemption by the Department of Health, but may only work within the scope of that professional license, unless AHCA itself grants the applicant an exemption. Petitioner does not have an active license or exemption from disqualification from the Department of Health. Petitioner does not dispute that he has disqualifying offenses and subsequent criminal history, but claims his application and entire file support his rehabilitation by clear and convincing evidence. AHCA received Petitioner’s application for exemption in accordance with sections 408.809 and 435.07, on or about June 15, 2017. AHCA conducted a telephonic hearing with Petitioner on August 2, 2017. During the telephonic hearing, in addition to discussing the results of Petitioner’s background screening, as evidence of his rehabilitation, Petitioner pointed out that he has been working, getting an education, and has not been arrested in six years. Petitioner also submitted several positive letters of recommendation from close friends and family. After the telephonic hearing, AHCA denied Petitioner’s request for an exemption and sent Petitioner the Denial Letter, signed by AHCA’s manager for the Background Screening Unit, Samantha Heyn, on behalf of AHCA. Although Ms. Heyn did not attend AHCA’s telephonic hearing with Petitioner, she previously spoke to Petitioner in a phone call about his exemption request. In making the decision to deny Petitioner’s application, Ms. Heyn and pertinent AHCA staff with the background screening unit considered Petitioner’s entire case file, including all submissions received from Petitioner and his explanations during the teleconferences. AHCA also considered the time elapsed since the offenses, the nature and harm to the victims, the circumstances surrounding the offenses, Petitioner’s history since the offenses, and all other supporting documentation provided by Petitioner before deciding to deny Petitioner's request for exemption from disqualification. Petitioner testified that he has ambitions to work as a licensed health care professional. During the administrative hearing, Petitioner testified that he is in his current predicament because of vindictive people falsely accusing him of crimes, and AHCA personnel who have labeled him a criminal. Similarly, during his earlier teleconference with AHCA, Petitioner stated that he was in his current situation due to racism, labeling, vindictive people out to destroy him, and other factors out of his control. Petitioner’s statements at the initial teleconference with AHCA were conflicting as to whether the courses he took for batterer’s intervention and anger management were court-ordered, conditions of a plea deal with prosecutors, or fully voluntary outside of the criminal justice system. Petitioner was arrested for violent and domestic crimes after taking each course. While Petitioner has stated that he takes full responsibility for his actions, his other statements at the teleconference and at the administrative hearing reflect a lack of candor and an unwillingness to accept responsibility for his past criminal episodes. While the letters of recommendation from close family and friends, successful educational pursuits, and a clean record for the last six years demonstrate progress toward rehabilitation, this fairly recent success does not annul Petitioner's extensive criminal history, lack of candor, and unwillingness to accept responsibility. The records of successful exemption applicants offered by Petitioner were not helpful to Petitioner’s case. The criminal backgrounds were not the same as Petitioner’s and the evidence was insufficient to permit a useful comparison between the facts and circumstances of those applicants with those of Petitioner. In view of all of the evidence, it is found that Petitioner failed to meet his burden to prove by clear and convincing evidence of rehabilitation when he presented his case to AHCA, and the evidence presented at the final hearing failed to demonstrate that AHCA abused its discretion in denying Petitioner’s request for exemption.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a final order denying Petitioner’s request for an exemption from disqualification for employment. DONE AND ENTERED this 16th day of March, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 16th day of March, 2018.
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 Respondent was a probationary employee, and if so, whether the Division of Administrative Hearings has jurisdiction to enter a recommended order on his dismissal from employment with Petitioner. If Respondent is entitled to an administrative hearing, whether Petitioner had just cause to terminate Respondent's employment.
