Findings Of Fact On January 29, 1979, Snyder applied with the Department for eligibility for licensure as a general lines agent. The application was received by the Department on February 2, 1979. The Department requested additional information concerning that application from Snyder on February 12, 1979, which information was received by the Department on February 26, 1979. The Department made timely denial of the application by letter dated May 11, 1979, which letter was received by Snyder on or about May 16, 1979. On December 29, 1972, Snyder was convicted of grand larceny in Manatee County, Florida, a felony involving moral turpitude. Snyder was placed on probation for three (3) years with one of the conditions of probation being full restitution of the stolen funds. Snyder's probation was terminated on January 13, 1975, after compliance with the conditions of probation, and her civil rights were restored on June 18, 1975. In 1970, Snyder was married for the first time. In February, 1976, she was divorced. Until three weeks before this hearing, Snyder's ex-husband was in prison in Florida for murder and armed robbery, at which time he escaped. During the course of this marriage Snyder's husband refused to work but continued to incur debts and to exert usually strong influence on his wife, the Petitioner in this case. In 1972, when she was nineteen, Snyder, out of desperation and concern for her family and as a result of intensive pressure from her husband, stole $500 from her employer the City of Bradenton in 1972. Snyder was charged with the crime, plead guilty and subsequently made full restitution and paid an additional fine. Snyder worked as an office manager for an insurance agent in Palmetto, Florida, for a year, subsequent to her job with the City of Bradenton, then worked as a secretary underwriter for T.C.I. Insurance Company and as a waitress in Orlando, where in both jobs she handled a good deal of money without incident. While a student at the University of Central Florida, Snyder was elected to the student finance committee. Snyder finished first in her class when taking the 240 hour course required by the State for licensure as a general lines agent. Snyder attained her general lines agent license in California and until recently worked for Metropolitan Insurance Company where she had an outstanding employment record. The evidence and the demeanor of the witness indicate and it is concluded as a matter of fact that her prior criminal record was a product of an unusual situation and does not reflect upon the present honesty or reliability of Snyder.
The Issue The issue is whether respondent's law enforcement certification should be disciplined for the reasons stated in the administrative complaint.
Findings Of Fact Base upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Lloyd H. Sisk, held law enforcement certificate number 2252 issued by petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission). Respondent has held his license since April 3, 1971. When the events herein occurred, Sisk was employed as a detective with the Charlotte County Sheriff's Department. The charges against respondent are based upon an allegation of sexual abuse lodged against him by his niece, S. C., who is now seventeen years of age. The abuse allegedly occurred between December 1986 and February 1988. To place this controversy in proper perspective, a brief discussion of the living arrangements in the Sisk household is appropriate. In 1983 respondent, his wife, Brenda, and Brenda's mother (grandmother) decided to jointly purchase a home in Port Charlotte, Florida. Also residing with the Sisks were their teen-age son, Jeffrey, and the alleged victim. The grandmother had been given legal custody over the alleged victim, who was the daughter of Janis, Brenda's sister. Janis lived in Pinellas County, but because of various legal and personal problems, she had relinquished custody of her daughter to the grandmother shortly after S. C.'s birth. In late 1986, and over the objections of the grandmother and alleged victim, the Sisks decided to sell the home. This in turn engendered antagonism and animosity between the members of the family component and eventually culminated in the sexual abuse charges being made. The home was finally sold in February 1988, or more than a year later. Before the sale occurred, the Sisks advised the grandmother and alleged victim that, because of constant friction, the grandmother and S. C. would not live with the Sisks and their son when they relocated to a new home. At almost the same time the sale took place, S. C. began making sexual abuse allegations against respondent. In this regard, the testimony is sharply conflicting. In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence. The allegations first surfaced on an undisclosed date in February 1988 when S. C. told her sixteen year old boyfriend, James, that respondent had touched her breasts, buttocks and vaginal area while giving her back massages and had put a condom on his penis while in her presence. On February 17, 1988, S. C. telephoned her mother in Pinellas County and said respondent had been coming home in the afternoon and asking to give her backrubs. The alleged victim further complained that, during those backrubs, respondent was "rubbing her butt and in between her legs". That same day, S. C. told her grandmother that respondent had touched her breasts, buttocks and vaginal area while giving her backrubs. Three days later, S. C.'s mother, while in an intoxicated state, telephoned the Largo Police Department and relate the abuse allegations to a detective. That led to an investigation by the Charlotte County Sheriff's Office and the eventual filing of criminal charges by the state attorney and sexual abuse charges by the Department of Health and Rehabilitative Services (HRS). 1/ At final hearing, the former boyfriend, grandmother and natural mother related the allegations described in the previous finding of fact. In addition, statements made by S. C. to an HRS counselor were offered into evidence. Finally, the alleged victim gave her version of what transpired. This included a rather graphic account of respondent, while in the presence of S. C., placing a condom on his penis and masturbating, and after attaining an erection a few minutes later, positioning his body next to S. C. and demonstrating various coital positions to his niece. The testimony of the alleged victim is not accepted as being credible for a number of reasons. To begin with, S. C. was extremely upset with respondent because the family home was being sold and she had been told that she could not remain with the Sisks. Her animosity towards respondent is also evidenced by the fact that, just prior to final hearing, she encouraged her mother (Janis) to "slam him (respondent)" with her testimony. It is also noted that the alleged victim's testimony at hearing differed in several material respects with the complaints she made to the Commission, HRS and in prior court testimony. Finally, the testimony of Lloyd, Brenda and Jeffrey Sisk, which is accepted as being credible, demonstrated numerous inconsistencies in S. C.'s testimony. Accordingly, it is found that respondent did not commit a lewd and lascivious act in the presence of his niece by exposing his penis and masturbating, and he did not handle her breasts, buttocks and vaginal area as alleged in the administrative complaint.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED that the administrative complaint be DISMISSED, with prejudice. DONE and ENTERED this 27th day of August, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Heading Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1990.
