The Issue The issue in the case is whether the Petitioner’s request for exemption from employment disqualification should be approved.
Findings Of Fact On June 21, 1991, Aaron Foreman (Petitioner) was convicted of one count of "possession of THC with intent to deliver" in the Circuit Court of Walworth County, State of Wisconsin, Case Number 90CR00080. At the time of the arrest, the Petitioner was a student at the University of Wisconsin in Whitewater. He resided with several other students in the upstairs apartment portion of a residence. On or about February 1, 1990, local Whitewater law enforcement officials, apparently investigating one of the roommates for burglary, executed a search warrant and entered into the apartment where the Petitioner was living. During the search of the apartment, law enforcement officers discovered a quantity of marijuana in the apartment and bedrooms of the residents. The Petitioner had a refrigerator in his bedroom, within which law enforcement officers discovered a large plastic bag containing 26 smaller plastic bags, each containing a quantity of marijuana. The total weight of the plastic bags of marijuana within the Petitioner's refrigerator was identified in the charging document as approximately 126 grams. In Count One of the charge, the Petitioner and three other persons (apparently the roommates) were jointly charged with possession with intent to deliver more than 500 grams of THC, an element of marijuana. In Count Four of the charge, the Petitioner was individually charged with possession with intent to deliver 91 grams of THC. The record of the hearing does not establish the reason for the difference between the weight of the marijuana allegedly discovered and the THC quantities with which the defendants were charged. According to the Petitioner's testimony at hearing, the Petitioner participated in marijuana use, and bought and sold marijuana within a "small circle of friends" and his roommates. On June 21, 1991, the Petitioner entered a plea of "no contest" to Count Four as part of an agreement to resolve the drug possession charges, and as stated previously, was convicted of felony under Wisconsin law. According to the Judgement of Conviction, Count One of the charge was dismissed. As a result of the plea agreement, the Petitioner was sentenced to nine months in jail, two years of probation, and a fine of approximately $2,700. The Petitioner served the jail sentence in a work release program, continued to attend college and obtained an undergraduate degree in sociology from the University of Wisconsin. The Petitioner paid the fine imposed by the sentence and successfully completed the probationary period as of September 19, 1993. Subsequent to completion of the sentence, the Petitioner became employed as a licensed social worker in Wisconsin. From 1993 to 1999, the Petitioner was employed by "Southeastern Youth and Family Services," as a social worker. The Petitioner's employment evaluations range from "very good" to "outstanding." In July 1999, the Petitioner underwent a background screening prompted by his application for employment by Eckerd Youth Alternatives, Inc., a program that, in part, provides services to young persons involved in the juvenile justice system and funded through contract with the Florida Department of Juvenile Justice (Department). Based on the conviction, the Department notified Eckerd Youth Alternatives, Inc., that the Petitioner was disqualified from employment. The Petitioner requested that the Department review the disqualification. The Department responded by letter dated June 19, 1999, advising that the desk review would be granted and identifying the information that the Petitioner was required to submit to facilitate the review. The Petitioner responded to the June 19 letter by supplying the requested information to the Department. The matter was apparently reviewed by a "Priscilla A. Zachary, BSU Supervisor" for the Department, who forwarded the file along with a cover memo to Perry Turner, the Department's Inspector General. As Inspector General, Mr. Turner is the person authorized by the Department to make decisions on disqualification exemption applications. Ms. Zachary's cover memo incorrectly identifies the crime for which the Petitioner was convicted and states that the Petitioner's June 21, 1991, conviction was for "Possession with Intent to Deliver" more than 500 grams of THC. According to the Judgement of Conviction, Count One of the charge, wherein the Petitioner and other persons were jointly charged with possession with intent to deliver more than 500 grams of THC, was dismissed. On August 5, 1999, Mr. Turner determined that the Petitioner's application for exemption should be denied. Mr. Turner based his decision on his belief that the Petitioner's felony conviction was for an amount of marijuana beyond that which Mr. Turner believes could be reasonably identified as being for "personal use" and which was intended for distribution. By letter dated August 5, 1999, the Petitioner was notified of the Department's decision by letter and advised of his right to challenge the denial in an administrative hearing. During the hearing, the Petitioner testified as to the events leading to his conviction and identified his efforts at rehabilitation. At the hearing, the Petitioner testified that his initial experience with marijuana occurred in approximately 1988, when he entered the University