STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH DISABILITIES,

Petitioner,

vs.

SHIBOR GROUP, INC., SHIBOR GROUP HOMES NO. 1, NO. 3, AND NO. 4 OWNED AND OPERATED BY ABIMBOLA ORUKOTAN,

Respondent.

/

Case No. 17-5630FL

RECOMMENDED ORDER

On December 12, 2017, Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the final hearing by videoconference in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Trevor S. Suter, Esquire

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 315C Tallahassee, Florida 32399-0950

For Respondent: Abimbola Orukotan

Shibor Group, Inc. 5717 Mayo Street

Hollywood, Florida 33023 STATEMENT OF THE ISSUE

The issue is whether Petitioner may revoke the license of Respondent to operate three group home facilities for failing a

background screening due to a conviction of a felony for the possession of Cannabis with an intent to sell or deliver and a failure to disclose this conviction on his license application.

PRELIMINARY STATEMENT

The Administrative Complaint dated August 18, 2017, alleges that, on April 6, 2005, Abimbola Orukotan was adjudicated guilty of a felony for the possession of Cannabis with an intent to sell or deliver; due to the felony, Mr. Orukotan failed a background screening according to information that Petitioner received on June 13, 2017, from the Department of Children and Families; and Mr. Orukotan failed to disclose the felony conviction in Case No. 01-15907CF on several applications for licensure of the three group home facilities that Respondent operates. Count I pertains to Shibor Group Home No. 1, Count II pertains to Shibor Group Home No. 3, and Count III pertains to Shibor Group Home No. 4.

Respondent requested a hearing. Petitioner determined that the request was untimely, but its untimeliness was excused by the doctrine of equitable tolling, so Petitioner accepted the petition and transmitted the file to DOAH on October 16, 2017.

At the start of the hearing, over the objection of Respondent, the Administrative Law Judge granted Petitioner's Motion for Leave to File an Amended Administrative Complaint, which had been filed on November 7, 2017. The amendment alters

the alleged date of the arrest to September 12, 2001, and the offense to Possession of Cannabis in Excess of 20 grams, a third-degree felony.

At the hearing, each party called one witness. Petitioner offered into evidence seven exhibits: Petitioner Exhibits 1-7. The exhibits were admitted except for pages 4-6 of Petitioner Exhibit 1. Also, any notice of noncompliance issued by Petitioner in connection with any of the group home facilities was admitted, but not to prove the truth of the alleged noncompliance. Respondent received leave to file two exhibits within two weeks from the end of the hearing, but did not file any exhibits.

On December 12, 2017, Respondent filed a Notice of Appeal of a Non-Final Order. Citing an appeal to the Fourth District Court of Appeal, the notice describes an appeal of an order entered November 13, 2017, denying Respondent's motion to strike, motion to dismiss, and motion for a hearing on the motions and an order entered December 12, 2017, denying Respondent's motion for a rehearing. On February 28, 2018, the Administrative Law Judge visited the appellate court's website and located only one case involving Mr. Orukotan. Mr. Orukotan is the appellant and Petitioner, among others, is an appellee in Case No. 4D17-2860, but this appeal involves lower court case no. 17-014276 and was commenced on September 18, 2017, so the

Administrative Law Judge has disregarded the notice filed by Mr. Orukotan and determined that no stay applies to this proceeding.

The parties did not order a transcript. The parties filed proposed recommended orders by January 18, 2018. Petitioner's proposed recommended order cites a compact disk containing an audio recording of the final hearing, but this disk has not been filed with DOAH. However, the failure to file the compact disk is immaterial because the Administrative Law Judge has relied on his hearing notes, as well as the exhibits, in preparing this

recommended order.

FINDINGS OF FACT

1. Respondent holds licenses issued by Petitioner for the operation of three group home facilities, known as Shibor Group Home No. 1, Shibor Group Home No. 3, and Shibor Group Home

   No. 4. Each license is for a term of one year.

   
   

2. Mr. Orukotan is the sole corporate officer and shareholder of Respondent. In his capacity as an officer and employee of Respondent, Mr. Orukotan has completed and filed several applications for annual licensure of the three group homes identified in the preceding paragraph. In the affidavit portion of each application, Mr. Orukotan has answered, under oath, "no" to the question: "Have you or anyone identified as a

   
   

   board member or party to ownership, been convicted of a misdemeanor or felony?"

3. By information dated October 11, 2001, the state of Florida alleged that, on September 12, 2001, Mr. Orukotan knowingly possessed MDMA, in an amount of at least 10 grams of MDMA, but less than 200 grams, and Cannabis, in excess of

   20 grams. Both counts alleged violations of various provisions of chapter 893, Florida Statutes.

4. Over three years later, Mr. Orukotan was tried in Broward Circuit Court, Case No. 01-15907CF10A, on three charges: a felony charge of trafficking in MDMA, a felony charge of possession of Cannabis, and a misdemeanor charge of an inoperative headlamp on a motor vehicle that he was operating at the time of his arrest. For 522 days of the interval between his arrest and trial, Mr. Orukotan was incarcerated.

