Findings Of Fact James W. Collins was suspended without pay for thirty (30) days effective February 9, 1976, having been charged with conduct unbecoming a public employee and willful violation of rules, regulations, directives or policy statements governing behavior of employees of the Department of Offender Rehabilitation and Sumter Correctional Institution. Specifically, he was charged with being intoxicated on institutional grounds and creating a disturbance by profane and abusive language directed toward other employees, loud and repeated knocking on the doors of other employees' rooms in the Bachelor Officer's Quarters during the night of February 5, 1976, and the early morning hours of February 6, 1976. Petitioner denied that he was intoxicated and requested an administrative hearing. Petitioner James W. Collins lived in the Bachelor Officer's Quarters of Sumter Correctional Institution of the State of Florida in the month of February, 1976. Beer was available and allowed after working hours and employees were allowed to consume beer and other refreshments after working hours. The Petitioner consumed approximately three (3) beers after five o'clock on February 5, 1976. He went to his room after 8:00 P.M. and later knocked on the doors of various persons who were also employed by the Department of Offender Rehabilitation and who lived in the Bachelor Officer's Quarters. He then went to the Administration Building. He appeared in an unstable condition and returned again to the BOQ Building and knocked on the door of a fellow employee asking for change. Later, in the early morning hours of February 6 about 2:30 A.M., Collins again left his room and was making noise either emptying trash or rummaging through the trash cans in the parking lot where he again met the officer in charge. Petitioner had consumed beer on the night in question after hours which was allowed by the institution. The fact that he knocked on the doors of various other persons, entered the lounge area in the Administration Building and later was in the parking lot emptying trash or rummaging through the cans is not conclusive that the Petitioner was in fact intoxicated even though alcohol or beer odor could be detected on his person. The Petitioner is a diabetic and his actions were consistent on the night in question with one who is suffering from this disease or one who is intoxicated. His contention that he was seeking change from his friends to use in a drink or candy machine or to acquire sugar to relieve him from his diabetic condition is consistent with the actions of a person seeking relief from the effect of the disease. There is no proof that the Petitioner James Collins was in fact intoxicated. The fact that Petitioner suffered diabetes and accepted employment in a sensitive area like the Sumter Correctional Institution should require him to protect his employment and his physical condition and refrain from the use of alcohol. He should keep within his quarters a sufficient amount of treatment such as sweets for his condition and keep sufficient change on hand in order not to burden others with his deficiencies. The failure to protect himself against his actions which resulted in the disturbing of a number of employees during the night in question shows the Petitioner to be remiss in his obligation toward his job, himself and others. A certified letter with return receipt requested was addressed and sent to the Petitioner Collins at his abode in the Sumter Correctional Institution's BOQ, Room 312, Bushnell, Florida 33513. The letter of suspension was sent pursuant to Rule 22A-1.05, Florida Administrative Code. Petitioner had been orally informed of his suspension and the time of his suspension and the length of it at the meeting with his superintendent. The fact that the certified letter was sent to a mailbox in Bushnell which merely put into writing information the Petitioner already had did not deprive him of any of his rights. It was the mailbox at which Petitioner received his mail and the fact that the institution has his Tallahassee address did not require it to send his letter of suspension, about the facts of which he was fully informed, to the Tallahassee address.