of Wisconsin at Whitewater. The Petitioner testified that at the time of the 1990 arrest, he was an "immature" college student who recreationally used marijuana within his circle of friends and with whom he sold or exchanged marijuana. Other than the Petitioner's admission, there is no evidence that the Petitioner actually sold marijuana. There is no evidence that the Petitioner was arrested or charged with the sale of marijuana. There is no evidence that the Petitioner was a part of any continuing marijuana distribution organization. There is no evidence that, other than the arrest at issue in this proceeding, the Petitioner has ever been arrested for any other reason. Review of the charging documents suggests that the charge of "intent to deliver" was based on the quantity of the marijuana found in the apartment and the apparent candor with which the residents dealt with the law enforcement officials who executed the search warrant and investigated the situation. The Petitioner's arrest occurred approximately eleven years ago. The Petitioner's conviction was approximately ten years ago. The Petitioner completed the probationary portion of his sentence more than seven years ago. There is no evidence that there was any physical injury or harm done to any individual as a result of the Petitioner's conviction. There is no evidence that granting the Petitioner's request for exemption presents a danger to the Petitioner or to any other person. The Petitioner has continued with his education and in December 2000 received his master's degree in Criminal Justice from the University of Wisconsin in Milwaukee. The Petitioner has also sought to obtain a pardon from the Governor of Wisconsin. By letter dated August 28, 2000, the Governor's Pardon Advisory Board notified the Petitioner that it was recommending to the Governor that a pardon be granted. Although the vote by the Board was not unanimous, the majority of the members believed that the pardon should be granted "based on positive adjustment, lack of subsequent criminal justice system contacts, non-violent nature of the crime, and valid job concerns." As of the date of the hearing, the Governor of Wisconsin had not acted on the Board's recommendation to grant the Petitioner's pardon request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice grant the request of Aaron Foreman for exemption from employment disqualification. DONE AND ENTERED this 26th day of February, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 February, 2001. COPIES FURNISHED: Aaron Foreman 10500 West Fountain Avenue Apartment No. 411 Milwaukee, Wisconsin 53224 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building, 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue in this case is whether Petitioner is eligible for an exemption from disqualification from working with children.
Findings Of Fact The evidence presented at hearing established the facts that follow. In 2000, Petitioner Sonia Leggs-Stewart (“Leggs- Stewart”) sought employment with at least two entities that provide services under contract to Respondent Department of Juvenile Justice (“DJJ”). These two providers are the Dade Marine Institute, Inc. (the “Institute”) and Youth Services International/Everglades Academy (the “Academy”). The positions that Leggs-Stewart sought entailed contact with children. As a condition of applying for such employment, she was required to consent to a background investigation. Further, the employment applications that Leggs- Stewart completed and submitted to these two providers included queries pertaining to the applicant’s criminal record. Finally, Leggs-Stewart, as required for employment, executed and delivered to each prospective employer an Affidavit of Good Moral Character (the “Affidavit”). The Affidavit is a DJJ form. In it are listed 45 consecutively numbered criminal offenses, each identified by a citation to the applicable section of the Florida Statutes and a brief description of the crime. The affiant must either (a) attest that she has not been convicted of any of these disqualifying offenses “or of any similar offense in another jurisdiction” or (b) disclose any such convictions.1 Above the notary’s signature line on the Affidavit are two separate statements. The affiant is supposed to certify the accuracy of one or the other by signing below the applicable statement. These are the options: I attest that I have read the above carefully and state that my attestation here is true and correct that neither my adult nor juvenile record contains any of the listed offenses. I understand, under penalty of perjury, all employees in such positions of trust and responsibility shall attest to meeting the requirements for qualifying for employment and agreeing to inform the employer immediately if arrested of any of the disqualifying offenses. I also understand that it is my responsibility to obtain clarification on anything contained in this affidavit which I do not understand prior to signing. I am aware that any omissions, falsifications, misstatements or misrepresentations may disqualify me from employment consideration and, if I am hired, may be grounds for termination at a later date. SIGNATURE OF AFFIANT OR To the best of my knowledge and belief, my record contains one or more of the disqualifying acts or offenses listed above. (If you have previously been granted an exemption for this disqualifying offense, please attach a copy of the letter granting exemption.) (Please circle the offense(s) contained in your record.) SIGNATURE OF AFFIANT (emphasis added). Leggs-Stewart applied for employment with the Academy in March 2000. On the employment application, she answered “yes” to the question: “Have you ever been convicted of a felony or a first degree misdemeanor?” Leggs-Stewart explained that she had been convicted in February 1991 of “possession with intent to distribute cocaine.” On the corresponding Affidavit, however, which she executed on March 13, 2000, Leggs-Stewart incongruously signed below the first certificate (meaning no convictions) and failed to circle any of the listed offenses, including this one: [Chapter 893, Florida Statutes,] relating to drug abuse possession and control if the offense was a felony or if any other person involved in the offense was a minor (this includes charges of possession of controlled substances, the sale of controlled substances, intent to sell controlled substances, trafficking in controlled substances, and possession of drug paraphernalia, etc.) The record is silent as to whether the Academy offered Leggs-Stewart a job; there is no evidence that she worked for the Academy. In December 2000, Leggs-Stewart applied for a job with the Institute. The employment application asked: “Have you ever been committed [sic] or convicted of a crime, pled guilty or nolo contendere, had a pretrial intervention or withheld adjudication? Yes NO If yes, give dates and type of action: .” Leggs-Stewart left these lines blank. Also, as before in connection with her application to the Academy, Leggs-Stewart signed the Affidavit below the first certificate and circled none of the listed offenses. The Institute hired Leggs-Stewart to work in a program for youth called W.I.N.G.S. for Life South Florida. Some months later, in June 2001, DJJ notified Leggs- Stewart that an investigation of her background had uncovered arrests for, on one occasion in 1990, federal charges involving the importation and possession of cocaine with intent to distribute and, on another in 1989, an unrelated state aggravated assault charge.2 She was asked to furnish DJJ with a detailed description of the circumstances surrounding the disqualifying offenses, to complete a new Affidavit, and to explain why the previous Affidavit failed to indicate any disqualifying offenses. On July 3, 2001, Leggs-Stewart executed a new Affidavit on which she circled the disqualifying offenses of aggravated battery and drug trafficking. In a letter of that same date, Leggs-Stewart wrote to DJJ: In regards to the Affidavit of Good Moral Character and providing a detailed explanation as to why the original affidavit was not truthful, to be honest I completed the affidavit in accordance to what my supervisor, at that time instructed me to do. I diligent [sic] explained the incidents to him and I personally did not identify which offense to circle for the Arrest #2 [aggravated assault] due to nothing never happen [sic] in court to my knowledge. In regards to Arrest #1 [drug trafficking], I believe that we, (both my supervisor and I) focused on the second part of the offense description that mentioned involving a minor which was his primary concern. I did not intentionally mean to mislead anyone regarding these offenses. The basic material facts concerning Leggs-Stewart’s arrest and conviction on drug-related criminal charges were not disputed. Leggs-Stewart was arrested in late 1990 by federal authorities for bringing cocaine into the United States from Panama. She was charged with two counts relating to this criminal activity. In February 1991, Leggs-Stewart pleaded guilty before the United States District Court for the Southern District of Florida to one count of possession with intent to distribute cocaine. (The second count relating to importation was dismissed.) The court sentenced Leggs-Stewart to four years in prison followed by five years of supervised release. Leggs- Stewart served her time and successfully completed probation. She has not been in trouble with the law since her arrest for the federal drug crime. Leggs-Stewart requested an exemption from disqualification from employment. As a result, an informal hearing on the matter was conducted on August 8, 2001, by a committee of three individuals whose responsibility was to make a recommendation to the ultimate decision maker, DJJ’s Inspector General. In a report dated August 9, 2000, the committee unanimously recommended that Leggs-Stewart be granted an exemption from disqualification, citing factors showing her rehabilitation. DJJ’s Inspector General disagreed with the committee, however, and decided that the exemption should be denied. Ultimate Factual Determinations The undisputed circumstances surrounding Leggs- Stewart’s conviction for drug possession demonstrate that the offense was more than a mere youthful indiscretion. Smuggling cocaine into the United States from a foreign country with intent to distribute is a serious crime. While there are no identifiable victims of Leggs-Stewart’s criminal misconduct, trafficking in cocaine is an offense that both the federal and state governments have deemed, as a matter of public policy, to be harmful to society as a whole. The gravity of Leggs- Stewart’s offense clearly “raises the bar” in terms of establishing rehabilitation. To her credit, Leggs-Stewart by all appearances has turned her life around. She is married and