Findings Of Fact In January 1993, Respondent, Carlos Velasquez (Velasquez), became employed with Petitioner, Broward County School Board (Board), as a temporary teacher's aide in the after- school care program. In February 1994, Velasquez began working as a substitute teacher for the Board while continuing to work in the after-school care program. Velasquez was working toward a college degree while working for the Board. In April 1996, Velasquez received a bachelor's degree from Florida Atlantic University. In July 1996, Velasquez applied for a full-time teaching position with the Board. On February 26, 1997, Velasquez began working for the Board as a third grade teacher at Oriole Elementary School. On that date he began working as a full-time teacher, Velasquez completed a number of employment forms, including a Security Background Check.1 The Security Background Check form states that the form must be turned in with the applicant's application for employment. The form requires the applicant to answer certain questions by checking boxes marked "yes" or "no." The form advises the applicant as follows: At the time of employment your fingerprints will be researched by local, state and federal law enforcement agencies. Sealed or expunged records must be revealed to the School Board of Broward County pursuant to F.S. 943.058. Your employment with the Broward County School District is temporary and probationary pending successful processing of your fingerprints. The following questions must be answered truthfully. A 'Yes' answer to any of the following questions does not automatically keep your from being hired. Your omission or falsification of any criminal history (misdemeanor or felony, see reverse for examples of criminal offenses) information will result in your immediate termination. * * * NOTE: Pursuant to Florida Statute 943.058 Criminal History Record Expunction or Sealing, persons to be employed in a position having direct contact with children must answer questions 4, 5, and 6. The School Board of Broward County will receive information on all records that have been sealed, expunged, or where adjudication was withheld. To omit a response or to be untruthful in your response, regardless of any information received from your attorney or the Court will be considered falsification of your application and will result in your being terminated. If you wish to seek counsel prior to completing this section, you may take this application with you. The Security Background Check form also contains the following language: By signing this document I certify that I have carefully read and fully understand each question and that all information contained herein is true and accurate. My signature further certifies that there is no falsification of any information, omission of any information requested or any misrepresentation of information requested. I also understand that my fingerprints will be submitted to the Federal Bureau of Investigation for a complete criminal history background check. * * * By my signature, I certify that I know, understand, and agree that any false statement or omission of information requested will result in my immediate termination. The following two questions on the Security Background Check form are at issue in this case: 4. Have you ever had a criminal record sealed? * * * 6. Have you ever had adjudication withheld in a criminal offense? Velasquez answered no to questions four and six on the Security Background Check form and signed the form. Velasquez filled out the Security Background Check form at the Board's personnel office. He did not ask anyone how to fill out the form. At the time that he filled out the form, he did not understand the term "adjudication withheld." In 1981, Velasquez was arrested for shoplifting, and the charge was dismissed. In 1991, Velasquez personally petitioned the court to seal the arrest record, which petition was granted. In 1991, Velasquez was charged with disorderly conduct. He pled not guilty and went to trial. The court withheld adjudication and required Velasquez to attend a six- week advocate program. At the conclusion of his trial in 1991, Velaquez did not understand that adjudication had been withheld. By letter dated March 24, 1997, the Board advised Velasquez that it had received a report of criminal activity from the Department of Law Enforcement. The Board requested that Velasquez submit a full personal description of each incident. The letter further advised Velasquez that he could continue to work but that he would be suspended within ten working days if the Board had not received the requested documents. Velasquez wrote to Dr. Roger Beaumont, the Director of Instructional Staffing for the Board, and advised him of the circumstances surrounding the charge for disorderly conduct. Velasquez's case was presented to the Board's Security Clearance Committee, which determined on April 16, 1997, that Velasquez was not employable with the Board. Velasquez was notified of the committee's decision by letter dated April 18, 1997. When Velasquez applied to the Department of Education for a teaching certificate, he did not advise the Department of Education that he had had adjudication withheld in a criminal proceeding. In May 1997, Velasquez wrote the Department of Education and stated: Recently I filled out an application for a teaching position with both Dade and Broward Counties. While filling out these applications, it was explained the thoroughness of the information requested. The background information necessary for employment was also explained. It is therefore the purpose of this amended information to be added to my file to possibly clarify any misunderstood information and/or misinterpretations. I was unclear of the legal terminologies, such as, withheld adjudication. It is for that reason why I would like the following information officially added to my file for teacher certification. When Velasquez applied for the temporary teacher's aide position in January 1993, he completed a security check form and provided his fingerprints to the Board. The questions on the form did not include a question concerning sealed records. The form did include a question concerning adjudication being withheld in a criminal proceeding. Velasquez answered "no" to the question concerning the withholding of adjudication. By memorandum dated August 29, 1995, the Board informed him that based on the results of the federal criminal history check as of January 11, 1993, he had met the criteria for employment/licensing with the Broward County School System. In July 1996, Velasquez filled out an application form for employment as a full-time teacher. He also completed a Security Background Check form, which was the same form that he completed in February 1997. He answered "no" to question numbers four and six. His fingerprints were not processed in connection with the July 1996 application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Carlos Velasquez's request for an administrative hearing be dismissed. DONE AND ENTERED this 26th day of February, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1998.
