STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SHALA EDWARDS,
vs.
Petitioner,
Case No. 14-4987
AGENCY FOR PERSONS WITH DISABILITIES,
Respondent.
/
RECOMMENDED ORDER
A hearing was conducted in this case pursuant to sections
120.569 and 120.57(1), Florida Statutes (2014), before Cathy M. Sellers, an Administrative Law Judge ("ALJ") of the Division of Administrative Hearings ("DOAH"), on January 28, 2015, by video teleconference at sites in Port St. Lucie and Tallahassee, Florida.
APPEARANCES
For Petitioner: Shala Edwards, pro se
613 Fifth Place, Southwest Vero Beach, Florida 32962
For Respondent: Kurt E. Ahrendt, Esquire
Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399 STATEMENT OF THE ISSUES
The issues in this case are: (1) whether Petitioner has shown, by clear and convincing evidence, that she is
rehabilitated from her disqualifying offense, and (2) if so, whether Respondent's intended action to deny Petitioner's request for an exemption from disqualification from employment would constitute an abuse of discretion.
PRELIMINARY STATEMENT
By correspondence dated September 10, 2014, Respondent notified Petitioner that her request for an exemption from disqualification from employment pursuant to section 435.07, Florida Statutes, had been denied. Petitioner timely requested an administrative hearing challenging Respondent's proposed action, and the matter was referred to DOAH to conduct a hearing pursuant to sections 120.569 and 120.57(1). The hearing initially was scheduled for December 4, 2014, but pursuant to the parties' joint motion, was continued and rescheduled for January 28, 2015.
The final hearing was conducted on January 28, 2015. Petitioner testified on her own behalf and presented the testimony of two other witnesses, Tandy Hill and Anne Cooney, both of whom appeared by telephone.1/ Petitioner's
Exhibits 1 through 7 were admitted into evidence without objection. Respondent presented the testimony of Gerry Driscoll, Respondent's Southeast Region Manager. Respondent's Exhibits A through E were admitted into evidence without objection.
A court reporter recorded the final hearing but the parties did not order a transcript. At the close of the hearing, the parties were advised of the ten-day timeframe for filing proposed recommended orders following the conclusion of the hearing. The parties timely filed Proposed Recommended Orders, which were duly considered in the preparation of this Recommended Order.
FINDINGS OF FACT
The Parties
Petitioner is a 31-year-old female who seeks to qualify for employment in a position of trust that requires compliance with background screening requirements established in chapter
435.
Respondent is the state agency charged under chapter
393 with regulating the employment of persons who seek to become employed working in positions of trust with persons with disabilities.
Evidence Adduced at Final Hearing
Petitioner submitted a request for exemption and supporting documentation to Respondent on December 10, 2013.
On September 10, 2014, Respondent issued a letter denying Petitioner's request for exemption, stating that she did not provide clear and convincing evidence that she was
rehabilitated from the disqualifying offense of burglary of a dwelling and aggravated assault with a deadly weapon.
Petitioner committed the disqualifying offense in October 2005. She was 22 years old at the time.
At the hearing, Petitioner credibly explained the circumstances under which she committed the offense. She had gone to talk to her boyfriend, who was the father of her three- month-old child, about his non-payment of child support; at the time, he was at the home of his other girlfriend. Petitioner still was involved in an intimate relationship with her boyfriend and was angry and emotionally distraught about his relationship with another woman, as well as about his non- payment of child support. The front door to the house was open, so Petitioner entered. There, she argued with her boyfriend and threatened to harm him; however, she did not physically harm him.
Petitioner was arrested, pled no contest, was adjudicated guilty, and in May 2006, was sentenced to 14 months' incarceration. She completed her sentence and was released from the Department of Corrections' custody.
Subsequent to commission of the non-disqualifying offense but before her conviction (in May 2006) or service of sentence for that offense, Petitioner was arrested for allegedly violating a protective injunction regarding her boyfriend's
other girlfriend. This charge was determined to be unsubstantiated and was not prosecuted.
Subsequent to her release from incarceration, during a 10-month period in 2007 and 2008, Petitioner was arrested three more times, twice for aggravated assault with a weapon and once for trespassing. All charges associated with these arrests were dropped.
In 2012, Petitioner was arrested for battery on her husband. At the time, her husband was in the hospital. Petitioner testified, credibly, that they loudly argued over him not returning her cell phone to her, but that she did not strike him. She was escorted from the hospital and was arrested the following day. Petitioner credibly characterized this incident as an argument between spouses involving raised voices but not involving physical violence.2/ She observed that had the argument not taken place in a public setting, third parties would not have been involved, so the police would not have been called. The charges associated with this arrest were dropped.
