STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JENELLA BROWN,
vs.
Petitioner,
Case No. 16-0625EXE
AGENCY FOR PERSONS WITH DISABILITIES,
Respondent.
/
RECOMMENDED ORDER
A formal evidentiary hearing was conducted in this case on March 28, 2016, by video teleconference with sites in Tallahassee and Tampa, Florida, before Elizabeth W. McArthur, Administrative Law Judge, Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: Jenella Jenese Brown, pro se
7608 Lancelot Road
Port Richey, Florida 34668
For Respondent: Jeannette L. Estes, Esquire
Agency for Persons with Disabilities
200 North Kentucky Avenue, Suite 422 Lakeland, Florida 33801
STATEMENT OF THE ISSUES
The issues in this case are whether Petitioner has demonstrated, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense, and, if so, whether Respondent’s intended action to deny Petitioner’s request for an
exemption from employment disqualification would constitute an
abuse of discretion.
PRELIMINARY STATEMENT
By letter dated January 15, 2016, the Agency for Persons with Disabilities (Agency or Respondent) notified Jenella Brown (Petitioner) that her request for an exemption from disqualification was denied because she had not submitted clear and convincing evidence of her rehabilitation. As a result, Petitioner was informed that she was “not eligible to be employed, licensed, or registered in positions having direct contact with children or developmentally disabled people in programs regulated by” the Agency.
Petitioner timely requested an administrative hearing to dispute the Agency’s findings and determination, and the matter was referred to DOAH to conduct a formal evidentiary hearing.
The hearing was set with input from the parties as to their availability and preferences, and was held as scheduled.
At hearing, Petitioner testified on her own behalf and presented no witnesses. Petitioner’s Exhibits A through H were admitted in evidence, by agreement.
Respondent presented the testimony of Jeffrey Smith, regional operations manager for the Agency’s Suncoast region. Respondent’s Exhibits A through E were admitted in evidence, by agreement.
Since both parties’ exhibits appeared to include hearsay evidence that would not be admissible over objection in a civil action, the limitation on use of such hearsay evidence was explained. The parties were informed that even though their exhibits were admitted by agreement, hearsay evidence that would not be admissible over objection in a civil action could not be used as the sole basis for a finding of fact.
A court reporter was in attendance to preserve the final hearing testimony; however, the parties did not order a transcript. At the close of the evidentiary hearing, the parties agreed to request an April 11, 2016, deadline by which to file proposed recommended orders (PROs), and that request was granted.
Both parties timely filed PROs, which have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Respondent is the state agency that regulates the provision of services to individuals with developmental disabilities (referred to by the Agency as its clients), pursuant to chapter 493, Florida Statutes (2015).1/
The Agency’s clients are a vulnerable population, consisting of individuals whose developmental disabilities include intellectual disability, cerebral palsy, autism, spina bifida, Prader-Willi syndrome, and Down syndrome. These individuals often have severe deficits in their abilities to
complete self-care tasks and communicate their wants and needs. They are at a heightened risk of abuse, neglect, and exploitation by those who provide services to them.
Petitioner is a 42-year-old female who worked for a short period of time (from April 14, 2015, to October 2, 2015) as an independent contractor for Peak Provider, Inc., which is a service provider regulated by the Agency to provide in-home and community-based services to the Agency’s clients.
Petitioner worked as a supported living coach, providing supported living services to adults with developmental disabilities in their homes. This means that she provided “assistance to adult clients who require[d] ongoing supports to live as independently as possible in their own homes, to be integrated into the community, and to participate in community life to the fullest extent possible.” § 393.063(39), Fla. Stat. (defining supported living services). These services include assisting clients with paying bills and balancing checkbooks, and taking clients out in the community, for shopping, medical appointments, or other activities.
Petitioner’s supported living coach job was a “direct service provider” position of special trust, because she provided services directly to the Agency’s clients, she had access to clients’ living areas, and she had access to client funds or personal property. As a direct service provider, Petitioner was
required to undergo level 2 background screening pursuant to chapter 435, Florida Statutes, upon being retained by Peak Provider on April 14, 2015. See § 393.0655, Fla. Stat.
Petitioner underwent level 2 background screening, which was processed by the Department of Children and Families (DCF) on the Agency’s behalf. By letter dated September 30, 2015, DCF notified Petitioner that her background screening results revealed a criminal offense that disqualified Petitioner from continuing to work in her position of special trust. As a result of her disqualification, Petitioner’s position with Peak Provider was terminated on October 2, 2015.