The Issue At issue in this proceeding is whether Petitioner's request for an exemption from employment disqualification should be approved.
Findings Of Fact In or about April 1999, Petitioner, Darlene Renfroe, submitted a State of Florida Employment Application to Respondent, Department of Juvenile Justice (Department), for employment as a group treatment leader, a caretaker/direct contact position. Among the information sought on the application was a response to the question "[h]ave you ever been convicted of a felony or a first degree misdemeanor?" Petitioner respondent "yes" to the question and elaborated that she had been convicted of "Possession of Control[led] Substance" in Miami, Florida, on April 1, 1986. Accompanying the application was a copy of the Indictment filed in the United States District Court, Southern District of Florida (Case No. 85-937CR-Scott) which charged that on or about November 23, 1985, at Miami International Airport, Dade County, Florida, Petitioner knowingly and intentionally imported into the United States (Count I), and knowingly and intentionally possessed with intent to distribute (Count II), at least one kilogram of cocaine, a Schedule II narcotic controlled substance, in violation of Title 21, United States Code, Sections 952(a) and 960(a)(1), as to Count I, and Title 21, United State Code, Section 841(a)(1), as to Count II. The application was also accompanied by a three-page handwritten letter signed by Petitioner which offered her explanation of the events leading to her conviction. The position for which Petitioner applied, group treatment leader, is a position of special trust which requires, as a condition of employment, a successful background screening process to exclude the possibility that Petitioner was ever found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to certain enumerated disqualifying offenses under Florida law or similar offenses in another jurisdiction. If the screening process reveals a disqualifying offense, the applicant is not qualified for employment unless a request for exemption (pursuant to Section 435.07, Florida Statutes) is approved. Notably, among the disqualifying offenses is a violation of "Chapter 893 relating to drug abuse prevention and control if the offense was a felony . . . (. . . includ[ing] charges of possession of controlled substances, the sale of controlled substances, intent to sell controlled substances, trafficking in controlled substances, and possession of drug paraphernalia, etc.)," an offense for which Petitioner (as disclosed by her application) had been convicted. To complete the Department's background screening, Petitioner also completed and submitted three additional documents: a Request for Preliminary FCIC/NCIC and DHSMV Screening Check form; a Consent to Background Screening form; and an Affidavit of Good Moral Character.1 On May 27, 1999, the Department completed its background screening process. That process revealed (consistent with Petitioner's disclosure) that on April 1, 1986, Petitioner pled guilty to and was adjudicated guilty of the offense of "knowingly and intentionally import[ing] into the United States from a place outside thereof, a Schedule II controlled narcotic substance, that is a quantity of cocaine, at least one kilogram, in violation of Title 21, United States Code, Sections 952(a) and 960(a)(1), as charged in Count I of the Indictment. Count II of the Indictment was dismissed upon motion of the United States attorney. As a penalty for such offense, Petitioner was committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of three years and six months. Petitioner served a two-year term of confinement at Women's Federal Correctional Institute, Lexington, Kentucky (released April 1, 1988), followed by a six- month term at a half-way house and then was discharged. Upon completion of its background screening, the Department concluded that (based on her conviction for importation of cocaine) Petitioner was disqualified from working in a position of trust; however, by letter of June 7, 1999, the Department accorded Petitioner an opportunity to request an exemption pursuant to Section 435.07, Florida Statutes. That letter reasonably advised Petitioner of her obligation to demonstrate by clear and convincing evidence that she had been rehabilitated and that she would not present a danger if accorded employment in a position of special trust. Among the items requested for Department review (in passing on a request for exemption) were the following:2 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 or subsequent to the commission of the disqualifying offense. * * * Letters of support/recommendation from others indicating that you are of good moral character. If you were placed on probation/community control, certified documentation of successful completion of probation/community control. A statement as to what you believe you have to offer to juveniles and why you want to work with the Department of Juvenile Justice or a Provider Facility. Petitioner duly requested an exemption from disqualification and submitted the requested documentation to the Department. Upon review, Petitioner's request for exemption was denied. The Department's expressed rationale was stated in its Inspector General's letter of August 1, 1999, as follows: In order to reach a decision on your request, I have reviewed your criminal history