Although Petitioner was arrested after her release from incarceration, those arrests took place during a short period of time approximately seven years ago. Since that time, Petitioner has taken important, commendable, and effective steps to overcome her anger management issues so that she can lead a functional, productive life.
Importantly, Petitioner has accepted responsibility for her actions and is extremely remorseful for her offenses, including her disqualifying offense. She expressed this both in her request for exemption and at the final hearing.
Additionally, Petitioner has made substantial effort to become well-educated so that she can become gainfully employed. She received her Bachelor of Applied Science degree in Organizational Management in May 2013, and currently is pursuing a master's degree in business.
Petitioner also has undergone emotional and behavioral counseling, focusing on anger management. This counseling was not judicially or otherwise imposed; Petitioner herself recognized that she had difficulty controlling her anger under certain circumstances and took the initiative to obtain counseling to enable her to overcome these issues.
Petitioner's counselor, Anne Cooney, a licensed clinical social worker who holds a master's degree in social work, credibly testified that Petitioner was highly motivated to do what was necessary to overcome her anger issues. Cooney explained that Petitioner's angry reactions and behavior were a learned defensive response to her early life experiences, when she was physically and sexually abused, then left to fend for herself and her young child when she was 16 years old. Cooney testified that Petitioner made great progress throughout her
counseling, and now understands how to control her anger and express it in an acceptable manner rather than through violent behavior. Cooney testified, credibly, that Petitioner understands how to control her emotions, that she is psychologically sound, and that she would not present a danger to people, including disabled or vulnerable individuals who may exhibit extreme or erratic behavior. Cooney spoke in glowing terms of Petitioner's intelligence, personality, motivation, and great potential for success. The undersigned finds Cooney's testimony credible and persuasive.
In addition to her counseling under Cooney, Petitioner voluntarily sought and obtained therapy and targeted case management services through Legacy Behavioral Health Center to help her address her behavioral issues and assist her in clearing her record so that she can become gainfully employed.
Petitioner is actively involved in her church, Salt of the Earth Ministry, which she attends a minimum of twice a week. She is involved in youth ministry; is active with children in the church, including working with a disabled child who is a church member; is involved in community outreach; and performs a range of services as part of her church-related activities. Tandy Hill, co-pastor of the church, testified on Petitioner's behalf. Hill has known Petitioner for most of her life and knows of her criminal behavior, including her incarceration.
Hill testified, credibly, that over the past several years she has seen a remarkable change in Petitioner's behavior as Petitioner has grown in her faith. Hill testified, forcefully and persuasively, that Petitioner is a caring person who, in her estimation, would not present a threat.
Petitioner is now in a much more stable home environment. She is married and is raising her children. Her former boyfriend, who was the victim of her disqualifying offense, is incarcerated and no longer is involved in Petitioner's life. Accordingly, some of the circumstances that triggered Petitioner's violent behavior that led to her disqualifying offense and subsequent offenses are no longer present in her life.
Petitioner already has experience working, without incident, around and with persons who are or may be considered vulnerable. For the last three years, she worked as a Food and Beverage Manager for a retirement community that includes assisted living, memory care, and extended congregate care facilities with rehabilitation services. As part of her application for exemption, Petitioner provided compelling letters of recommendation from the facility's Human Resource Business Manager, a co-worker, and residents, attesting to her work ethic, reliability, empathy, trustworthiness, diligence, compassion, patience, and caring demeanor.
More recently, Petitioner has become employed by Goodwill Industries ("Goodwill"). She now has an opportunity to be promoted to a store supervisor position, which will enable her to earn a wage sufficient to dramatically help with the support of her family. Because she would be supervising disabled individuals in this position, she is considered a "direct service provider" as defined in section 393.063(11), Florida Statutes, so is subject to level 2 background screening requirements.3/
Respondent's determination regarding Petitioner's lack of rehabilitation appears to have been based very heavily on her entire criminal history. Respondent considered, in addition to Petitioner's disqualifying offense and subsequent arrests, non- disqualifying offenses (possession of marijuana, misdemeanor battery, and driving while license suspended) that Petitioner committed at ages 18 and 19, before she committed the disqualifying offense.4/
Respondent also apparently considered Petitioner's traffic infractions.5/ As with her criminal history, most of these infractions preceded her disqualifying offense.
Based on this information, Respondent's witness testified that in the agency's view, Petitioner has not consistently shown good judgment and that Respondent is concerned that Petitioner may not be able to control herself if
she were placed in a situation in which persons under her care or supervision exhibited intense or erratic behavior.