The Issue Whether the Agency for Persons with Disabilities’ (Agency) intended decision to deny Petitioner’s application for exemption from disqualification for employment is an abuse of the Agency’s discretion.
Findings Of Fact Petitioner is a 68-year-old female residing in Jacksonville, Florida. Petitioner’s most recent employment is with Linda L. Curtis Health Care Agency (Curtis Agency), where she “sits with patients,” and provides entertainment and meals for patients. Respondent is the state agency responsible for licensing and regulating the employment of persons in positions of special trust. Specifically, the Agency’s mission includes serving and protecting vulnerable populations, including children and adults with developmental disabilities. In connection with her employment at Curtis Agency, Petitioner underwent background screening on July 26, 2017, and was deemed automatically disqualified from employment based on a past offense. See § 435.06, Fla. Stat. Petitioner applied to the Agency for an exemption from disqualification, pursuant to section 435.07, which the Agency denied and which forms the basis of the instant Petition for Administrative Hearing. Disqualifying Offense On September 25, 1999, Petitioner was arrested and charged with misdemeanor battery for an incident at her home involving her 18-year-old cousin, Shanique Barner, whom she was raising, along with the cousin’s baby. The altercation began when Petitioner approached Ms. Barner about failing to keep her bedroom clean, an issue about which Petitioner had spoken to Ms. Barner repeatedly. The confrontation became physical and both parties began punching and hitting each other. When the fight ended, Petitioner took Ms. Barner to the hospital for a tetanus shot and treatment for a bite or bites inflicted by Petitioner during the altercation. An off-duty officer at the hospital was informed of the domestic violence incident and the arresting officer was dispatched to Petitioner’s residence. At Petitioner’s home, the arresting officer observed Ms. Barner with a swollen left eye and two bite marks on her left arm. After taking both parties’ statements, the officer arrested Petitioner and took her to a detention facility for booking. Petitioner pled nolo contendere to the charge of domestic battery and adjudication was withheld. On October 4, 1999, Petitioner was sentenced to four months’ probation and ordered to pay court costs of $104. Terms of Petitioner’s probation included no contact with Ms. Barner, completion of an anger control program, and payment of the costs of supervision. Petitioner’s probation was early-terminated on November 2, 1999, at which time Petitioner had completed the anger management program, paid her fine and court costs in full, and was current in the monthly cost of supervision. Petitioner was 50 years old at the time of the disqualifying offense, and Ms. Barner was 18. By Petitioner’s account, Ms. Barner was a rebellious and troubled teenager, who had become pregnant at age 17 despite Petitioner’s attempts to persuade Ms. Barner to begin using birth control at age 15. Subsequent Non-Disqualifying Offense Petitioner had no further involvement with law enforcement until April 8, 2008, almost nine years later, when she was arrested and charged with aggravated battery with a deadly weapon. The details of the incident are unclear and disputed. The record supports the following findings: For a month prior to the incident, Petitioner had allowed a male friend, Mr. Jones, to temporarily live at her home. Mr. Jones was ill, had lost his employment, and had applied for social security disability, but had not received payments in time to pay his rent. Mr. Jones had a “roommate,” Ms. Green, who was identified only as Mr. Jones’ girlfriend’s daughter. Ms. Green also moved into Petitioner’s home, temporarily, at the request of the girl’s mother. Apparently, Ms. Green, like Ms. Barner, was not much of a housekeeper. Despite assurances from Mr. Jones that Ms. Green would “clean behind herself,” Ms. Green frequently left dirty dishes in the sink, with which Petitioner was met upon her return from work. On the date of the incident, Petitioner returned from a day at work to find dirty dishes in her sink, left there by an unwelcome, and apparently ungracious, guest whom Petitioner, no doubt, expected to be a short-term guest. Petitioner informed Mr. Jones that Ms. Green would have to leave. Ms. Green began removing her belongings, but not at a pace Petitioner found very efficient, so Petitioner “assisted” in removal of Ms. Green’s belongings. Ms. Green objected, telling Petitioner not to touch her belongings. Petitioner responded by informing Ms. Green she could not re-enter Petitioner’s home to remove the rest of her belongings. Petitioner told Mr. Jones to remove the remainder of Ms. Green’s belongings. Petitioner positioned herself to block Ms. Green’s entry to Petitioner’s home. When Ms. Green attempted to enter Petitioner’s home, a physical altercation ensued. The altercation was broken up by Mr. Jones and Ms. Barner,1/ but proved only a brief interlude in the fighting. A second physical altercation ensued but the evidence conflicted as to which party initiated the fight, and whether either party was armed with a weapon of some sort. Ms. Green emerged from this altercation with a deep cut above her left eye. Following Ms. Green’s injury, Petitioner left the scene in her vehicle. An officer who had been dispatched to the scene observed Petitioner’s vehicle on his way to the scene, conducted a traffic stop, and transported Petitioner back to the scene. After the investigation, Petitioner was arrested and transported to a detention facility for booking. The State Attorney’s office declined to prosecute Petitioner and the charge against Petitioner was dropped. Educational and Employment History Petitioner maintained consistent employment both prior and subsequent to the 2008 arrest. Between April 2004 and March 2007, Petitioner was employed as a shop foreman and an office manager for Air Distributors Inc., a metal and fiberglass fabricator. Petitioner was a part-time cashier at WalMart from March 2007 to November 2011. Petitioner was employed with River Region Human Services (River Region) from April 2009 through June 2014. River Region is a residential rehabilitation facility providing methadone maintenance treatment to recovering addicts. At River Region, Petitioner served as a Monitor Technician, observing client activities and medication administration, filing behavior and incident reports, conducting perimeter checks, and transporting clients to off-site services. The record does not support a finding of the exact date on which Petitioner’s subsequent employment with Curtis Agency commenced. In connection with Petitioner’s employment by River Region, Petitioner received an exemption from disqualification from the Department of Children and Families. While employed with River Region, Petitioner completed a number of trainings sponsored by that agency, including Non- Violent Practices in 2013, as well as HIV/AIDS Parts I and II, HIPAA, Clinical Documentation, and Security Awareness in 2014. Subsequent Personal History The record was devoid of any subsequent history on Petitioner. It is unknown whether Petitioner lives alone or with roommates of any sort. Petitioner’s Exemption Request In her application for exemption, Petitioner provided a lengthy account of both incidents. Notably, Petitioner