STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERICKA COLLINGTON,

vs.

Petitioner,

Case No. 15-1893EXE

AGENCY FOR PERSONS WITH DISABILITIES,

Respondent.

/

RECOMMENDED ORDER

On June 19, 2015, an administrative hearing in this case was held by video teleconference in Orlando and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Petitioner, pro se

Apartment 515

5500 Clarcona Pointe Way Orlando, Florida 32810

For Respondent: Michael Sauve, Esquire

Agency for Persons with Disabilities Suite S-430

400 West Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner should be granted an exemption from employment disqualification, pursuant to section 435.07, Florida Statutes (2014).

PRELIMINARY STATEMENT

By letter dated March 13, 2015, the Agency for Persons with Disabilities (Respondent) notified the Petitioner that her request for exemption from disqualification had been denied. The Petitioner requested an administrative hearing to dispute the denial of the exemption. On April 8, 2015, the Respondent submitted the hearing request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner testified on her own behalf.

The Respondent presented the testimony of one witness and had Exhibits A through E admitted into evidence.

No transcript of the hearing was filed. The Respondent filed a Proposed Recommended Order that has been reviewed in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is seeking employment as a direct service provider in a “position of special trust” with disabled persons.

2. The Respondent is the state agency responsible for making disqualification and exemption determinations related to persons seeking such employment.

3. A person seeking employment in a “position of special trust” is subjected by law to a background screening process. A person who has committed one of a specified group of criminal offenses is disqualified from the employment. A disqualified

   
   

   person has the opportunity to seek an exemption from the disqualification.

4. The Petitioner's background screening revealed that, in 2002, the Petitioner was charged in Seminole County, Florida, with fraudulent use of a credit card, a third-degree felony violation of sections 817.61 and 817.67(2), Florida Statutes (2014).

5. Pursuant to section 393.0655(5)(j), Florida Statutes (2014), violations of section 817.61 are disqualifying offenses.1/

6. The Petitioner entered a plea of guilty, and was placed on probation for five years, ordered to complete 50 hours of community service, and required to make restitution in the amount of $2,416.20 to “People’s First Bank” in Panama City, Florida.

7. The sentencing order prohibited the Petitioner from “work[ing] where you have unsupervised access to cash, equipment or merchandise of others” and prohibited the Petitioner from entering the premises of a Burger King. Adjudication was withheld.

8. In the Respondent’s request for exemption, the Respondent stated that she had been shopping in a clothing store with someone else who was using a credit card. In the exemption request, the Respondent wrote “[a]t the time, I honestly didn’t know that this was not her mom (sic) card as that’s what she told me before going to the store.” The Respondent insinuated that

   
   

   she was arrested because she had been observed with the person using the card.

9. At the time of the offense, the Petitioner was employed at a Burger King, where, on at least one occasion, she worked the drive-thru window. A customer who came through the drive-thru window accidently left a credit card. The Petitioner took the credit card and used it to make various purchases.

10. According to the arrest report, the customer realized at some point that she was not in possession of the credit card, and that charges were appearing on her account. She reported the issue to law enforcement authorities, who, after an investigation, determined that the Petitioner had the credit card and was using it, at which time she was arrested. At all times material, the Petitioner was aware of the source of the credit card, and knew that it was not hers.

11. In the request to the Respondent for an exemption from employment disqualification, the Petitioner set forth a false statement of the circumstances surrounding her arrest.

12. The background screening also revealed two non- disqualifying offenses that occurred subsequent to the 2002 disqualifying offense. In 2004, the Petitioner entered a plea of nolo contendere to, and was adjudicated guilty of, a charge of petty theft, apparently related to a shoplifting incident at a

    T.J. Maxx department store. In 2006, the Petitioner was charged

    
    

    with a “failure to appear” violation related to the sentence imposed for the petty theft.

13. In addition to the criminal offenses referenced herein, the Petitioner has been involved in a number of minor traffic offenses identified in the exhibits presented by the Respondent, but the offenses were relatively insignificant.

14. The Petitioner has a high school diploma, and is gainfully employed. She was described as a good employee in several letters of recommendation submitted to the Respondent with her request for exemption, which were included in the exhibits admitted at the request of the Respondent.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding.

    §§ 120.569 and 120.57, Fla. Stat.

    
    

16. The Petitioner has applied for an exemption from disqualification under the provisions of section 435.07, which state, in relevant part, as follows:

    Exemptions from disqualification.--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.

    
    

    * * *

    
    

    (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. (emphasis added).

       
       

17. Chapter 435 was enacted to protect the public welfare.

    
    

    The law does not provide for a requested exemption to be granted as a matter of right to an otherwise disqualified individual. In Heburn v. Department of Children and Families, 772 So. 2d 561, 563

    (Fla. 1st DCA 2000), the court wrote as follows:

    
    

    In section 435.07, the legislature has not provided for an exemption as a matter of

    
    

    right, but has delegated to the Department the broad discretion to grant an exemption.

    Subsection (1) of section 435.07 provides that "the appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification."

    
    

    * * *

    
    

    An exemption from a statute, enacted to protect the public welfare, is strictly construed against the person claiming the exemption, and the Department was not required to grant . . . any benefits under the exemption.

    
    

18. An abuse of discretion by a trial court has been described as where the discretionary act is "arbitrary, fanciful, or unreasonable . . . . If reasonable [people] could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion." Canakaris v. Canakaris, 382 So. 2d 1197,

    1203 (Fla. 1980). See also Kareff v. Kareff, 943 So. 2d 890, 893 (Fla. 4th DCA 2006), holding that the test in determining whether discretion has been abused is whether "any reasonable person" would take the position under review.

19. The Petitioner has failed to establish that she is entitled to exemption from disqualification or that the Respondent's denial of the Petitioner's request for exemption constitutes an abuse of the Respondent's discretion.

    
    

20. In 2002, the Petitioner committed a third-degree felony involving fraudulent use of a credit card, a disqualifying offense. Other than two non-disqualifying offenses, the last of which occurred nine years ago, the Petitioner has apparently had no other significant interactions with law enforcement authorities.

21. However, in 2015, after learning that the credit card fraud could disqualify her from the employment she sought, the Petitioner sought to minimize her involvement in the offense by shifting blame to another person and suggesting that she was merely a bystander to the crime. The Petitioner’s story was unsupported by the evidence or by the charges to which the Petitioner pled guilty.

22. The position of special trust sought by the Petitioner would provide unsupervised access to the personal property of the disabled clients in her care. In this case, the request for exemption included a clear attempt to misinform the Respondent. The attempt to deceive the Respondent as to the circumstances surrounding the fraudulent use of a credit card is sufficient, on its own, to warrant denial of the request for exemption. In this case, the Respondent's denial of the request for exemption is not an abuse of the Respondent's discretion.

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 the Petitioner's request for an exemption from disqualification.

DONE AND ENTERED this 14th day of July, 2015, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 14th day of July, 2015.

ENDNOTE

1/ The Respondent’s Proposed Recommended Order incorrectly cites section 435.04(2)(j), Florida Statutes (2014), as the legal authority for classifying the Petitioner’s offense as a disqualifying offense.

COPIES FURNISHED:

Ericka Collington Apartment 515

5500 Clarcona Pointe Way Orlando, Florida 32810

Michael Sauve, Esquire

Agency for Persons with Disabilities Suite S-430

400 West Robinson Street Orlando, Florida 32801 (eServed)

David De La Paz, Agency Clerk

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950 (eServed)

Richard D. Tritscheler, General Counsel 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)

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.