01-004858 Bryant L. Lee vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, May 14, 2002.

Summary: Petitioner failed to prove rehabilitation for purpose of granting exemption from disqualification for employment in family day care home. The crime to which Petitioner pled guilty was extremely serious; insufficient time has passed since then.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRYANT L. LEE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4858

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

P ursuant to notice, a formal hearing was held in this case

on March 27, 2002, in Orlando, Florida, before T. Kent

Wetherell, II, the designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bryant L. Lee , pro se

725 Grand Street

Orlando, Florida 32805

For Respondent: Richard B. Cato, Esquire

Department of Children and

Family Services

400 West Robinson Street

Suit e S - 1106

Orlando, Florida 32801 - 1782

STATEMENT OF THE ISSUE

Whether Petitioner should be granted an exemption from

disqualification pursuant to Section 435.07, Florida Statutes.

PRELIMINARY STATEMENT

On August 30, 2001, the Depa rtment of Children and Family

Services (Department) informed Petitioner that he was ineligible

for employment in a position of special trust working with

children because of two disqualifying offenses identified by the

Department through its background inv estigation of Petitioner.

Subsequently, Petitioner requested an exemption from

disqualification pursuant to Section 435.07, Florida Statutes.

On November 19, 2001, the Department informed Petitioner that

his request for an exemption was denied. Petition er timely

requested a formal hearing to challenge the Department’s

decision and, on December 18, 2001, the case was referred to the

Division of Administrative Hearings (Division) for the

assignment of an administrative law judge to conduct the hearing

requ ested by Petitioner.

The hearing was held on March 27, 2002. At the hearing,

Petitioner testified in his own behalf, and Petitioner’s

Exhibits P1 - P6 were received into evidence. The Department's

objection to Petitioner's Exhibit P7 on the ground that it is

unduly repetitious evidence was sustained, and that exhibit was

not received. The Department presented the testimony of Nianza

Green, a background screening coordinator with the Department,

and the Department’s Exhibits A - F were received into evidence .

No transcript of the hearing was ordered. The Department

requested and the parties were granted 30 days from the date of

the hearing to file their proposed recommended orders. However,

neither the Department nor Petitioner filed a proposed

recommended order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

hearing, the following findings are made:

1. In July 2001, Petitioner and his wife filed an

application with the Department for a license to operate a

family day care home.

2. As part of the license application process, Petitioner

was required to undergo background screening. The screening

process was conducted in August 2001, and through that process,

the Department obtained documents showing numerous criminal

charges agai nst by Petitioner between 1992 and 1997. The

charges included driving under the influence, aggravated

battery, aggravated assault with a firearm, armed robbery, and

grand larceny.

3. On August 30, 2001, the Department informed Petitioner

that he was ine ligible for employment in a position of trust

working with children because of two disqualifying offenses

identified through the background screening process, i.e. ,

“larceny general – felony” and “robbery with firearm.” The

letter identifies the date of the offenses as February 13, 1997.

4. That date corresponds to the date that Petitioner was

arrested on the charge of conspiracy to commit armed robbery.

The case number for that offense was CR97 - 1756.

5. On March 5, 1997, the State Attorney for the Ni nth

Judicial Circuit (State Attorney) filed a "No Information

Notice" in case number CR97 - 1756 because the "case [was] not

suitable for prosecution [because the] evidence submitted by

[the] law enforcement agency [was] insufficient to prove guilt

beyond a reasonable doubt."

6. On March 11, 1997, while Petitioner was still in

custody, the State Attorney filed charges against Petitioner in

two separate cases.

7. In the first case, number CR97 - 1735, Petitioner was

charged with one count of robbery with a fir earm (with a mask),

three counts of aggravated assault with a firearm (with a mask),

and one count of grand theft third degree. The offenses

allegedly occurred on January 22, 1997.

8. In the second case, number CR97 - 1736, Petitioner was

charged with one count of attempted robbery with a firearm (with

a mask). The offense allegedly occurred on January 31, 1997.