prefaced her explanation as follows: “To start I want to relate both incidents occurred because I cared about others. I tried to deaden this concern for others, but it just wouldn’t happen.” While there is some credibility in associating Petitioner’s actions in the first incident with a concern for her cousin, whom she was raising the record does not support a finding that the incident between Petitioner and Ms. Green, whom she was removing from her home for being untidy, is at all related to a concern for others. In her lengthy explanation of both incidents, Petitioner blamed the victim. With respect to her cousin, Petitioner explained that her cousin hit her first. With respect to Ms. Green, Petitioner explained that the victim came at her first with “something in her hand,” which Petitioner “immediately knocked out and caught.” Petitioner wrote: It was an unopened small red object. That’s when I recognized it was a small box cutter. As she kept coming I push [sic] it and cut her across her eyebrow. Petitioner’s account is troubling in many respects. First, if Petitioner recognized the object as a box cutter, she had time to drop the weapon, rather than use it against the victim, whether in self-defense or otherwise. Second, Petitioner’s account of the incident differs significantly from the accounts given by both Petitioner’s cousin and Mr. Jones to the officer at the scene. Both witnesses told the officer that, after the initial altercation between Petitioner and Ms. Green, Petitioner retrieved a scraper from her car, which she carried with her to her perch outside the door blocking Ms. Green’s reentry to her home.2/ If the witnesses’ accounts are accurate, Petitioner was untruthful on her application, and attempted to shift blame to the victim, when in actuality Petitioner was the party who intentionally armed herself for an anticipated second altercation with Ms. Green. Petitioner made no attempt to explain the discrepancy between her version of the 2008 incident and the version recounted in the police report. The lack of explanation is notable because Petitioner went out of her way to contradict other aspects of the police reports on both incidents. For example, while the police report noted Ms. Green suffered wounds on her chest, nose, and above her left eye, Petitioner insisted the 2008 report was incorrect and she cut Ms. Green only above the eye. As to the 1999 incident, the police report noted Ms. Barner had a swollen left eye and two bite marks on her left arm. Petitioner insisted the report was wrong, arguing that she bit Ms. Barner on the chest and not the arm. The remainder of Petitioner’s application is bereft of detail. In response to the question regarding the degree of harm to the victims or property, Petitioner noted only “Bite mark,” and “laceration over eyebrow.” Petitioner’s demeanor at hearing evidenced a complete lack of understanding of the seriousness of her actions against Ms. Green. Assuming Petitioner’s version of the events is accurate, Petitioner could have permanently blinded Ms. Green by intentionally striking her in the face with a box cutter. Regarding whether Petitioner had stressors in her life at the time of the disqualifying offense, Petitioner responded “None.” That response is contrary to Petitioner’s detailed description of the 1999 incident, which evidences significant stress between her teenage cousin, who was rebellious in many respects, including refusing to pick up after herself, not to mention bringing into the household an unexpected mouth to feed. With regard to current stressors and support system, Petitioner responded that she had no stress in her life and that prayer is her support system. She described her current living arrangements as a “2 bedroom, 2 bath apartment,” and that she has maintained her own household since she was 17 years of age. Petitioner failed to grasp the importance of distinguishing her current life circumstances and living arrangements from those at the time of the disqualifying offense and subsequent non-disqualifying offense. Without any distinguishing circumstances, the Agency is justified in questioning whether Petitioner’s circumstances are more stable. Petitioner stated that she had never received any counseling for any reason, and that she had never used or abused drugs or alcohol. Petitioner’s response to the question regarding whether she feels remorse and accepts responsibility for her actions reads as follows: Regret was immediately felt during incidents. We are responsible for our actions so to keep this always in mind take on fruitage of God’s spirit faith, goodness, kindness, love, longsuffering, joy, peace, mildness and self- control. Petitioner’s response is telling--it uses passive language and avoids the first person. Petitioner did not state, nor did she testify, that she regretted her actions, or that she was responsible for the harm caused. Both her written account and her live testimony evidence her intent to shift blame to the victims and acknowledge responsibility only in the broadest sense. Personal References Petitioner included two reference letters in support of her application: one from Ms. Barner and one from someone named Trinette Simmons. In Ms. Barner’s letter, she refers to Petitioner as her mom and explains that Petitioner cared for her from two weeks of age until five years of age, that she came to live with Petitioner again at age 13, and that she has “periodically resided at [Petitioner’s] residence for some years.” Ms. Barner states that Petitioner encouraged her and helped her graduate from school after becoming pregnant at age 17, and that love has always been in her mom’s heart. Petitioner did not explain her relationship to Ms. Simmons. The letter from Ms. Simmons states that she has known Petitioner since 2002, that Petitioner is capable of handling any situation “with thoughtfulness and maturity,” and that Petitioner is “a team player, as well as a team leader, who can adjust to changes within any environment.” The references are from persons who knew her when the 2008 incident occurred, but neither letter addresses the incident or explains that Petitioner’s behavior at that time was uncharacteristic, or that it has changed significantly since that incident. Moreover, neither of the letters is from an employer or other authority figure who has observed Petitioner interact with River Region clients or Curtis Agency patients. The Agency is charged with protecting the most vulnerable populations in Florida--children and adults with developmental disabilities. Some members of this population are uncommunicative, can be hostile, and act out. The Agency must be confident that any applicant seeking to work directly with these clients has demonstrated self-control and maturity to handle difficult, and often stressful, interactions with the clients. Both Petitioner’s disqualifying, and subsequent non- disqualifying, offense evidence Petitioner’s lack of self-control and good judgment when faced with stressful situations involving individuals who are defiant and refuse to take a course of action requested by Petitioner. Neither of Petitioner’s personal references document Petitioner’s ability to control herself and her reactions when faced with similar difficulties more recently. Petitioner’s account of the incidents shifts the blame to the victims and fails to demonstrate true remorse or responsibility for her actions, the harm she inflicted, and the potential for more serious harm based on her choices at the time of the incidents. While Petitioner seems to truly interested in continuing to help vulnerable citizens, even in a volunteer capacity as she nears retirement, she did not present evidence sufficient to demonstrate her rehabilitation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 3rd day of October, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 3rd day of October, 2017.