5. By a Circuit Court Disposition Order dated April 6, 2005, and presumably entered contemporaneously with the jury trial, the judge documented that the headlamp charge had been dismissed, Mr. Orukotan had been acquitted of the MDMA charge, and Mr. Orukotan had been convicted of a Cannabis charge-- specifically, Mr. Orukotan had been convicted of the "LIO"-- presumably meaning "lesser included offense"--of "poss cannabis"--obviously meaning possession of Cannabis. Adjudicating Mr. Orukotan guilty of the Cannabis charge, the

   
   

   court imposed a sentence of 364 days, so that, with credit for

   
   

   522 days' incarceration, Mr. Orukotan was released from custody.

   
   

   The court appears not to have imposed a fine, but imposed court costs of about $200.

6. The disposition order does not cite the statute on which Mr. Orukotan was adjudicated guilty, nor does it designate the lesser included offense as a felony or a misdemeanor. The disposition order does not describe any of the three charges as a felony or misdemeanor.

7. Based on the length of the sentence, which is the maximum for a misdemeanor, and the notation, "lesser included offense," the greater weight of the evidence supports a finding of a conviction of a misdemeanor, not a felony, relating to the possession of Cannabis. Significantly, Petitioner has not contended in its proposed recommended order that Respondent was convicted of a felony Cannabis charge.

8. Mr. Orukotan testified that, when he completed the above-described affidavits, he believed that he had been found not guilty of all charges. From Mr. Orukotan's perspective, after spending about one and one-half years in jail, it is entirely plausible that he went to trial, won, and was released with a small charge. Mr. Orukotan displayed no obvious cognitive difficulties during the hearing, but he spoke heavily accented English, and English may not be his native language.

   
   

   Regardless, if the actual trial and post-trial processes bore any of the ambiguity that characterizes the disposition order, Mr. Orukotan was understandably confused about what had transpired and may reasonably have concluded that he had been found not guilty of all charges, so that his failure to disclose the actual misdemeanor conviction on the applications was entirely inadvertent and excusable.

9. The background screening report was not introduced into evidence. Petitioner's sole witness testified that she does not review the background screening; she reviews the work of the employee who reviews the background screening and does not read the background screening report itself. Petitioner's witness understood that Respondent's offense did not appear in the FBI screening, but only in the local screening.

   CONCLUSIONS OF LAW

   
   

10. DOAH has jurisdiction of the subject matter.

    
    

    §§ 120.569 and 120.57(1), Fla. Stat. (2015).

    
    

11. Petitioner bears the burden of proving the material allegations by clear and convincing evidence. § 120.57(1)(j).

12. Petitioner may revoke a group home facility license for the omission of a material fact on an application.

    § 393.0673(1)(a). If a misdemeanor is not a ground for denial or revocation, it is questionable whether the omission of a misdemeanor qualifies as a material omission. On the present

    
    

    facts, though, the omission was inadvertent due to the unusual circumstances surrounding the disposition of the criminal case, so Petitioner has failed to prove a material omission as a basis for revoking the licenses.

13. Petitioner may also revoke the licenses for a failure to comply with the applicable requirements of chapter 393 or rules applicable to Respondent. § 393.0673(1)(a)3. As noted above, Petitioner has failed to prove a felony conviction, nor has it argued in its proposed recommended order a felony conviction as a basis for revocation. Instead, Petitioner grounds the revocation on the failed background screening.

14. A level II background screening is required of Mr. Orukotan. § 393.0655(1). Petitioner may not issue or renew a license if a manager, supervisor, or other employee

    has failed a background screening. § 393.067(5). Disqualifying offenses are set forth in sections 393.0655(5) and 435.04(2).

    Section 435.04(2)(ss) provides that a violation of chapter 893 is a disqualifying offense, providing the violation constitutes a felony or another person involved in the offense was a minor.

    The evidence in this case establishes a conviction of chapter 893, but not either condition that would render the offense a disqualifying offense.

15. As noted above, Petitioner failed to prove even that Mr. Orukotan failed the background screening. Even if it had

proved a failed background screening, Petitioner failed to prove the ground for revocation. Inattention to detail has produced an ambiguous disposition order and a defective background screening report. If the right to a hearing is the right to a meaningful hearing, a revocation on these insubstantial predicates would elevate empty formalism over fundamental fairness.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 2nd day of March, 2018, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 2nd day of March, 2018.

COPIES FURNISHED:

Abimbola Orukotan, Manager Shibor Group, Inc.

5717 Mayo Street

Hollywood, Florida 33023 (eServed)

Trevor S. Suter, Esquire

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 315C Tallahassee, Florida 32399-0950 (eServed)

Gypsy Bailey, Agency Clerk

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 335E 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)

Barbara Palmer, Director

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 17-005630FL

Orders for Case No: 17-005630FL