The Issue The issues are 1) whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense(s); and, if so, 2) 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 Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is seeking employment with The Arc of Alachua County, a service provider regulated by APD. Petitioner’s desired employment is to work as a direct service provider, which requires compliance with background screening requirements. The results of Petitioner’s background screening identified a history of criminal offenses. Petitioner received notification via letter dated April 4, 2016, from the Department of Children and Families (DCF), Respondent’s background screening entity, of her disqualification from employment due to a criminal history. The specific disqualifying offense listed in the letter was Larceny (a violation of section 810.014, Florida Statutes (2016)1/). Florida’s Legislature has designated certain criminal offenses as disqualifying offenses, which would prevent an individual from working as a direct service provider. However, an individual may seek an exemption from the employment disqualification. The granting of an exemption from employment disqualification would allow for Petitioner’s employment as a direct service provider to APD clients. APD’s clients are a vulnerable population, consisting of those individuals whose developmental disabilities are statutorily defined as: intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid Syndrome. See § 393.063(12), Fla. Stat. Without APD’s services, these clients would otherwise require institutionalization. APD’s clients often have severe deficits in their abilities to complete self-care tasks and communicate their wants and needs. These clients are at a heightened risk of abuse, neglect, and exploitation because of their developmental disabilities and inability to self-preserve; consequently, employment as a direct service provider to APD clients is regarded as a position of special trust. APD is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers for which Petitioner seeks to qualify. See §§ 110.1127(2)(c)1. and 393.0655, Fla. Stat. Many of the tasks direct service providers perform for, and/or assist individuals with disabilities with, include those of a social, personal needs, and/or financial nature. APD relies on DCF to initially receive exemption from employment disqualification requests and compile documents received related to such requests. On or around May 10, 2016, Petitioner submitted a Request for Exemption, Exemption Questionnaire, a copy of her criminal record, character references, and other various documents (the Exemption Packet) to DCF in order to demonstrate support for the granting of an exemption from employment disqualification. DCF subsequently forwarded the Exemption Packet to APD for review. In beginning its exemption review, APD considered Petitioner’s disqualifying offense. Specifically, in December 1982, Petitioner committed the disqualifying offense of Larceny/Grand Theft (a violation of section 810.014). The court’s final disposition of the case included the withholding of adjudication of guilt, two years’ probation, and payment of costs. In its continued exemption review pursuant to section 435.07(3)(b), Florida Statutes, APD considered the following non- disqualifying offenses which Petitioner committed subsequent to her December 1982 disqualifying offense: an arrest for Worthless Check on December 23, 1995 (a violation of section 832.05, Florida Statutes); a second arrest for Worthless Check on December 23, 1995 (a violation of section 832.05); a conviction for Worthless Check on December 24, 1995 (a violation of section 832.05); an arrest for Driving While License Suspended/Revoked in June 1996 (a violation of section 322.34(2), Florida Statutes); an arrest for Worthless Check in January 2007 (a violation of section 832.05(4)(a)); and an arrest for Violation of Injunction Domestic Violence/Contempt of Court in August 2012 (a violation of section 741.31(4)(a), Florida Statutes). The Disqualifying Offense Petitioner provided an account of her disqualifying offense, Larcency/Grand Theft, in an addendum to the Exemption Questionnaire, dated August 3, 2015. Petitioner indicated in her account that she relocated to Tampa from Gainesville. She was 22 years old, single, and employed with the State of Florida. She became roommates with another female who was attending college at the University of South Florida. Petitioner stated “I have no explanation as to why the both of us committed a crime of theft.” Petitioner further explained that she received a two- year term of probation and completed all her court-ordered sanctions within a year. Petitioner also noted that “[s]ince that time, I have not committed any further crimes.” Petitioner provided the following record concerning her disqualifying offense: state attorney court record (13th Judicial Circuit, Hillsborough County, State Attorney). The Non-Disqualifying Offenses Court records received in evidence indicate a total of six non-disqualifying offenses as previously mentioned. Petitioner did not disclose any of her non-disqualifying offenses, nor did she provide accounts for such on the Exemption Questionnaire, despite the directions specifically requiring