01-004497 Sonia Leggs-Stewart vs. Department Of Juvenile Justice Status: Closed Recommended Order on Wednesday, March 20, 2002.

Summary: Petitioner, who was disqualified from working with children, failed to prove by clear and convincing evidence that she had been rehabilitated; thus, she was ineligible for an exemption from disqualification. Recommend request be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SONIA LEGGS - STEWART, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4497

)

DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

The partie s having been provided proper notice,

Administrative Law Judge John G. Van Laningham of the Division

of Administrative Hearings convened and completed a formal

hearing of this matter by video teleconference on February 7,

2002. Petitioner and her witnesse s appeared in Miami, Florida.

Respondent, through counsel, and its witness appeared, and the

Administrative Law Judge presided, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Sonia Leggs - Stewart, pro se

25833 Southwest 123rd Place

Mia mi, Florida 33032

For Respondent: Richard M. Coln, Esquire

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

STATEMENT OF THE ISSUE

The issue in this case is whether Pe titioner is eligible

for an exemption from disqualification from working with

children.

PRELIMINARY STATEMENT

In or around December 2000, Petitioner Sonia Leggs - Stewart

was hired by a contractor for Respondent Department of Juvenile

Justice as an employee in a program for children. A few months

later, a mandatory background screening revealed that Petitioner

was a convicted felon legally disqualified from such employment.

Petitioner requested an exemption from disqualification. By

letter dated September 18, 2001, Respondent notified Petitioner

that the agency had denied her request.

Petitioner timely exercised her right to be heard in a

formal administrative proceeding. On November 14, 2001, the

agency referred the matter to the Division of Administra tive

Hearings. The case was assigned to an administrative law judge

and set for final hearing on February 7, 2002.

The hearing took place as scheduled with all parties

present. At hearing, Petitioner testified in her own behalf and

called three witnes ses: Joan Carter, Sammie Stewart (her

husband), Fred Leggs (her father), and Nicole Scott. In

addition, Petitioner introduced one exhibit (identified as

Petitioner’s Exhibit A) into evidence. Respondent presented the

testimony of one witness, Acting Ins pector General Lynn T.

Winston, and offered 13 exhibits (Respondent's Exhibits A

through M), which were admitted.

Neither party ordered a transcript of the final hearing.

Each timely submitted a proposed recommended order. The

parties’ respective post - h earing papers were carefully

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

The evidence presented at hearing established the facts

that follow.

1. In 2000, Petitioner Sonia Leggs - Stewart (“Leggs -

Stewart”) sought employme nt 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 “Ac ademy”).

2. 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 compl eted 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 “Af fidavit”).

3. 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)

a ttest 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

4. Above the notary’s signature line on the Affidavit are

two separate statements. Th e 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 omission s, 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 knowle dge 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 th e offense(s)

contained in your record.)

________________________

SIGNATURE OF AFFIANT

(emphasis added).

5. Leggs - Stewart applied for employment with the Academy

in March 2000. On the employment application, she answered

“yes” to the quest ion: “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 exe cuted 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 con trol 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

su bstances, and possession of drug

paraphernalia, etc.)

6. The record is silent as to whether the Academy offered

Leggs - Stewart a job; there is no evidence that she worked for

the Academy.

7. In December 2000, Leggs - Stewart applied for a job w ith

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

act ion: ___________.” 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.

8. The Institute hired Leggs - Stewart to work in a program

for youth called W.I.N.G.S. for Life South Florida.

9. 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 ch arges 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

disqu alifying offenses, to complete a new Affidavit, and to

explain why the previous Affidavit failed to indicate any

disqualifying offenses.

10. On July 3, 2001, Leggs - Stewart executed a new

Affidavit on which she circled the disqualifying offenses of

aggrav ated 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 comple ted

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 n ot intentionally mean to

mislead anyone regarding these offenses.

11. 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

autho rities 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 Florid a 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 ti me and successfully completed probation.

She has not been in trouble with the law since her arrest for

the federal drug crime.

12. Leggs - Stewart requested an exemption from

disqualification from employment. As a result, an informal

hearing on the matte r 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.

13. DJJ’s Inspector General disagreed with the committee,

however, and decided that the exemption should be denied.

Ultimate Factual Determinations

1 4. 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 w hole. The gravity of Leggs -

Stewart’s offense clearly “raises the bar” in terms of

establishing rehabilitation.

15. 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 o f law - abiding citizen.

16. 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.

17. Leggs - Stewart does not pr esently pose a danger to the

safety or well being of children.

18. 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

nondisclo sure are accepted 3 , the inescapable fact is that the

Affidavits were not truthful, and she reasonably should have

known that. 4

19. 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 whic h 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.

20. Thus, it is d etermined 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 lig ht 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 ab out

the completeness of her rehabilitation.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida, and the parties have

standing.

22. Section 39.001, Florida Statutes, provides in

pertinent part:

(2) DEPARTMENT CONTRACTS. – The department

may contract with the Federal Government,

other state departments and agencies, county

and municipal governments and agencies,

public and private agencies, and private

individuals and corporations in carrying out

the purposes of, and the responsibilities

established in, this chapter.