The DCF letter informed Petitioner that she may be able to apply for an exemption from disqualification. Petitioner was familiar with that process, since she had recently applied for and received exemptions from disqualification from two other state agencies: the Agency for Health Care Administration (AHCA), which issued an exemption on February 5, 2015; and the Department of Juvenile Justice (DJJ), which issued an exemption on May 22, 2015. Within a few days after she was terminated by Peak Provider, Petitioner submitted an application seeking an exemption from disqualification for positions of special trust within the Agency’s purview.
The purpose of an exemption application is to demonstrate to a state agency that the applicant should not be
disqualified from employment in positions within the regulatory purview of that agency. Applicants must set forth “clear and convincing evidence of rehabilitation” from their disqualifying offense. Factors to be addressed with regard to rehabilitation include the circumstances surrounding the disqualifying offense, the time period that has elapsed since the disqualifying offense, the nature of harm caused to the victim, and the history of the applicant since the disqualifying offense. In assessing rehabilitation, the state agency reviewing an exemption application may consider evidence that the applicant has been arrested for or convicted of other crimes since the disqualifying offense, even though the subsequent criminal incidents would not themselves be disqualifying offenses.
Petitioner’s Disqualifying Offense
The disqualifying offense identified in DCF’s letter notifying Petitioner of her background screening results was an August 16, 1994, probation violation in reference to a September 1991 aggravated assault offense.
The evidence established that Petitioner committed the underlying offense in May 1991, when she was 17½ years old. An information was filed in September 1991, charging Petitioner with aggravated assault, a felony. In October 1991, Petitioner pled guilty to the charge. Petitioner was adjudicated guilty,
sentenced to five years of probation, and ordered to pay restitution to the victim.
At hearing, the Agency’s representative testified that the Agency did not consider the aggravated assault offense itself to be a disqualifying offense, because Petitioner was a minor when she committed the offense. However, the Agency determined that Petitioner’s conviction in 1994 for violating probation was a disqualifying offense, because her probation was revoked and, in accordance with section 948.06, Florida Statutes, the original charge was reopened and sentence was imposed for the aggravated assault felony conviction.
The Agency’s position that the aggravated assault felony conviction was not considered a disqualifying offense does not appear to be supported by the background screening laws in chapter 435, Florida Statutes. The aggravated assault offense was a felony to which Petitioner pled guilty. It is a disqualifying offense under level 2 background screening standards even though Petitioner was a minor when she committed the offense. The Agency did not explain or offer any support for the notion that a disqualifying offense does not count as a disqualifying offense if it is committed by a minor; the background screening laws provide otherwise.
Petitioner gave her explanation of the circumstances surrounding the aggravated assault offense, both in the “arrest narrative report” she submitted with her exemption application and at hearing. Petitioner wrote in her arrest narrative report that she and a girl she went to school with were arguing over a boy when the girl’s mother “jumped in my face with a knife.” Petitioner wrote that she was fearful, and was only trying to defend herself. She wrote that she and the mother struggled over the knife, “and in the process [the mother] got cut on the leg.” Petitioner’s described an incident in which she was more the victim than the girl’s mother: it was the mother who brandished the knife, and Petitioner was only acting in self-defense by struggling with the mother over the knife. Petitioner did not accept responsibility for cutting the victim with a knife. Instead, Petitioner used a more neutral, passive description, acknowledging only that in the process of struggling for the knife, the mother “got cut on the leg” as if it just happened. Nonetheless, Petitioner did not plead self-defense, when charged with aggravated assault; she pled guilty.
Petitioner’s description is inconsistent with the police report. The police report described Petitioner as the aggressor who “came after [the other girl] with a knife” and that the girl’s mother--the victim--attempted to stop Petitioner, but was knocked to the ground. The police report then stated that
while the victim was on the ground, Petitioner cut the victim not once, but twice, on the inside thigh of the left leg and on the right calf; Petitioner then fled the area and the victim went to a hospital emergency room where she was treated for the knife wounds. Petitioner did not attempt to explain the discrepancies between her description of this incident and the description in the police report.2/
According to the court records, after Petitioner pled guilty to aggravated assault, she did not accept the consequences of her offense by steadfastly carrying out the terms of punishment imposed by the court. Instead, as a young adult, Petitioner was found guilty of violating the terms of the probation imposed for the aggravated assault felony conviction not just in September 1994, but multiple times in 1992, 1993, and 1994. For example, in 1993, Petitioner was found to have violated the probation condition requiring her to not violate any laws. She violated that condition by committing retail theft, for which she was adjudged guilty and convicted in March 1992. Petitioner pled guilty to violating probation, her probation was revoked, she was placed on community control for one year, and ordered to perform 50 hours of public service work. Then, in September 1994, she was found to have violated the community control order by not properly conducting herself, which she
admitted in a revocation of community control hearing. The community control was revoked, and she was sentenced to two months in jail, just a few months before her 21st birthday. Length of Time Since Disqualifying Offense
Whether measured from the offense itself, the adjudication of guilt, or the completion of the punishments imposed (and revised), it plainly has been a long time since Petitioner’s disqualifying offense. She is now 42; she had completed all punishments for the aggravated assault offense before she turned 21. To her credit, Petitioner has not been convicted of another disqualifying offense. Although Petitioner was arrested several times for crimes that would have been disqualifying offenses if Petitioner was prosecuted and convicted, that was not the case. These incidents are not considered as additional disqualifying offenses; however, they have some bearing on the issue of Petitioner’s rehabilitation, as discussed below.