an applicant to do so. Petitioner did not provide records of her non- disqualifying offenses. Records of those offenses were obtained by APD as part of its detailed review process. Records of the non-disqualifying offenses obtained included: worthless check affidavit, witness form, copies of check, and no information filed court filing (Sears 12/23/1995); worthless check affidavit, witness form, and copy of check (Pic’n Save 12/23/1995); worthless check affidavit, witness form, copy of check, and court judgment (Pic’n Save 12/24/1995); worthless check affidavit, witness form, copy of check, copy of court diversion judgment and supporting documentation, and copy of dismissal of charge (Publix 1/30/2007); and warrant affidavit for arrest (Alachua County Sheriff’s Office, August 2012). Petitioner indicated that she has no current involvement with any court system; specifically, she stated “I have not experienced any criminal charges since my last event in 1982.” Regarding whether there was any degree of harm to any victim or property, including damage or injuries, Petitioner stated “I have not experienced any harm or damage to anyone or any property since my last event in 1982.” In answering the question about stressors in her life at the time of the disqualifying incident, Petitioner indicated that there were none, other than being on probation. Regarding whether there are any current stressors in her life, Petitioner stated “I have no current stressors with the law.” Petitioner indicated that her current support system and living arrangements include being married and having one daughter and numerous grandchildren. Petitioner also explained that her community activities/volunteer efforts include volunteering with the school system (field trips/activities) and attending church and performing functions for the church’s treasury department. Regarding educational and training achievements, Petitioner stated that she graduated from high school, started a career with the State of Florida, and attended a word processing/information course where she received the Most Outstanding Student Award. The Exemption Questionnaire asks whether an applicant has ever received counseling for any reason. Petitioner indicated that she has not received counseling for any reason; if she felt stress, she would call the Employee Assistance Program. Petitioner noted she has not experienced any “major post- traumatic [stress].” As to whether she has used and/or abused drugs or alcohol, Petitioner replied that she has “not abused any type of drugs or alcohol in [her] life.” Petitioner indicated the following regarding feeling remorse/accepting responsibility for her actions: “I am the type of person to feel remorse towards everything and every person that I have contact with. I always take full responsibility for any action(s) that I encounter when I am in the wrong.” The Exemption Questionnaire asks for an applicant’s prior three years’ work history. Petitioner provided the following information: 4/2016 to 5/2016--The Arc of Alachua County (support tech/direct care); 11/2007 to 7/2014--DCF--North Florida Evaluation & Treatment Center (Human Services Worker III); 3/2004 to 7/2007—DCF--State of Florida Foster Care (word processor/data management specialist); 4/1998 to 9/2003-- American Psychiatric Association (membership coordinator/secretary). In addition to the criminal record submitted, Petitioner also provided the following additional documents that were included in her Exemption Packet: local law background checks, a volunteer award (Head Start), three letters of reference attesting to Petitioner’s character, and an Affidavit of Good Moral Character. The letters were written by persons who have known Petitioner for several years; they described Petitioner as devoted, loyal, honest, kind, and trustworthy. Finally, Petitioner submitted a copy of an exemption letter she received from DCF, dated February 12, 2016. Leslie Richards, regional operations manager for APD’s Northeast Region, advised that APD reviewed all documentation provided by Petitioner in her Request for Exemption, the information indicated in Petitioner’s Exemption Questionnaire, the various records documenting Petitioner’s criminal history, her volunteer award, character letters, and exemption from DCF. Following a review of Petitioner’s Exemption Packet, Agency Director Barbara Palmer, advised Petitioner by a letter dated September 26, 2016, that her request for an exemption from her disqualifying offense was denied. The basis for the denial was that Petitioner failed to submit clear and convincing evidence of her rehabilitation. Petitioner sent APD a request for hearing on or around October 11, 2016. APD received this request timely and subsequently forwarded this appeal to DOAH. Along with her request for hearing, Petitioner submitted a personal statement explaining her reasons for disputing the denial and requesting the hearing, a copy of the denial letter, and a copy of a training certificate summary for APD-approved courses through her former employer, the Arc of Alachua County. At hearing, Ms. Richards explained APD’s process of reviewing exemption requests and the consideration of Petitioner’s application for such. Per Ms. Richards, APD considers the disqualifying offense, the