STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES WALKER,

vs.

Petitioner,

Case No. 14-5130

AGENCY FOR PERSONS WITH DISABILITIES,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on January 8, 2015, in Sebastian, Florida, before J. D. Parrish, an Administrative Law Judge of the Division of Administrative Hearings, with Respondent’s counsel appearing by video teleconference from Tallahassee, Florida.

APPEARANCES

For Petitioner: James Walker, pro se

5812 Pinewood Drive, Northeast Palm Bay, Florida 32905

For Respondent: Kurt E. Ahrendt, Esquire

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

Whether Respondent abused its discretion by denying Petitioner’s request for an exemption that would allow employment in a position of special trust.

PRELIMINARY STATEMENT

On September 29, 2014, Respondent, Agency for Persons with Disabilities (Agency or Respondent), issued a denial of Petitioner’s request for exemption that would allow employment in a position of special trust. Thereafter, Petitioner timely filed a request for an administrative hearing and the case was forwarded to the Division of Administrative Hearings (DOAH) for formal proceedings. The Agency premised the denial of Petitioner’s exemption request on a background screening that reviewed Petitioner’s criminal records, as well as other documents provided by Petitioner.

The case was scheduled for hearing in accordance with the Response to Initial Order filed by Respondent. At the hearing, Petitioner testified on his own behalf and presented testimony from Roderick Coney and Travis Jones. Respondent offered testimony from Clarence Lewis, regional program manager for the Central Region of Florida. Respondent’s Exhibits A through E were admitted into evidence.

A transcript of the hearing has not been filed with DOAH. The parties were granted ten days from the date of the hearing within which to file proposed recommended orders. Respondent’s Proposed Recommended Order filed on January 20, 2015, has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner seeks employment in a position of trust.

   
   

   Employment in positions of special trust requires background screening to verify that persons do not have disqualifying offenses that preclude their employment.

2. Respondent is charged with the responsibility of verifying that persons who work in positions of trust are appropriately credentialed or meet the criteria for an exemption when background screening finds disqualifying offenses. In this case, Respondent reviewed Petitioner’s request for an exemption when it was determined that he was otherwise disqualified for employment.

3. On March 3, 2000, Petitioner committed the criminal act of solicitation for prostitution. This criminal charge was resolved when Petitioner entered a plea of nolo contendere, was adjudicated guilty, and was sentenced to ten days detention and six months of probation. Respondent found this offense to be Petitioner’s first disqualifying offense.

4. On January 30, 2008, Petitioner committed the criminal act of domestic violence. The charge was resolved when Petitioner entered a guilty plea, and was ordered to attend anger management classes and pay restitution, court costs, and investigative costs. Adjudication on the plea was withheld.

   
   

   Respondent determined this offense to be Petitioner’s second disqualifying offense.

5. Petitioner does not dispute the factual allegations supporting the charges described in paragraphs 3 and 4. Petitioner maintains he is of good moral character and that the incidents of his past do not define the person he is. Petitioner’s witnesses agree that Petitioner should be allowed to work in a position of trust.

6. In addition to disqualifying offenses, Respondent considered other incidents related to Respondent’s conduct. Prior to the offenses noted above, Respondent pled guilty to resisting arrest with violence. Subsequent to the offenses, Respondent incurred a number of traffic violations, including driving without a valid license.

7. Finally, and of significant concern to Respondent, Petitioner has a verified finding of child abuse. Although the case was not prosecuted criminally, the Florida Department of Children and Families (DCF) maintains a verified report of sexual activity involving Petitioner with his minor step-child.

8. Petitioner’s successful employment history includes work with Devereux’s Children’s Hospital (from 1993 until

   February 2009). Petitioner was terminated from this position due to his domestic violence conviction. From November 2011 to September 2013, Petitioner was employed by MC Assembly.

   
   

9. Petitioner resides with two sons and is head of household.

10. Petitioner completed anger management counseling after his conviction in 2009.

11. There is no evidence that Petitioner uses or misuses drugs or alcohol.

12. Petitioner expressed remorse for his behavior and blamed the domestic violence incident on a difficult home situation that got out of control.

13. Respondent considers driving without a license a serious issue because persons who work in positions of special trust may be required to transport persons with developmental disabilities to medical appointments, educational or training opportunities, or activities.

14. Respondent’s clients are persons who are extremely vulnerable. Many clients do not have the capacity to consent due to limited cognitive function. Additionally, Respondent’s clients are at risk for abuse, neglect, and exploitation because they may not be able to communicate and relate incidents of abuse, neglect or exploitation.