Nature of Harm Caused to the Victim
In describing the aggravated assault incident, Petitioner said that there was only a single minor cut to the mother’s leg. As noted above, the police report more precisely described not one cut, but two cuts, on the victim’s left inner thigh and the right calf, and that the knife wounds were treated at a hospital emergency room. Regardless of how many or how
serious the cuts were, the harm inflicted by Petitioner was serious enough that she was charged with, and pled guilty to, aggravated assault, which means that she committed an assault (intentional, unlawful threat by words or act to do violence to another) with a deadly weapon. See § 784.021, Fla. Stat.
(defining crime of aggravated assault, unchanged since 1975).
Petitioner said that she made amends for the minor cut by reimbursing the victim for the small medical bill to treat the wound. Petitioner did so, however, pursuant to court order as part of her sentence for the offense. Indeed, had she not paid the restitution ordered, she would not be eligible to apply for any exemptions from disqualification.
Petitioner’s History of Positive Accomplishments
Since the disqualifying offense, Petitioner demonstrated that she has worked hard on her education. She did not finish high school on schedule, but later completed the requirements to receive her GED certificate of graduation in June 1997, when she 23 years old.
More recently, Petitioner went to Gulf Coast State College, and in July 2012, she earned an associate in applied science degree in the legal assisting/paralegal field. Then, attending St. Petersburg College, she earned an associate in arts degree in May 2013. Continuing at St. Petersburg College, she
received a bachelor of applied science degree in the fields of public safety administration and criminal justice in July 2014.
By all accounts, Petitioner has done very well in school, making the President’s Honor List/Dean’s List on several occasions during her college studies.
Petitioner testified that she is currently enrolled in online coursework offered by Liberty University, and is working on her master of arts degree in human service counseling with a minor in addiction recovery. While no documentation was provided with regard to this endeavor, Petitioner testified that she expects to graduate in May 2016.
Petitioner submitted a number of reference letters with her exemption application and more letters at hearing.3/ A good number of these letters appear to be written by individuals involved in her various educational programs. Several of these letters were written to recommend Petitioner for admission to a graduate program, while others were written to recommend her for employment. Some of the letters are quite old, such as a general reference letter written ten years ago by a circuit judge who taught a criminal procedure class in which Petitioner was an “outstanding” student at Gulf Coast Community College, offering the opinion that she can be successful “in whatever activity she is pursuing.” These letters are somewhat helpful only in a very general sense to confirm what is shown by Petitioner’s
educational achievements--that Petitioner has worked hard to better herself through education. However, these letters do not really address the issues for determination in this proceeding, in that the letters fail to indicate that the authors know of Petitioner’s background germane to this proceeding, including the disqualifying offense and subsequent arrests and convictions for non-disqualifying offenses; as such, they cannot offer meaningful perspective as to Petitioner’s rehabilitation. While Petitioner is to be commended for her hard work and scholastic achievements, they do not provide the clear and convincing evidence that Petitioner is rehabilitated from her disqualifying offense, or that Petitioner’s non-disqualifying criminal history does not present concerns about her rehabilitation.
Petitioner also provided some information about her employment history. At the time she filed her exemption application, she was not working, having just been terminated by Peak Provider. Prior to that job, she worked as an event specialist for Advantage Sales & Marketing in Clearwater from September 2009 to September 2012. Petitioner also worked as a client service coordinator for H&R Block in Clearwater from December 2007 to April 2010. When she lived in Panama City, she worked as an assistant cook for Laguna Christian Retreat from August 2005 to November 2007.