circumstances surrounding the offense, the nature of the harm caused to the victim, the history of the applicant since the incident, and finally, any other evidence indicating that the applicant will not present a danger if employment is allowed. Additionally, Ms. Richards testified that APD looks for consistency in the applicant’s account of events in his or her Exemption Questionnaire, the passage of time since the disqualifying incident, whether the applicant accepts responsibility for his/her actions, and whether the applicant expresses remorse for his or her prior criminal acts. Because an applicant will be occupying a position of special trust if granted an exemption, APD weighs all of these factors in its determination. Ms. Richards testified that all of Petitioner’s submissions were reviewed and taken into consideration; she noted that the starting point of APD’s review began with the date of the disqualifying offense and any criminal conduct occurring thereafter. Ms. Richards emphasized that in APD’s review, it was noted that Petitioner failed to disclose sufficient details of the account of her disqualifying offense. Specifically, Petitioner provided what appeared to be background information about the time frame surrounding the offense and the person whom she committed the offense with, but indicated in her statement “I have no explanation as to why the both of us committed a crime of theft.” Petitioner provided other details about this time in her life, but nothing specific about the crime itself. Ms. Richards stated that it left APD with a concern that Petitioner was not forthright with disclosure of the circumstances involving the crime. Ms. Richards also explained that APD took note that Petitioner failed to disclose any of her non-disqualifying offenses, and that this fact was also of concern. APD obtained records of the non-disqualifying offenses and considered them in its review. Ms. Richards noted that the nature of the offenses, particularly the Worthless Checks and the Violation of the Injunction Domestic Violence/Contempt of Court, were troubling because those offenses involved monetary transactions and interpersonal relations. Ms. Richards observed that the individuals APD serves are highly susceptible to abuse, neglect, and exploitation, and a person who is in a role as a direct service provider would be assisting those individuals in a social and financial capacity. APD reviewed Petitioner’s involvement with three DCF investigations involving allegations of abuse toward a vulnerable adult, Petitioner’s spouse. Although there were no findings against Petitioner in these cases, based on the issues presented, DCF did make the recommendation for Petitioner to pursue family counseling. Ms. Richards noted that there is no evidence that Petitioner followed through with DCF’s recommendation, and by Petitioner’s own admission on the Exemption Questionnaire, has “not received counseling for any reason.” In addition to both the criminal offense and DCF- related information, APD noted Petitioner’s less than stellar driving record. Ms. Richards advised that a direct service provider will often be in a position to transport clients, and Petitioner’s driving record reflects a series of both moving and non-moving violations, which pose a concern. The record reflects a total of five driving-related violations: driving while license suspended/revoked (previously mentioned); tag not assigned (criminal traffic); red light camera citation; unlawful speeding; and a second red light camera citation. Ms. Richards testified regarding APD’s consideration of Petitioner’s prior employment history with DCF, and the subsequent exemption for employment granted to Petitioner by DCF. At hearing, APD presented employment evaluations and records of written disciplinary action taken against Petitioner by DCF while in its employ. Ms. Richards specifically noted that some of the disciplinary issues for which Petitioner was cited included: sleeping on the job while employed at a forensic facility; not securing the front door of a building at a forensic facility; tardiness; inappropriately streaming media on a state-owned computer; insubordination (refusal to work a shift); failure to report to work; and poor performance/negligence (failure to answer phones/answer front door of facility). Petitioner ultimately was dismissed from DCF due to her inability to perform her job functions because of an injury. Ms. Richards explained that these disciplinary issues gave APD great pause in considering granting Petitioner an exemption, as they were indicators for potential behaviors that could pose a great risk to individuals served by APD, many of whom are unable to communicate their wants and needs. The setting in which Petitioner committed these workplace violations mirrors those in which clients of APD are served. Ms. Richards did state that APD considered the exemption granted by DCF to Petitioner, however, the weight of the prior disciplinary issues outweighed that decision when compared to the possible jeopardy in which APD clients could be placed. Should Petitioner obtain future successful employment with DCF, APD would consider that in a subsequent exemption application review. Petitioner testified on her own behalf at the