STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHARLES MACK,
vs.
Petitioner,
Case No. 15-3268EXE
AGENCY FOR PERSONS WITH DISABILITIES,
Respondent.
/
RECOMMENDED ORDER
A hearing was conducted pursuant to sections 120.569 and 120.57(1), Florida Statutes (2015),1/ on August 12, 2015, by video teleconference at sites in Tampa and Tallahassee, Florida, before Elizabeth W. McArthur, Administrative Law Judge, Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: Diana L. Mangsen, Esquire
9870 Lake Seminole Drive, West Largo, Florida 33773
For Respondent: Elaine Marquardt Asad, Esquire
Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUES
The issues in this case are whether Petitioner has demonstrated, by clear and convincing evidence, that he is rehabilitated from a disqualifying offense, and, if so, whether
Respondent’s intended action to deny Petitioner’s application for an exemption from disqualification is an abuse of discretion.
PRELIMINARY STATEMENT
By letter dated April 22, 2015, the Agency for Persons with Disabilities (Agency, APD, or Respondent) informed Charles Mack (Mr. Mack or Petitioner) of its decision to deny Petitioner’s application for an exemption from disqualification. The Agency advised Petitioner that without the exemption, he was “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[.]”
In accordance with the notice of rights provided by the Agency, Petitioner filed a request for an administrative hearing to contest the Agency’s intended action. On June 4, 2015, the Agency referred the case to DOAH for assignment of an Administrative Law Judge to conduct the requested hearing.
The hearing was scheduled with the parties’ input and went forward as scheduled. Prior to the hearing, the parties filed a joint stipulation to the admission into evidence of each other’s exhibits, without the need for testimony and without objection. At the outset of the hearing, the joint stipulation was accepted, but the parties were reminded that section 120.57(1)(c), Florida Statutes, and Florida Administrative Code Rule 28-106.213(3) limit the use of hearsay evidence, whether there is an objection
or not. These provisions dictate that findings of fact cannot be based solely on hearsay evidence, unless the evidence is admissible under an exception to the hearsay rule in the Florida Evidence Code. Accordingly, the parties were instructed to identify any hearsay exceptions they claimed were applicable to their exhibits, so that argument could be presented and a ruling made; otherwise, hearsay evidence would be used only to supplement or explain other non-hearsay evidence. Neither party invoked a hearsay exception as to any exhibit.
At hearing, Petitioner testified on his own behalf and also presented the testimony of Nathaniel Crawford, Jr., Charlene Clark, Michael Mahlon Murvine, Jean Catherine Murvine, Merrick “Rick” Mahlon Murvine, and Mark “Bud” Mahlon Murvine.
Petitioner’s Exhibits 1 through 26 were admitted in evidence.
Respondent presented the testimony of Sheila Mott, a deputy regional operations manager for APD’s Suncoast region, and Jessica McDaniel, APD manager for background screening statewide. Respondent’s Exhibits 1 through 10 were admitted.
A court reporter recorded the final hearing, but no transcript was ordered. The parties timely filed proposed recommended orders (PROs), which have been considered.
FINDINGS OF FACT
Mr. Mack is a 36-year-old male who desires to return to work for Allshouse Supported Living Services, Inc. (Allshouse),
as a direct service provider to APD clients with developmental disabilities. Allshouse provides community-based services to APD clients with developmental disabilities.
Mr. Mack was employed by Allshouse from October 2009 through October 2014. When Mr. Mack began working for Allshouse, he was licensed by the Department of Health, Board of Nursing, as a certified nurse assistant (CNA), and he provided home health care to APD clients pursuant to his CNA license. More recently, Mr. Mack worked for Allshouse as a supported living coach.
On October 23, 2014, Mr. Mack completed an affidavit of good moral character for Allshouse. The affidavit--an APD form-- identifies disqualifying offenses pursuant to the employment screening laws in chapter 435, Florida Statutes, and instructs employees to select one of three responses to sign: that the employee has no disqualifying offenses, and therefore, meets the good moral character standard; that the employee’s record “may contain one or more” disqualifying offenses; or that the employee is a licensed physician, licensed nurse, or other professional licensed by the Department of Health and that the employee will be providing services within the scope of his or her licensed practice. Mr. Mack signed the option acknowledging that his “record may contain one or more” of the enumerated disqualifying offenses. In 2014, Mr. Mack was no longer licensed as a CNA, and was working for Allshouse as a supported living coach.2/
Based on Mr. Mack’s disclosure, the Department of Children and Families (DCF) conducted a Level II background screening. Criminal history record checks were performed at the state, national, and local levels. These record checks would identify records related to any criminal offenses, whether disqualifying offenses or not. The results would show arrests that did not culminate in charged criminal offenses, as well as arrests leading to charges and the ultimate disposition of those charges. The screening results for Mr. Mack showed one criminal offense in the state records; the same criminal offense was also shown in the local law enforcement agency’s records. No other criminal history of any kind was reported.
