vs.
Respondent.
Case No. 19-3968EXE
Administrative Law Judge Lisa Shearer Nelson conducted a hearing pursuant to section 120.57(1), Florida Statutes (2019), on September 27, 2019, by video teleconference with sites in Jacksonville and Tallahassee, Florida.
For Respondent: Trevor S. Suter, Esquire
The issue to be determined is whether Petitioner should be granted an exemption from disqualification from holding a
position of trust in accordance with the process provided in section 435.07, Florida Statutes.
On June 24, 2019, Barbara Palmer, as Director of the Agency for Persons with Disabilities (APD or the Agency), notified Petitioner, Shatara Johnson, that her request for an exemption from disqualification had been denied. Petitioner requested a hearing on her exemption request, and on July 24, 2019, her case was forwarded to the Division of Administrative Hearings (DOAH) for assignment of an administrative law judge (ALJ).
On August 8, 2019, the hearing was scheduled to take place on September 27, 2019, by video teleconference. Petitioner was without the benefit of counsel, so on September 10, 2019, a telephonic prehearing conference with the parties was conducted in order to explain to Petitioner the procedures that would govern the hearing. Petitioner was encouraged to access the document “Representing Yourself Before The Division of Administrative Hearings,” available at DOAH’s website, in order to better understand the hearing process.
The hearing commenced and concluded as scheduled.
Petitioner testified on her own behalf but did not submit any exhibits. APD presented Ramsey Garner’s testimony and APD’s Exhibits 1 through 3 were admitted into evidence.
All references to Florida Statutes are to the 2019 codification, unless otherwise specified.
Shatara Johnson is seeking an exemption from disqualification in order to work taking care of elderly and vulnerable adults. She worked in the healthcare field previously, but cannot do so at this time because of her disqualifying offense.
APD is the state agency that licenses and regulates the employment of those in positions of trust, such as employees that care for APD’s clients. APD is charged with serving and protecting the vulnerable population of developmentally disabled adults and children.
On or about April 25, 2014, Ms. Johnson was charged with possession, use, or attempted use of an anti-shoplifting device countermeasure, a third-degree felony, in violation of section 812.015(7), Florida Statutes, as well as petit theft, a misdemeanor, in violation of section 812.013(3)(a).
An anti-shoplifting or inventory control device countermeasure is “any item or device which is designed,
manufactured, modified, or altered to defeat any antishoplifting or inventory control device.” § 812.015(1)(l), Fla. Stat.
Ms. Johnson pleaded guilty to both counts, and on May 19, 2014, adjudication was withheld and Ms. Johnson was
sentenced to 12 months of unsupervised probation and two days in the Duval County Jail, with credit for the two days already served.
Ms. Johnson’s probation was terminated April 6, 2015, and she paid all fines and court costs on or about February 28, 2019.
Ms. Johnson first applied for an exemption from disqualification in either late 2017 or early 2018. She was notified by letter dated February 1, 2018, that at that time she was ineligible to request an exemption, because three years had not elapsed since her probation was terminated.
Ms. Johnson later submitted to background screening for employment, and was notified by letter dated June 5, 2018, that she was ineligible because of her disqualifying offense. She was also advised of the process by which she could apply for an exemption.
Ms. Johnson filed an application for an exemption on or about July 16, 2018, and was advised by letter dated November 6, 2018, that she was not eligible at that time because she still
owed fees connected to her conviction. As noted above, Petitioner paid those fees on or about February 28, 2019.
Petitioner’s application was first submitted to the Department of Children and Families (DCF). After DCF processed the application to make sure it was complete, it was forwarded to APD. Upon receipt, APD also examined the application for completeness, and reviewed some additional databases related to Petitioner’s history.
APD Exemption Specialist Ramsay Garner then prepared a summary of the exemption packet, and provided the summary and exemption packet to a review committee within APD for review and a recommendation. The packet was then provided to the Director of APD for a final determination. Both the APD review committee and the Director believed that denial of the request for exemption was appropriate.
As part of her application, Ms. Johnson submitted a statement regarding the circumstances of her offense, how her actions affected the lives of others, and how it impacted her life. Ms. Johnson submitted the following statement:
Offense Anti-theft device a bag made of aluminum foil to sound off the alarm this didn’t affect anyone it only affect me because it’s now hard on me to get hired at any healthcare facility or any dealing with mental or disabled individuals as well as children it affected me from working with or around them and that’s what I planned on making a career out of caring for the
disabled this offense really made a bad impact in my life against my career . . . .