The Issue 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.
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.
Recommendation 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.
The Issue Whether or not Petitioner may be granted an exemption to work in a position of special trust.
Findings Of Fact Petitioner has been continuously employed with North Florida Evaluation and Treatment Center (NFETC) since November 9, 1994. NFETC is a facility operated by DCF. NFETC houses mentally unstable, criminally charged adult male patients. Petitioner began work at NFETC as a custodial worker. In 1996, he was sought out by his superiors to be trained as a Unit Treatment and Rehabilitation Specialist (UTR). UTRs have direct care and treatment of patients. He completed 180 training hours on or about December 31, 1996. In early 1997, he was promoted to the position of UTR. On January 10, 1997, Petitioner was certified as having completed ACT training. ACT involves DCF-approved methods for safely subduing violent patients. Since his promotion to UTR, Petitioner has performed adequately as a UTR. He has never been involved in a violent incident involving patients. He has not had any disciplinary actions taken against him. A letter from Petitioner's supervisor at NFETC was admitted in evidence without objection. That letter attests to a four-year working relationship with Petitioner during which he has always been "intelligent, creative, dedicated, energetic, and resourceful. . . . He has always remained calm and served as a stabilizing force for others." Prior to the summer of 1998, the position of UTR was not considered a "position of special trust." In the summer of 1998, DCF authorities at NFETC designated all UTR positions as "positions of special trust," and a screening revealed Petitioner's criminal record, which barred him from employment as a UTR. Since then, and pending resolution of the issue herein, Petitioner has continued to be employed at NFETC in a non-direct care position, at a lesser rate of pay. Petitioner's disqualifying criminal offense involved his plea of nolo contendere to a charge of domestic battery (statute number unspecified) on June 16, 1995. At that time, the court withheld an adjudication of guilt; placed Petitioner on probation for one year, with a special condition that he attend the Batterer's Intervention Program; and waived all court costs. On October 4, 1995, Petitioner was in court for violating his probation. Although Petitioner testified that this court appearance was the result of missing or being late for a scheduled meeting with his probation officer due to his brother's death, court documents indicate that Petitioner once again had been arrested for domestic battery (statute unspecified), a charge to which he plead guilty. Petitioner conceded that he spent seventeen days in jail on this occasion. Where Petitioner's version of the facts differs from the court documents admitted in evidence, I find the court documents to be more credible. However, the court documents also show that on this occasion, Petitioner was reinstated to supervised probation. By July 1996, Petitioner had completed all 26 sessions of the Batterer's Intervention Program, spanning six months. Apparently, he did not begin the program until after the last act of domestic violence. During these sessions, Petitioner participated in "acting out" possible physical altercation scenarios and was trained in new methods of avoiding them, new ways of dealing with anger, and how to anticipate ways in which to handle similar situations without violence in the future. On August 5, 1996, a Petition for Unsuccessful Termination of Probation was presented to the court, because Petitioner "would be unable to comply with the [probation] requirements in a timely manner." As a result of this petition, the court discharged Petitioner from probation unsuccessfully and waived the remaining costs of supervision. The most information that can be gleaned from the court documents and Petitioner's testimony concerning the reasons behind the unsuccessful termination of his probation in 1996, is that Petitioner was unable to pay all supervision costs on time, had lost some period of reporting to his probation officer due to his jail time in October 1995, and had unsuccessfully completed his probation due to the domestic battery guilty plea on October 4, 1995. Petitioner testified that he has not been arrested since October 4, 1995. However, he also acknowledged that prior to the initial June 16, 1995, domestic violence charge, there may have been as many as three other arrests as a result of physical altercations with his ex-wife. Petitioner testified that the nature of the June 1995 incident which gave rise to the disqualifying offense was merely that he "put his hands on" his wife to stop her from hitting him, during a period of time in which he was under great stress due to several deaths in his immediate family, the birth of a new baby, and his job as a long-haul trucker. His ex-wife confirmed each of these elements of stress in Petitioner's life at that time, but she was asked no questions concerning the physicality of the disqualifying June 1995 incident, and Petitioner's continuous employment at NFETC since November 1994, would seem to negate his story of being a long-haul trucker in June 1995. Upon all the evidence, I do not find Petitioner credible as to his description of the disqualifying incident. Upon all the evidence, I also do not find credible Petitioner's and his ex-wife's testimony that Petitioner did not strike his wife after 1994. At some point subsequent to October 1995, the couple divorced. Petitioner pays his child support regularly. His NFETC employment provides insurance for his two children. He visits his children regularly at his ex-wife's home and entertains them in his own home. He has a good relationship with both children. He has become friends with his ex-wife Petitioner lives with and cares for his aged and infirm mother. Petitioner attends no church regularly but does attend several churches occasionally. He contributes to the Boys and Girls Clubs of America through the United Way collection at NFETC. He has completed sixteen hours of a writing class in spelling and grammar, which should enhance his performance as a UTR.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying the requested exemption to work in a position of special trust at this time and specifying therein the earliest date that Petitioner may reapply (one year from his last application) if he chooses to do so. DONE AND ENTERED this 5th day of February, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1999. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services 1000 Northeast 16 Avenue, Box 3 Gainesville, Florida 32601 Willie Williams, Jr. 821 Southeast 12th Avenue Gainesville, Florida 32601 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner should receive a General Lines Agent license, pursuant to Sections 626.611 or 626.621, Florida Statutes.
