99-003931
Alexander Fonseca vs.
Department Of Juvenile Justice
Status: Closed
Recommended Order on Thursday, April 27, 2000.
Recommended Order on Thursday, April 27, 2000.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8ALEXANDER FONSECA, )
11)
12Petitioner, )
14)
15vs. ) Case No. 99-3931
20)
21DEPARTMENT OF JUVENILE JUSTICE, )
26)
27Respondent. )
29__________________________________)
30RECOMMENDED ORDER
32Pursuant to notice, a formal hearing was held in this case
43on March 15, 2000, at Miami and Tallahassee, Florida, via video
54teleconference before Susan B. Kirkland, a designated
61Administrative Law Judge of the Division of Administrative
69Hearings.
70APPEARANCES
71For Petitioner: Alan K. Marcus, Esquire
777300 North Kendall Drive, Suite 540
83Miami, Florida 33156
86For Respondent: Lynne T. Winston, Esquire
92Department of Juvenile Justice
96Inspector General's Office
992737 Centerview Drive
102Tallahassee, Florida 32399-3100
105STATEMENT OF THE ISSUE
109Whether Petitioner should be given an exemption from
117employment disqualification pursuant to Section 435.07, Florida
124Statutes.
125PRELIMINARY STATEMENT
127By letter dated August 1, 1999, Respondent, Department of
136Juvenile Justice (Department), advised Petitioner,
141Alexander Fonseca (Fonseca), that his request for exemption from
150employment disqualification pursuant to Section 435.07,
156Florida Statutes, was denied. Fonseca requested an
163administrative hearing, and the case was forwarded to the
172Division of Administrative Hearings on September 17, 1999, for
181assignment to an Administrative Law Judge.
187The case was scheduled for final hearing on December 21,
1971999. On December 16, 1999, Petitioner filed an Amended Motion
207for Continuance, which was granted. The case was re-scheduled
216for March 15, 2000.
220At the final hearing, Petitioner testified in his own behalf
230and presented no exhibits. Respondent called Perry S. Turner as
240its witness. Respondent's Exhibits 1-7 were admitted in
248evidence.
249The parties agreed to file their proposed recommended orders
258within ten days of the filing of the T ranscript, which was filed
271on March 29, 2000. Petitioner filed his P roposed R ecommended
282O rder on April 13, 2000, and Respondent filed its P roposed
294R ecommended O rder on April 10, 2000. The parties proposed
305recommended orders have been considered in rendering this
313Recommended Order.
315FINDINGS OF FACT
3181. At the age of twenty-eight, Petitioner,
325Alexander Fonseca (Fonseca) , was arrested for felony possession
333of marijuana on February 21, 1989. For this charge, adjudication
343was withheld, and Fonseca was credited for time served.
3522. Petitioner's other criminal history includes a 1983
360arrest for misdemeanor possession of marijuana for which he was
370credited for time served; a 1988 arrest for driving with a
381suspended license for which adjudication was withheld; a 1988
390arrest for driving with a suspended license for which he was
401found guilty; and a 1991 arrest for reckless driving for which
412adjudication was withheld.
4153. In April 1999, Fonseca sought employment as a Juvenile
425Probation Officer with the Department. In conjunction with his
434application for employment, Fonseca was required to submit to the
444Department's background screening process since he would be
452working with juveniles.
4554. Fonseca was told by a receptionist with the Department
465that if he had a criminal record he would not be hired.
4775. As part of the application and background screening
486process, Fonseca submitted a State of Florida application and an
496Affidavit of Good Moral Character. Fonseca failed to disclose on
506both of these documents his felony arrest for and adjudication
516withheld on felony possession of marijuana. The affidavit
524contained Fonseca's notarized signature dated April 27, 1999,
532attesting to the following statement:
537I attest that I have read the above carefully
546and state that my attestation here is true
554and correct that neither my adult nor
561juvenile record contains any of the listed
568offenses. I understand that it is my
575responsibility to obtain clarification on
580anything contained in this affidavit which I
587do not understand. I am aware that any
595omissions, falsifications, misstatements or
599misrepresentations may disqualify me from
604employment consideration and, if I am hired,
611may be grounds for termination at a later
619date.
6206. Fonseca did not disclose his criminal history because,
629based on what the receptionist told him, he did not believe that
641he would get the job if he revealed that he had a criminal
654history. His failure to disclose his criminal history was not an
665error or oversight. It was intentional.
6717. A Florida criminal history conducted by the Department
680revealed Fonseca's 1989 arrest for felony possession of
688marijuana. As a result, on May 6, 1999, Fonseca was determined
699to be disqualified and ineligible for a position in the
709Department working with juveniles.
7138. In a letter dated June 1, 1999, the Department advised
724Fonseca that he could request a desk review to pursue an
735exemption from employment disqualification. Fonseca was required
742to submit specified documentation, which he did.
