09-003862 Flora Osborne vs. Department Of Juvenile Justice Status: Closed Recommended Order on Tuesday, December 15, 2009.

Summary: Petitioner demonstrated rehabilitation by clear and convincing evidence. Recommend granting exemption from disqualification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORA OSBORNE, )

)

Petitioner, )

)

vs. ) Case No. 09-3862

)

DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on September 25, 2009, in Ocala, Florida, before Barbara J.

Staros, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Flora Osborne, pro se

1425 Northwest 109th Avenue

Ocala, Florida 34482

For Respondent: Kimberly Sisko Ward, Esquire

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether Petitioner should receive an exemption

from employment disqualification pursuant to Section 435.07,

Florida Statutes.

PRELIMINARY STATEMENT

By letter dated July 1, 2009, Respondent, Department of

Juvenile Justice (DJJ), denied the request of Petitioner, Flora

Osborne, for an exemption from disqualification from employment

under the background screening statutes. Petitioner filed a

request for an administrative hearing to contest the denial.

Respondent referred the case to the Division of

Administrative Hearings on or about July 21, 2009.

The undersigned issued a Notice of Hearing on August 3,

2009. The notice scheduled the hearing for September 25, 2009.

The case was heard as scheduled.

At hearing, Petitioner testified on her own behalf.

Petitioner did not offer any exhibits. Respondent presented the

testimony of Myra Burks. Respondent's Exhibits numbered 1

through 13 were admitted into evidence. Official Recognition

was taken of Sections 435.04, 435.07, and 985.644, Florida

Statutes.

A one-volume Transcript was filed on October 30, 2009.

Petitioner timely filed a post-hearing letter, and Respondent

timely filed a Proposed Recommended Order, which have been

considered in the preparation of this Recommended Order. All

references to the Florida Statutes are to 2009 unless otherwise

indicated.

FINDINGS OF FACT

1. Petitioner is seeking this exemption from dis-

qualification because she desires to work at Arnette House, a

DJJ contract provider.

2. Myra Burks is the manager of DJJ’s background screening

unit. Ms. Burks reviewed all of the background screening

information received regarding Petitioner, including her

criminal history.

3. Petitioner’s criminal history included two

disqualifying offenses. In 1982, Petitioner was charged with

Grand Larceny. She pled guilty and was placed on probation for

two years and was ordered to pay restitution and court costs.

Also in 1982, Petitioner was charged with Obstructing a Law

Enforcement Officer with Violence. She was found guilty and

sentenced to five years in prison. Petitioner served six months

in prison and then worked in a work release program in

Gainesville, Florida.

4. Initially, Ms. Burks considered two other offenses to

be disqualifying: a 1985 charge of Parole Violation-Aggravated

Assault, and a 1992 charge of grand larceny. At hearing,

Ms. Burke acknowledged that neither of these offenses was

disqualifying as there was no documentation of conviction as to

the 1985 parole violation-aggravated assault charge, and the

1992 grand larceny charge was reduced to petit theft.

5. After being released from prison, Petitioner moved to

Alabama where she worked as a 911 dispatcher for the Lowndes

County Sheriff’s Department. She returned to Florida in 1991.

6. Petitioner was arrested in 2002 for False Report of

Child Abuse or Neglect. She pled guilty and adjudication of

guilt was withheld. She was placed on probation for two years,

which she completed in one year.

7. At hearing, Petitioner offered some explanation as to

the two disqualifying offenses, which occurred 27 years ago.

Petitioner explained that she was only 19 at the time of those

offenses. The resisting arrest incident happened at her

parents’ home where an officer came to arrest her. Petitioner

and her sister resisted Petitioner's being arrested and taken

from the home.

8. As to the 2002 incident, Petitioner explained that

while working at a doctor’s office, a child patient told her

things which others ignored. She maintains that she did not

falsify the report, believed the child was in trouble, and was

trying to help the child when she made the report. Despite her

having entered a plea of guilty, her testimony regarding this

incident is deemed credible and is accepted.

9. In 2003, Petitioner obtained employment at the Centers,

Inc., and worked there for six years until she resigned. She

has also worked for Timbrook of Ocala and Genesis House of

Ocala. These facilities assist youth who are homeless or their

parents cannot handle on their own.