Findings Of Fact On April 10, 2003, Petitioner applied for licensure as a General Lines Agent. On May 22, 2003, Respondent denied Petitioner's application for licensure due to his criminal history. On May 30, 2003, Petitioner submitted a timely Election of Rights form, which requested a hearing before the Division of Administrative Hearings. On February 23, 1996, Petitioner was charged with two counts of Depositing Worthless Item with Intent to Defraud in the Circuit Court in and for Orange County, Florida. On July 2, 1996, Petitioner pled nolo contendere to two counts of Depositing Worthless Item with Intent to Defraud. Adjudication of guilt was withheld by the circuit court, and Petitioner was placed on supervised probation for one year and ordered to pay restitution. On March 31, 1997, Petitioner's probation was modified, and then on June 30, 1997, Petitioner's probation was terminated. Petitioner testified as to the circumstances surrounding his plea of nolo contendere to Depositing Worthless Item with Intent to Defraud. He stated that a cousin gave him two post-dated checks to repay a debt and that he deposited them on different days but sought and received permission from his credit union for the immediate release of the funds, in the total amount of $1,435.00. Upon receiving the funds, he used the proceeds to make payments on other accounts. Approximately 30 days later, the credit union informed him that the two checks were returned and marked "account closed" and demanded immediate reimbursement. Petitioner testified that he was only able to make a partial repayment, and, therefore, criminal charges were filed by the state attorney. On the advice of his counsel, he pled nolo contendere to both charges and was placed on probation. While on probation, he repaid approximately 40 percent of the debt and fines. Petitioner believes there is an outstanding balance due of $256.00 plus interest and penalties, for which he is unable to pay because he is presently unemployed. Petitioner testified that he is a trustworthy person and should be granted a waiver from the rules requiring a waiting period, following his conviction, before becoming eligible for licensure. The reason for this request is that he did not intentionally commit these crimes; that he previously worked 20 years successfully in the airline industry which required a background screening for his position; and that he has been studying hard and been offered employment by Liberty Mutual Insurance Group in Orlando, Florida, who did their own background check and approved him for employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a General Lines Agent in this state. DONE AND ENTERED this 24th day of September, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2003. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph M. Santino 3201 South Semoran Boulevard Number 39 Orlando, Florida 32822-2678 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, I hereby make the following findings of fact: The Respondent was certified by the Criminal Justice Standards and Training Commission on December 16, 1977 and issued Certificate Number 02-18913. At all times material hereto, the Respondent was employed as a deputy with the Broward County Sheriff's Office. In early December of 1983 the Respondent resided in a home with his ex- wife, Charlene Dukes, and his 14 year old stepdaughter, L.D. The Respondent and Ms. Dukes were divorced in July of 1983. The Respondent was required to transfer his interests in the marital home to Ms. Dukes as part of the divorce decree. A quit-claim deed was prepared shortly after the divorce, but the Respondent did not sign the deed because he continued to live in the marital home. One evening during early December of 1983 the Respondent entered L.D.'s room shortly after she had gone to bed. The Respondent climbed into L.D.'s bed, removed her underclothing, fondled her breasts and had sexual intercourse with her. The Respondent withdrew from his stepdaughter after only about a minute because he "couldn't go through with it." After telling L.D. that he was sorry about what happened, Respondent went into the Florida room, sat down at a desk and cried. L.D. said nothing during the entire incident. On approximately January 15, 1984, L.D. developed a vaginal infection and was taken to a gynecologist by Ms. Dukes. Ms. Dukes apparently discovered what had occurred during the visit to the doctor, because shortly thereafter she accused the Respondent of giving L.D. an infection. The Respondent did not admit his involvement to Ms. Dukes at that time but told her that he was sorry about the "whole ordeal." On January 26, 1984, the Respondent moved out of the home occupied by Ms. Dukes and L.D. When Respondent returned to the home and spoke with Ms. Dukes later that day, she demanded that he sign a quit-claim deed to the marital home. Ms. Dukes told Respondent that if he did not sign the papers