The only two reference letters that were written recently (both in October 2015), obtained by Petitioner to respond to a letter identifying omissions from her exemption application, were from a Peak Provider co-worker, who wrote to recommend Petitioner for employment, and from Petitioner’s supervisor in the job she held from 2005 to 2007. Neither letter demonstrated knowledge of Petitioner’s background at issue in this case. The letter from Petitioner’s supervisor from ten years ago offered only a general statement that Petitioner has paid her debt to society and should be given a second chance.
Petitioner’s exemption request noted that she was undergoing stress because her background was keeping her from getting or keeping a stable job. However, Petitioner had only recently obtained exemptions issued by two different state agencies. By the time of the hearing, Petitioner testified that she secured a job in December 2015 working for a home health agency as a home health aide. Petitioner qualified for that job because of her exemption from disqualification issued by AHCA.
Petitioner testified that her real passion is juvenile justice. She presented evidence that she started her own non- profit organization in 2009 to carry out her dream of helping troubled youth. The program she envisions, described in the non- profit materials, would “promote and establish a strong network support with the school system and juvenile court system. We
will form a partnership with local school district and juvenile court system. Our primary goal is to target at risk youth and to break habits that are leading our youth in trouble in school and in the streets.” She put it this way in an October 1, 2015, letter that she wrote to submit with her exemption application:
I would like to open up a youth center for at-risk youth and a drug rehabilitation center to give back to the community and make a difference in people [sic] lives. I feel my past experiences will be a great asset to youth who are headed down the wrong path. I have not only been down that road they are traveling but I can relate too [sic] many of their issues and help them overcome them.
Why not choose a person to work with youth that has overcome the same obstacles they are faced with, has the insight on their challenges and has hands on experience as a juvenile delinquent?
Petitioner testified that her non-profit organization has not reached the operational stage. She blamed her background as a stumbling block that has kept her from progressing beyond creating the organizational structure to operations. Although she testified that the organization is not operational because of her background, she was unable to explain why her DJJ exemption would not allow her to move forward and begin at least a portion of the program she envisions.
Petitioner explained that she would not be able to fully implement her dream program because she would want to include substance abuse counseling, a program regulated by DCF,
requiring a DCF exemption from disqualification. However, the exemption application at issue in this case, submitted in response to being disqualified from working for Peak Provider, seeks an exemption from the Agency, not from DCF.
Apparently realizing this when questioned at hearing, Petitioner retreated from her statement that an exemption would allow her to carry out her dream. Instead, she said that an exemption from Respondent would provide her with another option, and that she had “fun” as a supported living coach providing services to adults with developmental disabilities.
While need for an exemption is not a criterion, to the extent Petitioner sought to justify her request as needed to remove the stress in her life caused by being unable to carry out her dreams and being unable to support her family with a job, those justifications were proven incorrect or no longer true.
Petitioner was offered the opportunity to present evidence in her exemption application of her history after the disqualifying offense of positive contributions she has made in the various communities in which she has lived. Examples might include participating in volunteer work for religious or charitable organizations, schools, shelters, libraries, community centers for the elderly or for the needy, or any of the myriad of similar opportunities for becoming involved in one’s community.
Petitioner fairly summarized her showing in this regard in her PRO: “Petitioner stated that she is not involved in any community activities because her background will not allow her to be a part of much now. She stated she would love to be more involved in community activities. Petitioner reports attending church.”
While Petitioner may have voiced the right sentiment in stating that she would love to be more involved, that statement is not credible. Petitioner is unreasonably using her background as an excuse for her lack of involvement in community services. Petitioner presented no evidence that she has sought to provide volunteer services in the church or in the community, but was turned down because of her background. There appears to be plenty of room within the background screening requirements for Petitioner to volunteer in a variety of programs, perhaps with limits on the number of hours she could volunteer in any one area, and perhaps with supervisory requirements. This would be one way to develop more compelling evidence that she is making good choices in her free time and making positive contributions that not only improve herself (such as with her educational achievements), but also help others in need.
Petitioner generally alluded to having overcome a troubled background, but did not offer much detail to explain what problems she has or had endured, and what she has done to
cope with her troubles. In response to a question in the exemption application regarding whether she receives any form of counseling, she responded vaguely that she gets counseling at her church, as needed. No specifics were offered. No documentation or testimony was presented with regard to the counseling she has obtained at her church, such as a description of the nature of the counseling services she referred to and how often she has availed herself of those services. Here, too, a better showing could be made, such as by offering testimony of a pastor or other church official who could attest to Petitioner’s rehabilitation that may be evident from her drawing on church resources for support.