However, on questioning, Respondent's witness acknowledged that Respondent did not fully consider Petitioner's mental health counseling when it determined that she was not rehabilitated from her disqualifying offense.
Respondent's witness further testified that Petitioner's work experience, as detailed in her application for exemption, does not indicate work with disabled persons. However, this testimony appears to discount, and, indeed, is contradicted by, the letters of recommendation in Petitioner's exemption application package from the Human Resources Business Director, a co-worker, and residents of the retirement community where she worked. These letters, which were bolstered by Petitioner's credible testimony, state that Petitioner's work put her in direct contact with persons living in the assisted living facility portion of the community. The letters attest that in performing her job duties, Petitioner provided courteous, patient, empathetic service and care to those persons.
Findings of Ultimate Fact
Upon careful consideration of the entire record, it is determined that Petitioner has demonstrated, by clear and convincing evidence, that she is rehabilitated from her
disqualifying offense of burglary of a dwelling and aggravated assault with a deadly weapon, and that she will not present a danger to disabled or otherwise vulnerable persons with whom she would have contact if employment is allowed.
It has been almost ten years since Petitioner committed the disqualifying offense. Shortly after completion of her sentence for that offense, Petitioner was arrested for non-disqualifying offenses over a short period of time. All of the charges associated with those arrests were dropped, and Petitioner has no further convictions or adjudications of guilt subsequent to her disqualifying offense. Petitioner was arrested in 2012 for battery that she was alleged to have committed on her husband, but the charges were dropped. As discussed above, there is no competent substantial evidence in the record showing that she engaged in a physical altercation with her husband.
Petitioner was honest and forthright about her past and expressed genuine remorse about the disqualifying offense and other offenses.
Petitioner demonstrated, by credible and very compelling evidence, that she recognized she had anger management issues and took the initiative to turn her life around through voluntarily obtaining mental health counseling to address these issues. Her counselor testified, credibly and
persuasively, that Petitioner understands the reason for her past behavior, has learned effective strategies and appropriate behaviors for dealing with anger, is emotionally stable, and would not present a danger to persons with which she would have contact or those entrusted to her care.
Petitioner now has stabilizing influences in her life.
She is married and raising children. She no longer has contact with the person involved in her disqualifying offense. She is active in her church, where she is a valued and beloved member.
Petitioner has worked reliably over a sustained period in a position in which she had contact with vulnerable persons. By all accounts, Petitioner was an extraordinarily kind, caring, and diligent employee. This experience shows that Petitioner can be trusted to behave appropriately in situations involving vulnerable persons, such as the disabled.
Petitioner's completion of her undergraduate degree and pursuit of a graduate degree stand as further evidence that she understands the importance of avoiding violent and inappropriate behavior and moving her life forward. Petitioner has shown that she understands that the behavior that she exhibited in the past that led to her criminal record is unacceptable and counterproductive to achievement of her professional goals. She seeks to use her education to become gainfully employed so that she can provide for her family.
The undersigned further finds that denial of Petitioner's exemption request would constitute an abuse of discretion. As discussed above, it appears that Respondent relied very heavily on Petitioner's entire criminal record and traffic infractions in making its decision to deny her exemption request and failed to adequately consider the information Petitioner provided regarding her rehabilitation. Indeed, Respondent's witness admitted that Respondent did not fully take into account Petitioner's mental health counseling. In doing so, Respondent failed to consider a key indicator of Petitioner's rehabilitation——her own recognition of her anger management issues and her initiative to voluntarily seek and obtain counseling to address such issues. The evidence also indicates that Respondent failed to consider evidence showing that Petitioner could——and actually did——perform well and safely in a work setting involving interaction with vulnerable individuals.
For these reasons, it is determined that no reasonable individual, upon fully considering the record in this matter, could find that Petitioner is not rehabilitated.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to, and subject matter of, this proceeding pursuant to sections 120.569 and 120.57(1).
Section 393.0655(1) states in pertinent part:
The [Agency for Persons with Disabilities] shall require level 2 employment screening pursuant to chapter 435 for direct service providers who are unrelated to their clients, including support coordinators, and managers and supervisors of residential facilities or comprehensive transitional education programs licensed under this chapter and any other person, including volunteers, who provide care or services, who have access to a client’s living areas, or who have access to a client’s funds or personal property.
Section 435.04, which establishes level 2 screening requirements, provides in pertinent part:
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 state law or similar law of another jurisdiction:
* * *
Chapter 784, relating to assault, battery, and culpable negligence, if the offense was a felony.
* * *
(z) Section 810.02, relating to burglary.