raising a family, owns a home, has attended community college, and has been gainfully employed since being released from prison. In short, she is now leading a stable and responsible life. These factors demonstrate that Leggs-Stewart has been largely, if not completely, restored to the capacity of law-abiding citizen. In addition, more than 11 years have passed since Leggs-Stewart’s arrest and conviction, and she has not been arrested during that time. This consideration also favors a finding of rehabilitation. Leggs-Stewart does not presently pose a danger to the safety or well being of children. However, the Affidavits that Leggs-Stewart signed—— wherein she attested, incorrectly, that her criminal record was clean——are a problem. Even if Leggs-Stewart’s explanations for nondisclosure are accepted3, the inescapable fact is that the Affidavits were not truthful, and she reasonably should have known that.4 Leggs-Stewart knew when she executed the Affidavits that she had served time in a federal prison on a serious drug charge. She knew (or reasonably should have known) that the list of disqualifying offenses in the Affidavit specifically included “possession of controlled substances” and “intent to sell controlled substances”——plainly apposite descriptions of the crime to which she had pleaded guilty. And she knew that any omissions or misstatement might be grounds for disqualification or termination. Yet, she attested under oath that her criminal record contained none of the listed disqualifying offenses. Thus, it is determined that while Leggs-Stewart did not intend to defraud her prospective employers, she nevertheless culpably misrepresented her past. In failing to disclose her criminal record, Leggs-Stewart committed acts tinged with dishonesty.5 Considered in light of all the relevant facts and circumstances, Leggs-Stewart’s willingness to be untruthful in applying for a position of trust and responsibility in a program for youth or children, regardless of her motivation, causes the trier of fact some hesitancy about the completeness of her rehabilitation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order denying Leggs-Stewart an exemption from disqualification from working with children. DONE AND ENTERED this 20th day of March, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 20th day of March, 2002.
Findings Of Fact On October 31, 1979, Petitioner signed, under oath, Respondent's application form for an unarmed guard license, swearing that the information contained in the application is true and correct. In answer to Question 2 of the application, Petitioner gave his name as Paul Edward Kane. Question 3 of the application reads: "Have you ever been known by any other name other than that given above?" Petitioner answered in the affirmative and listed the following names: Consumer Credit Corp., Walter D. Wadsworth, Mr. E. Samuels, M. Ross, Mr. Frank, and "others." He did not advise Respondent that he had used the name Paul E. Smith both in Tampa and while he was in the U.S. Army. He additionally failed to list the name Paul H. Smith, although he has also used that name. Question 9 of the application form requests an applicant's date of birth. Petitioner gave his as January 18, 1926. Although that is his actual birth date, he has also used January 18, 1930, as a birth date while in the military service, and has used others from time to time. Question 12 of the application form requests information regarding military service. Petitioner advised that he had served in the U.S. Army from September, 1947, through November, 1953, and had received an honorable discharge. He neglected to advise Respondent that he had served on two occasions and had received two discharges. One of those discharges was a dishonorable discharge resulting from a court martial conviction on charges in Japan, which dishonorable discharge apparently was later changed to a general discharge. His other term of service did result in an honorable discharge. Question 13 on the application form requires a listing of all arrests. Petitioner advised that he had been arrested for driving while intoxicated in 1975 and in 1977, and had been fined as a result of each of those arrests. Petitioner withheld any mention of the following arrests: 1952, robbery and assault with a deadly weapon; 1952, robbery and assault with a deadly weapon; 1954, contributing to the delinquency of a minor; 1954, violation of probation resulting from one of his robbery and assault with a deadly weapon arrests; 1963, destroying personal property; 1971, two separate arrests involving four worthless checks; 1972, rape; 1973, worthless check; 1977, forgery; and 1979, two counts of violation of probation. He has also been arrested for driving without a license. While in the military service, Petitioner was charged with assaulting a Japanese national by shooting him in the face with a pistol. A court martial sentenced him to two and one-half years imprisonment. Petitioner is presently on probation pursuant to a worthless check conviction, and his probationary period will not terminate until October 31, 1982. Although not all of the arrests listed above resulted in a conviction, Petitioner was minimally convicted of one of the 1971 worthless check charges and of the charges against him while he was in the military service. Petitioner's witness had no personal knowledge of Petitioner's application, his character, or his history.