In response to a question in the exemption application about alcohol or drug use, Petitioner stated that she used to drink alcohol, but does not now drink alcohol, and has never “abused” drugs (notably not stating that she has not used drugs). She stated that she completed substance abuse and alcohol courses in 1992, 2004, and 2010. She only provided documentation for a substance abuse awareness course completed on January 26, 2004, but not for any others. While she claimed these courses were taken “for educational purpose” (PRO, p. 7), it appears that the courses may have been taken close in time to an arrest involving drugs or alcohol. The documented 2004 course, in particular, was completed within the 12-month probationary period for
Petitioner’s nolo plea to possession of drug paraphernalia, discussed below; her probation conditions specifically required her to complete such a course during her probation. The reasonable inference is that Petitioner completed this coursework because it was required as part of her punishment for drug or alcohol-related criminal offenses.
Petitioner’s Subsequent Criminal History
Since the Agency did not consider Petitioner’s disqualifying offense to be the 1991 aggravated assault offense, the Agency did not consider Petitioner’s criminal record of arrests and convictions for non-disqualifying offenses between the 1991 aggravated assault offense and the September 1994 probation violation. However, this information was collected and reported as part of the background screening results, and Petitioner was asked to submit documentation, if available, with her exemption application and to explain the circumstances of each criminal arrest and conviction reported.
Petitioner’s arrest narrative report provided her description of 24 criminal incidents, spanning the time period from June 20, 1990, when Petitioner was a little over 16 years old, through January 16, 2010, when Petitioner was about to turn
36 years old.
Between the 1991 aggravated assault conviction and the 1994 probation violation, the arrest narrative report itemized
eight arrests resulting in criminal charges. Only one of these incidents occurred when Petitioner was still a minor. The others were: battery in January 1993 and battery again in May 1993 (both battery charges dropped by prosecutor); assault and disorderly conduct in July 1993 (adjudicated guilty); assault in August 1993 (adjudicated guilty); grand theft auto in January 1994 (charge dropped); battery in March 1994 (charge dropped); stalking in July 1994 (charge dropped); and aggravated battery and disorderly intoxication in July 1994 (first charge dropped, nolo plea to disorderly intoxication, adjudication withheld).4/
Petitioner’s record reveals many non-disqualifying criminal incidents after the September 1994 probation violation; the arrest narrative report identifies 13 criminal incidents after September 1994. In eight of these instances, Petitioner pled guilty or nolo contendere to a variety of misdemeanor charges, including fleeing and attempting to elude police (1997); passing worthless checks (1999, 2000, and 2007); retail theft (2000); possession of drug paraphernalia (2003); and driving under the influence of alcohol (2010). During this same time span, Petitioner was also arrested and charged on several other occasions, but the charges were dropped for a variety of reasons. These include a 1996 arrest and felony charge of aggravated battery with a deadly weapon; a 1998 arrest in Georgia on five counts of forgery; a 1999 arrest for domestic aggravated battery;
a 2001 criminal reckless driving charge in Miami-Dade County; a 2002 arrest for felony child abuse; and a December 2002 arrest for possession of cocaine in addition to possession of drug paraphernalia--the cocaine charge was dropped in 2003 when Petitioner pled no contest to the drug paraphernalia charge.
Petitioner offered little by way of detail regarding these incidents. She claimed no recollection of any incident that was not documented through official records.
When Petitioner did provide some detail, in most instances Petitioner blamed someone or something besides herself; Petitioner was an innocent and falsely accused bystander. For example, with regard to the March 1996 charge of aggravated battery with a deadly weapon, Petitioner acknowledged that the charge stemmed from a fight that broke out at a club she had attended, and the victim accused Petitioner of hitting her with a bottle. However, according to Petitioner, she was not trying to hurt the victim, but was instead trying to help the victim who was “under the influence of drugs and alcohol.” Petitioner claimed that the charge was dropped because it was determined that the victim was not being truthful; instead, the court records reflect that a Nolle Prosequi was filed because the state was “unable to locate the victim after the defendant was arraigned.”
With regard to the November 1998 forgery charges in Georgia, after stating that she was “not sure of all the specifics verbatim,” Petitioner excused this incident as follows: “I was falsely accused for something I didn’t do.” Petitioner submitted records from Georgia, including the arrest report, which stated that Petitioner was arrested at K-Mart when she tried to use a forged check in the amount of $631.25 to pay for merchandise. The arresting officer stated that Petitioner gave several different names during the investigation, and that when she was arrested, she had four other forged checks in her possession. Petitioner did not attempt to reconcile her statement that she was falsely accused for something she did not do with the officer’s contrary description in the police report.