hearing. She spoke about the circumstances surrounding the disqualifying offense, reiterating her statement from the addendum to the Exemption Questionnaire. She provided no new information or surrounding details about the crime. Again, she stated that she has not had any legal issues since 1982. Regarding her non- disqualifying offenses, Petitioner remarked that she “didn’t consider those bad checks as crimes,” and though she denied being convicted of such, she admitted having overdrafted checks. Petitioner also stated that regarding the DCF investigations and the Injunction Violation/Contempt of Court charge, “that’s not why we are here today, so I am not going to talk about that.” Petitioner did admit to the driving infractions on her record, but stated that two of them, running red lights, were due to the fault of her daughter, as she was the driver at the time, rather than Petitioner. Petitioner stated that she is older and wiser and has changed. She enjoyed working at the adult day care program with the Arc of Alachua County. She indicated that any bad checks she has written, she “took care of.” Petitioner offered explanations for the disciplinary situations involving her prior employment with DCF, attempting to minimize her role. She explained that she and her husband, who Petitioner described as a vulnerable, disabled adult, no longer have domestic issues; however, they are currently homeless. Petitioner stated that APD’s denial is keeping her in an adverse financial situation, stating “I cannot find a job right now because of this denial.” When cross- examined by counsel regarding her ability to obtain gainful employment with DCF and its covered providers, Petitioner admitted that she can seek a job under DCF’s purview. Petitioner presented the testimony of two witnesses. Her sister, Sherry McCrae, a retired police officer, stated that she lived with her sister the entire time she was in college; Petitioner provided a source of support to her during this period. Ms. McCrae stated that her sister has been working all the years since the disqualifying incident. She affirmed that their maiden name is Williams, Petitioner’s last name at the time of the disqualifying incident. Petitioner’s second witness, Faye Williams, testified that after Petitioner’s disqualifying incident, she got a job and was active in the community. Petitioner has a desire “to be a part of something.” She loves people, especially children. Petitioner asserted that she enjoys working with individuals with disabilities; at her last place of employment, she believed she found her “purpose and mission.” She loves helping people. She admits she made some mistakes, but that was long ago. Petitioner argued that she “really only committed one crime”; she has rehabilitated herself and that should be enough for APD. She believes APD abused its discretion in denying her request for exemption. The individuals APD serves are vulnerable and highly susceptible to abuse, neglect, and exploitation, due to their developmental disabilities. APD’s representative observed that APD’s clients must be assigned to direct care providers without fear of their endangerment. This necessarily requires reliance on a caregiver’s good character and trustworthiness. Individuals who provide direct care are frequently responsible for assisting individuals in making decisions of a financial, medical, and social nature. APD must weigh the benefit against the risk when considering granting an exemption. Ms. Richards cautioned that Petitioner’s criminal history reflects a pattern of poor judgment. Petitioner’s failure to disclose certain details in her account regarding her disqualifying offense calls into question her trustworthiness. Additionally, failure to disclose her non-disqualifying offenses, along with a failure to recognize that those offenses are truly crimes, is not only troubling, but calls into question Petitioner’s trustworthiness. It also demonstrates a complete lack of remorse and acceptance of responsibility for her actions. Petitioner did not admit to any of the harm she caused to her victims. Petitioner’s minimization of the discipline she received while employed by DCF also gives great pause, as the individuals she was charged with caring for were clients in a forensic setting, a clear parallel to the clients she would serve should an exemption be granted by APD. Petitioner’s multiple driving citations are concerning as well, and demonstrate a pattern of questionable decision- making, especially when considering her for a position where she could potentially transport clients. All of the aforementioned factors, along with proximity in time of her application to her last arrest (2012), caused APD to question Petitioner’s fitness for providing services to the vulnerable individuals for which it is responsible, the most vulnerable population in the state. Petitioner failed to meet her burden of proving clear and convincing evidence of rehabilitation, and therefore, the denial of the exemption was proper.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Director of the Agency for Persons with Disabilities issue a final order upholding the denial of Petitioner’s exemption request. DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 22nd day of February, 2017.