and the supporting documentation you submitted. Based upon a careful review of all documentation, compelling evidence does not exist which would lead me to grant you an exemption. Therefore, your request is denied. As a criminal justice agency, this department has to exercise great care and caution in selecting those persons who are allowed to work with the juveniles entrusted to our care and custody. The letter further advised Petitioner of her right to request an administrative hearing pursuant to Section 120.57, Florida Statutes, to challenge the denial of her request for exemption. Petitioner filed a timely request for such a hearing and these proceedings duly-followed. Consistent with the Inspector General's conclusion that Petitioner had failed to convincingly demonstrate her entitlement to the requested exemption, the proof at hearing demonstrated that the crime to which Petitioner pled guilty and for which she was convicted ("knowingly and intentionally importing . . . a Schedule II controlled substance, that is a quantity of cocaine, at least one kilogram") gravely violated moral sentiment or accepted moral standards of the community, such that it could reasonably be said that Petitioner committed a crime of gravity involving moral turpitude.3 It may also be said, consistent with the Inspector General's observation, that Petitioner's explanation of the circumstances surrounding the criminal incident (as set forth in her letter of May 25, 1999, contained in Respondent's Exhibit number 1) appears, at best, fanciful. Finally, given the nature of the offense and Petitioner's age at the time (28 years), her conduct can hardly be characterized as youthful intemperance. Contrasted with the negative impression to be gleaned from the foregoing facts, the proof also provided some positive information. In this regard, the proof demonstrated that Petitioner successfully completed (with apparent good behavior) her term of incarceration; that she committed no other transgression; and that she has been continuously employed since her release (most recently by the State of Florida, Landmark Learning Center, as a behavior program associate, assisting and training mentally retarded children). Moreover, since January 1997, Petitioner has been licensed by the State of Florida, Department of Children and Family Services, to operate a foster home and currently has four children (two boys and two girls) under her care. Finally, among those who know her, Petitioner is considered truly remorseful for her misconduct, is believed to present a good role model for the youths she services, and is considered a reliable and trustworthy member of her community. While there are certainly accomplishments in Petitioner's life since her conviction which weigh favorably, it must be concluded (as urged by the Department) that the gravity of her offense, as well as her lack of candor regarding the circumstances surrounding the criminal incident, do not permit a conclusion to be drawn, with the requisite degree of certainty, that Petitioner stands rehabilitated. Stated differently, it must be concluded that Petitioner has failed to demonstrate, by clear and convincing evidence, that she is currently rehabilitated and will not pose a danger or risk (if allowed employment) to the social, emotional, and intellectual development of the juveniles in her charge.
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 exemption from employment disqualification. DONE AND ENTERED this 14th day of January, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2000.
The Issue Whether the Agency for Health Care Administration’s (Agency) intended decision to deny Petitioner’s application for exemption from disqualification for employment is an abuse of the Agency’s discretion.
Findings Of Fact Respondent is required to conduct certain background screenings for employees who provide specific types of services within health care facilities licensed under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner seeks employment in a position providing such services to residents of a health care facility licensed by Respondent, and, as such, is required to participate in Respondent’s background screening process pursuant to section 408.809, Florida Statutes. Petitioner submitted to the required background screening, which revealed that in 2006, Petitioner was adjudicated delinquent for the felony offense of Aggravated Battery with a Deadly Weapon, in violation of section 784.045, Florida Statutes, in Franklin County, Florida, Case No. 06000033CJAXMX. In 2010, Petitioner was charged with Child Abuse and Child Neglect, but pleaded guilty to Contributing to the Delinquency of a Minor, in Duval County Circuit Court, Case No. 162010CF002633AXXXMA, in violation of section 827.04, Florida Statutes. The two above-referenced criminal convictions render Petitioner disqualified and ineligible to provide the listed services in a health care facility licensed by Respondent unless Petitioner receives an exemption from Respondent, pursuant to section 435.07, Florida Statutes. In addition, Petitioner’s background check revealed that she was arrested in 2014 for Battery, although the charge was dismissed, and Petitioner pleaded no contest to Disorderly Conduct, in Gulf County Court, Case No. 14-100MM. Petitioner was also arrested in 2014 for two (2) counts of Aggravated Battery with a Deadly