that she was going to "have his job" and really "f " him up. The Respondent left without signing the papers. On January 27, 1984, L.D. and her mother reported the incident which occurred between L.D. and Respondent to the Sheriff's Office. On the same day, Detective Scarbough of the Broward County Sheriff's Office took a statement from L.D. reciting her version of the incident. L.D. stated that when the Respondent entered her bedroom, she was already asleep and awoke to find him on top of her. Later that evening, the Respondent gave a statement to Detective Scarbough wherein he admitted having sexual intercourse with L.D. but maintained that the act was consensual. The Respondent stated that he entered L.D.'s bedroom, spoke with her briefly and then had sexual intercourse with her. The Respondent said that he believed the act was Consensual because although L.D. didn't say yes: "... she didn't say no. There was no physical force involved." On January 30, 1984, the Respondent executed a quit-claim deed to Charlene Dukes with regard to the marital home. On January 31, 1984, Detective Scarbough served an arrest warrant on Respondent for the offense of sexual battery. Later on the same day Detective Scarbough spoke to Ms. Dukes. She complained that the details of Respondent's arrest had been broadcast on the local television news and expressed concern that the incident could cause embarrassment to her daughter. On February 1, 1984, Ms. Dukes told Detective Scarbough that she did not wish to pursue further prosecution of Respondent because of possible embarrassment to her daughter. On February 2, 1984, Detective Scarbough viewed a video tape of the news broadcast concerning the incident and called Ms. Dukes to assure her that her daughter's name had not been mentioned. Ms. Dukes then told Detective Scarbough that her daughter had recanted the accusation of sexual battery against Respondent. On February 7, 1984, L.D. gave a sworn statement to Detective Scarbough recanting her earlier allegations of sexual battery committed on her by the Respondent. L.D. stated that her earlier statement was "a lie." L.D. went on to explain that she had fabricated the allegation of a rape by her stepfather to prevent herself and her boyfriend from getting into trouble for dating against her mother's wishes. L.D. stated that she had contracted a venereal infection from her boyfriend whom her mother had strictly forbidden her to see. L.D. explained that she made up the story about Respondent to conceal the fact that she had been with her boyfriend. At the formal hearing, Respondent recanted his earlier admission given to Detective Scarbough. The Respondent explained that he falsely admitted to having sexual intercourse with his stepdaughter in order to protect L.D. from getting into trouble with Ms. Dukes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Respondent's certification as a law enforcement officer be REVOKED. DONE and ORDERED this 7th day of November, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2971 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 7. Partially adopted in Finding of Fact 4. Matters not contained therein are rejected as a recitation of testimony. Partially adopted Finding of Fact 5. Matters not contained herein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 7. Matters not contained therein are rejected as subordinate. Rejected as subordinate. Partially adopted in Finding of Facts 4 and 7. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 12. Matters not contained therein are rejected as subordinate. Rejected as subordinate. Adopted in Finding of Fact 13. Rejected as unnecessary. Rejected as recitation of testimony. Adopted in Finding of Fact 14. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Covered in Procedural Background Section. Covered in Procedural Background Section. Rejected as subordinate. Rejected as recitation of testimony. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as subordinate and/or argument. Rejected as subordinate and/or argument. Rejected as subordinate and/or argument. Rejected as subordinate and/or argument. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 2. Rejected as contrary to the weight of the evidence. Rejected as subordinate. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 13. Matters not contained therein are rejected as subordinate. Rejected as contrary to the weight of the evidence. Adopted in Finding of Fact 14. Rejected as subordinate. Rejected as subordinate. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Charles T. Whitelock, Esquire 1311 Southeast Second Avenue Ft. Lauderdale, Florida 33316 Rod Caswell Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Janet E. Ferris, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether J.A. knowingly and willfully made a false report of abuse on November 29, 2003 (Abuse Report No. 2003-380412), contrary to Section 39.206, Florida Statutes.