The Issue Is Petitioner disqualified from adopting a child under Chapter 39, Florida Statutes, and, if so, should Petitioner be granted an exemption from disqualification?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Since the dissolution of his marriage to Selma Mingus, Petitioner has remarried. However, Petitioner's present wife, Karin Mingus, is unable to conceive a child. Therefore, Petitioner and Karin Mingus wish to adopt a child. In early 2001, Petitioner and Karin Mingus attempted to qualify for the adoption of a child through the Department under Chapter 39, Florida Statutes. In accordance with Section 435.045, Florida Statutes, the Department conducted a criminal records check of Respondent's background equivalent to a level 2 screening required in Section 435.04(1), Florida Statutes. By letter dated July 30, 2001, Jennifer J. Farr, the Department's District 14 Screening Coordinator, gave Petitioner Notice of Ineligibility for a Position of Special Trust. The letter advised Petitioner that his criminal identification record had revealed an Injunction for Protection Against Domestic Violence dated April 13, 1994, and that he could not have contact of any kind with children or developmentally disabled persons not related to Petitioner. On December 12, 1993, Selma Mingus, Petitioner's wife at the time, filed a verified Petition for Injunction Against Domestic Violence (Petition I) with the Circuit Court, Polk County, Florida, Civil Division, alleging that Petitioner had committed certain acts against her, which put her in fear of violence from Petitioner. The Petition was assigned Case No. GC-F-94-2188. On December 13, 1993, without notice or hearing, the court the Petition I. Thereafter, the court determined that it appeared that an immediate and present danger of domestic violence existed. Therefore, in accordance with Section 741.30(5)(a), Florida Statutes, the court entered a Temporary Injunction for Protection and Notice of Hearing (Ex Parte) (Temporary Injunction). Petitioner was served with a copy of the Temporary Injunction, which advised Petitioner that a Temporary Injunction had been entered and that a hearing would be held on January 4, 1994, wherein the court would consider, among other matters, whether to continue the Temporary Injunction for a period not to exceed one year. On January 4, 1994, the court held a hearing wherein the allegations contained in Petition I were heard. Although Petitioner had notice of the hearing, he elected not to attend the hearing and explain to the court his side of the story or to deny the allegations made against him by Selma Mingus in Petition I. After considering the evidence presented during the hearing, the court granted Petition I and ordered that the Injunction remain in force until January 4, 1995. The court did not order Petitioner to participate in treatment, intervention, counseling services, or batterers' intervention program. There is no evidence that Petitioner violated either the Temporary Injunction issued on December 13, 1993, or the Injunction entered on January 4, 1994. On April 13, 1994, Selma Mingus, now Petitioner's ex- wife, the dissolution of marriage having become final, filed a verified Petition for Injunction for Protection Against Domestic Violence with the Circuit Court, Polk County, Florida, Civil Division (Petition II) alleging that Petitioner had committed certain acts against her, which put her in fear of violence from Petitioner. The Petition was assigned Case No. GC-F-94-2188. The Department's Composite Exhibit 10 contains the cover page of a Temporary Injunction for Protection and Notice of Hearing (Ex Parte) indicating that this Temporary Injunction contains two pages. However, Composite Exhibit 10 contains only the first page. The second page, which is apparently the signature page, is missing. From the cover page it appears that this matter was heard on April 13, 1994. This incomplete Temporary Injunction is apparently the Injunction cited in the Notice of Ineligibility for Position of Special Trust dated July 30, 2001. There is no evidence that Petitioner was ever given notice of a hearing or that a hearing was ever held on the continuation of this incomplete Temporary Injunction or that the court made any factual findings that Petitioner committed the acts