STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EUNICE JERNIGAN,

vs.

Petitioner,

Case No. 15-1123

AGENCY FOR PERSONS WITH DISABILITIES,

Respondent.

/

RECOMMENDED ORDER

This matter was heard before the Division of Administrative Hearings (DOAH) by its assigned Administrative Law Judge, D. R. Alexander, on May 4, 2015, at video teleconferencing sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Jaime T. Halscott, Esquire

Appeals Law Group

33 East Robinson Street, Suite 210 Orlando, Florida 32801-1682

For Respondent: Michael Sauve, Esquire

Agency for Persons with Disabilities

400 West Robinson Street, Suite 430 Orlando, Florida 32801-1764

STATEMENT OF THE ISSUES

The issues are whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense, and 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 letter dated September 19, 2014, the Agency for Persons with Disabilities (Agency) advised Petitioner that based on a background screening, her request for an exemption from disqualification from employment had been denied. Petitioner timely requested a hearing to contest the intended agency action, and the matter was referred to DOAH to conduct a formal hearing.

At the hearing, Petitioner testified on her own behalf and presented the testimony of one witness. The Agency presented the testimony of one witness. Respondent's Exhibits A through D were accepted in evidence.

A transcript of the hearing has not been prepared.

Proposed findings of fact and conclusions of law were filed by the Agency, and they have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a 52-year-old female who seeks to qualify for employment in a position of trust having direct contact with children or developmentally disabled persons served in programs regulated by the Agency.

   
   

2. The Agency is the state agency responsible for regulating the employment of persons in positions of trust for which Petitioner seeks to qualify.

3. In a letter dated September 19, 2014, the Agency's Director, Barbara Palmer, notified Petitioner that her request for exemption from disqualification from employment in a position of special trust was denied. The letter advised Petitioner, without further explication, that this decision was based upon her failure to submit "clear and convincing evidence of your rehabilitation." Resp. Ex. C.

4. Before Director Palmer made her decision, Petitioner's request for an exemption was reviewed by a Department of Children and Families (DCF) screener who compiled a 70-page report entitled "Exemption Review" dated June 17, 2014. See

   Resp. Ex. B. The DCF report did not make a recommendation one way or the other, but simply compiled all relevant information that would assist the Director in making her decision. The report was initially given to the Agency Regional Operations Manager in Orlando, who presumably then made a preliminary recommendation to the Director.

5. The Agency decision was triggered after Petitioner applied for a position of special trust in 2013. To qualify for the position, Petitioner was required to undergo a level 2 background screening performed by the DCF. The screening

   
   

   revealed that following a jury trial on April 6, 1998, Petitioner, then 35 years of age, was convicted of (a) second degree assault - recklessly causing physical injury, and

   (b) endangering the welfare of a child. The first offense was a felony while the second was a misdemeanor in New York State.

   See Resp. Ex. B, p. 11. She was found not guilty on all other charges. The incident occurred on June 3, 1997, while Petitioner was caring for several foster children in her home in White Plains, New York. The felony and misdemeanor are the disqualifying offenses.

6. The record shows that on June 30, 1998, Petitioner was sentenced to serve 90 days in jail for assault and 60 days in jail for endangering the welfare of a child. In addition, she paid a fine and court costs, she was placed on five years' probation, and her license to care for children was revoked. The Judge's Sentence and Commitment noted that Petitioner's "license to care for children is revoked and is not to be

   restored," and she was "prohibited from caring for any children, even if lic. not required." Id. It also noted that "per

   recommendation of Dr. Laurence Baker [a psychologist who evaluated Petitioner], Def't not to care for children of others, and shall not apply for a license to do so." Id. at p. 13.

   There is no evidence that the prohibition on caring for children has ever been lifted. Finally, she was required to receive

   
   

   approximately two years of psychological counseling. Except for these two convictions, there are no other disqualifying arrests or convictions since 1998.

7. After being released from jail, in chronological order, Petitioner was employed in the State of New York by an insurance company, a residential treatment facility, a diagnostic center, a legal aid society, and a facility for substance and chemical abusers. See Resp. Ex. B, pp. 24-25. She has an exemplary

   record in terms of education, receiving an Associate Degree in 2009, a Bachelor of Science Degree in social work in 2011, and a Master's Degree in social work in 2012. Id. at 24. In 2013, she and her husband relocated to central Florida.

8. Although the documentation and testimony which describe the disqualifying offenses vary in some respects, the incident can be generally summarized as follows. On the morning of

   June 3, 1997, while caring for foster children in her home, Petitioner placed a three-year-old child on the toilet for "potty" training, where he typically remained for up to

   30 minutes.1/ Petitioner acknowledges that she left the child in the bathroom for at least 20 minutes but says she returned several times to check on the child. After another child reported to Petitioner that the child had a bowel movement, Petitioner returned and began to clean him. She noticed scratches on his leg and left to retrieve antibacterial soap.