Because Petitioner pled guilty to burglary of a dwelling and aggravated assault with a deadly weapon, she is disqualified from employment as a direct service provider for
developmentally disabled clients unless granted an exemption by Respondent pursuant to section 435.07.
Section 435.07 provides in pertinent part:
Exemptions from disqualification.——Unless otherwise provided by law, the provisions of this section apply to exemptions from disqualification for disqualifying offenses revealed pursuant to background screenings required under this chapter, regardless of whether those disqualifying offenses are listed in this chapter or other laws.
(1)(a) The head of the appropriate agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:
1. Felonies for which at least 3 years have elapsed since the applicant for the exemption has completed or been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony[.]
* * *
For the purposes of this subsection, the term "felonies" means both felonies prohibited under any of the statutes cited in this chapter or under similar statutes of other jurisdictions.
* * *
(3)(a) In order for the head of an agency 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 clear and convincing 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 employment or continued employment is allowed.
The agency may consider as part of its deliberations of the employee's rehabilitation the fact that the employee has, subsequent to the conviction for the disqualifying offense for which the exemption is being sought, been arrested for or convicted of another crime, even if that crime is not a disqualifying offense.
The decision of the head of an agency regarding an exemption may be contested through the hearing procedures set forth in chapter 120. The standard of review by the administrative law judge is whether the agency's intended action is an abuse of discretion.
Pursuant to this statute, Petitioner must demonstrate her rehabilitation by clear and convincing evidence. This is a heightened standard, requiring more proof than a mere preponderance of the evidence. This standard requires that the evidence be found credible; the facts to which the witnesses testify be distinctly remembered, the testimony be precise and explicit, and the witnesses be lacking in confusion as to the facts at issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. In re: Davey, 645 So. 2d
398, 404 (Fla. 1994); Slomowitz v. Walker, 429 So. 2d 797, 800
(Fla. 4th DCA 1983).
For the reasons discussed above, Petitioner proved, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense.
Pursuant to section 435.07, even if the applicant demonstrates rehabilitation, he or she is only eligible for an exemption, not entitled to one. The agency retains discretion to deny the exemption, provided its decision does not constitute an abuse of discretion. Under this statute, if reasonable persons could differ as to the propriety of the agency decision, the decision is not unreasonable and, thus, not an abuse of discretion. Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980). Conversely, if the agency's decision is arbitrary, it constitutes an abuse of discretion. Id.
For the reasons discussed above, under the specific circumstances attendant to this case, if Respondent were to deny Petitioner's exemption request, its action would be arbitrary and thus constitute an abuse of discretion. As discussed above, Respondent's witness acknowledged not giving full consideration to the vitally important and commendable steps that Petitioner has undertaken to become rehabilitated. Respondent also appears to have overlooked Petitioner's recent, successful experience working around vulnerable persons, which provides real-life
evidence that she is rehabilitated and will not pose a danger to vulnerable persons entrusted to her care. The agency is charged with determining whether an applicant has been rehabilitated from his or her disqualifying offense, which requires consideration of all information provided by an applicant, including that germane to rehabilitation. See § 435.07(3)(a), Fla. Stat. Here, the evidence indicates that Respondent did not adequately consider information key to accurately determining whether Petitioner is rehabilitated.
For these reasons, the undersigned determines that Petitioner has met her burden to demonstrate her rehabilitation from her disqualifying offense, and that, under the circumstances specific to this case, if Respondent were to deny her exemption request, its action would be arbitrary and would constitute an abuse of discretion.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order granting Petitioner's request for an exemption from disqualification from employment.
DONE AND ENTERED this 17th day of March, 2015, in Tallahassee, Leon County, Florida.
S
CATHY M. SELLERS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2015.
ENDNOTES
1/ One of Petitioner's witnesses, Tandy Hill, went to a specified location where she was to meet a notary, be administered the oath, and testify by telephone at the final hearing. However, due to unforeseen circumstances, a notary was not able to be provided. The undersigned allowed Ms. Hill to testify without a notary being present. The undersigned administered the oath to Ms. Hill prior to her testimony, in compliance with section 120.569(2)(g), and obtained her contact information to enable subsequent verification of her identity.
There is authority for allowing sworn but unauthenticated testimony in quasi-judicial proceedings. In The Florida Bar v. Clement, 662 So. 2d 690 (Fla. 1995), involving a bar disciplinary hearing, the referee swore in a witness, who presented telephonic testimony without anyone present who could authenticate his identity. The Supreme Court of Florida noted that the proceeding was quasi-judicial and, as such, was not governed by the technical rules of evidence. The court noted that while it would be a better practice to comply with section 92.50, Florida Statutes, by having testimony taken in the presence of a notary or other authorized person and providing an authenticated and sealed jurat or certificate of proof, under the circumstances (i.e., in a quasi-judicial proceeding), failure to comply with those standards did not constitute error.