At hearing, Petitioner noted that these forgery charges should not have been revealed as part of her criminal history, because her request to have them expunged was granted. However, the documents are in evidence, and some or all of them were provided by Petitioner. If the charges were being considered as disqualifying offenses, the fact that they were expunged might make a difference, but they are not considered here as disqualifying offenses. Instead, as Petitioner was informed at the hearing, statements in the records in evidence related to those charges can be considered, such as the statement that Petitioner gave different names to the investigating officer.
Moreover, to the extent Petitioner herself offered a description of the incident that was inconsistent with the arrest report, the unexplained inconsistencies have a bearing on Petitioner’s credibility. Despite being informed at hearing as to how this evidence might be considered, Petitioner still offered no explanation for the inconsistencies.
With regard to the periodic worthless check offenses, Petitioner explained her first worthless check offense for which she was adjudged guilty in April 1999 this way: “I didn’t know how to balance my checkbook properly back then.” Her second worthless check offense in 2000 was explained as follows: “I think I wrote a check to pay my furniture bill and my paycheck didn’t post in time to cover the total amount.” Petitioner offered no explanation for the May 2007 worthless check charge, stating that “to be honest I do not remember this charge.”
Petitioner blamed several of the more serious charges on a boyfriend whom she accused of “constantly abusing me physically, emotionally and verbally.” She said that the domestic aggravated battery charge in December 1999 occurred because she “finally got the courage to fight him back,” and noted that the charges against her were dropped after investigation. By the same token, she filed a complaint against the boyfriend, which was investigated by the state attorney’s
office, and she was notified in April 2000 that prosecution was not warranted against the boyfriend.
Three years later, Petitioner blamed “the same abusive boyfriend” when she was arrested and charged with possession of cocaine and possession of drug paraphernalia. Petitioner claimed that the boyfriend was “hiding drugs in my home which I knew nothing about,” but she pled no contest to possession of drug paraphernalia, rather than risk losing at trial.
A different picture was painted by a DCF investigation report on allegations that Petitioner and her paramour were making and selling drugs out of the home, that the house was known as a “drug house” in the community, and that Petitioner and her paramour were arrested on the drug charges while a child was present. The DCF report verified the threatened harm to a child by exposure to substances, and also verified child neglect. While no findings are made herein with regard to the truth of the facts stated in the DCF report, Petitioner was aware that this and eight other DCF investigation reports were put in evidence by Respondent, and Petitioner chose not to address them at all.
Petitioner’s most recent criminal charge and conviction was just over five years ago, for driving under the influence of alcohol in Alabama. Petitioner disclaimed any responsibility for the incident, seeming to blame a state trooper for improperly accusing her of being “on something,” then taking her to jail
when she refused to take a breathalyzer test “because I know my rights.” Petitioner asserted that a field test was administered, which she “passed with no problem.” No evidence was offered to support that assertion. The arrest report did not mention a field test, nor did Petitioner offer the testimony of any witness, such as her sister who was a passenger in the car.
Petitioner offered several sweeping statements, both in her exemption request and at hearing, to the effect that she accepted responsibility for all of her wrongs, and that she was very remorseful for everything she did wrong. However, in explaining each individual incident, she did not accept responsibility, did not concede that she did wrong, and expressed little or no remorse. The strongest expression of any remorse was in Petitioner’s statement that ten years after the aggravated assault disqualifying offense, she saw the victim at church and apologized, and said that the victim forgave her. Yet even with that, Petitioner’s narrative description in 2015 of the incident made it sound like Petitioner was acting in self-defense and should be considered the real victim.
At the hearing, Petitioner exhibited frustration and borderline anger at being questioned about her past and having to explain herself. Petitioner made it clear that she is weary of being asked to explain the long list of criminal arrests, charges, and convictions in her background. As she stated in her
exemption request and repeated at hearing, “I think I have paid my debt to society . . . my past has haunted me long enough.” However, while Petitioner may have paid her debt to society in terms of completing all of the punishments imposed under the criminal justice system, that does not equate to entitlement to an exemption from the Agency to serve its vulnerable clients. It was Petitioner’s choice to apply for an exemption from the Agency. By doing so, she took on the burden of proving her rehabilitation, upon consideration of her history since the disqualifying offense.