The records show that 13 years ago, on October 29, 2002, Mr. Mack was arrested and charged with grand theft, a third degree felony, pursuant to section 812.014(2)(c)1., Florida Statutes (2002). The case was disposed of on October 16, 2003, when the Circuit Court for the Sixth Judicial Circuit in Pinellas County accepted Mr. Mack’s guilty plea to the single charge. The court withheld adjudication, imposed a two-year term of probation, ordered payment of $750.00 as restitution, imposed a
$50.00 fine, and assessed $400.00 in court costs.
Mr. Mack’s 2002 offense to which he pled guilty is a disqualifying offense pursuant to section 435.04(2), Florida Statutes.3/
By letter dated October 30, 2014, DCF informed Mr. Mack that he was ineligible for continued employment with Allshouse because of the 2002 disqualifying offense. Mr. Mack was informed that he could seek an exemption from disqualification, which would be granted if clear and convincing evidence was presented to DCF “to support a reasonable belief that a person is of good moral character and that the individual does not present a danger to the safety or well being of children or the developmentally disabled.” DCF sent a similar letter on October 28, 2014, to inform Allshouse that Mr. Mack was not eligible for continued employment unless and until he applied for an exemption and proved his rehabilitation to DCF.4/ In response to these letters, Mr. Mack’s employment with Allshouse was immediately terminated. The Exemption Application, After Remaining Court Costs Were Paid
Upon receipt of the DCF letter, Mr. Mack immediately took steps to apply for an exemption. On November 4, 2014, he sent a letter requesting the necessary forms and instructions to Sandra Wesley with the DCF background screening unit in Tampa. However, on November 24, 2014, Ms. Wesley responded that DCF had located court records indicating that Mr. Mack still owed some costs, fines, and/or fees imposed for his 2002 offense.
Ms. Wesley informed Mr. Mack that he was not eligible to apply for an exemption until he paid the balance and provided proof of payment.
At hearing, Mr. Mack credibly testified that he believed he had paid all court-ordered costs, fines, or fees that were due, because when the court granted a motion for early termination of his probation in late 2004, the court also entered an order waiving outstanding court costs and fees. Mr. Mack’s testimony was credible, and his belief that he had previously satisfied all court-imposed monetary conditions was reasonable. The court docket contains the following entry on October 14, 2004: “Outstanding cos [presumably, costs] fees waived $390.00.” Apparently, Mr. Mack owed more than $390.00 due to a separate assessment to pay fees to the public defender, so that “waived” may have really meant “partially waived.” Nonetheless, despite his reasonable belief that he had satisfied all monetary conditions more than a decade earlier, as soon as Mr. Mack was informed by DCF that he may still owe some court costs, fines, and/or fees, he went to the courthouse and paid the amount that he was told was still due. The court clerk issued a Satisfaction of Judgment–Fine/Cost, providing that the balance due for the court-imposed “fine and/or costs” in connection with the 2002 offense was “paid and satisfied in full on December 1, 2014.”
Mr. Mack immediately provided proof of payment to Ms. Wesley. Ms. Wesley accepted the proof and mailed the
exemption application forms and checklist to Mr. Mack for him to complete and return to her.
Mr. Mack completed the exemption application forms and provided all additional information suggested by the instructions and checklist. While Mr. Mack provided all information called for by the Agency’s application forms, more evidence was presented at hearing bearing on the issue of whether Petitioner is rehabilitated from his disqualifying offense, such that Petitioner poses no danger to APD clients if he is allowed to return to work as a direct service provider.
Evidence of Rehabilitation
As described in the exemption statute, section 435.07, evidence of rehabilitation begins with consideration of the disqualifying offense itself: the circumstances surrounding the disqualifying offense, the time period that has elapsed since the offense; and the nature of the harm caused to the victim.
Mr. Mack provided a detailed explanation of the circumstances surrounding his single 2002 disqualifying offense. He explained that he was approached by two men from his neighborhood, whom he knew by the nicknames they used. They propositioned him with an offer of a free cell phone, if they could use his address for delivery of a box of several cell phones. Mr. Mack agreed. At the time, he was 22 or 23 years old; the two men were older. Mr. Mack was young and naïve, focusing only on the chance to obtain a free cell phone, which was not easy to get or common among his peers at that time.
After many weeks, a box containing five cell phones arrived at Mr. Mack’s address. He contacted the two men, who picked up the phones, leaving one for Mr. Mack as promised. For just over one month, Mr. Mack enjoyed the use of the cell phone and cellular service. Then, on October 29, 2002, a detective from the sheriff’s office appeared at his door with a phone company investigator. He let them in, answered all of their questions about the cell phone, and gave the cell phone to the detective. He was arrested and charged with theft of all five cell phones and the related cellular service, with a total value between $300.00 and $5,000.00. Based on the value range, the charge was grand theft, a third degree felony.
At the time of his arrest, Mr. Mack was too ashamed to tell his family and ask for help. Instead, he accepted a public defender, and followed advice to put the incident behind him by pleading guilty. And Mr. Mack freely admits that he was guilty, insofar as he knowingly received the cell phone shipment and used the cellular service. He was oblivious to suspect circumstances, ignoring alarms sounding the classic warning that if a deal sounds too good to be true, it probably is. He expressed sincere remorse for his wrongdoing. As he said, he was young, naïve, and stupid. It is difficult to argue with that characterization.