against Selma Mingus as alleged in Petition II. Furthermore, there is no evidence that the court ever ordered a continuation of the Temporary Injunction, with or without a hearing. Petitioner denies that he committed any act of violence towards Selma Mingus and refuses to accept any responsibility for the stormy relationship between him and his first wife. Furthermore, Petitioner refuses to accept the need for rehabilitation on his part. Petitioner has had, and continues to have, a problem with controlling his anger, notwithstanding his testimony to contrary. So far, Petitioner has failed to address his anger problem. Petitioner has never been charged, arrested or convicted of any crime, including domestic violence. Petitioner is in law enforcement and has been commended for his work in the area of law enforcement. Since the dissolution of his marriage to Selma Mingus, Petitioner has become involved in the church and civic affairs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Petitioner exemption from disqualification. DONE AND ENTERED this 15th day of April, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 15th day of April, 2002. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Edward D. Mingus, Jr. Post Office Box 2574 Eaton Park, Florida 33840 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
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.
The Issue The issue in this case is whether Petitioner, Kenneth Gilbert, should be granted an exemption from disqualification to work as a direct service provider with the developmentally disabled pursuant to Chapter 435, Florida Statutes.
Findings Of Fact On December 23, 1997, B.H. filed a Petition for Protection Against Domestic Violence in the Circuit Court of the 14th Judicial Circuit, Jackson County. The Respondent in the case was Kenneth Gilbert. B.H. alleged that on December 22, 1997, Mr. Gilbert committed acts of domestic violence including entry into B.H.'s home on December 22, 1997, after she denied Mr. Gilbert permission to enter. B.H. averred that Mr. Gilbert committed a battery upon her and made physical threats of violence to her. She further averred that Mr. Gilbert ripped a phone off of the wall. A Final Order of Injunction For Protection Against Domestic Violence and Order to Law Enforcement was entered on December 29, 1997. The injunction order provided, in part that "an immediate and present danger of domestic violence exists and that irreparable harm and injury will probably occur in the form of violence to Petitioner or persons lawfully with Petitioner unless this injunction is made permanent." Mr. Gilbert was ordered to "not come to any place where Petitioner [B.H.] is located" and "not harass, shadow, threaten or intimidate Petitioner." On May 4, 1998, Kenneth Gilbert was arrested by the Jackson County Sheriff's Department for the criminal offense of violating the injunction referred to in paragraph 2, above. B.H. drove into a gas station where Mr. Gilbert was, and Mr. Gilbert approached her car and attempted to kiss her. This created a disturbance and Mr. Gilbert was arrested. On May 5, 1998, the court detained Kenneth Gilbert on the charge of Violation of an Injunction for Protection Against Domestic Violence, a misdemeanor of the first degree pursuant to Section 741.31, Florida Statutes (1998). Kenneth Gilbert was referred by the court to pre-trial intervention and a counseling program called the Group Assistance Program. Although the program to which he was referred was a 26- week program, Mr. Gilbert was permitted to terminate participation after only 14 weeks for financial reasons. Based upon Mr. Gilbert's participation, the State's Attorney's Office ultimately dropped the Violation of an Injunction charge. Mr. Gilbert appears to have learned a great deal in these sessions. B.H. and Kenneth Gilbert have a daughter approximately two years of age. There have been continuing disputes regarding visitation and the unannounced appearances by Mr. Gilbert at B.H.'s place of residence. Petitioner indicated his desire to support and care for his daughter. B.H. does not want to have contact with Petitioner and views his desire to see the child as disruptive. No court ordered visitation has been established. B.H. works at the Sunland in Marianna and is familiar with the care