Weapon, but those charges were dismissed. However, Petitioner pled no contest to the offense of Affray, in Gulf County Court, Case No. 14-179-CF. Petitioner initially submitted an application for exemption to the Agency in accordance with sections 408.809 and 435.07, on or about April 21, 2017, and participated in a telephonic hearing conducted by Respondent on June 13, 2017. Respondent’s witness, Sherry Ledbetter, the operations and management consultant manager for the Background Screening Unit, testified that she attended the telephonic hearing on June 13, 2017. Following the telephonic hearing, Respondent denied Petitioner’s request for an exemption by letter dated June 19, 2017, and Petitioner subsequently requested an administrative hearing. At the administrative hearing, Sherry Ledbetter testified that, in making the decision to deny the exemption request, Respondent considered Petitioner’s entire case file, including all submissions received from Petitioner, as well as her explanations of her past offenses. Ms. Ledbetter also testified that the instant denial was separate from, and did not impact, any exemption that Petitioner may receive for her Certified Nursing Assistant (CNA) license through the Florida Department of Health. As explained by Ms. Ledbetter, once there is a disqualifying offense or conviction, Respondent is legally authorized to consider all subsequent arrests or convictions, even if those arrests or convictions are not disqualifying offenses. Indeed, Respondent considered Petitioner’s subsequent arrests and convictions during the review of Petitioner’s application for exemption. Ms. Ledbetter testified that Respondent also considered the circumstances surrounding Petitioner’s most recent arrests, even though the charges were not disqualifying under the law. She further testified that the recency of those 2014 incidents was a large factor in Respondent’s decision to deny Petitioner’s application for exemption. Ms. Ledbetter noted that some of Petitioner’s statements conflict with the police reports and other documentation in Petitioner’s exemption file, particularly with respect to the 2010 Contributing to the Delinquency of a Minor conviction. Petitioner’s child, who was four months old at the time, was discovered to have a broken leg and a broken arm. At the telephonic hearing, Petitioner was unable to explain what happened and blamed the injuries on the babysitter, although no proof was presented that the babysitter was charged with a crime related to this incident. When determining to deny the exemption request, the Agency was aware of the fact that Petitioner had taken court- ordered anger management courses in 2006, and again in 2014. In summary, Ms. Ledbetter testified that, based on Petitioner’s entire file and her responses during the teleconferences, Petitioner had not satisfied her burden of proving, by clear and convincing evidence, her rehabilitation subsequent to her disqualifying offenses. Petitioner testified on her own behalf and explained how her past does not define her today, and that she is a changed person. She explained that she has grown up a lot, and has learned to love herself. She also stated that she has learned how to be honest with herself, and to take responsibility for her actions. Petitioner explained that in 2015, her mother had lung cancer and was in hospice. She acknowledged that this experience with her mother was the pivotal moment in her life that changed her. Petitioner professed that she wants nothing more than to help people, and would do so if granted the exemption. Specifically, Petitioner would like to return to her work helping elderly adults. Petitioner called as a character witness her friend since high school, Sheila Long, who testified that Petitioner has grown up a lot, is a good mother, and is trying to be a better person. Petitioner successfully completed a CNA course in March 2017. Included with Petitioner’s application for exemption from disqualification were several letters of reference, all lauding Petitioner’s good character and geniality. Three of those letters attested to her successful employment in recent years, including two from representatives of the Eisenhower Center, a rehabilitation facility where Petitioner worked as a CNA until her disqualification. A third, from the assistant manager at the Walmart where Petitioner had been employed, praised Petitioner’s pleasant and courteous demeanor, and her honesty in revealing her criminal background. Although Petitioner appeared genuinely remorseful for her criminal convictions and has clearly made an effort to turn her life around, due to the recency of some of the offenses, it cannot be concluded that she is rehabilitated and should not be disqualified from employment. Petitioner has thus failed to meet her burden of proof by clear and convincing evidence that she should be granted an exemption from disqualification.
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 28th day of November, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 28th day of November, 2017. COPIES FURNISHED: Lindsay Worsham Granger, Esquire Agency for Health Care Administration Mail Stop 7 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Nicole Henry 1609 Chatham Road Jacksonville, Florida 32208 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Justin Senior, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