Petitioner’s explanation of the circumstances and his genuine remorse for his actions were credible and are credited.5/
With regard to the nature of harm to the victim, the Agency’s exemption application form frames the issue this way: “Degree of harm to any victim or property [permanent or temporary], damage or injuries.” This reasonably invites a response that differentiates between harm to persons and property damage, and between permanent and temporary injuries or damage. Mr. Mack’s application provided this response: “No property was damaged and no physical bodily harm took place.” This was a reasonable and accurate response. Consideration of the nature or degree of harm necessarily requires an assessment of the relative seriousness of the consequences. Considered that way, Mr. Mack’s criminal offense 13 years ago caused relatively inconsequential harm to any victim or property, which was remediable and remedied by court-ordered restitution. Mr. Mack deprived the cell phone companies of the value of his use of a cell phone for just over one month, when Mr. Mack gave the undamaged cell phone to the detective. To compensate for that temporary property loss,
Mr. Mack paid restitution of $750.00.
The relevant considerations as to the disqualifying offense itself provide strong evidence of Petitioner’s rehabilitation: the circumstances credibly explained by Petitioner; Petitioner’s sincere regret for his wrongdoing; the inconsequential degree of harm to any victim or property; and the substantial length of time--13 years--since the offense.
Beyond the factors related to the disqualifying offense itself, evidence of rehabilitation may be in the form of the history of the applicant since the incident and any other evidence or circumstances indicating that the applicant will not present a danger if continued employment is allowed.
Since 2002, as a young but maturing adult, Mr. Mack has worked hard to right his path, earn a living through meaningful work that goes beyond just earning a paycheck, and serve those in need by volunteering through his church and in the community.
As confirmed by the criminal history record checks, Mr. Mack’s history since the disqualifying offense is notable by the absence of any criminal matters. Mr. Mack has not been arrested, much less charged or convicted, of a crime, whether disqualifying or otherwise. Mr. Mack’s pristine criminal history record since 2002 is proof that he learned his lesson from his one transgression.
Mr. Mack provided evidence, in his application and at hearing, that not only has he avoided criminal incidents since 2002, but he has also worked hard to better himself and further his education and skills. He received his CNA license and an exemption from disqualification from the Department of Health, Board of Nursing, in 2009, allowing him to be employed in a position providing services within the scope of his CNA license. The exemption was issued to Mr. Mack pursuant to the same
exemption statute as is at issue here, based on the same standard of clear and convincing proof of rehabilitation from the 2002 disqualifying offense.
Since 2009, Petitioner has dedicated his work hours as well as significant personal time to providing care to developmentally disabled persons. He provided documentation of his relevant training and certifications since 2009, in such areas as professional crisis management, CPR and AED basic life support for healthcare providers, heartsaver first aid, supported living coaching, and HIPAA patient privacy and security. Petitioner holds an APD medication administration assistance validation certificate, issued on October 22, 2014.
Mr. Mack has a secure, positive family base. He testified that he comes from a large, loving family that finds great strength from each other and from their strong faith. His grandparents are the “rock” of the family that they started when they married 70 years ago. They are both disabled, which is why Mr. Mack developed a passion for working with persons with disabilities.
At hearing, Mr. Mack presented compelling testimony of witnesses who were able to attest to the exemplary care Mr. Mack provided to developmentally disabled APD clients as an Allshouse employee from October 2009 to October 2014.
For the entire five-year period when Mr. Mack was an Allshouse employee, he was assigned to provide in-home care, first as a home health aide and then as a supported living coach, to Jean and Michael Murvine. The Murvines are a married couple. They are APD clients with developmental disabilities, who are able to live independently in their home as long as they can count on substantial in-home services. Michael is more independent than Jean; he is able to work at a Publix grocery store as long as he can count on a caretaker who will stay with Jean, because she requires supervision and assistance at all times. Among other conditions, Jean is diabetic and is recovering from stomach cancer and related surgery. She requires assistance and supervision of her blood sugar monitoring and insulin shots.
At great effort, the Murvines came to the hearing so that each of them could voice their strong support for, and belief in, Mr. Mack, who was such a great caretaker for them until he was terminated. At times, their disabilities served to impede the clear expression of their words, but there was no impeding the strong emotion and conviction in their testimony.
Michael Murvine emphasized that he is only able to work at Publix if he can rely on good care being provided to Jean. When Mr. Mack was her caretaker, Mr. Murvine knew his wife was well-taken care of: “She was safe with him.” Since Mr. Mack has
left, however, Mr. Murvine is concerned about his wife’s safety. She has ended up in the hospital because Mr. Mack’s replacements have not been good; Mr. Murvine does not trust them like he trusted Mr. Mack. Mr. Mack “is so good, we want him back.”
Jean Murvine confirmed the quality of care provided by Mr. Mack over the five-year period. She was firm in her conviction that Mr. Mack would never harm them, because he has their best interests at heart. When asked how her care had been since Mr. Mack had left work, her distress was evident; she got choked up, saying that it was different without him, and adding, simply, “We want him back.”
As part of his job, Mr. Mack would often drive the Murvines to appointments. The Murvines both described how safe they always felt as passengers being transported by Mr. Mack, whom they described as a very careful driver. As Mr. Murvine put it, Mr. Mack is “a very safe driver, not one of those crazy drivers.”