Findings Of Fact The Department is charged by statute to maintain the state's abuse hot line and investigate reports of abuse. It is also charged with investigating false reports of abuse, and is authorized to levy civil fines against those who willfully and knowingly make false reports of abuse. It does this sparingly because it has a chilling effect upon the reporting of abuse. The Department investigated three reports of abuse initiated by J.A. Each of the reports was thoroughly investigated, and each of the reports was determined to be unfounded. J.A. had at one time been the babysitter for G.V., the child about whom the reports were made. J.A. and her husband were also friends with the parents of G.V., for whom J.A.'s husband, Thomas, acted as a translator. When G.V.'s grandmother joined the family, J.A.'s services as a babysitter were no longer needed, and she no longer saw the child frequently. It was apparent from J.A.'s testimony and her actions that she had an emotional attachment to G.V. On March 10, 2003, J.A. made the first abuse report, No. 2003-034565, which alleged that there had been five to eight months of domestic violence between G.V.'s mother and father. It was alleged that this domestic violence occurred several times a week, and that the most recent incident had occurred within the past several days. The mother was alleged to have chased the father with a machete in one hand and G.V. in the other arm. It was alleged that the mother beat G.V. It was alleged that the mother had attempted to jump, while holding G.V., out of the car being driven by the father. The mother was described as being an unsafe and inappropriate caregiver. The child was described as having rotting and broken teeth, which the mother failed to do anything about. This report was investigated by Charles Castell, assisted by Ms. Ehlers. Ms. Ehlers examined the child on March 10, 2003 and found nothing to support the allegations made by J.A. Collateral witnesses, such as neighbors who would have been in a position to corroborate the allegations, were interviewed. Fernando Ramirez, an alleged witness, was interviewed. No witness identified by J.A. or through the investigators' efforts provided any support for the allegations made by J.A. The report was closed with no positive findings on any of the allegations, together with a statement that it appeared to be a false report. The second report of abuse of G.V. made by J.A. was on May 6, 2003. J.A. alleged that the parents of G.V. were engaged in domestic violence, and that G.V.'s mother had chased her father around the yard with a machete while he was drunk. The mother was alleged to be mentally unstable, having a short, bad temper, and beating G.V. J.A. alleged that G.V. father was a drunk who gave G.V. alcoholic drinks and who smoked marijuana and blew the smoke in G.V.'s face. J.A. also alleged that G.V.'s teeth were rotting and one was broken off, and G.V. was poorly nourished and had a flat affect. Gina Ehlers investigated this complaint. She found no indication that G.V. was malnourished or had a flat affect. Ehlers again spoke with neighbors and other witnesses and found no evidence of domestic violence or inappropriate behavior by the mother. Ehlers visited the family on several occasions, including a Friday night at 10:30 or 11:00 p.m., when one might expect to find the father drunk and a cause for domestic violence. Ehlers never found anyone impaired or any evidence of domestic violence or abuse of G.V. Ehlers interviewed J.A., who indicated that she wanted custody of the child and was going to purse whatever avenues were necessary to take the child away from the parents. On November 17, 2003, J.A. made an abuse report to the Department's hotline regarding G.V. J.A. alleged that G.V. was living with her mother and father at the father's mother's home. alleged that everyone but G.V.'s mother abused her physically. J.A. alleged that the father got drunk and hit the child in the mouth, and the child was injured and bruised from this. J.A. alleged that the father gave the child alcoholic beverages to drink. J.A. alleged that the father battered the mother in front of the child. J.A. alleged that the child was at risk with everyone except her mother, Gloria. Steven Shaver investigated this report. Shaver, who examined the child within three hours of the report, found no evidence to support the allegations. He examined G.V. on three separate occasions and looked for bruises or other evidence of physical injury or abuse. He found none. He also observed the child with the parents and did not find that the child was restrained or fearful of the father or his mother. Upon completing his investigation, Shaver reported that J.A. had reported this same information previously and that it was obvious that J. A. was harassing the family of G.V. Kasey Hart testified at hearing. She is now and was a neighbor of the family when the last report of abuse was made in November 2003. She never saw any activity of the type alleged in the abuse report made by J.A. She observed the family interact from time to time, and never saw any abusive conduct. She opined that the child seemed under-disciplined and spoiled as opposed to abused. Steve Lampros, the Child Protective Investigations Supervisor who supervised the investigators who investigated these abuse reports testified. All the investigations conducted were thorough and complete, and included interviews with family and neighbors and physical examination of the child. This included medical