required to be provided. She opined that Petitioner could provide such care without risk to residents based on her knowledge of Petitioner and the work. B.H.'s allegations of continued threats of personal violence by Kenneth Gilbert are not credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered by the Department of Children and Family Services granting Petitioner's request for an exemption from disqualification pursuant to Chapter 435, Florida Statutes. DONE AND ENTERED this 27th day of May, 1999, 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 27th day of May, 1999. COPIES FURNISHED: Kenneth Gilbert Post Office Box 522 Greenwood, Florida 32443 Steven Wallace, Esquire Department of Children and Family Services Suite 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 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
Findings Of Fact For purposes of the Motion, the following allegations contained in the petitions are accepted as true: Albert Figueroa is an approved visitor for an inmate in the custody of the Florida Department of Corrections. Albert Figueroa regularly visits an inmate under the custody of the Florida Department of Corrections. Jaylin Figueroa has a brother in the custody of the Florida Department of Corrections. Jaylin Figueroa regularly visits with this brother. Martin Glick is on the Florida Department of Corrections approved visitor list for an inmate in its custody. Imposition of visitation restrictions upon an inmate, including indefinite suspension of these privileges, would affect the Petitioners’ visitation of that inmate.
The Issue Whether Petitioner, M.B. Doral, is entitled to attorneys’ fees and costs pursuant to section 120.595(4), Florida Statutes (2019); and, if so, the amount.
Findings Of Fact On December 21, 2018, Petitioner MB Doral filed a Petition Challenging Validity of Existing Rule 61A-4.020 and Determination Regarding Unadopted Rule, in DOAH Case Number 18-6768RX. On January 25, 2019, the undersigned entered an Order Granting Respondent’s Motion to Bifurcate and Stay Proceedings, which stayed MB Doral’s unadopted rule challenge pending the proposed rulemaking that would promulgate ABT Form 6017. On October 16, 2019, amendments to rule 61A-4.020 became effective, which promulgated ABT Form 6017. On November 6, 2019, the undersigned entered an Order Dismissing Unadopted Rule Challenge and Retaining Jurisdiction, which dismissed MB Doral’s remaining unadopted rule challenge and retained jurisdiction to consider a request for attorneys’ fees and costs, pursuant to section 120.595(4)(b). On December 3, 2019, MB Doral filed a Motion for Attorneys’ Fees and Costs (Motion), seeking an award of attorneys’ fees and costs incurred in the unadopted rule challenge pursuant to section 120.595(4)(b). The Motion alleges that MB Doral advised the Department, in writing on at least seven occasions prior to filing the rule challenge petition, and beginning on May 19, 2015, that the Department’s failure to adopt ABT Form 6017 constituted an unadopted rule. The Motion also alleges that the Department did not file a notice of rulemaking until January 28, 2019. The Motion further alleges that the Department has never alleged that the federal government required ABT Form 6017 to implement or retain a delegated or approved program or to meet a condition to receipt of federal funds. On December 10, 2019, the Department filed its Response in Opposition to Petitioner’s Motion for an Order Awarding Attorneys’ Fees and Costs. On February 11, 2020, the Department filed a Notice of Filing Joint Stipulation for Attorneys’ Fees and Costs, which included the Joint Stipulation for Attorneys’ Fees and Costs. The Joint Stipulation states that the Department agrees to the entry of a final order assessing the sum of $7,500.00 for attorneys’ fees and costs in the unadopted rule challenge, which the undersigned bifurcated from the existing rule challenge in DOAH Case No. 18-6768RX, which is currently pending before the First District Court of Appeal in Case Number 1D19-0820. The Joint Stipulation further states that the parties agree that this Final Order should direct the Department to seek immediate approval for payment within 30 days of this Final Order, and that the undersigned retains jurisdiction to enforce the terms of this Final Order.