Petitioner believes that she should be given a second chance, and that giving her an exemption would give her the opportunity she believes she deserves to prove herself. Two other agencies have given Petitioner such a chance. Although her submissions to these agencies were not offered in evidence, she succeeded in convincing both agencies to issue exemptions from disqualification for programs they regulate. Petitioner has embarked on proving herself worthy of that chance in her current job, for which she qualified by virtue of AHCA’s exemption.
The Agency took those other exemptions into account in reviewing Petitioner’s application, but also considered the differences in the types of services that could be provided, and the clients who would be served, in positions of special trust within the Agency’s purview. The Agency believes that greater
caution is required because of the Agency’s vulnerable clientele and also because of the nature of the services Petitioner would be able to provide to these vulnerable people. The Agency’s view is reasonable in this case. For example, Petitioner’s history skirting around violent incidents is of heightened concern for this vulnerable population. Petitioner’s history with crimes involving theft, forgery, and issuing worthless checks is of heightened concern because of duties that include helping adults with developmental disabilities gain independence by helping them shop, pay bills, balance checkbooks, and manage budgets.
The Agency also considered Petitioner’s history of traffic infractions and driver’s license issues since the disqualifying offense, including the following: failure to obey a traffic sign in August 1997; driving with a suspended license in September 1997; speeding in February 2000; failure to yield to a pedestrian in May 2001; driving a vehicle in unsafe condition in December 2001; failure to obey a traffic control device in July 2008; the 2010 DUI conviction previously mentioned in Alabama; driving while license suspended or revoked in October 2010; suspension of Petitioner’s driver’s license in July 2011 for PIP cancellation; operating a motor vehicle without a driver’s license in October 2011; and suspension of her driver’s license again in March 2015 for PIP cancellation. In addition, Petitioner’s driver’s license records show that she completed two
driver’s school courses, one identified as substance abuse treatment in September 2010, and the other identified as DUI school, completed in March 2011. Petitioner offered no explanation of these records in evidence.
All things considered, Petitioner failed to demonstrate rehabilitation by clear and convincing evidence. Instead, her history subsequent to the disqualifying offense reflects a pattern of criminal incidents over a long period of time, providing reasonable concern that Petitioner would pose a risk of danger as a direct service provider to the Agency’s clients. While it has been over five years since the last criminal conviction, Petitioner’s traffic infractions have continued, causing some concern that Petitioner has not completely rid herself of bad choices that present risks to others, at least in positions where Petitioner’s duties include transporting clients to medical appointments and on community outings. And significantly, in 2015 (in the exemption application) and 2016 (at hearing), Petitioner has not demonstrated that she takes responsibility for her past actions, that she recognizes the seriousness of her long history of criminal incidents that cannot simply be erased or go without explanation, or that she is truly remorseful.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and 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 these 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;
* * *
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.
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.
Petitioner’s aggravated assault felony conviction in 1991 is a disqualifying offense under level 2 background screening standards. § 435.04(2)(i), Fla. Stat. (disqualifying offense includes a plea of guilty or adjudication of guilt for any offense prohibited under “[c]hapter 784, related to assault, battery, and culpable negligence, if the offense was a felony.”). Even though Petitioner committed the offense before she turned 18 years old, the court records reflect that she was tried as an
adult, pled guilty to the felony offense, and was adjudicated guilty. However, even if she had been tried as a juvenile offender for an act of delinquency instead of a felony, and adjudicated “delinquent” instead of “guilty,” the offense would still be considered a disqualifying offense. See § 435.04(2)
(disqualifying offense includes when persons “have been adjudicated delinquent and the record has not been sealed or expunged for” the listed offenses); see also § 435.07(1)(a)4.,
(applying a three-year waiting period after completing punishment imposed for findings of delinquency before one is eligible to seek an exemption from disqualification for “offenses that would be felonies if committed by an adult and the record has not been sealed or expunged”).
In order to receive an exemption, Petitioner has the burden of proving, by clear and convincing evidence, that she 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)).
Judged by these standards, Petitioner failed to meet her burden of proving that she is rehabilitated. Based on the exemption application considered by the Agency, and on the totality of the evidence presented at hearing, the Agency’s decision to deny Petitioner’s request for an exemption from disqualification is reasonable, and not an abuse of discretion.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying Petitioner,
Jenella Brown’s, request for an exemption from disqualification.
DONE AND ENTERED this 11th day of May, 2016, 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 May, 2016.
ENDNOTES
1/ References to Florida Statutes are to the 2015 codification, unless otherwise specified.