   
   

   While the undersigned is uncertain who turned on the hot water faucet in the sink, the child climbed several steps and placed his hand under the scalding water. Notably, the grand jury, and later the District Attorney, charged Petitioner with intentionally injuring the child, implying that Petitioner turned on the faucet and placed the child's hand under the water. In any event, Petitioner left the room for a few moments. When she returned, she noticed the child still had his hand under the scalding water but says she did not realize it was burned. The child began whining and was told to lie on the bed and calm down. The child continued to cry and whine, and about ten minutes later, Petitioner returned to the bedroom and noticed bubbles on the skin of the child's hand and blood on his fingertips. She telephoned her husband and asked him to carry the child to the emergency room. The child suffered significant second and third degree burns on his hand/fingers, and he was required to have skin grafts to heal the wounds. Multiple charges were then filed by the local District Attorney, although convictions were obtained on only two charges.

9. Petitioner testified that she has no other charges since 1997; the level 2 screening confirms this fact. She says that following the convictions she has changed her life and enjoys working with children and disabled adults. She has been offered a job conditioned upon the approval of the application.

   
   

   She also stated that she takes full responsibility for her offenses, she is remorseful, and she has learned from the experience.

10. In explaining the rationale of the Director in denying the application, an Agency representative testified that Petitioner has not fully accepted responsibility for her disqualifying offenses. For example, he pointed out that in her Exemption Questionnaire prepared in February 2014, she criticized the presiding judge at her trial for "getting upset when [she] was acquitted of the higher charge." See Resp.

    Ex. A, p. 4. Petitioner further stated that the judge believed she was guilty of all charges, and while he could have given her probation, he purposely gave her a longer sentence in jail than she deserved. Id. She also criticized the local media covering

    the incident for taking "a left turn" on the case, which contributed to her conviction.

11. The Agency witness gave considerable weight to the concerns of the Court and psychologist who evaluated Petitioner, who concluded that her child care license should be revoked, she should not care for other children, and she should not re-apply for a child care license in New York. Presumably, these restrictions are still in place. The Agency representative pointed out that if her application is approved, Petitioner would be free to work not just with developmentally-disabled

    
    

    adults, but also with vulnerable children. There is no such thing as a restricted exemption. Given the fact that the disqualifying offenses involved an injury to a child, the Agency concluded, in its discretion, that Petitioner may present a danger to vulnerable children if the application is approved.

    CONCLUSIONS OF LAW

    
    

12. Petitioner's application to the Agency for an exemption from disqualification is subject to the following standards in section 435.07(3)(a), Florida Statutes (2014):

    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 the 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.

    
    

13. Clear and convincing evidence requires that the evidence must be found to be credible; the testimony must be precise and explicit; and 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. See, e.g., In re Henson,

    
    

    913 So. 2d 579, 590 (Fla. 2005).

    
    

14. The Agency considered Petitioner's request for exemption and issued a notice of intended denial, which is the subject of Petitioner's request for an administrative hearing. The standard of review in this proceeding is specified in section 435.07(3)(c), which provides:

    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.

    
    

15. Petitioner's conviction for second degree assault is a disqualifying offense under section 435.04(2)(i), while neglect of a child and/or negligent treatment of a child is a disqualifying offense under sections 435.04(2)(ii) and (kk). This means that Petitioner is disqualified from serving in a position of special trust, as defined in statutes, unless and until Petitioner obtains an exemption from disqualification by meeting the above-quoted standards in section 435.07.

16. Petitioner's two disqualifying offenses were 18 years ago. The length of time since those offenses is a factor to be considered. Also relevant is the fact that she has not been arrested or convicted of any crimes since that time. She has obtained several degrees from college, and she has a history of

    
    

    continual employment since 1998. At hearing, she testified that she takes full responsibility for the incident and is remorseful. However, the facts surrounding the 18-year-old incident are not "precise and explicit," and Petitioner places partial fault on the court and media for her conviction and sentence. Therefore, the evidence is not clear and convincing that Petitioner is rehabilitated.

17. Even assuming that the evidence of rehabilitation is clear and convincing, in considering the Agency's action of denying Petitioner's exemption request, the standard of review is whether Director Palmer abused her discretion when passing on Petitioner's request. The "abuse of discretion" standard is highly deferential. See, e.g., E.R. Squibb & Sons v. Farnes, 697 So. 2d 825, 826 (Fla. 1997). An agency head abuses her discretion within the meaning of section 435.07 when an intended action under review is "arbitrary, fanciful, or unreasonable," which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the agency head. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.

    1980).

    
    

18. Given the serious nature of the offenses, the fact that a child was severely injured, and the revocation of her child care license, the Director's determination denying Petitioner's request for an exemption was not unreasonable, nor

was it a decision that no reasonable person would adopt. Therefore, no abuse of discretion was shown. The undersigned notes, however, that section 435.07 does not prevent Petitioner from filing another request for exemption sometime in the future, which might include additional evidence of rehabilitation not previously considered by the Director.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner's application for an exemption from disqualification.

DONE AND ENTERED this 20th day of May, 2015, in Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER 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 20th day of May, 2015.

ENDNOTE

1/ In her report, the DCF screener mistakenly assumed that the child who was burned was Petitioner's son. See Resp. Ex. B,

p. 2. However, the injured child was one of several foster children in Petitioner's care that morning.

COPIES FURNISHED:

David M. De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950 (eServed)

Jaime T. Halscott, Esquire Appeals Law Group

33 East Robinson Street, Suite 210 Orlando, Florida 32801-1682 (eServed)

Michael Sauve, Esquire

Agency for Persons with Disabilities

400 West Robinson Street, Suite 430 Orlando, Florida 32801-1764 (eServed)

Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950 (eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.