(a) When the department contracts with a

provider for any program for children, all

personnel, including owners, op erators,

employees, and volunteers, in the facility

must be of good moral character . A

volunteer who assists on an intermittent

basis for less than 40 hours per month need

not be screened if the volunteer is under

direct and constant supervision by person s

who meet the screening requirements.

(b) The department shall require employment

screening , and rescreening no less

frequently than once every 5 years, pursuant

to chapter 435, using the level 2 standards

set forth in that chapter for personnel in

prog rams for children or youths .

(c) The department may grant exemptions

from disqualification from working with

children as provided in s. 435.07.

(emphasis added).

23. The level 2 standards to which Section 39.001(2)(b),

Florida Statutes, refers are set forth in Section 435.04 as

follows:

(1) 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 pu rposes of this

subsection, security background

investigations shall include, but not be

limited to, fingerprinting for all purposes

and checks in this subsection, statewide

criminal and juvenile records checks through

the Florida Department of Law Enforcem ent,

and federal criminal records checks through

the Federal Bureau of Investigation, and may

include local criminal records checks

through local law enforcement agencies.

(2) 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 si milar statute of another

jurisdiction:

* * *

(mm) Chapter 893, relating to drug abuse

prevention and control, only if the offense

was a felony or if any other person involved

in the offense was a minor.

* * *

(5) Under penalty of perj ury, all employees

in such positions of trust or responsibility

shall attest to meeting the requirements for

qualifying for employment and agreeing to

inform the employer immediately if convicted

of any of the disqualifying offenses while

employed by the e mployer. Each employer of

employees in such positions of trust or

responsibilities which is licensed or

registered by a state agency shall submit to

the licensing agency annually, under penalty

of perjury, an affidavit of compliance with

the provisions of this section.

24. Having pleaded guilty to a felony drug crime under

laws of the United States similar to provisions in Chapter 893,

Florida Statutes, Leggs - Stewart is disqualified from employment

in a program for youth or children. Accordingly, Leggs -

Stewart’s employer was required “either [to] terminate [her]

employment . . . or place [her] in a position for which

background screening is not required unless the employee is

granted an exemption from disqualification pursuant to s.

435.07.” See Section 435.06(2), Florida Statutes.

25. Under Section 435.07, Florida Statutes, DJJ is granted

authority to exempt some employees from disqualification.

Employees whom the agency may exempt (as opposed to employees it

may not exempt) include those, such as Le ggs - Stewart, whose

convictions were for felonies committed more than three years

before the date of disqualification. See Section 435.07(1)(a),

Florida Statutes.

26. The agency is prohibited, however, from granting

exemptions to all employees who are “ex emptible” under Section

435.07(1), Florida Statutes. As provided in Section 435.07(3),

[i]n 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

no t 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.

(emphasis added). Thus, to fall within the agency’s power to

award an exemption from disqua lification, an employee must be

both “exemptible” under Section 435.07(1) and prove by clear and

convincing evidence that he or she has been rehabilitated,

according to the standards prescribed in Section 435.07(3),

Florida Statutes.

27. A clearly reha bilitated, “exemptible” employee is not

entitled to an exemption, however, but is merely eligible to be

granted one at the agency’s broad discretion. See Heburn v.

Department of Children and Families , 772 So. 2d 561 (Fla. 1st

DCA 2000), rev. denied , 790 S o. 2d 1104 (2001); Phillips v.

Department of Juvenile Justice , 736 So. 118 (Fla. 4th DCA 1999).

As the courts in Heburn and Phillips made clear, the denial of

an exemption to an eligible employee will not generally be

considered an abuse of discretion. 6

28. Further, it follows from Heburn and Phillips that the

ultimate issue in a formal administrative proceeding brought by

a disappointed employee pursuant to Section 435.07(3), Florida

Statutes, generally should not be whether the exemption should

be gran ted (for that is a matter committed to the agency’s wide

discretion) but rather in most cases should be whether the

employee is eligible for an exemption —— that is, whether the

agency even has the discretionary power to award him one. If

the employee is in eligible in fact, then the agency does not

have the discretion to grant him an exemption, and the

employee’s request must be denied for that reason, not as a

discretionary matter but as a legal one.

29. Typically, as here, the resolution of an eligibility

dispute will turn on whether the employee establishes, by clear

and convincing evidence, that he or she has been rehabilitated,

taking into account the criteria enumerated in Section

435.07(3), Florida Statutes.

30. Regarding the burden of proof, i n Slom owitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of Appeal,

Fourth District, canvassed the cases to develop a "workable

definition of clear and convincing evidence" and found that of

necessity such a definition would need to contain "bot h

qualitative and quantitative standards." The court held that

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise an d explicit and the

witnesses must be lacking confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sough t to be

established.

Id. The Florida Supreme Court later adopted the fourth

district's description of the clear and convincing evidence

standard of proof. Inquiry Concerning a Judge No. 93 - 62 , 645

So. 2d 398, 404 (Fla. 1994). The First District Court o f Appeal

also has followed the Slomowitz test, adding the interpretive

comment that "[a]lthough this standard of proof may be met where

the evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler

Brothers, Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev .

denied , 599 So. 2d 1279 (1992)(citation omitted).

