STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KYANNA RAQUEL DIXON,

vs.

Petitioner,

Case No. 16-6909EXE

AGENCY FOR PERSONS WITH DISABILITIES,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, this case was heard on January 26, 2017, in Tallahassee, Florida, before E. Gary Early, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No appearance

For Respondent: Jeannette L. Estes, Esquire

Agency for Persons with Disabilities Suite 422

200 North Kentucky Avenue Lakeland, Florida 33801

STATEMENT OF THE ISSUES

The issue in this case is whether Petitioner has, pursuant to section 435.07, Florida Statutes, demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with children

or developmentally disabled persons and, thus, whether the intended action to deny an exemption from disqualification from employment is an abuse of the agency’s discretion.

PRELIMINARY STATEMENT

By letter dated October 13, 2016, the Agency for Persons with Disabilities (“APD” or “Respondent”) issued its notice of proposed agency action by which it informed Kyanna Raquel Dixon (“Petitioner”) that her request for exemption from disqualification was denied. As a result, Petitioner was determined to be “not eligible to be employed, licensed, or registered in positions having direct contact with children or developmentally disabled people served in programs regulated by the Agency for Persons with Disabilities.” The basis for APD’s determination, as alleged in its notice of proposed agency action, was that Petitioner “[had] not submitted clear and convincing evidence of [her] rehabilitation” from disqualifying criminal offenses in her past.

On November 7, 2016, Petitioner timely filed her Request for Administrative Hearing with APD. In her Request for Administrative Hearing, Petitioner disputed APD’s determination that she had not proven her rehabilitation. On November 21, 2016, APD referred the case to the Division of Administrative Hearings for a formal administrative hearing.

The Initial Order was entered on November 22, 2016.

Responses to the Initial Order were filed by Respondent and Petitioner on November 28, 2016, and November 30, 2016, respectively. Among the dates provided by Petitioner as being available for the final hearing was January 26, 2017. On December 6, 2016, a Notice of Hearing scheduling the final hearing for January 26, 2017, at 9:00 a.m. was entered.

Petitioner did not file or exchange a witness list, exhibit list, or proposed exhibits, pursuant to the Order of Pre-hearing Instructions. On January 18, 2017, Respondent filed its Proposed Prehearing Statement. The Proposed Prehearing Statement recited the facts underlying the decision to file a unilateral statement, and included copies of the numerous communications with Petitioner as to the necessity to meet in order to prepare for the January 26, 2017, hearing. Despite having communications with Petitioner, counsel for Respondent was unsuccessful in having Petitioner participate in her efforts to comply with the Order of Pre-hearing Instructions.

The final hearing was convened at 9:00 a.m. on January 26, 2017, as noticed. No one appeared on behalf of Petitioner.

Counsel for Respondent appeared. A court reporter was in attendance, having been retained by Respondent. After preliminary matters were dispensed with, a 20-minute recess was granted to allow for an appearance by Petitioner. The final

hearing was reconvened at 9:20 a.m., without an appearance by Petitioner. Given the burden of proof as discussed herein, the final hearing was thereafter adjourned.

References to statutes are to Florida Statutes (2016) unless otherwise noted.

FINDINGS OF FACT

1. By letter dated October 13, 2016, Respondent issued its notice of proposed agency action by which it informed Petitioner that her request for exemption from disqualification was denied.

2. A timely Petition for Formal Administrative Hearing involving disputed issues of material fact was filed on behalf of Petitioner.

3. After filing the hearing request, Petitioner responded to the Initial Order, and the final hearing was scheduled on a date provided by Petitioner. Thereafter, Petitioner failed to comply with the Order of Pre-hearing Instructions and failed to appear at the final hearing.

4. Based on Petitioner’s failure to appear and offer evidence, there is no evidentiary basis on which findings can be made regarding whether Petitioner proved her rehabilitation from the disqualifying offense such that Petitioner would not present a danger to children or developmentally disabled people served in programs regulated by Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of the proceeding and the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes.

6. Section 435.07 establishes a process by which persons with criminal offenses in their backgrounds that would disqualify them from acting in a position of special trust working with children or vulnerable adults may seek an exemption from disqualification. That section provides, in pertinent part, that:

   435.07 Exemptions from disqualification.-- Unless otherwise provided by law, the provisions of this section shall 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.

   
   

   * * *

   
   

   (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.

   
   

   * * *

   
   

   (c) 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.

   
   

7. The statute must be strictly construed against the person claiming the exemption. Heburn v. Dep't of Child. &

   Fams., 772 So. 2d 561 (Fla. 1st DCA 2000).

   
   

8. It is well-established that:

   
   

   although the ultimate legal issue to be determined by the ALJ in a proceeding under section 435.07(3)(c) is whether the agency head's intended action was an “abuse of discretion,” the ALJ is to evaluate that question based on the facts determined from the evidence presented at a de novo chapter

   120 hearing.

   
   

   J.D. v. Dep't of Child. & Fams., 114 So. 3d 1127, 1132 (Fla. 1st

   
   

   DCA 2013).

   
   

9. APD has a heightened interest in ensuring that the vulnerable population it serves is not abused, neglected, or taken advantage of. In light of that mission, the Legislature has justifiably imposed a heavy burden of proof on those seeking

   
   

   approval to serve those persons when they have disqualifying events in their past.

10. Petitioner failed to meet her burden of proof.

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, Kyanna Raquel Dixon’s, request for an exemption from disqualification.

DONE AND ENTERED this 27th day of January, 2017, in Tallahassee, Leon County, Florida.

S

E. GARY EARLY 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 27th day of January, 2017.

COPIES FURNISHED:

Kyanna R. Dixon Post Office Box 454

Quincy, Florida 37353

Kyanna Dixon

1720 Bordeaux Boulevard

Tallahassee, Florida 32303

Jeannette L. Estes, Esquire

Agency for Persons with Disabilities Suite 422

200 North Kentucky Avenue Lakeland, Florida 33801 (eServed)

Michele Lucas, Agency Clerk

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)

Richard D. Tritschler, General Counsel 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 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.

Docket for Case No: 16-006909EXE

Orders for Case No: 16-006909EXE