02-000170 Renita Kenon| R. K. vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, April 8, 2002.

Summary: Petitioner exemption should be denied due to lack of clear and convincing evidence that Petitioner will not revert to lawless behavior.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RENITA KENON, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0170

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Do n W. Davis, an Administrative Law Judge of the Division

of Administrative Hearings, held a final hearing in the above -

styled cause on March 19, 2002, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Renita Kenon, pro se

933 8 Salem Road

Quincy, Florida 32351

For Respondent: John R. Perry, Esquire

Department of Children and

Family Services

2639 North Monroe Street, Suite 252 - A

Tallahassee, Florida 32399 - 2949

STATEMENT OF THE ISSUE

Is Petitioner entitled to exemption from disqualification

with regard to working in a position of special trust and

responsibility related to children, disabled adults, and elderly

person s?

PRELIMINARY STATEMENT

By letter dated December 18, 2001, Respondent notified

Petitioner that her request for exemption from disqualification

was denied. The letter of denial created the option for

Petitioner to seek a hearing pursuant to Chapter 1 20, Florida

Statutes, to contest the preliminary decision denying the

exemption.

Petitioner requested a formal hearing to seek an exemption

from disqualification by letter which Respondent received on

December 27, 2001. In turn, Respondent forwarde d the case to

the Division of Administrative Hearings to conduct a formal

hearing.

At the final hearing, Petitioner presented testimony of two

witnesses, including herself, and presented one composite

exhibit, admitted only to the extent that such ma terial was

corroborative of direct testimony. Respondent presented one

witnesses and 11 exhibits.

The parties were provided the opportunity to file proposed

recommended orders. Respondent filed a Proposed Recommended

Order. Where possible that wr itten post - hearing submission has

been utilized in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner Renita Kenon is 20 years of age. Prior to

her disqualification, she was employed in a position of special

trust with the Leon Ad vocacy and Resource Center (LARC) where

she worked with developmentally disabled clients.

2. As a juvenile, Petitioner compiled an extensive

history with law enforcement. A petit theft charge in juvenile

court against Petitioner was disposed of non - judici ally on

April 17, 1997. A second offense of petit theft resulted in a

disposition by the juvenile court through withholding

adjudication of delinquency on October 5, 1997. A third offense

for petit theft resulted in an adjudication of delinquency on

Mar ch 11, 1998.

3. On October 14, 1998, Petitioner pled nolo contendere

to a charge of grand theft. An accompanying charge of resisting

arrest without violence was dismissed by prosecutors as a part

of the plea bargain effected by Petitioner.

4. On Febru ary 11, 1999, Petitioner was again adjudicated

delinquent for two additional counts of petit theft.

5. Petitioner has never been charged with a crime as an

adult. Her entire criminal history consists of offenses for

theft. All the incidents were han dled through the juvenile

justice system.

6. Petitioner's testimony was direct, candid, and

creditable. She previously engaged in a life - style that is no

longer compatible with her present involvement with work and

community. Three years have elapsed since adjudication of

Petitioner's last disqualifying event.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Section 120.57(1), Florida Statutes.

8. The ent ire basis of Petitioner's disqualification from

working in a position of special trust relates to juvenile court

records which are normally not subject to public scrutiny.

However, a notable exception in Section 39.0123(6)(d), Florida

Statutes, permits us e of those records in this proceeding and

reads as follows:

(6) No court record of proceedings under

this chapter shall be admissible in evidence

in any other civil or criminal proceeding,

except that:

* * *

d) Records of proceedings under this

chapter may be used to prove

disqualification pursuant to s. 435.06 and

for proof regarding such disqualification in

a chapter 120 proceeding.

9. Section 435.07, Florida Statutes, permits Respondent to

grant Petitioner, and similarly situated perso ns, exemptions

from disqualification upon conclusion of a three - year period

following commission of a disqualifying felony, provided there

has been a demonstration by "clear and convincing evidence" on

the part of the one seeking the exemption that it shou ld be

granted.

10. Section 435.07(3), Florida Statutes, reads as follows:

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

dis qualified 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 employm ent is allowed.

11. A standard of demonstrating through "clear and

convincing evidence" that one should not be disqualified, places

a heavy burden on Petitioner. Petitioner in the present case,

while impressive in her testimony, presented insuffici ent

corroborating testimony, or other evidence, indicating that she

would not revert to old patterns of irresponsible behavior and

thereby present a danger should continued employment be

permitted.

12. Evidence presented by Petitioner is not deemed "clear

and convincing" in this instance so as to support a reasonable

belief that she will not again engage in lawless behavior. The

evidence presented militates against granting the exemption at

this time.

RECOMMENDATION

Based on the foregoing Finding s of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered denying

Petitioner's request for exemption from disqualification to work

in positions of special trust.

DONE AND ENTERED this 8th day of April, 2002, in

Tallahassee , Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (8 50) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of April, 2002.

COPIES FURNISHED :

Renita Kenon

9338 Salem Road

Quincy, Florida 32351

John R. Perry, Esquire

Department of Children and

F amily Services

2639 North Monroe Street, Suite 252A

Tallahassee, Florida 32399 - 2949

Peggy Sanford, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, Ge neral Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from th e 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 case.