9. On July 25, 1997, Petitioner accepted a plea bargain to

resolve both of the cases. In case number CR97 - 1735, Petitioner

pled guilty to grand theft, third degree. In case number CR97 -

1736, Petitioner pled guilty to the lesser included offense of

attempted robbery. In exchange, the State Attorney filed a

nolle prosequi as to the other counts in case number CR97 - 1735,

and Petitioner was sentence d to time served (163 days), placed

on probation for two years, and assessed court costs and fines

of approximately $800.

10. The circumstances surrounding the offenses are not

entirely clear. The credible evidence indicates that Petitioner

and two of hi s friends (Jimmy Briggs and Jermane Dixson) fit the

description of persons involved in a series of robberies in late

January 1997, and an aborted robbery attempt on February 13,

1997. In this regard, the arrest report states:

On 2 - 13 - 97 at 0329 hours, e ncountered

three individuals, who had just plotted to

commit an armed robbery. There was a sawed

off shotgun, a toy gun, binoculars and

several articles of clothing recovered from

their vehicle. There was also another gun

and a black shirt recovered from the

residence of Jimmy Briggs. All three

defendants confessed to planning the robbery

and almost carrying it out, but got on the

scene and changed their minds. Defendant

Bryant Lee did confess to an armed robbery,

that he said that he and defendant #2

( Briggs) and #3 (Dixson) participate [sic]

in. [Lee] said it occurred at the Food Lion

on Oakridge Rd. but would not be specific on

the time, however indicated about three

weeks ago. Defendant #2 (Briggs) and #3

(Lee) both confessed to plotting a robbery

tonight and both wrote sworn statement [sic]

to this effect.

11. Despite his confession and his subsequent guilty

pleas, Petitioner continues to deny any involvement in the

crimes. He testified at the hearing that he was a victim of

circumstances and poo r judgment through his association with a

bad crowd of friends. Petitioner further testified that he only

agreed to the plea bargain because he wanted to get out of jail

and go home to his son.

12. In addition to the two cited disqualifying offenses,

the record reflects that in December 1996, Petitioner pled nolo

contendre and was adjudicated guilty of discharging a firearm in

public, a misdemeanor. Petitioner was sentenced to time served

(1 day) and assessed costs in the amount of $115.

13. Petitioner was 24 years old at the time of his arrest

in 1997. He is now 29 years old, and by all accounts, he has

begun to turn his life around. He successfully completed his

probation on July 24, 1999. He has not been charged with any

criminal offenses since his 1997 arrest, and he has not even

received a traffic citation.

14. Petitioner has been married to his current wife for

the past three years. They have two children together, and his

wife's nine year - old daughter, Keyanna, also lives with them.

Petition er shares custody of his six year - old son from a

previous relationship, and he is “getting current” on his child

support obligation for that child.

15. Petitioner is currently unemployed, but over the past

five years he has worked as a chef in variou s restaurants.

Petitioner testified that he is no longer working as a chef

because he feels that his calling is to work with children in

his community to steer them away from the path of criminal

activity with which he was associated in his youth.

16 . The record includes glowing character references for

Petitioner. One reference describes him as “a well rounded good

hearted person, and one of the nicest people I know.” Another

reference details Petitioner’s active participation in Keyanna’s

school and states that he “has proven to be a model parent.”

17. In November 2001, Petitioner successfully completed

the 30 - hour Family Child Care Training Course developed by the

Department pursuant to Sections 402.305(2)(d), Florida Statutes,

and Rule 65C - 22.003, Florida Administrative Code.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to Sections 120.569, 120.57, and 435.07(3),

Florida Statutes. (All references to Sections and Chapters are

to the Florida Statutes.)

19. Applicants for a family day care home license are

required to undergo Level 2 background screening pursuant to

Section 435.04. See Sections 402.305(2)(a), 402.313(1)(a)5.

20. The purpose of the background screening is to

determine whether the applicant has been "found guilty of,

regardless of adjudication, or entered a plea of nolo contendere

or guilty to" certain crimes -- commonly referred to as

disqualifying offenses -- includin g "Chapter 812, relating to

theft, robbery, and related crimes, if the offense is a felony."

See Section 435.04(2)(w).

21. Where the background screening identifies a

disqualifying offense, the applicant is disqualified from

employment in the family day care home. See Sections

402.305(2)(a), 435.06.

22. Of the offenses to which Petitioner pled guilty, i.e. ,

attempted robbery and grand theft, only grand theft is a felony

violation of Chapter 812. See Section 812.014(2)(c)1. (grand

theft - third degree i s a third degree felony). Attempted robbery

is not a violation of Chapter 812; it is a violation of Section

774.04, but it is also a third degree felony. See Section

774.04 (4)(d)1. (if the offense attempted is a second degree

felony, then the attempt is a third degree felony) and Section

812.13(2)(c) (robbery is a second degree felony). Accordingly,

only the offense of grand theft is a disqualifying offense under

Section 435.04. See Section 435.04(2)(w).

23. Section 435.07(1)(a) authorizes the li censing agency

to grant exemptions from disqualification for "[f]elonies

committed more than 3 years prior to the date of

disqualification." The disqualifying offense committed by

Petitioner was a felony and it was committed in 1997.

Accordingly, Petitio ner is eligible for an exemption from

disqualification if he demonstrates rehabilitation pursuant to

Section 435.07(3).

24. Petitioner has the burden to demonstrate by clear and

convincing evidence that he is rehabilitated based upon:

. . . the circumsta nces 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 the victim and the history of the

employee since the incident, or any other

evidence or circumstance s indicating that

the employee will not present a danger if

continued employment is allowed.

Section 435.07(3). And see Heburn v. Dept. of Children &

Families , 772 So. 2d 561 (Fla. 1st DCA 2000), rev. denied , 790

So. 2d 1104 (Fla. 2001); Phillips v. Dept . of Juvenile Justice ,

736 So. 2d 118 (Fla. 4th DCA 1999).

25. Petitioner failed to meet his burden of proof.

The record demonstrates that Petitioner has begun to turn his

life around and that he now appears to be a good father to his

children. However, the evidence is insufficient to conclude

that Petitioner is fully rehabilitated for purposes of Section

435.07(3). The offenses to which Petitioner pled guilty were

extremely serious in nature; they were not acts of youthful

indiscretion. Petitioner wa s not an immature minor at the time

of the offenses; he was a 24 year - old man.

26. Petitioner has not taken full responsibility for his

actions. At the hearing, he denied any involvement in the

crimes despite the fact that the arrest report indicates tha t he

confessed to an armed robbery and the fact that he ultimately

pled guilty to that crime as well as other offenses.

27. Only five years have passed since the date of the

offenses, and less than three years have passed since the end of

Petitioner’s pro bation. Given the severity of the disqualifying

offense and Petitioner’s conviction of at least two other non -

disqualifying offenses around the same time period, the passage

of additional time is necessary to demonstrate that Petitioner

has been fully reh abilitated. See Hepburn , 772 So. 2d at 563

(upholding the Department’s decision that three years between

the release from prison and the exemption request is not enough

time to demonstrate rehabilitation).

28. Petitioner should be commended for the steps that he

has taken over the past several years to turn his life around

and he should be encouraged to continue those steps. Petitioner

should continue to act as a role model for his children and the

children in his community. If he does so, he will be i n a

better position to obtain an exemption from disqualification in

the future.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department issue a final

order denying Petitioner’s request for an exemption from

disqualification.

DONE AND ENTERED this 14th day of May, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

T. KENT WETHERELL, II

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 May, 2002.

COPIES FURNISHED :

Richa rd B. Cato, Esquire

Department of Children and

Family Services

400 West Robinson Street

Suite S - 1106

Orlando, Florida 32801 - 1782

Bryant L. Lee

725 Grand Street

Orlando, Florida 32805

Paul Flounlacker, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this ca se.