2/ It is unnecessary to determine whether, or the extent to which, the police report was based on the officer’s personal observations (which would be admissible as an exception to hearsay pursuant to section 90.803(8), Florida Statutes), or based on what the officer was told by the victim or others (which would be hearsay), because this evidence is not being used to make findings of fact as to what happened in 1991 or to resolve the discrepancies between Petitioner’s version and the different version in the police report. Instead, in this proceeding, Petitioner bears the burden to prove her rehabilitation from the disqualifying offense by clear and convincing evidence, upon consideration of factors that include the circumstances surrounding the offense. Petitioner’s description of those circumstances was not clear or convincing, in large part because of Petitioner’s failure to explain or even acknowledge the discrepancies between her version and the different version of those circumstances in the police report.
3/ In her PRO, Petitioner overstates both the number and significance of the reference letters introduced in evidence
(Petitioner’s Exhibit G). Two different times, Petitioner referred to having submitted 35 reference letters/character references (PRO p. 6 and p. 9); another time, however, Petitioner proposed a finding that she provided 18 reference letters.
Whatever the number of actual reference letters, there is scant information in any of the letters that corroborates any non- hearsay evidence. As Petitioner was informed at hearing, specifically with regarding to her Exhibit G, evidence in the form of letters written by people who do not appear at hearing to offer testimony under oath, subject to cross-examination, cannot be used as the sole basis for any findings of fact. Upon examination of the letters themselves, there is very little, if any, information pertaining to the issues for determination in this proceeding. Petitioner’s Exhibit G contains 34 pages, including several hard-to-read customer satisfaction surveys; a note from a teacher thanking Petitioner for bringing goodies to her son’s classroom; multiple letters notifying Petitioner that she made the honors list for various semesters in school; letters notifying Petitioner of financial aid and scholarships; and no less than 10 letters written between 1996 and 2006 for assorted purposes, such as to recommend Petitioner for a scholarship, or to recommend Petitioner as “a good companion to the elderly.” Petitioner’s case was not aided by this file-cabinet-emptying strategy. Petitioner would be better served by a focused effort to address the issues to be determined, such as by offering testimony of witnesses who know of her background and can speak to her rehabilitation as of 2016.
4/ At hearing, the Agency’s representative testified that the Agency did not take into account any of the arrests or convictions occurring before September 1994, because the Agency considered the 1994 probation violation to be the disqualifying offense. Accordingly, the undersigned ruled that the Agency’s witness should not address those arrests/charges in his testimony explaining the Agency’s review process and the basis for the Agency’s decision. Petitioner’s PRO sought to characterize this ruling as a “dismissal” by the undersigned of the aggravated assault felony charge (which she acknowledged was a disqualifying offense), as well as a “dismissal” by the undersigned of the other criminal charges occurring before September 1994. The undersigned did not, and would not be empowered to, “dismiss” any of the charges. Instead, the undersigned simply accepted the Agency’s description of what it considered and what it did not consider in its review of the exemption request and its decision to deny that request. In fairness to Petitioner, even though the undersigned has found that the 1991 aggravated assault felony conviction is the disqualifying offense, the undersigned will not
consider the additional non-disqualifying criminal incidents occurring before September 1994 as bearing on the issue of Petitioner’s rehabilitation, because those incidents were not fully aired at the hearing. However, the aggravated assault felony conviction was fully addressed in the application and at hearing, as were all of the non-disqualifying criminal incidents occurring after September 1994; the disqualifying offense and all post-September 1994 incidents are considered.
COPIES FURNISHED:
Jenella Jenese Brown 7608 Lancelot Road
Port Richey, Florida 34668 (eServed)
Jeannette L. Estes, Esquire
Agency for Persons with Disabilities Suite 422
200 North Kentucky Avenue Lakeland, Florida 33801 (eServed)
Barbara Palmer, Director
Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399-0950 (eServed)
Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399-0950 (eServed)
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 08, 2016 | Agency Final Order | |
| May 11, 2016 | Recommended Order | Petitioner failed to prove rehabilitation. She did not adequately address her many arrests/convictions after the disqualifying offense, and blamed others instead of taking responsibility. |
ROSITA MARTIN vs AGENCY FOR PERSONS WITH DISABILITIES, 16-000625EXE (2016)
CATHERINE SCHUBERT RIVERA vs AGENCY FOR PERSONS WITH DISABILITIES, 16-000625EXE (2016)
MARCUS BROWN vs. AGENCY FOR PERSONS WITH DISABILITIES, 16-000625EXE (2016)
SHALA EDWARDS vs AGENCY FOR PERSONS WITH DISABILITIES, 16-000625EXE (2016)
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION vs. RONALD D. SMITH, 16-000625EXE (2016)
