99-003931 Alexander Fonseca vs. Department Of Juvenile Justice Status: Closed Recommended Order on Thursday, April 27, 2000.

Summary: Applicant`s failure to disclose felony drug conviction on employment application does not demonstrate rehabilitation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALEXANDER FONSECA, )

)

Petitioner, )

)

vs. ) Case No. 99-3931

)

DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on March 15, 2000, at Miami and Tallahassee, Florida, via video

teleconference before Susan B. Kirkland, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Alan K. Marcus, Esquire

7300 North Kendall Drive, Suite 540

Miami, Florida 33156

For Respondent: Lynne T. Winston, Esquire

Department of Juvenile Justice

Inspector General's Office

2737 Centerview Drive

Tallahassee, Florida 32399-3100

STATEMENT OF THE ISSUE

Whether Petitioner should be given an exemption from

employment disqualification pursuant to Section 435.07, Florida

Statutes.

PRELIMINARY STATEMENT

By letter dated August 1, 1999, Respondent, Department of

Juvenile Justice (Department), advised Petitioner,

Alexander Fonseca (Fonseca), that his request for exemption from

employment disqualification pursuant to Section 435.07,

Florida Statutes, was denied. Fonseca requested an

administrative hearing, and the case was forwarded to the

Division of Administrative Hearings on September 17, 1999, for

assignment to an Administrative Law Judge.

The case was scheduled for final hearing on December 21,

1999. On December 16, 1999, Petitioner filed an Amended Motion

for Continuance, which was granted. The case was re-scheduled

for March 15, 2000.

At the final hearing, Petitioner testified in his own behalf

and presented no exhibits. Respondent called Perry S. Turner as

its witness. Respondent's Exhibits 1-7 were admitted in

evidence.

The parties agreed to file their proposed recommended orders

within ten days of the filing of the T ranscript, which was filed

on March 29, 2000. Petitioner filed his P roposed R ecommended

O rder on April 13, 2000, and Respondent filed its P roposed

R ecommended O rder on April 10, 2000. The parties proposed

recommended orders have been considered in rendering this

Recommended Order.

FINDINGS OF FACT

1. At the age of twenty-eight, Petitioner,

Alexander Fonseca (Fonseca) , was arrested for felony possession

of marijuana on February 21, 1989. For this charge, adjudication

was withheld, and Fonseca was credited for time served.

2. Petitioner's other criminal history includes a 1983

arrest for misdemeanor possession of marijuana for which he was

credited for time served; a 1988 arrest for driving with a

suspended license for which adjudication was withheld; a 1988

arrest for driving with a suspended license for which he was

found guilty; and a 1991 arrest for reckless driving for which

adjudication was withheld.

3. In April 1999, Fonseca sought employment as a Juvenile

Probation Officer with the Department. In conjunction with his

application for employment, Fonseca was required to submit to the

Department's background screening process since he would be

working with juveniles.

4. Fonseca was told by a receptionist with the Department

that if he had a criminal record he would not be hired.

5. As part of the application and background screening

process, Fonseca submitted a State of Florida application and an

Affidavit of Good Moral Character. Fonseca failed to disclose on

both of these documents his felony arrest for and adjudication

withheld on felony possession of marijuana. The affidavit

contained Fonseca's notarized signature dated April 27, 1999,

attesting to the following statement:

I attest that I have read the above carefully

and state that my attestation here is true

and correct that neither my adult nor

juvenile record contains any of the listed

offenses. I understand that it is my

responsibility to obtain clarification on

anything contained in this affidavit which I

do not understand. I am aware that any

omissions, falsifications, misstatements or

misrepresentations may disqualify me from

employment consideration and, if I am hired,

may be grounds for termination at a later

date.

6. Fonseca did not disclose his criminal history because,

based on what the receptionist told him, he did not believe that

he would get the job if he revealed that he had a criminal

history. His failure to disclose his criminal history was not an

error or oversight. It was intentional.

7. A Florida criminal history conducted by the Department

revealed Fonseca's 1989 arrest for felony possession of

marijuana. As a result, on May 6, 1999, Fonseca was determined

to be disqualified and ineligible for a position in the

Department working with juveniles.

