02-002672 Vernon Jackson vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, October 17, 2002.

Summary: Employee background screening is not applicable to employee for misdemeanor committed by him prior to effective date of screening statute. Employee should be granted an exemption from disqualification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERNON JACKSON, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2672

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A dministrative Law Judge Don W. Davis conducted a formal

hearing in the above - styled case on September 18, 2002, in

Quincy, Florida. The following appearances were entered:

For Petitioner: Ben R. Patterson, Esquire

315 Beard Street

Post Office Box 4289

Tallahassee, Florida 32315 - 4289

For Respondent: John R. Perry, Esquire

Department of Children and

Family Services

2639 North Monroe Street

Building A, Room 104

Tallahassee, Florida 32399 - 2949

STATEMENT OF TH E ISSUE

The issue is whether Petitioner should be granted an

exemption from disqualification for working in a position of

trust with disabled adults and children pursuant to the

provisions of Chapter 435, Florida Statutes.

PRELIMINARY STATEMENT

By letter d ated May 30, 2002, Respondent advised Petitioner

that Petitioner's request for exemption had been denied.

Petitioner timely requested formal administrative proceedings

with regard to Respondent's exemption denial and the matter was

transferred to the Divi sion of Administrative Hearings.

At the final hearing, Petitioner testified in his own

behalf and presented the testimony of three other witnesses.

Respondent presented testimony of two witnesses and four

exhibits.

No transcript was provided. The par ties submitted Proposed

Recommended Orders which have been reviewed in the course of

preparation of this Recommended Order.

FINDINGS OF FACT

1. Since 1979, Petitioner, Vernon Jackson (Petitioner),

has been employed by the Department of Children and Fami ly

Services (Respondent) or its predecessor government agency, with

the exception of a period in 1996 - 97. He is presently

classified as a psychiatric aide.

2. Petitioner worked in a unit of the Florida State

Hospital in Chattahoochee, Florida, which pr ovides care to the

patients of the facility, and he is a caregiver. It is in that

capacity that he is subject to the employment screening

requirements of Chapter 435 of the Florida Statutes.

3. On August 23, 1980, Petitioner's girlfriend, Willie

Thomas, got into an argument with a 17 - year - old girl named

Gwendolyn Arnold. When the argument between Thomas and Arnold

escalated into a physical fight, Petitioner became involved in

the fray. Arnold's 15 - year - old brother also joined in the

activity. As a resu lt of the incident, Petitioner was charged

with the misdemeanor offenses of disorderly conduct, resisting

arrest without violence, and battery.

4. Petitioner pled guilty to all three of the charged

offenses. Adjudication of guilt was withheld by the co urt.

Petitioner paid a fine of $50, plus costs, for the first two

counts, disorderly conduct and resisting arrest without

violence, and a fine of $100, plus costs, for the battery

charge. In conjunction with the battery charge he was placed on

probation f or a period of one year.

5. Petitioner's next criminal episode also involved Willie

Thomas, his earlier girlfriend. On April 16, 1981, Petitioner

was arrested and pled guilty to trespassing at Thomas’ home. He

was required to pay a fine of $50. Althoug h, adjudication was

again withheld, he was placed on probation to run concurrently

with his earlier probation sentence.

6. Some months later, on November 19, 1981, Petitioner

pled guilty to disorderly conduct involving a public brawl with

two men. He pa id a fine of $75 and adjudication of guilt was

withheld.

7. Employment screening at the Florida State Hospital was

commenced in 1997 for positions of employment similar to that

held by Petitioner. Petitioner's 1980 offense and 1981 plea was

overlooked un til this year. On or about April 20, 2002, after

discovery of the battery offense, a decision was made to remove

him from a caregiver position pending resolution of his request

for an exemption.

8. With a birth date of January 21, 1960, Petitioner was

20 years of age at the time of his first offense and 21 years of

age when he last committed a criminal offense.

9. Several supervisors of Petitioner testified that he was

at all times a caring and diligent worker. Those supervisors

included Karen Alfor d (“He was good.”); Freddie Culver

(described Mr. Jackson as showing a lot of care and kindness);

and Helen Conrad (“Excellent”).

10. The parties stipulated that Julia Thomas and Barry

Moore would testify to similar conclusion and opinions as to the

qual ity of Petitioner's employment. Petitioner’s performance

appraisals were at least satisfactory.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of the above

styled cause. Section 120 .57(1) Florida Statutes.

12. Respondent disqualified Petitioner for an offense that

occurred before October 1, 1995. The provisions of Chapter

95 - 228 of the Laws of Florida that created Chapter 435 of the

Florida Statutes provided that employment scr eening provisions

of the statute did not become effective until October 1, 1995,

and did not apply to offenses committed before that date. 1 It is

also axiomatic that a preexisting interest may be not be taken

by legislation passed subsequent to the creati on of that

interest. For those reasons Mr. Jackson should not be

disqualified in 2002 for offenses to which he pled in 1980.

See Florida Public Employees Council 79, AFSCME v. Department of

Children and Family Services , 794 So. 2d 733 (Fla. 1st DCA

2001 ); Guest v. Department of Juvenile Justice, 786 So. 2d 677

(Fla. 1st DCA 2001).

13. In the Guest decision, the court considered the appeal

of Mr. Guest concerning a claim that Chapter 435, Florida

Statutes, was unconstitutional. The court upheld the dec ision

of the circuit court that required Mr. Guest to exhaust his

administrative remedies. As to Guest’s claim that the statute

was facially unconstitutional, the court said:

As to the facial constitutional challenge, we

conclude that the appellant does n ot have

standing. Florida Law Chapter 95 - 228 created

Chapter 435, Florida Statutes, on employment

screening. In section 64 of the act, the

legislature stated that “this act shall take

effect October 1, 1995, and shall apply to

offenses committed on or aft er that date.”

Ch. 95 - 228, Sec. 64, at 2076, Laws of Fla. In as

much as the appellant allegedly committed his

offenses in 1985, the appellant does not have

standing to raise any facial constitutionality

issues concerning Chapter 435. Thus, we affir m

the appealed order without reaching the merits of

the facial constitutionality challenge. See ,

Singletary v. State , 322 So. 2d 551 (Fla. 1975).

Id.

14. Even if Petitioner were subject to disqualification

from his employment on the basis of his prior o ffenses committed

in 1980 - 81, he should be granted an exemption. The first

offense occurred in 1980 when he was but 20 years of age. There

were no serious injuries, and Petitioner has had no criminal

problems since 1981. His employment history shows tha t he is a

dependable, conscientious, and diligent employee.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that a final order be entered granting

Petitioner an exemption from disqualification.

DONE A ND ENTERED this 17th day of October, 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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of October, 2002.

ENDNOTE

1/ Section 64 of Chapter 95 - 228 provides, "Except as oth erwise

provided herein, this act shall take effect October 1, 1995, and

shall apply to offenses committed on or after that date."

COPIES FURNISHED :

Ben R. Patterson, Esquire

Patterson and Traynham

315 Beard Street

Post Office Box 4289

Tallahassee, Flori da 32315 - 4289

John R. Perry, Esquire

Department of Children and

Family Services

2639 North Monroe Street

Building A, Suite 104

Tallahassee, Florida 32399 - 2949

Paul F. Flounlacker, Jr., Agency Clerk

Department of Children and

Family Services

1 317 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 204

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUB MIT 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 case.