10. Petitioner has taken classes and has obtained

certification as a NAPPI trainer, completed child care training

and certification through Central Florida Community College in

working with angry and resistant youth, and holds various

certificates from other entities. She also completed various

training classes while working at the Centers. The Program

Manager at the Centers wrote a letter of recommendation for

Petitioner stating that she was dependable, punctual, detailed,

and helpful.

11. Petitioner has received exemptions from employment

disqualification from the Agency for Persons With Disabilities

to work with children and persons with developmental

disabilities; the Department of Children and Family Services

making her eligible to be considered for employment/licensing in

a caretaker position; and the Agency for Health Care

Administration for patient care employment. On September 14,

2007, her civil rights were restored by the Office of Executive

Clemency.

12. Petitioner is a mother and grandmother. She

volunteers to work with “kids” in the community including being

involved with Sunday school with the youth in her church.

Petitioner is a member of the choir in her church.

13. Based upon her review of Petitioner's file, Ms. Burks

recommended that Petitioner be disqualified. Ms. Burks’

recommendation, however, was based on her initial belief that

Petitioner had four disqualifying offenses. As noted above,

Ms. Burks acknowledged at hearing that Petitioner only had two

disqualifying offenses, both of which occurred 27 years ago.

14. Petitioner presented meaningful evidence of

rehabilitation. She has attended many classes to receive

training in areas of caring for others and in troubled youth.

She is active in her community as a volunteer and at church, and

she genuinely likes to work with youth.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and

435.07(3), Florida Statutes.

16. Section 985.644(1)(b), Florida Statutes, provides that

DJJ shall require employment screening pursuant to Chapter 435,

Florida Statutes, using the level 2 standards set forth in that

chapter for personnel in programs for children or youths.

17. Paragraphs 435.04(2)(y) and (ii), Florida Statutes,

provide respectively that no person subject to level 2 screening

requirements can have been found guilty of, regardless of

adjudication, or entered a plea of nolo contendere or guilty to,

an offense prohibited under Chapter 812, Florida Statutes,

relating to theft, robbery, or related crimes if the offense is

a felony, or an offense relating to resisting arrest with

violence.

18. Section 435.07, Florida Statutes, states in pertinent

part as follows:

435.07 Exemptions from disqualification.--

Unless otherwise provided by law, the

provisions of this section shall apply to

exemptions from disqualification.

(1) The appropriate licensing agency may

grant to any employee otherwise disqualified

from employment an exemption from

disqualification for:

(a) Felonies committed more than 3 years

prior to the date of 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.

(emphasis added)

19. The hearing contemplated in Section 435.07(3) set

forth above is de novo . § 120.57(1)(j), Fla. Stat.

20. Petitioner’s 1982 offenses of grand larceny/theft and

resisting arrest constitute disqualifying offenses. The other

charges enumerated above do not constitute disqualifying

offenses.

21. It has been 27 years since the disqualifying offenses

of theft and resisting arrest with violence. Since that time,

she has not committed a disqualifying offense. The only offense

that occurred in the recent past is the 2002 charge of making a

false report in which adjudication was withheld. Petitioner

sufficiently explained the circumstances surrounding that

incident in which she acted in a manner in which she believed

was in the best interest of a child.

22. Petitioner has demonstrated rehabilitation by clear

and convincing evidence. It has been 27 years since the

disqualifying offenses. It has been 17 years since the non-

disqualifying offense of petit theft. Since that time, with the

exception of the 2002 incident referenced above, she has taken

training classes for which she has received certificates. There

do not appear to be any victims who were harmed as a result of

her past offenses. There is no evidence to indicate that the

employee will present a danger to the youth in a DJJ facility or

contract facility.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Respondent enter a final order granting Petitioner an

exemption from disqualification.

DONE AND ENTERED this 15th day of December, 2009, in

Tallahassee, Leon County, Florida.

S

__________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of December, 2009.

COPIES FURNISHED :

Flora Osborne

1425 Northwest 109th Avenue

Ocala, Florida 34482

Kimberly Sisko Ward, Esquire

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399

Frank Peterman, Jr., Secretary

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399

Jennifer Parker, General Counsel

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399

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 case.