Mr. Mack gave of himself to the Murvines, going far beyond what was required of him as a direct service provider. He did things for the Murvines on his own personal time and/or using his own resources. He drove the Murvines from Largo to Brandon, east of Tampa, to visit Michael’s two brothers, one of whom is disabled and essentially homebound. Mr. Mack also drove the Murvines to Orlando so that Michael could attend a Publix awards
banquet at which he was receiving an employee award. Mr. Mack volunteered his own time to do this.
Michael Murvine’s brothers, Rick and Bud Murvine, also testified on Mr. Mack’s behalf, to add their perspectives on the extraordinary care provided by Mr. Mack to Michael and Jean, as well as Mr. Mack’s loving generosity, beyond just doing the job.
Rick described Mr. Mack as “an amazing man,” who was very attentive and patient with Michael and Jean, and obviously cared for their safety. Rick has seen a marked contrast between how Michael and Jean have fared when Mr. Mack was caring for them and now, without Mr. Mack. He echoed Jean and Michael’s testimony that Mr. Mack was the only caretaker who took good care of them, and that the others who have replaced Mr. Mack have not provided the same quality of care or dedication. Rick Murvine has no doubt as to Mr. Mack’s good moral character. He trusts Mr. Mack so completely that he would give Mr. Mack the keys to his house. It is so clear to him that Mr. Mack presents no danger to developmentally disabled persons, he finds it a travesty that this proceeding is needed to answer that question.
Bud Murvine also spoke highly of the exceptional care he has seen Mr. Mack give to Jean and Michael. He knows from his observations that Mr. Mack poses no danger to developmentally disabled persons. Bud has absolutely no doubt as to Mr. Mack’s good moral character; he would trust him with his life.
Mr. Mack has given selflessly to the Murvine family, and in so doing, has shown his good moral character and the positive contributions he has to offer developmentally disabled persons. Bud Murvine offered a touching story demonstrating how Mr. Mack has given of himself, beyond just doing the job, to enrich the lives of this disabled couple. Mr. Mack orchestrated a celebration in a park for Jean and Michael Murvine to renew their wedding vows. Mr. Mack drove the Murvines to the area, set up decorations at the park, helped Jean and Michael dress up, and brought them to the park where they renewed their vows before family and friends. Bud Murvine concluded, with emotion, that what Mr. Mack did for them that day “was really cool.”
Mr. Mack’s exceptional care of the Murvines was echoed by Charlene Clark, a physical therapy assistant who works with developmentally disabled adults and elderly persons. Over a four-year period, Ms. Clark got to know Mr. Mack and observe him while they were both providing services to the Murvine couple.
Ms. Clark was effusive in describing the “incredible care” she observed Mr. Mack providing to the Murvines. Ms. Clark found Mr. Mack to be very knowledgeable about the Murvines’ care needs and very concerned about their welfare. She described
Mr. Mack as a very encouraging and positive caregiver, which “is so rare.” She was adamant in expressing her view that he would never harm the Murvines or other developmentally disabled
clients. Instead, it was “just the opposite.” The only harm she has observed comes from the Murvines no longer having Mr. Mack as their caretaker.
Ms. Clark offered compelling, credible testimony regarding the harmful trickle-down effects of Mr. Mack becoming ineligible to continue working for Allshouse assigned to the Murvines. She has observed a noticeable decline, both physically and emotionally, by both Murvines since Mr. Mack is no longer their caretaker. Ms. Clark described the revolving door of replacement caretakers, none of whom are as good as Mr. Mack was with the Murvines.
Ms. Clark was also effusive in describing Mr. Mack’s good moral character. She described Mr. Mack as generous of spirit, loving, caring, honest, reliable, and trustworthy. She has no doubts about his good moral character, “not one.” She trusts him so completely that she would trust him to care for her six-year-old grandchild.
As a direct care provider herself, Ms. Clark understands the background screening process and the need for this exemption proceeding. She wrote a letter of support for his application, but her testimony added a great deal of texture, detail, and heart that do not come through on paper. She strongly believes that discontinuing Mr. Mack’s service to APD clients with developmental disabilities is a great loss to
clients he served and could serve, if allowed, and that the developmentally disabled APD clients deserve better.
In addition to Mr. Mack’s exemplary service to developmentally disabled persons while working as an Allshouse employee, Mr. Mack has shown his dedication to serving needy persons of all kinds and putting their needs before his own. Information was provided in his application regarding his community volunteer work. At hearing, he elaborated and updated the application information.
Mr. Mack contributes many hours each week to a variety of volunteer activities, both at his church where he helps feed homeless persons and works with youth, and also at the Union Academy Cultural Center of Tarpon Springs where he assists with after-school programs for children and feeding the elderly. He is currently working with other individuals to set up a meals-on- wheels-type program for homeless people who cannot take advantage of traditional meals-on-wheels programs, because they have no home to receive meal deliveries.