8. In a letter dated June 1, 1999, the Department advised

Fonseca that he could request a desk review to pursue an

exemption from employment disqualification. Fonseca was required

to submit specified documentation, which he did.

9. As Inspector General for the Department, Perry Turner

makes the final departmental decision on exemption requests. In

an interoffice memorandum dated July 29, 1999, Fonseca's

exemption request was forwarded to Mr. Turner along with

Fonseca's complete background screening file.

10. In a desk review, Mr. Turner does not interview the

applicant's seeking an exemption. Each applicant has an

opportunity to submit to the Department documentation, which he

desires the Department to consider in determining whether an

exemption should be granted.

11. In reaching his decision, Turner reviewed Fonseca's

background screening file and the documentation submitted by

Fonseca. On July 30, 1999, Turner denied Fonseca's request for

an exemption. The denial was based upon the totality of the

circumstances surrounding Fonseca's prior criminal history and

his falsification of the notarized Affidavit of Good Moral

Character.

12. Mr. Turner notified Fonseca of the denial in a letter

dated August 1, 1999.

13. From his early teens until approximately ten years ago,

Fonseca was heavily involved with drug and alcohol use and was

chemically dependent. He sought help for his dependency and has

been clean and sober since 1991. Fonseca is actively involved in

the 12-Step Programs of Alcoholics Anonymous and Narcotics

Anonymous.

14. In 1992, Fonseca decided to go back to school. He

graduated with a degree in criminal justice in 1998.

15. Fonseca did not present any information to the

Department concerning his addiction prior to the denial of his

exemption request.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

17. Pursuant to Section 39.001, Florida Statutes,

applicants seeking employment with the Department to work with

any program for children must be of good moral character. The

Department requires employment screening pursuant to Chapter 435,

Florida Statutes.

18. According to Section 435.04(1), Florida Statutes,

backgound screening standards encompass employment history

checks; juvenile, state, and federal criminal records checks; and

fingerprinting for state and federal checks.

19. Section 435.04(2), Florida Statutes, specifies that the

person being screened must not have been found guilty of,

regardless of adjudication, or entered a plea of nolo contendere

or guilty to any offense prohibited under any of the enumerated

sections of the Florida Statutes found in Section 435.04(2),

Florida Statutes or similar state statutes of other

jurisdictions. Subsection 435.04(2)(mm), Florida Statutes,

refers to felony drug offenses as being disqualifying in nature.

20. Subsection 39.001(2)(c), Florida Statutes, provides

that the Department may grant exemptions from disqualification

from working with children as provided in Section 435.07, Florida

Statutes. The Department has the authority to grant exemptions

for felonies committed more than three years prior to the date of

disqualification. Section 435.07(3) sets forth the exemption

process for disqualified persons and provides:

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 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 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.

21. Petitioner is to be commended for overcoming his

addiction and for completing his education. Although, the

disqualifying offense is serious, it has been ten years since the

commission of the offense. Fonseca was arrested for reckless

driving two years after the disqualifying offense and

adjudication for the reckless driving was withheld. Based on his

history up until the time he applied for employment with the

Department, Fonseca appeared to have made great strides towards

rehabilitation. However, Fonseca intentionally failed to

disclose his felony conviction on his application and on the

Affidavit of Good Moral Character. Fonseca knew that what he was

doing was wrong.

22. Pursuant to Section 435.11, Florida Statutes, it is a

misdemeanor of the first degree for a person to willfully,

knowingly, or intentionally to fail by false statement to

disclose in any application for paid employment a material fact

used in making a decision of the person's qualifications for a

position of special trust.

23. By his dishonesty in applying for employment with the

Department, Fonseca has shown that he is not rehabilitated and is

not entitled to an exemption from disqualification from

employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered denying

Alexander Fonseca's application for an exemption from

disqualification from employment pursuant to Section 435.07,

Florida Statutes.

DONE AND ENTERED this 27th day of April, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

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 27th day of April, 2000.

COPIES FURNISHED:

William G. "Bill" Bankhead, Secretary

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Robert N. Sechen, General Counsel

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Alan K. Marcus, Esquire

7300 North Kendall Drive, Suite 540

Miami, Florida 33156

Lynne T. Winston, Esquire

Department of Juvenile Justice

Inspector General's Office

2737 Centerview Drive

Tallahassee, Florida 32399-3100

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.