The Exemption Questionnaire asks the applicant to describe any injuries, harm, or damage to the victim related to the disqualifying offense. Ms. Johnson stated that “[t]here were no damage or harm neither a victim I were with another person that was stealing out of Khols [sic] clothing store.”
Ms. Johnson also testified at hearing that she did not take anything, but was arrested because she had the foil-lined bag. Her statement and testimony is inconsistent with the police report, which indicated that both she and her companion took small items from the store and both were charged with petit theft in addition to the disqualifying offense.
Ms. Johnson has not completed any educational or training classes since her disqualifying offense. She refused to complete drug screening as proof of rehabilitation, because she asserts that she has never used drugs or alcohol. She has not participated in any community activities, or received any special recognition or awards since her disqualifying offense.
At hearing, Ms. Johnson asked that she receive an exemption because she loves caring for the elderly and people with disabilities, and wants to make it a career. She testified that she has all of her “trainings,” but that they are not up to date.
No other evidence of rehabilitation was presented.
One of the items that applicants must submit is a recommendation letter from a current employer, along with proof of income. Letters of support were also suggested.
Ms. Johnson submitted a letter from Dana Ashley, a co- worker at Annie Wilson Homecare; a letter from Annie Brown, the owner of Annie Wilson Homecare; and a letter from Patricia Brown, CEO and owner of PK & E Support Services.
At hearing, the Department submitted an email thread between Robin Keller, the Deputy Regional Operations Manager for APD, and Annie Brown, the purported author of one of the letters submitted by Respondent. Annie Brown denies writing the letter bearing her name, stating that she is not at the suite address listed and has not been at that location for close to two years. She also noted that the letter contains many errors.
The letter bears a notary stamp but is not actually notarized. There is no signature by a notary and no attestation that the person writing the letter actually appeared before the notary and was either known to her or presented identification. The same can be said regarding the letter signed by Dana Ashley.
When the email was presented at hearing, Ms. Johnson admitted that Ms. Brown did not actually write the letter
Ms. Johnson submitted. She explained the letter by saying, “the only way I was able to get it written is from her secretary. She
was never in the office. So when she – when the secretary signed it, I was able to take it to the front desk and get it notarized. So her secretary signed it, wrote the letter and signed her name for me.”
The letter from Ms. Ashley and the letter signed Annie Brown are both typewritten. Both bear a notary stamp but have no attestation. The letter from Patricia Brown is handwritten. It is not notarized, and the handwriting is strikingly similar to Ms. Johnson’s. Moreover, all three letters share the same writing style, grammatical errors, and phraseology that is found in Ms. Johnson’s July 13, 2018, letter to APD.1/ While the undersigned is not prepared to find that Ms. Johnson wrote all of the letters, that possibility suggests itself. In any event, submitting a letter that is represented to be from her former employer, while knowing that her former employer did not write the letter, does not indicate rehabilitation at any level.
It is found that Petitioner has not met her burden to show by clear and convincing evidence that she is rehabilitated.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter and the parties to this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
Persons who wish to work as direct service providers with clients of APD are required to undergo background screening before they are eligible to work. § 402.305(2)(c), Fla. Stat.
Section 435.04(2) provides a list of those offenses that disqualify an individual from working in a position of trust. It provides in pertinent part:
(2) The security background investigations under this section must ensure that no persons subject to the provisions of this section have been arrested for and are awaiting final disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under any of the following provisions of state law or similar law of another jurisdiction:
* * *
(cc) Chapter 812, relating to theft, robbery, and related crimes, if the offense is a felony.
Inasmuch as Petitioner’s disqualifying offense is a felony pursuant to chapter 812, she is ineligible for employment in a position of trust.
Individuals with disqualifying offenses may request an exemption from disqualification pursuant to section 435.07(1). J.D. v. Dep’t of Child. and Fams., 114 So. 3d 1127, 1131 (Fla. 1st DCA 2013)(ultimate issue of fact under section 435.07 is
whether the applicant has demonstrated rehabilitation by clear and convincing evidence).
Section 435.07, which provides the authority by which Petitioner may seek an exemption, provides in pertinent part:
(1)(a) The head of the appropriate agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:
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. (emphasis added).
Prohibiting people convicted of disqualifying offenses from employment in positions of trust is intended to protect the public welfare, and section 435.07 is strictly construed against the person seeking an exemption. Heburn v. Dep’t of Child. &
Fams., 772 So. 2d 561, 563 (Fla. 1st DCA 2000).