Mr. Mack’s dedication to helping needy persons of all kinds, and particularly those who are dependent and in need of support because of disabilities, was confirmed by Nathaniel Crawford, Jr., Mr. Mack’s uncle and the only family member to testify. A very articulate gentleman, Mr. Crawford retired from
the air force, and is now a college instructor and a pastor at Oak Hill Church of God in Christ (Oak Hill). He has observed Mr. Mack’s contributions at Oak Hill, where Mr. Mack serves as a choir director and assists with a variety of church activities and programs. Mr. Crawford has observed Mr. Mack gravitating towards young, adult, and elderly persons with disabilities to assist them and has seen that he is very qualified and very caring. Mr. Crawford described Mr. Mack’s dedication to caring for developmentally disabled persons as “his ministry.”
Mr. Crawford strongly believes from his observations that Mr. Mack presents no danger to these vulnerable people.
Mr. Crawford was very emphatic, and credibly so, that he was saying these things not because Mr. Mack is his nephew, but because he observes the strong need for more persons like
Mr. Mack dedicated to these human services, and feels strongly that it is a great loss to the developmentally disabled population to be deprived of Mr. Mack’s extraordinary care.
More generally, Mr. Crawford attested to Mr. Mack’s good moral character, describing him as a fine young man who is unselfish and very giving of his time and resources. The only problem Mr. Crawford identified is that sometimes Mr. Mack is too nice--he is very caring and sacrifices for others instead of for himself. Mr. Crawford trusts Mr. Mack completely; he would trust him with his property and with the church’s property.
The Agency’s Review and Stated Concerns
In reviewing exemption applications, the Agency has limited resources to conduct investigations. The Agency did not interview Mr. Mack, any APD clients for whom he provided care while employed at Allshouse, or other caregivers who had observed Mr. Mack while he was providing services.
The Agency employs DCF to conduct a fact-finding investigation and issue an Exemption Fact Finding report, which is used by APD in its review of the exemption request. The DCF Exemption Fact Finding report corroborates the testimony at hearing. First, the report confirmed that the only criminal offense of any kind--disqualifying or non-disqualifying--in
Mr. Mack’s background was the 2002 offense discussed above.
With regard to the “degree of harm to any victim, any permanent or temporary damage or injuries” the DCF fact-finding report found: “No permanent damage or temporary damage[.]”
With regard to whether Mr. Mack had shown “[r]emorse [and had] accept[ed] responsibility for [his] actions,” the DCF report responded: “Yes.”
After the DCF investigation and report, Mr. Mack’s exemption request file went to the Agency’s Suncoast regional office for review and recommendation. The operations manager, Jeff Smith, recommended denial because of a few concerns.
Mr. Smith did not testify at hearing; however, he is the only member of the “review team” named in the APD Exemption Review Report-Routing Sheet, and his summary on that sheet is the only indication of the rationale for the Agency’s initial action.
Mr. Smith expressed concern with whether Mr. Mack was responsible, apparently inferring a lack of responsibility from the fact that DCF found some unpaid court costs, fines, or fees still due in 2014. Mr. Smith did not have the benefit of
Mr. Mack’s hearing testimony, which refutes any such inference. As found above, Mr. Mack reasonably believed he did not owe any additional costs, fines, or fees. He reasonably believed that he had paid all court-imposed monetary amounts that had not been waived more than a decade ago. When told otherwise by DCF, he immediately paid the remaining balance. As credibly explained by Mr. Mack, this misunderstanding does not call into question whether Mr. Mack is responsible. In contrast, the hearing testimony of six witnesses speaking on Mr. Mack’s behalf provided direct and persuasive evidence establishing beyond any doubt that Mr. Mack is very responsible.
Mr. Smith also considered Mr. Mack’s record of non- criminal traffic infractions. Based on the record of traffic infractions, Mr. Smith expressed concern for the safety of APD clients who would be transported by Mr. Mack if he is allowed to work as a supported living coach. Mr. Mack was not asked to
address civil traffic infractions in his application, so his first chance to address the Agency’s concern was at the hearing.
Mr. Mack admittedly has a good number of civil traffic infractions on his driving record. However, none of the infractions involve a charged criminal violation.6/ None of the infractions involve injuries (or worse) to passengers or others. None of the infractions involve drugs or alcohol use, such as DUI; Mr. Mack does not use drugs, and only occasionally drinks alcohol socially.
The Agency’s generalized safety concern based solely on the paper record of past traffic infractions was refuted by the specific, credible, and persuasive testimony of Mr. Mack and of actual APD clients with developmental disabilities who were regularly transported by Mr. Mack over a five-year period.
Mr. Mack credibly testified that he has never been stopped for a moving violation of any kind when he was driving with a passenger in the vehicle with him. Mr. Mack has never been cited for a traffic infraction while transporting an APD client (or any other passenger). None of the traffic infractions in Mr. Mack’s record posed a safety risk to any passenger. And none of the traffic infractions in Mr. Mack’s record posed a safety risk to an APD client. To the contrary, the Murvines both testified convincingly that they found Mr. Mack to be a very safe, careful driver, and they always felt very safe with
Mr. Mack when he was transporting them, which he did regularly and without adverse incident.
Mr. Mack acknowledged his past record of traffic infractions, which he regrets. He has made a concerted effort to eliminate the traffic infractions that he used to occasionally commit when driving alone. The evidence shows that his efforts have paid off, as he has not been found to have committed any traffic infraction in over three years.