See also The Florida Bar v. Centurion, 801 So. 2d 858 (Fla. 2000) (authentication under section 92.50 not required for testimony to serve as basis for findings of fact in quasi- judicial proceeding). It is well-established that DOAH proceedings are quasi-judicial and that the strict rules of evidence do not apply in such proceedings. See DeGroot v. Sheffield, 95 So. 2d 912 (Fla. 1957); Kasha v. Dep't of Legal Aff., 375 So. 2d 43 (Fla. 3d DCA 1979). See also
§ 120.569(2)(g), Fla. Stat. Under the rationale of Clement and Centurion, the undersigned could properly take unauthenticated sworn testimony in this proceeding. See also M.L. v. Dep't of Educ., Div. of Voc. Rehab., Case No. 12-0260 (Fla. DOAH May 17, 2013; Fla. DOE June 28, 2013).
2/ Petitioner's testimony, which was credible, is the only competent substantial evidence in the record regarding the specific circumstances surrounding her 2012 arrest.
Respondent's witness had no personal knowledge of any aspect of this or any other of Petitioner's offenses. His testimony, which was solely based on his review of documents, is hearsay, and the documents on which his testimony was based also are hearsay. Pursuant to section 120.57(1)(c), Florida Statutes, the undersigned is not authorized to make findings of fact solely based on hearsay evidence.
3/ If Petitioner is granted the exemption, she will be allowed to have direct contact with disabled persons in a range of settings.
4/ Respondent considered Petitioner's criminal offenses that occurred before her disqualifying offense. However, section
435.07 expressly limits consideration of an applicant's criminal history to arrests, convictions, or guilty or nolo contendere pleas for criminal offenses that occurred subsequent to the disqualifying offense. Reading the statute to allow consideration of offenses prior to the disqualifying offense would effectively negate this express limitation in the statute, in violation of the statutory construction principle that statutes are to be interpreted and applied in a way that gives meaning and effect to all of their provisions. Bennett v. St. Vincent's Med. Ctr., Inc., 71 So. 3d 828, 838 (Fla. 2011); Dennis v. State, 51 So. 3d 456 (Fla. 2010)(it is a basic rule of statutory construction that the Legislature does not intend to enact useless provisions, so statutes should be interpreted in a way that renders all provisions meaningful). Consideration of an applicant's prior criminal history is not authorized under the general provision in section 435.07(3)(a) making germane
"any other evidence or circumstance indicating that the employee will not present a danger if employment or continued employment is allowed." That provision is included in the statute to inform the applicant regarding the nature of information he or she should submit to the agency regarding his or her rehabilitation. To interpret this provision more expansively would violate the principle that specific statutory provisions control over more general provisions. Sch. Bd. of Palm Bch.
Cnty. v. Survivors Charter Sch., Inc., 3 So. 3d 1220 (Fla. 2009); Read v. MFP, Inc., 85 So. 3d 1151 (Fla. 2d DCA 2012).
Further, under any circumstances, since the question is whether an applicant is rehabilitated from "the criminal incident for which an exemption is sought"——that is, from the disqualifying offense——prior offenses are not germane to the rehabilitation issue. See § 435.07(3)(a), Fla. Stat.
5/ Petitioner's non-criminal traffic infractions, whether they occurred before or after the disqualifying offense, should not be considered germane to the question of rehabilitation.
Section 435.07(3)(b) expressly limits an agency to considering an applicant's criminal record, and then only offenses or arrests that occurred subsequent to the disqualifying offense. Since the Legislature, in section 435.07(3)(b), referred only to an applicant's criminal record, interpreting the statute to allow consideration of non-criminal traffic infractions would violate the statutory construction canon of expressio unius est exclusio alterius, which holds that the mention of one thing implies exclusion of the other. See also supra note 4.
COPIES FURNISHED:
Kurt Eric Ahrendt, Esquire
Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399-0950 (eServed)
Shala Yvonne Edwards
613 Fifth Place, Southwest Vero Beach, Florida 32962 (eServed)
David De La Paz, Agency Clerk
Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399 (eServed)
Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399 (eServed)
Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399 (eServed)
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.
Issue Date | Document | Summary |
---|---|---|
Mar. 17, 2015 | Recommended Order | Petitioner demonstrated rehabilitation from her disqualifying offense by clear and convincing evidence. Respondent would abuse its discretion if it denied her request for an exemption from employment disqualification. |