7499. As Inspector General for the Department, Perry Turner
758makes the final departmental decision on exemption requests. In
767an interoffice memorandum dated July 29, 1999, Fonseca's
775exemption request was forwarded to Mr. Turner along with
784Fonseca's complete background screening file.
78910. In a desk review, Mr. Turner does not interview the
800applicant's seeking an exemption. Each applicant has an
808opportunity to submit to the Department documentation, which he
817desires the Department to consider in determining whether an
826exemption should be granted.
83011. In reaching his decision, Turner reviewed Fonseca's
838background screening file and the documentation submitted by
846Fonseca. On July 30, 1999, Turner denied Fonseca's request for
856an exemption. The denial was based upon the totality of the
867circumstances surrounding Fonseca's prior criminal history and
874his falsification of the notarized Affidavit of Good Moral
883Character.
88412. Mr. Turner notified Fonseca of the denial in a letter
895dated August 1, 1999.
89913. From his early teens until approximately ten years ago,
909Fonseca was heavily involved with drug and alcohol use and was
920chemically dependent. He sought help for his dependency and has
930been clean and sober since 1991. Fonseca is actively involved in
941the 12-Step Programs of Alcoholics Anonymous and Narcotics
949Anonymous.
95014. In 1992, Fonseca decided to go back to school. He
961graduated with a degree in criminal justice in 1998.
97015. Fonseca did not present any information to the
979Department concerning his addiction prior to the denial of his
989exemption request.
991CONCLUSIONS OF LAW
99416. The Division of Administrative Hearings has
1001jurisdiction over the parties to and the subject matter of this
1012proceeding. Section 120.57(1), Florida Statutes.
101717. Pursuant to Section 39.001, Florida Statutes,
1024applicants seeking employment with the Department to work with
1033any program for children must be of good moral character. The
1044Department requires employment screening pursuant to Chapter 435,
1052Florida Statutes.
105418. According to Section 435.04(1), Florida Statutes,
1061backgound screening standards encompass employment history
1067checks; juvenile, state, and federal criminal records checks; and
1076fingerprinting for state and federal checks.
108219. Section 435.04(2), Florida Statutes, specifies that the
1090person being screened must not have been found guilty of,
1100regardless of adjudication, or entered a plea of nolo contendere
1110or guilty to any offense prohibited under any of the enumerated
1121sections of the Florida Statutes found in Section 435.04(2),
1130Florida Statutes or similar state statutes of other
1138jurisdictions. Subsection 435.04(2)(mm), Florida Statutes,
1143refers to felony drug offenses as being disqualifying in nature.
115320. Subsection 39.001(2)(c), Florida Statutes, provides
1159that the Department may grant exemptions from disqualification
1167from working with children as provided in Section 435.07, Florida
1177Statutes. The Department has the authority to grant exemptions
1186for felonies committed more than three years prior to the date of
1198disqualification. Section 435.07(3) sets forth the exemption
1205process for disqualified persons and provides:
1211In order for a licensing department to
1218grant an exemption to any employee, the
1225employee must demonstrate by clear and
1231convincing evidence that the employee should
1237not be disqualified from employment.
1242Employees seeking an exemption have the
1248burden of setting forth sufficient evidence
1254of rehabilitation, including but not limited
1260to, the circumstances surrounding the
1265criminal incident for which exemption is
1271sought, the time period that has elapsed
1278since the incident, the nature of the harm
1286caused the victim, and the history of the
1294employee since the incident, or any other
1301evidence or circumstances indicating that the
1307employee will not present a danger if
1314continued employment is allowed. The
1319decision of the licensing department
1324regarding an exemption may be contested
1330through the hearing procedures set forth in
1337chapter 120.
133921. Petitioner is to be commended for overcoming his
1348addiction and for completing his education. Although, the
1356disqualifying offense is serious, it has been ten years since the
1367commission of the offense. Fonseca was arrested for reckless
1376driving two years after the disqualifying offense and
1384adjudication for the reckless driving was withheld. Based on his
1394history up until the time he applied for employment with the
1405Department, Fonseca appeared to have made great strides towards
1414rehabilitation. However, Fonseca intentionally failed to
1420disclose his felony conviction on his application and on the
1430Affidavit of Good Moral Character. Fonseca knew that what he was
1441doing was wrong.
144422. Pursuant to Section 435.11, Florida Statutes, it is a
1454misdemeanor of the first degree for a person to willfully,
1464knowingly, or intentionally to fail by false statement to
1473disclose in any application for paid employment a material fact
1483used in making a decision of the person's qualifications for a
1494position of special trust.
149823. By his dishonesty in applying for employment with the
1508Department, Fonseca has shown that he is not rehabilitated and is
1519not entitled to an exemption from disqualification from
1527employment.