31. By imposing a heightened standard of proof on

employees who seek exemptions from disqualification, the

legislature plainly inten ded to make exemptions difficult to

obtain, reducing the margin for error in favor of the agency

(and the public whose safety the agency is charged with

protecting). Put another way, the legislature effectively has

said it is better mistakenly to deny exe mptions to some

employees who are truly rehabilitated than mistakenly to permit

one who is actually not rehabilitated to hold a position of

trust or responsibility.

32. In this case, Leggs - Stewart has not carried her burden

to establish rehabilitation c learly and convincingly.

Therefore, she is not eligible for an exemption even if DJJ were

inclined to grant her one (which it obviously is not).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Depa rtment 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.

ENDNOTES

1 / The term “conviction” paraphrases the Affidavit’s actual

langu age, which is more comprehensive.

2 / At the final hearing, DJJ’s counsel represented that the

assault charge was not a basis for the agency’s intended denial

of Leggs - Stewart’s application for an exemption. Therefore, the

circumstances surrounding Leggs - Stewart’s 1989 arrest will not

be discussed here.

3 / Leggs - Stewart testified that someone on the Institute’s staff

advised her that disclosure of her drug conviction on the

Affidavit signed December 18, 2000, was not required because no

person invo lved in the offense was a minor. It is not necessary

to decide here whether an agency might, in a particular case, be

estopped to challenge a good character affidavit based on

representations made to an applicant, or be deemed to have

waived a deficiency in such affidavit. For in this case, first,

Leggs - Stewart’s claim, even if true, would not support a finding

that any representations were made upon which Leggs - Stewart

could reasonably have relied. The Affidavit’s description of

drug - related offenses (q uoted in paragraph 5 in the text) is

simply not susceptible to the interpretation that Leggs - Stewart

claims she was told prevailed, namely, that only offenses

involving minors needed to be disclosed. Perhaps Leggs - Stewart

did in fact receive bad advice ab out the Affidavit, and if so

that is unfortunate, but she should have known better than to

follow such patently unreliable instructions. Second, Leggs -

Stewart does not claim that any official of DJJ (who might

arguably have apparent authority to decide su ch matters)

counseled her not to disclose the drug conviction. In sum,

without expressing any opinion as to whether waiver and estoppel

are available theories in cases such as this, the facts here do

not support any determination except that Leggs - Stewart is

personally responsible for the omissions and misstatements in

her Affidavit.

4 / It is understandable that Leggs - Stewart would want to conceal

her criminal background: Obviously many employers look

unfavorably upon an applicant with a felony convic tion. Indeed,

Leggs - Stewart herself has been refused employment literally

dozens of times as a consequence of her record. That one can

understand why Leggs - Stewart would not disclose her criminal

record, however, does not make her actions right or excusa ble.

5 / It is true, as Leggs - Stewart points out, that in the

employment application submitted to the Academy, she did

disclose her conviction for possession with intent to distribute

cocaine. Thus, arguably, the March 13, 2000, Affidavit is

“less” disho nest, since it was coupled with a truthful

disclosure. The problem with this argument is that, on the

present record, it is not clear that Leggs - Stewart expected

anyone except the hiring personnel at the Academy to see the

application. There is no eviden ce that DJJ was furnished a copy

of the employment application as part of the background

screening process and, perhaps more important, no proof that

Leggs - Stewart knew or believed that DJJ would receive the

application together with the Affidavit. Becaus e the March 13,

2000, Affidavit is misleading on its face, and because there is

no persuasive proof in the record that Leggs - Stewart knew or

believed the truthful application would always accompany the

misleading Affidavit, the application that Leggs - Stewa rt

tendered to the Academy has little mitigative value.

6 / In Heburn , 772 So. 2d at 563, the court wrote that the

agency’s “exercise of discretion [in granting or denying an

exemption to an eligible employee] is circumscribed by the

standards set forth in section 435.07(3).” These standards

specifically bear on the issue of rehabilitation, a fact which

an “exemptible” employee must establish, by clear and convincing

evidence, in order simply to be eligible for an exemption.

Since the agency has no dis cretion to exempt ineligible

employees but instead may grant exemptions only to those who are

eligible and hence who, by definition, have adequately

demonstrated rehabilitation pursuant to the Section 435.07(3)

standards, it is not entirely clear how those same standards are

to be applied in distinguishing between eligible employees who,

in the exercise of sound discretion, reasonably should be

exempted from disqualification and those who reasonably should

not be. In any event, when denying an exemption to an eligible

employee, the agency ideally should articulate the facts and

circumstances upon which its discretionary decision has been

based, so that the outcome will not appear to be arbitrary or

capricious.

COPIES FURNISHED :

Sonia Leggs - Stewart

2583 3 Southwest 123rd Place

Miami, Florida 33032

Richard M. Coln, Esquire

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

William G. Bankhead, Secretary

Department of Juvenile Justice

2737 Centerview Dri ve

Tallahassee, Florida 32399 - 3100

Robert N. Sechen, General Counsel

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions wit hin

15 days from the date of this R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.