Recommendation Withdraw the penalty of suspension without pay and substitute a written reprimand. DONE and ORDERED this 11th day of April1 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Raymond W. Gearey, Esquire Room 300, Building 5 1311 Winewood Boulevard Tallahassee, Florida 32301 Jerry Traynham, Esquire 1215 Thomasville Road Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA IN THE APPEAL OF JAMES COLLINS DOAH NO. 76-2050 DOCKET NO. 76-56 AGAINST SUSPENSION BY THE DEPARTMENT OF OFFENDER REHABILITATION / OPINION AND ORDER Chairman Catherine W. Chapin and Members Clare C. Leiby and Edwin G. Fraser participating. This cause came on to be heard by the Career Service Commission on May 11, 1977, in Tallahassee, Florida. The Commission has considered the Recommended Order by Hearing Officer Delphene C. Strickland and the record of this appeal. The Commission hereby accepts, adopts and incorporates by reference the Findings of Fact as set forth in the Recommended Order, dated April 11, 1977. The Commission must reject, however, the Conclusion of Law and Recommended Penalty and submits the following conclusions. While the Hearing Officer did not conclusively find that Collins was intoxicated, the facts presented do support the Agency's charge of conduct unbecoming a public employee. The Hearing Officer concluded that the Petitioner was guilty of this general charge, based on the evidence brought out at the hearing, and recommended altering the suspension to a written reprimand. Inasmuch as the designated Hearing Officer is vested only with such authority as the Commission possesses, the Hearing Officer's recommendation to alter the penalty is impermissible. The Agency's disciplinary action of a 30-day suspension being within its authority was supported by the evidence and as set forth in the Hearing Officer's Findings of Fact. Wherefore, it is ORDERED that the action of the Agency be, and the same is, hereby sustained. It is further ORDERED that the Motion for Reconsideration having been considered, the same is hereby denied. DONE AND ORDERED this 10th day of June, A.D., 1977. CATHERINE W. CHAPIN, Chairman Career Service Commission CERTIFICATE OF SERVICE I hereby certify that copy of the foregoing Order was furnished by certified U.S. mail, return receipt requested, to Mr. Jerry G. Traynham, Attorney at Law, 1215 Thomasville Road, Tallahassee, Florida 32303, and Mr. Raymond Gearey, General Counsel, Department of Offender Rehabilitation, 1311 Winewood Boulevard, Tallahassee, Florida 32301, and by regular U.S. mail to Mrs. Delphene C. Strickland, Hearing Officer, Room 530, Carlton Building, Tallahassee, Florida 32304, this 23rd day of June, A.D., 1977. CAREER SERVICE COMMISSION BY: Susan Turnbull
The Issue The central issue in this case is whether Petitioner's employment with the Respondent was terminated in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of this case, Petitioner was an employee of FRSA. On or about September 26, 1989, Petitioner's employment with FRSA was terminated and the charges of discrimination were filed. Prior to termination, Petitioner's work performance with the company had been acceptable. In fact, for the performance review issued on January 31, 1989, Petitioner received a superior rating in eight of the eleven categories, a good rating in two categories, and an outstanding rating in one category. At the time of her termination with FRSA, Petitioner earned an annual salary of $35,000. Petitioner claims a total of $83,568 for the lost wages and benefits resulting from her termination with FRSA. At the time of her termination, Petitioner was pregnant.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the charge of discrimination filed by the Petitioner in this cause against the Respondent. DONE and ENTERED this 4th day of September, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 COPIES FURNISHED: Elizabeth Rubeis Reno Rubeis 4350 Wyndcliff Circle Orlando, Florida 32817 Susan McKenna Garwood & McKenna, P.A. 322 East Pine Street Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1992. Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue Whether the Petitioner is subject to disqualification under the statutes, and Whether the Petitioner should be granted an exemption.
Findings Of Fact In 1992, Petitioner acted as a look-out for Raymond Dickens when Raymond Dickens stole a set of tire rims from the Chevrolet dealer in Quincy. While acting as the look-out, Petitioner decided to disassociate himself from this act, and Petitioner reported the theft, which was in progress, to the police. The police investigated, and spoke with Petitioner about it. Petitioner admitted his part in the theft, identified Dickens and plead nolo contendere to grand theft. On September 23, 1992, the Court withheld adjudication, and placed Petitioner on probation for 18 months. In nine months Petitioner satisfactorily completed the probation. Thereafter, Petitioner took a course in Jacksonville on how to operate heavy equipment, and learned how to drive tractor trailers. His father, who had been a tractor trailer driver until he was injured, gave Petitioner a truck, and Petitioner began to drive with his father who continued to teach him how to be a driver. In 1995, Petitioner was self-employed or driving on contract for several companies. However, in fall of 1995, Petitioner's father did not want to be on the road, and Petitioner applied for and was employed as a human service worker at the State Hospital at Chattahoochee. The background investigation revealed Petitioner's plea to grand theft in 1992, and Petitioner was disqualified from employment. Petitioner requested an exemption, and the Department of Health and Rehabilitative Services denied his request after an appearance before its review committee. Thereafter, Petitioner requested a formal hearing, and, in the interim, was employed as a dump truck driver in Tallahassee until approximately six weeks prior to the formal hearing. Most recently, Petitioner has been putting his truck in order to take it back out on the road. Petitioner wanted an exemption to do work as a human service worker because he did it for five months, did a good job, and enjoyed it although it does not pay as much as truck driving.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that Victor Bush be determined not to be required to obtain an exemption because the disqualification which was applied to him was not effective until after the date of commission of the disqualifying offense, or alternatively, that Victor Bush be granted an exemption if the Department determines one is required. DONE AND ENTERED this 28th day of October, 1996, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996.
The Issue Whether the suspension of the Petitioner Nelson was based on just cause.
Findings Of Fact Allen T. Nelson, Petitioner, was employed by the Department of Education, Division of Universities, University of Florida, as a Career Service employee Custodial Worker in the Physical Plant Division. During a three and a quarter month period of time the official attendance record disclosed 20 attendance deficiencies ranging from 15 minutes tardy to unauthorized absences for a full day. The employee had received an oral reprimand on July 8, 1977 for unsatisfactory attendance; a written reprimand on July 29, 1977 for unsatisfactory attendance and on September 29, 1977 was advised that his probationary period as a Groundskeeper II was unsatisfactory because of his attendance record. Because his probation was unsatisfactory, he was returned to his permanent position as a Custodial Worker. Notwithstanding official reprimands as well as counseling from his immediate supervisor, Mr. Earl Davis, and the Personnel representative for the Physical Plant Division, Mr. Danny Busseni, the employee's pattern of poor attendance and tardiness continued. While suggesting that some of his tardiness was caused by transportation problems and some of his absences were caused by family sickness and personal business, the employee was unable to give any clear or convincing reason why his attendance patterns were in any manner excusable. The employee indicated that he felt that the agency had not treated him fairly and this was one of the reasons for his poor attendance. Documentary evidence submitted by the employer confirms the steps of progressive discipline taken against the employee in an effort to improve his attendance record. The Guidelines for Standards of Disciplinary Action promulgated by the University provide that for unsatisfactory attendance the first offense shall result in an oral reprimand, the second offense in a written reprimand and that following a third offense the employee may be suspended for one week or dismissed. 8, All employees were aware of the guidelines which were incorporated in an Employee Handbook, covered in employee orientation sessions as well as being posted in areas where Career Service Employees are employed. Competent substantial evidence exists to sustain the action of the agency and "just cause" for the suspension of the employee is evident.
Recommendation Sustain the decision of the Respondent University of Florida. DONE and ENTERED this 31st day of May, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen T. Nelson 227 N.W. 7th Avenue Gainesville, Florida 32611 Ashmun Brown, Esquire 207 Tigert Hall University of Florida Gainesville, Florida 32611 Mrs. Dorothy Roberts Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
Findings Of Fact The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on April 1, 2011, and the Amended Order of Penalty Assessment issued on April 19, 2011, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On April 1, 2011, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-110-1A to LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Section 120.569 and 120.57, Florida Statutes. 2. On April 1, 2011, the Stop-Work Order and Order of Penalty Assessment was personally served on LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On April 19, 2011, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-110-1A to LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. The Amended Order of Penalty Assessment assessed a total penalty of $12,985.36 against LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. 4. On April 29, 2011, the Amended Order of Penalty Assessment was. personally served on LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC failed to answer the Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment or request a proceeding in accordance with Sections 120.569 and 120.57, Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Board of Nursing revoke respondent's license number 83209-2. It is further recommended that upon proof of counseling or other rehabilitative measures taken by respondent, the Board exercise its discretion to relicense respondent with examination after a period of six months has elapsed. Respectfully submitted and entered this 28th day of April, 1977, in Tallahassee Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Geraldine Johnson, R.N. Licensing and Investigative Coordinator Florida State Board of Nursing 6501 Arlington Expressway Bldg. B. Jacksonville, Florida 32211 Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 Patrick V. Clancy, Esquire 2420 Garfield Street Hollywood, Florida 33020
The Issue The issue presented is whether certain personnel policies of the Department constitute unpromulgated rules.
Findings Of Fact Petitioner was employed by the Department of Health and Rehabilitative Services, the Department of Health's predecessor agency, on July 15, 1994. When she was dismissed from her employment by the Department of Health on May 18, 1998, she was a permanent career service employee. Petitioner appealed that dismissal to the Public Employees Relations Commission. Her appeal is still pending but was stayed so that Petitioner could pursue this action. Petitioner was dismissed for allegedly violating the following standards for disciplinary action, which apply to all Department employees. 9. Violation of Rules, Regulations or Policies. An act which results in an unintentional violation of a rule, regulation or policy that has been made known to the employee. First Occurrence. Oral reprimand to written reprimand. Second Occurrence. Suspension of up to 10 days. Third Occurrence. Dismissal. 26. Negligence. The failure to use ordinary or reasonable care in, or the omission of or inattention to, the performance of assigned duties or responsibilities. Negligence is synonymous with carelessness and signifies lack of care, caution, attention, diligence or discretion. Failure to provide direct client care or custody. First Occurrence. Written reprimand to dismissal. Second Occurrence. Ten-day suspension to dismissal. Third Occurrence. Dismissal. 29. Conduct Unbecoming a Public Employee. Conduct, whether on or off the job, that adversely affects the employee's ability to continue to perform his current job, or which adversely affects the department's ability to carry out its assigned mission. First Occurrence. Written reprimand to dismissal. Second Occurrence. Ten-day suspension to dismissal. Third Occurrence. Dismissal. 34. Failure to Report Client Abuse to the HRS Abuse Registry. Failure to report to the HRS Abuse Registry any mistreatment, abuse, neglect, or exploitation of a client immediately upon becoming aware of such treatment. First Occurrence. Suspension of up to 30 days to dismissal. Second Occurrence. Dismissal. The dismissal letter acknowledged that Petitioner's alleged violation of each of these standards was a first occurrence. These standards have not been promulgated as rules pursuant to Section 120.54(1), Florida Statutes. The Department has delegated authority to impose disciplinary action to over 100 various administrators throughout Florida. Each of those administrators exercises that authority over the Department employees within that administrator's unit or division. The Department does not have a policy or practice which requires dismissal of any employee suspected of not reporting abuse. Each situation is reviewed on a case-by-case basis. The application of the Department's standards for disciplinary action is subject to administrative discretion. Although the Department's Tallahassee office renders assistance and advice to the individual unit or division considering disciplinary action against a Department employee, when requested, the Department's Tallahassee office does not make the decision as to whether to discipline an employee or as to what penalty to impose. The decisions as to whether to discipline an employee and as to the penalty to be imposed are made by the administrator of the unit or division to which the employee is assigned.
The Issue Whether Petitioner, Cassondra Davis, suffered an adverse employment action as a result of unlawful discrimination.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made. Petitioner, Cassondra Davis, is a female African- American. At all times material, Petitioner was employed by Respondent, Department of Corrections, at Brevard Correctional Institution (Department). Petitioner's last day of actual work at the Department was April 10, 1996. Susan Blais, Personnel Manager at Brevard Correction Institution during the relevant time frame, testified that because of medical problems, Petitioner was unable to return to work after April 10, 1996, until her physician released her to return to work. Petitioner never presented a medical return-to-work release. Instead, she utilized her entitlement to Family Medical Leave Act leave. Once this leave was exhausted, rather than terminate Petitioner, the Department wrote to her physician, Dr. F. F. Matuk, on September 16, 1996, requesting a diagnosis of Davis' condition, as well as an opinion as to whether she could perform the duties of a correctional officer as outlined in a job description enclosed with the request for opinion. (Respondent's Exhibit 1) Dr. Matuk responded to the Department by letter dated September 20, 1996, stating that Petitioner had several work restrictions, including no weight manipulation over 20 to 30 pounds, avoidance of driving over 30 to 40 minutes, avoidance of neck extension, and allowances for extended periods of rest. He did not believe that Petitioner was able to perform the duties of a correctional officer but stated that she would most likely be able to perform a sedentary desk job. (Respondent's Exhibit 2) Susan Blais testified that no such desk jobs were available at that time. Petitioner submitted a letter of resignation to the Department in July 1997, wherein she attributed the resignation to medical reasons. (Respondent's Exhibit 3)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 26th day of March, 2001. COPIES FURNISHED: Azizi M. Coleman, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cassondra A. Davis 1009 Cannes Drive Poinciana, Florida 34759-3918 Cassondra A. Davis 1216 Pua Lane, No. 107 Honolulu, Hawaii 96817-3821 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issues in this case are: (1) whether Petitioner has been rehabilitated from her disqualifying offense(s); and, if so, whether the intended action to deny Petitioner's exemption request pursuant to section 435.07(3), Florida Statutes (2015),1/ would constitute an abuse of discretion by Respondent.
Findings Of Fact Based on the evidence adduced at the hearing, and the record as a whole, the following material Findings of Fact are made: Petitioner was a 52-year-old female who sought to qualify, pursuant to section 435.07, for employment in a position of trust as a direct service provider for physically or mentally disabled adults or children. This position requires the successful completion of a Level 2 background screening. See § 435.04, Fla. Stat. APD is the state agency responsible for licensing and regulating the employment of persons in positions of trust. Specifically, the mission of the Agency includes serving and protecting the vulnerable population, including children or adults with developmental disabilities. In conformance with the statute, Petitioner was screened by APD since she applied for a position of special trust as a direct service provider of APD. The screening revealed, and the parties stipulated at the hearing, that Petitioner was convicted of the following disqualifying offenses: Theft by Shoplifting--Felony--1987 Theft by Shoplifting--Felony--1987 Forgery (4 counts)--Felonies--1993 Theft by Shoplifting--Felony--1993 Battery-Family Violence--Misdemeanor-- 1996 Forgery--Felony--1998 The stipulation also included the fact that 17 years have elapsed since the last disqualifying offense was committed. The screening revealed, and the parties also stipulated at the hearing, that Petitioner was arrested or convicted of the following non-disqualifying offenses: Simple Battery--Misdemeanor--arrested-- dismissed--1987 Theft by Conversion--convicted--1993 Driving Under the Influence--convicted-- 1994 Criminal Trespass--Misdemeanor-- convicted--2000 The stipulation also included the fact that 15 years have elapsed since the last non-disqualifying arrest or conviction was committed. Rosita Martin At the time of the hearing, Petitioner was unemployed. She had last been employed at Martin's Group Home as a caregiver of vulnerable children who had disabilities or behavioral problems. Her duties included giving out medicines, assisting clients with bathing, and taking kids on outings and to church. She also helped to cook. She explained that most of her convictions occurred during a period of her life when she was in an abusive marriage and suffered from depression. She acknowledged that, during that time period, she was abusing drugs (cocaine) and alcohol. During that same period of time, she admitted that she had purchased and also possessed marijuana. She explained that her battery conviction in 1996 related to a domestic dispute with her husband. She called the police, and they took them both to jail. Although she said she was defending herself, she admitted that she had been convicted and found guilty of battery. Petitioner testified that she is a "good girl now." She attends church every Sunday and "left her problems with drugs." She got sick and tired and "told God to take it away from me and he did." Petitioner testified that she has not used any type of illegal drugs for 20 years. Her sister operates four group homes for children with disabilities. Petitioner worked at one of the homes, and her sister wrote her a letter of support in this case. The evidence was undisputed that she received "excellent" evaluations while at Martin Group Home. Currently, she lives with her daughter, and a granddaughter who is two years old. As a result of one of Petitioner's various felony convictions, she testified that she was ordered to attend in- house drug treatment at the Willingway Hospital in Statesboro, Georgia. Upon questioning by the undersigned, Petitioner stated that she was in rehabilitation at the hospital for "like 6 months" back in the 1990's.2/ The various letters of support and reference provided by Petitioner came from her relatives. These included her sister and father. The record reflects that Petitioner attended and successfully completed numerous training courses (e.g. medicine administration, CPR training, blood borne pathogens, HIV safeguards, etc.) that related to the caretaker work she performs.3/ Other than two certificates for domestic violence training in 2011 and 2012, the other training and educational completion certificates did not relate to treatment or counseling programs related to her drug use, alcohol use, psychological counseling, or financial training-–the personal issues she struggled with in her past when the disqualifying events took place. The evidence reflected that she had numerous and chronic driving violations, pertaining primarily to failing to pay road tolls. She claimed that all of these toll violations occurred when her daughter was driving her car.4/ On cross-examination, Petitioner conceded that she failed to provide a detailed version of the facts or a full explanation for each criminal offense listed on her exemption form.5/ Petitioner claimed that she was "new at this" and did not understand the details she was supposed to provide. For the criminal offenses involving theft of property, she claimed on the form, and testified, that there was "no harm" to the victim. Again, she claimed some confusion and stated that she thought that they were talking about harm in the "violent" sense. She was also cross-examined about the six-month drug treatment program that she testified she had attended at Willingway Hospital. She was asked why she did not provide that information to the Agency in the exemption form or provide the agency with a copy of a completion certificate. Inexplicably, she was unable to provide a satisfactory explanation during the hearing for why she did not disclose the drug treatment program on the exemption questionnaire. She claimed that since the court had ordered her into treatment, she did not think it was necessary to specifically list or describe it. She was asked why she was not able to provide a letter of recommendation from her church pastor. She did not provide an adequate explanation and simply stated that she attends church but is not a church member, that she just goes to church there every Sunday. She worked briefly at a company called Best Walks of Life. Her supervisor was her son, Mr. Walker. No details were provided concerning what she did there. She acknowledged that much of her criminal activity arose from or was related to problems with monetary or financial issues; yet, she conceded that she had not taken any financial courses or other classes to obtain financial or budgeting training or counseling. After working for her sister at Martin Group Home, she has not made any attempts to work in any other places or group homes since leaving. Darnisha Johnson Petitioner is her mother. The witness is 24 years old and lives with her daughter at her mother's house. She testified that her mother is "a great person today. She's great." She also stated that her mother is a "much better person" then when she was involved in criminal activity.6/ She also felt that her mother is not using any drugs now. She acknowledged that she has a car, but that it is in her mother's name. In the context of who pays the bills today and supports her financially, she characterized her mother's role as being her "support system." She also admitted that any failures to pay tolls while driving the vehicle registered in her mother's name were her responsibility. Molita Cunningham She is a friend of Petitioner's. She works as a certified nursing assistant and is certified as such with the State of Florida. She has known Petitioner for a little over three years and met her at a Family Dollar store. She wrote a letter of support for Petitioner. She was not aware of any facts to suggest that Petitioner was engaged in criminal activity, drug abuse, or abuse of her clients in any manner. She acknowledged she had a background similar to Petitioner's. She was "out there in the streets" and is a convicted felon. Other than being a general character witness, the witness offered no substantive evidence touching upon Petitioner's rehabilitation from the disqualifying offenses. Evelyn Alvarez Ms. Alvarez is employed with the Agency as the regional operations manager for the Southern Region.7/ She obtained a master's degree in public administration from Florida International University in 2000. APD serves individuals that have specific developmental disabilities. The disabilities include intellectual disabilities, autism, cerebral palsy, spina bifida, and the like. Her role in this case was to review the background information gathered by both the Department of Children and Families and APD on Petitioner. After her review, the package of information was sent to an exemption committee. That committee then independently reviewed the exemption package and made its own recommendation to the Director of APD. Before deciding on the exemption request, the Director reviewed both Ms. Alvarez's recommendation and the recommendation of the exemption committee. She correctly acknowledged that the applicant for an exemption from disqualification must prove rehabilitation by clear and convincing evidence. She also correctly noted that the Agency should consider the circumstances of the disqualifying offense(s), the nature of the harm caused to any victims involved, the history of the employee since the incident and any other evidence indicating that the employee will not present a danger to the vulnerable or disabled adults or children they serve. APD was concerned that Petitioner failed to follow directions and provide the details for each disqualifying criminal event.8/ Also, Ms. Alvarez was concerned that Petitioner's failure to acknowledge that someone was "harmed" by the theft or forgery crimes ignores that there were victims involved, and the response fails to show an acceptance of responsibility for the crime(s). Ms. Alvarez testified that the Agency has no idea what happened with each of the disqualifying events, or of any circumstances that were happening at the time that would allow APD to understand why Petitioner would commit the offenses, and that there was no acknowledgment of any harm to any victims. In the opinion of Ms. Alvarez, the training certificates provided by Petitioner were not persuasive evidence of rehabilitation. More specifically, they were only indicative of employment training and did not include anything in terms of addressing Petitioner's substance abuse issues, her inability to manage her finances, or her involvement in acts of domestic violence. In APD's opinion, the lack of any treatment or professional counseling for those issues militated against a finding of rehabilitation. Likewise, Petitioner did not describe her alleged six- month, in-house drug rehabilitation program in the exemption application, nor was there any certificate of completion of drug treatment provided. APD concluded that Petitioner used poor judgment during an incident when she invited her friend, Ms. Cunningham, to spend a day on the job at Martin Group Home with Petitioner's disabled and vulnerable children. APD felt that this was a breach of client confidentiality, HIPAA rights, and may have put some of the children at risk around a visitor who did not have a background check or clearance to be at the facility. There were no professional references or letters of support offered by Petitioner from past employers (other than from group homes involving her relative). Likewise, there were no letters attesting to her good moral character from her church or other faith-based relationships she may have established. Ms. Alvarez testified that the reason the Agency wants letters of reference from individuals who do not have a conflict of interest is to show her character. Examples of letters of reference would be from a pastor or from an organization where someone had volunteered. The letters provided by Petitioner, while useful, did not reflect an impartial view of her character.9/ The Agency determined that it had no basis of reference for the character of Petitioner due to her failure to provide more impartial references.10/ In Ms. Alvarez's opinion, after reviewing the completed application, Petitioner had not provided any evidence, and APD had no knowledge, to support a finding of rehabilitation. Furthermore, APD did not have any knowledge of any financial planning or budgeting courses that Petitioner may have taken to show rehabilitation in the area of her finances. APD considered it significant during its review that Petitioner had been charged with driving while license suspended ("DWLS") (a criminal traffic offense) in 2012 and again in 2013, less than two years before the application. (Both DWLS offenses were subsequently dismissed.) Respondent's Exhibit 9, Petitioner's Florida Comprehensive Case Information System driving record, reflects in excess of 20 failures to pay required highway tolls in a two-year period from 2012 to 2013.11/ Petitioner did not provide any explanation for her driver's license problems to the Agency at the time of her Exemption Application. The Agency had no knowledge of the facts and circumstances surrounding the DWLS citations. Ms. Alvarez testified that traffic offenses and driving habits are important considerations, since direct service providers are often required to transport persons with developmental disabilities In essence, APD concluded that Petitioner had fallen short of her burden of showing rehabilitation by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities confirm its previous intended denial and enter a final order denying Petitioner's application for an exemption from disqualification. DONE AND ENTERED this 27th day of July, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 27th day of July, 2016.