1528RECOMMENDATION
1529Based on the foregoing Findings of Fact and Conclusions of
1539Law, it is RECOMMENDED that a final order be entered denying
1550Alexander Fonseca's application for an exemption from
1557disqualification from employment pursuant to Section 435.07,
1564Florida Statutes.
1566DONE AND ENTERED this 27th day of April, 2000, in
1576Tallahassee, Leon County, Florida.
1580___________________________________
1581SUSAN B. KIRKLAND
1584Administrative Law Judge
1587Division of Administrative Hearings
1591The DeSoto Building
15941230 Apalachee Parkway
1597Tallahassee, Florida 32399-3060
1600(850) 488-9675 SUNCOM 278-9675
1604Fax Filing (850) 921-6847
1608www.doah.state.fl.us
1609Filed with the Clerk of the
1615Division of Administrative Hearings
1619this 27th day of April, 2000.
1625COPIES FURNISHED:
1627William G. "Bill" Bankhead, Secretary
1632Department of Juvenile Justice
16362737 Centerview Drive
1639Tallahassee, Florida 32399-3100
1642Robert N. Sechen, General Counsel
1647Department of Juvenile Justice
16512737 Centerview Drive
1654Tallahassee, Florida 32399-3100
1657Alan K. Marcus, Esquire
16617300 North Kendall Drive, Suite 540
1667Miami, Florida 33156
1670Lynne T. Winston, Esquire
1674Department of Juvenile Justice
1678Inspector General's Office
16812737 Centerview Drive
1684Tallahassee, Florida 32399-3100
1687NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1693All parties have the right to submit written exceptions within 15
1704days from the date of this Recommended Order. Any exceptions to
1715this Recommended Order should be filed with the agency that will
1726issue the Final Order in this case.
- Date
- Proceedings
- Date: 05/18/2000
- Proceedings: Final Order filed.
- PDF:
- Date: 04/27/2000
- Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held March 15, 2000.
- Date: 04/13/2000
- Proceedings: Petitioner`s Proposed Recommended Order (filed via facsimile).
- Date: 04/10/2000
- Proceedings: Respondent`s Proposed Recommended Order (filed via facsimile).
- Date: 03/29/2000
- Proceedings: Notice of Filing; DOAH Court Reporter Final Hearing Transcript filed.
- Date: 03/28/2000
- Proceedings: Post-Hearing Order sent out.
- Date: 03/20/2000
- Proceedings: Exhibits filed.
- Date: 03/15/2000
- Proceedings: CASE STATUS: Hearing Held.
- Date: 01/14/2000
- Proceedings: Notice of Video Hearing sent out. (hearing set for March 15, 2000; 10:00 a.m.; Miami and Tallahassee, Florida)
- Date: 12/30/1999
- Proceedings: Letter to SBK from A. Marcus Re: Dates unavailable for hearing (filed via facsimile).
- Date: 12/30/1999
- Proceedings: Letter to SBK from L. Winston Re: Response to A. Marcus` letter dated December 29, 1999 (filed via facsimile).
- Date: 12/30/1999
- Proceedings: Letter to SBK from A. Marcus Re: Dates available for hearing (filed via facsimile).
- Date: 12/21/1999
- Proceedings: Order Granting Continuance sent out. (Parties to advise status by December 30, 1999.)
- Date: 12/17/1999
- Proceedings: Amended Motion for Continuance in Alexander Fonseca v. DJJ, Case No. 99-3931 (filed via facsimile).
- Date: 12/16/1999
- Proceedings: (Petitioner) Amended Motion for Continuance (filed via facsimile).
- Date: 12/08/1999
- Proceedings: (A. Marcus) Notice of Appearance and Motion for Continuance (filed via facsimile).
- Date: 11/10/1999
- Proceedings: Order of Pre-hearing Instructions sent out.
- Date: 11/10/1999
- Proceedings: Notice of Video Hearing sent out. (hearing set for December 21, 1999; 9:00 a.m.; Miami and Tallahassee, Florida)
- Date: 10/25/1999
- Proceedings: Letter to Judge Kirkland from Lisa Lipton ( amended Initial order) (filed via facsimile).
- Date: 10/13/1999
- Proceedings: Amended Initial Order sent out. (Note: Amended as to A. Fonseca Apartment Number)
- Date: 09/23/1999
- Proceedings: Initial Order issued.
- Date: 09/17/1999
- Proceedings: Notice; Request for Hearing (letter); Agency Action Letter filed.
Case Information
- Judge:
- SUSAN BELYEU KIRKLAND
- Date Filed:
- 09/17/1999
- Date Assignment:
- 09/23/1999
- Last Docket Entry:
- 05/18/2000
- Location:
- Miami, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO