FLORIDA PUBLIC EMP. v. DEPT. OF CHILDREN, 98-4204.

• Decision Date: 22 November 1999
• Docket Number: No. 98-4204.,98-4204.
• Citation: 745 So.2d 487
• Parties: FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME; Charles Leverson; Gerard Kineard; Bobby Jones; and Raymond Baker, for themselves and all others similarly situated, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES and Jeb Bush, Appellees.
• Court: Florida District Court of Appeals

745 So.2d 487

FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME; Charles Leverson; Gerard Kineard; Bobby Jones; and Raymond Baker, for themselves and all others similarly situated, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES and Jeb Bush, Appellees.

No. 98-4204.

District Court of Appeal of Florida, First District.

November 22, 1999.

Ben R. Patterson of Patterson & Traynham, Tallahassee, for Appellants.

Gregory D. Venz, Assistant General Counsel, Department of Children and Families, Tallahassee; Michael Mattimore, Tallahassee; Cindy Home, Assistant General Counsel, Department of Management Services, Tallahassee, for Appellees.

JOANOS, J.

This is an appeal of a final order dismissing with prejudice appellants' amended complaint for declaratory and injunctive relief. Appellants sought a declaration that Chapter 435 of the Florida Statutes is unconstitutional as applied by the Department of Children and Families (Department) to incumbent Career Service employees. Alternatively, appellants sought a declaration that Chapter 435 does not authorize retroactive application of the employment screening provisions of Chapter 435 adopted by the Department. The circuit court concluded that adequate administrative channels exist to provide redress for the allegations of the amended complaint, making it improper for the court to entertain the action for declaratory and injunctive relief. We affirm in part and reverse in part.

The amended complaint alleges that each of the named plaintiffs/appellants has been employed by the Department in care giving positions since at least 1990.¹ Paragraph 16 of the amended complaint alleges that in the summer of 1997, the Department began implementing the employment screening provisions of Chapter 435, which provisions went into effect October 1, 1995. See Ch. 95-228, § 47, Laws of Fla. Section 435.03, Florida Statutes (1997), captioned "Level 1 screening standards," provides in part:

(1) All employees required by law to be screened shall be required to undergo background screening as a condition of employment and continued employment. For the purposes of this subsection, level 1 screenings shall include, but not be limited to, employment history checks and statewide criminal correspondence checks through the Florida Department of Law Enforcement, and may include local criminal records checks through local law enforcement agencies.

(2) Any person for whom employment screening is required by statute 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 following provisions of the Florida Statutes or under any similar statute of another jurisdiction:...

Subparagraphs (2)(a) through (cc) enumerate the proscribed statutory offenses for purposes of the Level 1 screening standards. The "Level 2 screening standards" are set forth in section 435.04, Florida Statutes (1997), which provides in part:

(1) All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. For the purposes of this subsection, security background investigations shall include, but not be limited to, employment history checks, fingerprinting for all purposes and checks in this subsection, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.

(2) The security background investigations under this section must ensure that no persons subject to the provisions of this section 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 following provisions of the Florida Statutes or under any similar statute of another jurisdiction: ...

As with section 435.03, subparagraphs (2)(a) through (cc) enumerate the statutory offenses for the section 435.04 Level 2 screening standards.

Appellants' amended complaint alleged the Department decided that the Chapter 435 screening provisions "would be applied retroactively to all offenses committed at any time by its caretakers." The effect of the Department's decision was to disqualify all named plaintiffs/appellants from employment. With the exception of John Harris, the named plaintiffs/appellants were disqualified from employment on the basis of previous offenses for which adjudication of guilt had been withheld. In 1989, Harris pled no contest to possession of cocaine, and was adjudicated guilty of that offense. Harris successfully completed the one-year probationary period imposed for the adjudicated offense.

Count I of the amended complaint alleged impairment of contract, predicated upon appellants' reasonable expectation that, due to their status as Career Service employees and their collective bargaining agreement, appellants would be dismissed only for just cause. Count II of the amended complaint alleged denial of due process, based on the Chapter 435 presumption that all persons identified as having entered a no contest or guilty plea to the list of offenses set forth in sections 435.03 and 435.04, Florida Statutes, is unfit to be employed as a caregiver to juveniles, to the disabled, or to the aged. Count III of the amended complaint alleged a denial of due process of law by the application of the provisions of Chapter 435 to offenses that predated the authority to apply the screening demanded by Chapter 435.² Count IV of the amended complaint alleged the Department's application of Chapter 435 to plaintiffs/appellants and to offenses committed prior to October 1, 1995, constituted an unauthorized extension of the authority granted by the statute and an imposition of an administrative penalty not authorized by law. Count V of the amended complaint alleged that Chapter 435 is a prohibited ex post facto law, in that the disqualification from employment demanded for pleas of guilty or no contest added a penalty to the respective offenses that was absent at the time plaintiffs/appellants committed any offense described in sections 435.03 or 435.04. Count VI of the amended complaint alleged that Chapter 435 amounts to a violation of the separation of powers doctrine.

Defendants/appellees filed a motion to dismiss the amended complaint, alleging, among other things, that appellants were pursuing or could have pursued administrative proceedings in which the issues presented in Counts I through VI could be fully litigated. Appellees further alleged that appellants appealed the adverse ruling of their rule challenge in connection with the employment screening provisions, but voluntarily dismissed their appeal, thereby avoiding the opportunity to have the issues presented in the complaint resolved by this court. Paragraph 13 of the motion to dismiss states:

(13) Each individual plaintiff has or had the opportunity to appeal their dismissal from employment to the Public Employees Relations Commission (PERC) in addition to the disqualification challenges pursuant to chapter 120, Florida Statutes. Any issues bearing on the employees' dismissal, including challenges to the constitutionality of chapter 435, are properly addressed by PERC, or on appeal by the appropriate district appellate court. Failure to exhaust the available avenues of administrative review precludes review by declaratory judgment action. All of the named plaintiffs either failed to avail themselves of the readily available administrative review, or are seeking to relitigate in the instant declaratory judgment action.

The circuit court granted the motion to dismiss, and entered an order dismissing the amended complaint with prejudice. In the dismissal order, the circuit court cited the supreme court's opinions in Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153 (Fla.1982); Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695 (Fla.1978), and this court's opinion in State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977), as support for the ruling.

A de novo standard usually is applied to review of an order dismissing a complaint with prejudice. However, considerable deference is accorded a trial court's order of dismissal of a complaint seeking a declaratory judgment. In such cases, the standard is whether the trial court abused its discretion. See Abruzzo v. Haller, 603 So.2d 1338, 1339 (Fla. 1st DCA 1992)

.

"[A]s a matter of judicial policy, `the circuit court should refrain from entertaining declaratory suits except in the most extraordinary cases, where the party seeking to bypass usual administrative channels can demonstrate that no adequate remedy remains available under Chapter 120.'" See Key Haven v. Board of...