The clear and convincing standard of proof has been described by the Florida Supreme Court as follows:
Clear and convincing evidence requires that evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in 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)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also,
In re Henson, 913 So. 2d 579, 590 (Fla. 2005).
Should Petitioner demonstrate by clear and convincing evidence that she has been rehabilitated, an ALJ must determine whether the Agency abused its discretion in its initial denial of her request for an exemption. Here, it is not necessary to make that determination, because the evidence at hearing did not establish Petitioner’s rehabilitation by clear and convincing evidence.
In order to prove rehabilitation, section 436.07 provides a starting point for what type of information would be helpful, i.e., the circumstances related to the criminal incident giving rise to the disqualification; the nature of the harm to the victim; the applicant’s history since the incident; and any evidence that would demonstrate that the applicant would not present a danger if employment or continued employment is allowed.
Cases that discuss the type of evidence presented to demonstrate rehabilitation in support of an exemption have mentioned evidence such as proof of training, psychological evaluations, anger management classes, evidence of church involvement and community outreach, education, and community volunteer activities. See, e.g., E.J. v. Dep’t of Child. & Fams., 219 So. 3d 946 (Fla. 3d DCA 2017)(completion of AA degree); J.D. v. Dep’t of Child. & Fams., 114 So. 3d 1127 (Fla. 1st DCA 2013)(extensive church involvement, stable employment,
education, drug treatment and support-related activities); K.J.S. v. Dep’t of Child. & Fams., 974 So. 2d 1106 (Fla. 1st DCA 2007)(extensive involvement in prison ministry, commitment to family, educational and vocational accomplishments, efforts to teach young people not to repeat his mistakes); and Philips v.
Dep’t of Juv. Just., 736 So. 2d 118 (Fla. 4th DCA 1999)(letters of recommendation, proof of training, psychological evaluation, and proof of anger management classes).
In attorney reinstatement cases, the concept of rehabilitation is often discussed. While these cases are not binding, their discussion of rehabilitation is instructive. What is clear in that context is that the mere passage of time since the event giving rise to discipline, without more, is not
evidence of rehabilitation. The Florida Bar re Jahn, 559 So. 2d 1089, 1091 (Fla. 1990)(“Reinstatement is more a matter of grace than of right and is dependent upon rehabilitation.”). As stated in Florida Board of Bar Examiners re J.C.B., 655 So. 2d 79, 82 (Fla. 1005),
An applicant . . . who affirmatively asserts rehabilitation from prior conduct bearing adversely on character and fitness for admission must show rehabilitation by
Such things as a person’s occupation, religion, community or civic service. Merely showing that an individual is now living as and doing those things he or she should have done throughout
life, although necessary to prove rehabilitation, does not prove that the individual has undertaken a useful and constructive place in society. The requirement for positive action is appropriate for admission to the bar because service to one’s community is an implied obligation.
These types of activities are also considered by APD when considering rehabilitation, as is evidenced by the questions in its exemption questionnaire about community involvement, additional training, and awards/recognitions received after the disqualifying offense, and submission of evidence related to these activities in the cases cited above.
Unfortunately, Petitioner did not present any tangible evidence of rehabilitation. She expressed no remorse, either in her testimony or her responses to the Agency’s questionnaire. She believes that she was the only “victim” of her crime because of the effect her behavior has had on her ability to work with vulnerable individuals. Ms. Johnson did not present any evidence about what she has done since the disqualifying incident, other than having no further brushes with law enforcement, and offered no evidence of community involvement.
Not only did Petitioner fail to demonstrate affirmative steps toward rehabilitation, the evidence shows that at this time, she should not be in a position of trust with APD’s vulnerable clients. Petitioner admitted that one of the
letters she submitted was not actually written by the person whose name is on the letter. There are serious doubts about the authorship of the remaining letters as well. Her willingness to submit a letter she knew was not written or signed by the person identified as the letter’s author only serves to undermine any evidence of rehabilitation she may have presented.
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 request for an exemption.
DONE AND ENTERED this 5th day of November, 2019, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 2019.
1/ For example, all of the letters have run-on sentences, often with a period only at the end of a paragraph. All share similar phrasing, such as caring for or dealing with “mental, disabled and the elderly,” and most start with the phrase, “I’m [insert name].”
Trevor S. Suter, Esquire
Francis Carbone, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
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.