The clear, convincing, and credible testimony of
Mr. Mack and of the APD clients whom he actually transported is credited. This testimony provides specific, persuasive, direct evidence that Mr. Mack does not pose a safety risk when transporting APD clients, which is far more persuasive than the general inference drawn from Mr. Mack’s paper record of traffic infractions. The more persuasive, direct evidence establishes that Mr. Mack has always driven cautiously, carefully, safely, and without adverse incident when transporting APD clients with developmental disabilities, and he does not pose a safety risk to those APD clients whom he might transport in the future.
Besides the two concerns expressed in Mr. Smith’s summary, no other rationale was offered for the Agency’s initial action. The Agency’s two witnesses did not participate in the formulation of that initial decision. Ms. Mott testified that Jeff Smith is her supervisor, and he conducted a review to
formulate his recommendation; she has no personal knowledge of how he conducted his review. Ms. McDaniel testified that she received the file from the regional office, and her role was to present the application and related documents to an exemption committee in Tallahassee, but not to formulate a recommendation or offer an opinion. She did not identify the exemption committee members involved with Mr. Mack’s application, and none are identified on the Routing Sheet. No committee member testified. There is no documentation of an exemption committee or of its recommendation. Ms. McDaniel testified that the entire file was provided to APD Director Palmer with two draft letters: one stating that the request is approved, and one stating that the request is denied. The director signed the latter.
No evidence was offered to prove that in formulating its intended action, the Agency considered the exemption from disqualification issued to Mr. Mack in 2009 by the Department of Health based on the same 2002 disqualifying offense.
Ultimate Findings of Fact
Mr. Mack has proven by clear and convincing evidence that he is rehabilitated from the single disqualifying offense he committed in 2002.
The undersigned finds that Petitioner presents no danger to the vulnerable population served by the Agency. The credible hearing testimony summarized above overwhelmingly
established that Mr. Mack poses no danger to APD clients, including children and persons with developmental disabilities, if he is allowed to resume employment as a direct service provider. The few concerns expressed by the Agency in formulating its intended action, without the benefit of the hearing testimony, were effectively refuted by the credible testimony at hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. §§ 120.569, 120.57(1), and 435.07(3)(c), Fla. Stat.
As the applicant for an exemption pursuant to section 435.07, Florida Statutes, Petitioner bears the burden of proof in this proceeding.
In pertinent part, section 435.07 provides:
(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;
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(b) A person applying for an exemption who was ordered to pay any amount for any fee, fine, fund, lien, civil judgment, application, costs of prosecution, trust, or restitution as part of the judgment and sentence for any disqualifying felony or misdemeanor must pay the court-ordered amount in full before he or she is eligible for the exemption.
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(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.
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(5) Exemptions granted by one agency shall be considered by subsequent agencies, but are not binding on the subsequent agency.
Petitioner’s single disqualifying offense, committed in 2002, was a third degree felony (less serious than a second degree or first degree felony), pursuant to section 812.014(2)(c)1., Florida Statutes (2002).
Petitioner meets the eligibility requirement in section 435.07(1)(a)1. for exemption from a disqualifying felony. The court imposed a two-year term of probation for Petitioner’s offense, but on February 28, 2005, more than 10 years ago, the court terminated the probation six months early. No other non- monetary conditions were imposed.
Petitioner also satisfies the eligibility requirement in section 435.07(1)(b). Petitioner proved to the Agency’s satisfaction that he paid in full all monetary amounts ordered by the court as part of the judgment and sentence for his 2002 disqualifying offense. Indeed, the Agency would not send Petitioner the forms to apply for an exemption without proof of payment. This payment renders him eligible for an exemption.
In order to receive an exemption, Petitioner has the burden of proving, by clear and convincing evidence, that he is rehabilitated. See J.D. v. Dep’t of Child. & Fams., 114 So. 3d
1127, 1131 (Fla. 1st DCA 2013) (“The ultimate issue of fact to be determined in a proceeding under section 435.07 is whether the applicant has demonstrated rehabilitation by clear and convincing evidence.”).
The prohibition from employment in positions of trust of persons convicted of disqualifying offenses is intended to protect the public welfare, and the statute must be strictly construed against the person seeking 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).
Pursuant to section 435.07(3)(c), “the standard of review by an ALJ is whether the agency’s intended action is an abuse of discretion.”
Florida’s First District Court of Appeal has reasoned 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., supra, 114 So. 3d at 1132.
As found above, in the de novo chapter 120 hearing, Petitioner proved his rehabilitation, clearly and convincingly, with substantial evidence that was not available to the Agency in formulating its intended action to deny Petitioner’s exemption request. Notably, the evidence addressed the Agency’s stated safety concern for APD clients, which had been based on the paper record showing a number of civil traffic infractions; and the evidence addressed the Agency’s stated concern regarding Petitioner’s failure to pay the balance of court costs and fees until it was brought to his attention. These concerns, founded on paper records, dissipated when explained and put in context with credible, clear, and convincing testimony at hearing.
Moreover, in a recent Final Order, the Agency adopted the following conclusion of law:
[The Agency’s] contention that the denial of the instant exemption request is also warranted by Petitioner’s driving record, which included five non-criminal traffic infractions, is rejected and foreclosed by the express terms of section 435.07(3)(b).
