STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARCUS BROWN,

vs.

Petitioner,

Case No. 15-1743

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 18, 2015, at video teleconferencing sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Marcus Brown, pro se

Apartment A

3105 East Jefferson Street Orlando, Florida 32803-6434

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 he is rehabilitated from his 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 February 20, 2015, the Agency for Persons with Disabilities (Agency) advised Petitioner that based on a background screening, his 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 his own behalf and presented two witnesses. Petitioner's Exhibit 1 was accepted in evidence. The Agency presented the testimony of one witness.

Respondent's Exhibits A through D were accepted in evidence.

A transcript of the hearing was not 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 32-year-old male 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 February 20, 2015, the Agency's Director, Barbara Palmer, notified Petitioner that his request for exemption from disqualification from employment in a position of special trust was denied. The letter advised Petitioner that this decision was based upon "the serious nature of the offense(s), the lack of sufficient evidence of rehabilitation, and [his] failure to sustain [his] burden of demonstrating by clear and convincing evidence that [he] should not be disqualified." 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 120-page report entitled "Exemption Review" dated November 17, 2014. See

   Resp. Ex. B. The Exemption Review 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 first given to the Agency Regional Operations Manager in Orlando, who reviewed it and then made a preliminary recommendation to the Director.

5. The Agency decision was triggered after Petitioner applied for a position of special trust on October 24, 2014. To

   
   

   qualify for the position, Petitioner was required to undergo a level 2 background screening performed by the DCF. The screening revealed that Petitioner had six disqualifying offenses between 1995 and 2005. Those offenses are listed below:

   1. May 17, 1995 -- burglary of a dwelling; Petitioner pled guilty and adjudication was withheld;

   2. April 10, 1997 -- robbery; Petitioner pled guilty and adjudication was withheld;

   3. May 9, 1997 -- robbery; Petitioner pled guilty, adjudication was withheld, and he was placed on probation;

   4. June 17, 1997 -- battery by detainee in a detention facility; Petitioner pled nolo contendere, was adjudicated delinquent, and placed on probation;

   5. January 18, 2001 -- possession of cocaine with intent to sell; Petitioner pled nolo contendere, was adjudicated guilty, placed on probation, and ordered to serve 86 days in the County Jail; and

   6. February 1, 2005 -- possession of cocaine; Petitioner pled guilty, was adjudicated guilty, placed on probation, and ordered to serve six months in the County Jail.

6. Besides the disqualifying offenses, Petitioner has a number of arrests and/or convictions for non-disqualifying offenses beginning in 1995. Two offenses, disorderly conduct

   
   

   and trespass on a property or conveyance, occurred in July 2012, or seven years after his last disqualifying offense. For that offense, he pled nolo contendere and was adjudicated guilty. He was also ordered to serve one day in the County Jail and required to complete a four-hour anger management class.

7. The Exemption Review shows that in May 2000, Petitioner earned his high school diploma. In June 2009, he earned an associate's degree in Network Administration from the TESST College of Technology in Baltimore, Maryland. In May 2014, he earned a bachelor's degree in psychology from Morgan State University located in the same city.

8. The Exemption Review also shows: from January 2008 through September 2008, Petitioner worked as a cashier and sales consultant at a retail store; from May 2009 through January 2010, he worked as an activities coordinator; from June 2011 through August 2013, he worked as a youth counselor; from February 2014 through May 2014, he worked as a records and registration clerk at the university from which he received his degree; and from June 2014 through August 2014 he worked as a behavior technician. At hearing, he testified that he is currently employed by Quest Diagnostics in the Orlando area.

9. Most of Petitioner's disqualifying offenses occurred at a very early age. For example, in May 1995, while in middle school and just before he turned 12 years of age, he committed

   
   

   his first disqualifying offense, burglary of a dwelling. When he was arrested for his last disqualifying offense in February 2005, possession of cocaine, he was 21 years old.

10. Petitioner attributes his criminal conduct to immaturity, peer pressure, and what he characterized as "environmental exposure." He expressed remorse, he takes full responsibility for his actions, and he acknowledges he could have handled his life better. He is currently in a committed relationship, has a new-born child, and serves as a mentor in the community. In short, Petitioner says he has changed his life for the better. Besides two witnesses who spoke highly of his recent volunteer work with children, an Orlando City Commissioner submitted a letter of recommendation. If his application is approved, Petitioner has a pending job offer with Lodestone Academy in Orlando, which works with Agency clients.

11. An Agency representative testified that the Agency's clients are at a heightened risk of abuse, neglect, and exploitation because of their developmental disabilities and inability to self-preserve. They often have severe deficits in their abilities to complete self-tasks and communicate their wants and needs. For this reason, the Agency undertakes a heightened scrutiny of individuals seeking an exemption.

12. In explaining the Agency's rationale for denying the application, the Regional Operations Manager listed the

    
    

    following factors that weighed against a favorable disposition of Petitioner's request: the frequency of the criminal offenses; criminal behavior that has consumed one-half of his life; the limited time (three years) since his last arrest, albeit for a non-disqualifying offense; and Petitioner's lack of specificity and accountability in his Exemption Questionnaire and testimony regarding the disqualifying offenses. As to the last factor, Petitioner could recall very few facts regarding his early arrests, saying they occurred at a very young age. He also denied that there were any injuries to his victims.

    However, one offense involved battery on a detainee in a juvenile facility, and in another, he ripped two gold chains

    from a victim's neck.

    
    

    CONCLUSIONS OF LAW

    
    

13. 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.

    
    

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. Because Petitioner has six convictions for disqualifying offenses, he is disqualified from serving in a position of special trust, as defined in statutes, unless and until he obtains an exemption from disqualification by meeting the above-quoted standards in section 435.07.

16. Petitioner is to be commended for completing college, doing volunteer work with children, and changing his life for the better. However, assuming that Petitioner has demonstrated rehabilitation and is eligible for an exemption, in considering the Agency's action of denying his exemption request, the standard of review is whether Director Palmer abused her discretion when passing on Petitioner's request. The "abuse of

    
    

    discretion" 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, 1203 (Fla. 1980).

    
    

17. Given the serious nature of the offenses, their span over a period of ten years, and a subsequent arrest just three years ago, the Director's determination denying Petitioner's request for an exemption was not unreasonable, and it is not 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 preclude Petitioner from filing another request for exemption sometime in the future, which might include additional evidence of rehabilitation not previously considered by the Director.1/

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 17th day of June, 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 17th day of June, 2015.

ENDNOTE

1/ As noted by the Agency witness, Petitioner's focus appears to be directed to juvenile justice, rather than working with Agency clients. A denial of the exemption does not prevent him from continuing his work in the former area.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-0950 (eServed)

Marcus Brown Apartment A

3105 East Jefferson Street Orlando, Florida 32803-6434

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.