examination of the child for injury. All three investigations revealed no evidence that would support a finding that any abuse had occurred. Had there been any indications of abuse, the report would have been labeled "some indicators." J.A. told Lampros that she wanted custody of the child, and would file reports until the Department did something. Lampros warned J.A. that filing false reports was a felony, and that the three reports she had filed had been determined to be without indicators of abuse, that is, unfounded. J.A. stated that her reports were not false and that she would continue to make them. Lampros referred the Abuse Report No. 2003-380412 for false reporting because seven of his investigators had investigated five reports, three within the same year, without discovering any evidence of indicators of abuse. The reports were similar; the investigations were thorough; the reporter appeared to be motivated by a desire to remove the child from the home in the hopes of obtaining custody; and there had been no evidence of abuse. J.A. testified at hearing that she did not see the child from June or July 2003 until a few days prior to the time she made the November abuse report, when she saw the family at Wal-Mart. At that time, they did not see her, and she was not close enough to them to speak. The granddaughter of J.A. testified. She had not seen the child, G.V., since Easter 2004. Her testimony dealt with the period after the time frame involved in the allegations of false reporting. J.A.'s husband testified about his assisting the police with reports of domestic violence between G.V.'s parents in 2001 and 2002, before the time frame of the allegations of false reporting. Susan Mulvey, a neighbor of J.A., testified. Mulvey was at J.A.'s house at times when G.V.'s family came to pick her up when J.A. babysat for G.V. Mulvey observed that G.V. did not want to leave J.A. when her parents came for her. She also observed that the child's teeth had severe cavities.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order levying a civil fine of $5,000 against the Respondent. DONE AND ENTERED this 16th day of February, 2005, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2005. COPIES FURNISHED: Lucy Goddard-Teel, Esquire Department of Children and Family Services Post Office Box 3, Box 3 Gainesville, Florida 32602 J. A. (Address of record) Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0800 Joe Garwood, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0800
Findings Of Fact At all times relevant hereto Respondent was certified by Petitioner as a law enforcement officer and he was employed by the City of Tampa Police Department. Respondent was married to Stephanie Brown and is the father of two of her children. Marital problems arose and in June 1983 they separated. At the time, Stephanie Brown owned and operated a barbershop. Each time Respondent and his wife met they argued. At a judicial hearing Respondent was directed to pay child support to his wife. The check he gave Stephanie in the presence of the judge, Respondent tried to recover when he left the courthouse. He was quite angry when Stephanie refused to return this check to him. That same evening, which Stephanie identified as October 24, 1983, Respondent came to the barber shop shortly before closing. Respondent was very angry and demanded return of the money he had been directed to pay as child support, told Stephanie he was sick and tired of her, and did not intend to lose his job because of her complaints. At this time Stephanie was sitting behind her desk at the salon and Respondent was standing in front of the desk. During the argument Respondent tilted the desk toward Stephanie and a letter opener fell off the desk. This letter opener, which was described by Stephanie as having a metal blade approximately, eight inches long, was picked up by Respondent and waved around by him as they argued. Stephanie testified that Respondent was close enough to cut her with the letter opener and that she was afraid he would: however, no evidence was presented that Respondent made any attempt to use a letter opener as a weapon or made any specific threat to harm Stephanie with the letter opener. Ms. Jackson, a customer of Stephanie's who knew Respondent, came in from the back part of the salon and saw Respondent and Stephanie arguing, with Respondent holding the letter opener. She attempted to calm Respondent and apparently succeeded since 'Stephanie testified that after Ms. Jackson calmed Respondent down he cried and was upset. Stephanie also testified that on another occasion Respondent came in the salon shortly before closing and they again got into an argument. Although Respondent was off duty, Stephanie knew he was armed because he "always carried his pistol the course of this argument Stephanie never saw Respondent draw his pistol, have it in his hand, or even have the pistol exposed where she could have seen it. Stephanie testified that an employee' of hers, Yvette Spann, came in while she and Respondent were arguing and later told Stephanie that she had seen a gun in Respondent's hand. This hearsay testimony was corroborated no admissible evidence. The police officer who investigated the charges Stephanie had made against Respondent was the second witness called by Petitioner. This officer had no first-hand knowledge of either of the assault charges preferred against Respondent. As a result of Sergeant Wilkinson's investigation Respondent was discharged from the Tampa Police Department.