15. Respondent’s clients cannot be served by persons who exhibit violence or uncontrolled behaviors. After reviewing Petitioner’s record, Respondent determined that an insufficient time has passed to assure that Petitioner will not revert to

    
    

    violent behavior if confronted with a stressful work experience. Petitioner has not provided evidence of rehabilitation other than the support of his friends. According to Clarence Lewis, the stressors in Petitioner’s life, together with the demands of the work environment, could put Respondent’s clients at risk since Petitioner has not demonstrated sufficient rehabilitation.

16. Petitioner’s letters of reference did not document additional efforts at rehabilitation. There is no evidence that Petitioner has participated in counseling or treatment beyond the mandated anger management class dictated by the court.

17. Persons seeking employment with vulnerable individuals must exercise good judgment.

18. Based upon the totality of Petitioner’s submissions to the Agency to support the request for an exemption, Respondent concluded Petitioner did not establish by clear and convincing evidence that he is rehabilitated and able to work with Respondent’s vulnerable population.

    CONCLUSIONS OF LAW

    
    

19. DOAH has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569, 120.57, and

    435.07 Fla. Stat. (2014).

    
    

20. Section 435.04, Florida Statutes, provides, in pertinent part:

    
    

    (1)(a) All employees required by law to be screened pursuant to this section must undergo security background investigations as a condition of employment and continued employment which includes, but need not be limited to, fingerprinting for statewide criminal history records checks through the Department of Law Enforcement, and national criminal history records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.

    
    

    * * *

    
    

    1. 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:

       
       

       * * *

       
       

       (v) Chapter 796, relating to prostitution.

       
       

       * * *

       
       

       (mm) Section 843.01, relating to resisting arrest with violence.

       
       

       * * *

       
       

    2. The security background investigations under this section must ensure that no person subject to this section has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense that constitutes domestic violence as defined in s. 741.28, whether such act was

       
       

       committed in this state or in another jurisdiction.

       
       

21. Section 435.07, Florida Statutes, provides, in part:

    
    

    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;

       
       

    2. Misdemeanors prohibited under any of the statutes cited in this chapter or under similar statutes of other jurisdictions for which the applicant for the exemption has completed or been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court;

       
       

    3. Offenses that were felonies when committed but that are now misdemeanors and for which the applicant for the exemption has completed or been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court; or

       
       

    4. Findings of delinquency. For offenses that would be felonies if committed by an adult and the record has not been sealed or expunged, the exemption may not be granted until 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 offense.

    
    

    * * *

    
    

    (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.

    
    

    1. 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.

       
       

    2. 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.

    
    

22. Pursuant to section 435.07(3), Florida Statutes, an applicant for an exemption must provide clear and convincing evidence of “rehabilitation.” This “clear and convincing”

    
    

    standard requires proof that is more than a preponderance of the evidence but less than beyond and to the exclusion of a reasonable doubt. For proof to be considered clear and convincing

    the 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 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) (quoting, with

    
    

    approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

23. Should the agency head determine that the applicant for an exemption has not provided clear and convincing evidence to establish rehabilitation, that decision may be contested pursuant to chapter 120, Florida Statutes. In this case, Petitioner timely challenged the Agency’s decision to deny the exemption and was afforded an administrative hearing to present evidence in support of his case. The standard of review for this case is set forth by law: whether the agency’s intended action is an abuse of discretion. Therefore, the issue for determination is whether the agency’s intended action constitutes an abuse of discretion based upon the facts determined from the evidence presented at

    
    

    the hearing. Which makes Petitioner’s burden great. See J.D. v.

    
    

    Dep’t of Child. & Fam., 114 So. 3rd 1127 (Fla. 1st DCA 2013).

    
    

24. In this case, Respondent articulated a concise and well-reasoned explanation for the decision to deny Petitioner’s exemption application. Respondent cited Petitioner’s disqualifying offenses; the elapsed time since the last occurrence of irresponsible behavior; the vulnerable population served by the Agency; a verified report of abuse, neglect or

    exploitation maintained by DCF; and other minor concerns, such as traffic infractions and driving without a license.

25. Based upon the facts of this case, it is concluded Respondent did not abuse its discretion in denying Petitioner’s

exemption.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order denying Petitioner’s application for an exemption.

DONE AND ENTERED this 23rd day of February, 2015, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 23rd day of February, 2015.

COPIES FURNISHED:

Kurt Eric Ahrendt, Esquire

Agency for Persons with Disabilities Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399-0950 (eServed)

Michael Sauve, Esquire

Agency for Persons with Disabilities Suite S-430

400 West Robinson Street Orlando, Florida 32801 (eServed)

James Walker

5812 Pinewood Drive Northeast Palm Bay, Florida 32905

David De La Paz, Agency Clerk

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950 (eServed)

Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950 (eServed)

Richart 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: 14-005130

Orders for Case No: 14-005130