Section 435.07(3)(b) references only criminal behavior and contains no mention whatsoever of non-criminal infractions. Therefore, the legislature did not intend for an agency to consider civil infractions in its assessment of an applicant’s rehabilitation or it would have expressly said so. It follows, therefore, that Petitioner’s non-criminal driving history cannot serve as a discretionary basis for denying the instant request.
M. B. v. Ag. for Pers. with Disab., Case No. 14-2548 (Fla. DOAH
Sept. 3, 2014; Fla. APD Oct. 16, 2014), RO at 13-14, ¶ 35,
adopted, FO Rendition No. APD-14-0043-FO at 1 (“There being no basis to reject the findings of fact and conclusions of law of the Administrative Law Judge, the Recommended Order is approved and adopted.”).
Both as a matter of fact and law, therefore, Petitioner’s record of civil traffic infractions should be disregarded. Subsequent to the 2002 disqualifying offense, Petitioner’s criminal history record is pristine, with no reported arrests or convictions for any crime.
The Agency’s intended action was formulated without the benefit of the compelling testimony of Petitioner’s six very credible witnesses, including: the couple who are APD clients with developmental disabilities, to whom Petitioner provided
exemplary care and safe transport for five years; the family of the disabled couple; a physical therapist assistant who also provided services to the disabled couple and observed Petitioner in his caregiver role over the five-year span; and Petitioner’s uncle who is a pastor at the church where Petitioner serves as a choir director. All of these witnesses would entrust (and have entrusted) their valuables, their loved ones, and their own lives to Petitioner, and each of them emphatically rejected any notion that Petitioner will pose a danger to children, to persons with developmental disabilities, or to any other vulnerable persons, if allowed to resume employment. To the contrary, these witnesses spoke eloquently to the great loss suffered by the APD clients who are no longer extraordinarily well-cared for by Petitioner because he is not eligible to do so without an exemption, and who want him back.
Adding to the strength of Petitioner’s showing of rehabilitation is the fact that the Department of Health issued him an exemption from disqualification in 2009, based on the same 2002 disqualifying offense. While the Agency is not bound by this 2009 determination, the Agency “shall” consider it, and it is not clear on this record that the Agency did so.
The undersigned concludes, based on the findings above, that Respondent’s intended action to deny Petitioner’s exemption from disqualification is an abuse of discretion. With the
benefit of the de novo chapter 120 hearing record, no reasonable person could deny Petitioner an exemption.
Finally, the undersigned has considered and rejects Petitioner’s argument that the Agency’s review of Petitioner’s exemption application violated the Agency’s procedural requirements such that the resulting intended action should be rejected on that basis alone. The Agency’s normal internal review procedures, with review teams, exemption committees, and written summaries at each step, are not procedural “requirements” dictated by any statutory or rule provision, nor was any prejudice shown to Petitioner by reason of the way the Agency’s review proceeded in this case. The Agency cannot be faulted for having limited resources that do not allow full investigations, complete with witness interviews, in its review of exemption applications. In terms of requirements for the Agency’s initial review, the statute dictates that the Agency’s intended action be taken by the agency head, and that was done here. Thereafter, Petitioner’s recourse for a more meaningful process is by invoking his chapter 120 hearing rights, as Petitioner did.
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 granting Petitioner’s
application for an exemption from disqualification from employment.
DONE AND ENTERED this 11th day of September, 2015, in Tallahassee, Leon County, Florida.
S
ELIZABETH W. MCARTHUR
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 11th day of September, 2015.
ENDNOTES
1/ References to Florida Statutes are to the 2015 codification, unless otherwise provided. It is noted that the statute pursuant to which Petitioner applied for an exemption--section 435.07, Florida Statutes--was not changed in 2015, so the current statute is the same as when Petitioner filed his exemption application.
2/ The record does not contain any similar affidavit previously completed by Petitioner. Since Petitioner began working for Allshouse in 2009 as a home health aide pursuant to his CNA license, selection of the affidavit’s third option would have been permissible, and Petitioner would not have had to undergo background screening by APD, because background screening was addressed by the Department of Health. See § 393.0655(1)(b), Fla. Stat. (providing, both now and in 2008, that nurses and other professionals licensed and regulated by the Department of Health “are not subject to background screening [by APD] pursuant to this section if they are providing a service that is within their scope of licensed practice.”). There is also some evidence indicating Petitioner went through Level II screening for
Allshouse in 2009, resulting in a DCF letter confirming FBI clearance, good for five years, and stating: “This establishes the minimum standards for good moral character for any person required to undergo employment screening.” Whether additional screening was conducted for Petitioner as an Allshouse employee is unknown, but need not be determined; APD did not contend here that Petitioner did not meet past screening obligations.
3/ Pursuant to the employment screening laws in chapter 435, Mr. Mack’s 2002 offense would disqualify him from any position requiring Level I or Level II background screening. The same 2002 offense was identified as a disqualifying offense in the Level I background screening conducted by the Department of Health, requiring Mr. Mack to seek an exemption from disqualification pursuant to section 435.07. By letter dated November 30, 2009, the Department of Health issued an exemption from disqualification to Mr. Mack for employment in the professions licensed by the Department’s Board of Nursing (i.e., CNAs, licensed practical nurses, and registered nurses).
4/ The record is confusing with regard to the official and actual roles of DCF and APD in carrying out background screening and exemption application review functions. An explanation would have been helpful as to why, for example, the October 2014 letters to Mr. Mack and Allshouse came from DCF and why the letters stated that Mr. Mack’s rehabilitation needed to be proven to DCF, instead of to the Agency. The law seems reasonably clear that the Agency, not DCF, has regulatory oversight of background screening of direct providers of service to developmentally disabled clients, unless there is an exception (such as for professionals licensed by the Department of Health). See § 393.0366, Fla. Stat. Yet the Agency relies on DCF resources, as evident from some of Respondent’s exhibits. This gives rise to hearsay problems that cannot be overcome by Agency witnesses. The DCF records and reports were not tendered under a hearsay exception, and cannot be relied on as the sole basis for findings of fact.
5/ In crediting Petitioner’s explanation of the circumstances, the undersigned has not overlooked Respondent’s contention, apparent from questions asked at hearing and in its PRO, that greater weight should be given to the arrest affidavit of Detective Narum, who arrested Mr. Mack on October 29, 2002. In the affidavit, the detective swore that there were reasonable grounds to believe that on September 26, 2002, Mr. Mack committed grand theft by knowingly obtaining five cell phones and wireless service, and that the cell phones were obtained using someone else’s name and social security number. The affidavit is hearsay
and was not tendered under an exception to hearsay, nor would it have qualified as a public record because it does not set forth the detective’s personal observations. See § 90.813(8), Fla.
Stat. Moreover, the affidavit does not contradict Petitioner’s explanation; it just omits details that provide context. In particular, Petitioner acknowledges that he knowingly received the cell phones and knowingly used the cell phone service, but stated that he did not know they were obtained illegally through the unauthorized use of someone else’s name and social security number. These details would explain why Petitioner was not also charged with the criminal use of personal identification information. See, e.g., § 817.568(2)(a), Fla. Stat. (2002).
6/ Respondent’s Exhibit 6 contains print-outs from two different sources, offered as evidence of Petitioner’s traffic infractions. Once again, these documents were not tendered under a hearsay exception, and while they might be the type of documents that could qualify as public records or business records, a proper predicate would have to be laid, and no such predicate was established. There are inconsistencies between the two source documents, and as a practical matter, it is difficult to interpret the information they purport to show without an explanation of how the documents were maintained and generated.
Some of the information shown on the documents is of questionable reliability. For example, a Florida Comprehensive Case Information System (CCIS) print-out, which appears to list cases processed through the court system, identifies “traffic” cases for Mr. Mack. However, a case filed in March 2009 is identified as “criminal traffic.” The infraction is described as driving with a suspended license, charged under section 322.34(1), Florida Statutes. In 2008 and now, a violation of that statute is not a criminal traffic infraction; it is an unknowing violation that is treated as a moving violation, and is subject to the non-criminal infraction penalties under chapter 318, Florida Statutes. Prior to 1997, section 322.34(1) did provide for a criminal violation. However, in 1997, the “knowing” element was added to the criminal violation, which was moved to subsection (2), and subsection (1) was added without the “knowing” element as a non-criminal traffic infraction. See Ch. 97-300, s. 40, Laws of Fla. (1997).
That Mr. Mack’s 2009 charge of driving with a suspended license was an unknowing civil traffic infraction is confirmed by the other data source in Respondent’s Exhibit 6, which appears to be a Department of Highway Safety and Motor Vehicles (DHSMV) print-out of Mr. Mack’s driver’s license and registration
records. This print-out shows that the 2009 infraction for driving with a suspended license resulted in an assessment of “3 points.” Pursuant to section 322.27, Florida Statutes, an assessment of “3 points” is for a moving violation, which is the infraction provided under section 322.34(1). Had the charge actually been a criminal traffic charge for a knowing violation
under section 322.34(2), the case would have been classified as a misdemeanor, and it would have been listed as a non-disqualifying criminal offense in DCF’s 2014 screening results for Mr. Mack.
COPIES FURNISHED:
Charles Mack
4844 Vision Avenue
Holiday, Florida 34691
Elaine Marquardt Asad, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399-0950 (eServed)
Diana L. Mangsen, Esquire 9870 Lake Seminole Drive, West Largo, Florida 33773 (eServed)
Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399-0950 (eServed)
Richard Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399-0950 (eServed)
David De La Paz, Agency Clerk 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.
DENISE A. WILSON vs AGENCY FOR PERSONS WITH DISABILITIES, 15-003268 (2015)
KIMBERLY LEDBETTER vs AGENCY FOR PERSONS WITH DISABILITIES, 15-003268 (2015)
JENNIFER GARCIA vs AGENCY FOR HEALTH CARE ADMINISTRATION, 15-003268 (2015)
FLO-RONKE, INC. vs AGENCY FOR HEALTH CARE ADMINISTRATION, 15-003268 (2015)
SONYA NICOLE SAMUELS vs AGENCY FOR PERSONS WITH DISABILITIES, 15-003268 (2015)