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 a Class "F" Unarmed Security Guard License. RECOMMENDED this 27th day of October, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1980. COPIES FURNISHED: Mr. Paul E. Kane 4621 Pearl Street Tampa, Florida 33611 W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State State of Florida The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether it would be an abuse of discretion to deny Petitioner's request for exemption from employment disqualification.
Findings Of Fact Petitioner is seeking employment with the Lake County Board of County Commissioners, in a service provider function that is regulated by the Agency. As a prospective direct service provider, Petitioner was required to comply with background screening requirements. The Agency's clients are a vulnerable population, consisting of persons with the following statutorily defined developmental disabilities: intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid Syndrome. § 393.063(12), Fla. Stat. Without the Agency's services, these clients would otherwise require institutionalization. The Agency's clients often have severe deficits in their abilities to complete self-care tasks and communicate their wants and needs. Such 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 the Agency’s clients is considered a position of special trust. The Agency is responsible for regulating the employment of direct service providers in positions of special trust such as that sought by Petitioner. See §§ 110.1127(2)(c)1. and 393.0655, Fla. Stat. Many of the tasks undertaken by direct service providers for individuals with disabilities are of a social, personal needs, and/or financial nature. The background screening unit of the Department of Children and Families (“DCF”) performs background screenings for the Agency. Petitioner received notification from DCF, via letter dated January 8, 2016, of her disqualification from employment due to her criminal history. The specific disqualifying offense listed in the letter was aggravated battery with a weapon, in violation of section 784.045, Florida Statutes, a second degree felony. Because Petitioner’s screening indicated a disqualifying offense, Petitioner was required to seek an exemption from disqualification in order to proceed with her application to work as a direct service provider. On or about February 26, 2016, Petitioner submitted to DCF a Request for Exemption form, a completed Exemption Questionnaire form, various criminal records, character references, and other documents in support of granting of exemption from employment disqualification. DCF subsequently forwarded these materials to the Agency for review. The Agency began its exemption review by considering Petitioner's disqualifying offense. In June 1988, Petitioner committed the disqualifying offense of aggravated battery with a weapon. The police report of the incident stated that Petitioner stabbed her husband in the shoulder with a knife during an argument. The stab wound was serious enough to require treatment at the hospital and a subsequent visit to a specialist. On her Exemption Questionnaire form, Petitioner indicated that her husband suffered permanent scarring from the wound. An arrest affidavit for probable cause was issued by the Leesburg Police Department. Petitioner later pled nolo contendere to the disqualifying offense and adjudication was withheld. She was sentenced to thirty-six (36) months of probation, payment of fines, court costs, mental health counseling, and a drug and alcohol program. Petitioner successfully completed her probation on August 29, 1991. In the Exemption Questionnaire form, Petitioner set forth her version of the circumstances involved in the disqualifying offense: At 21 years of age, I was dealing with regular occurrences of mental distress within the home, such as emotional, mental, verbal and physical abuse by my ex-husband. On the day of this offense, my ex-husband entered our home in a rageful [sic] manner. Fear gripped me. He began to argue. He also went into the closet, pulling out a motorcycle chain. He began to strike me with it. After running outside, my ex- husband chased me with his belt off, hitting me with the belt buckle. A girl scout’s knife was already in my hand. He continued to hit me with the belt buckle, swinging his arm. As I turned around in self-defense, my ex-husband was struck with the girl scout’s knife. Realizing what happened, I began to cry frantically, (my concern was to get medical attention for him), apologizing and begging for forgiveness. Petitioner’s record indicates no other criminal offenses of any kind, whether disqualifying or non- disqualifying. The Exemption Questionnaire form requires applicants to describe the degree of harm to any victim of their disqualifying offenses. Petitioner wrote, “Thanks be unto God, my ex-husband sustained non-life threatening injuries with permanent scarring.” The Exemption Questionnaire form requires applicants to describe any stressors in their lives at the time of the disqualifying incident and at present. Petitioner wrote that there were stressors in her life at the time of the disqualifying incident. She did not elaborate, but in answer to another question she wrote that at age 21 she “had begun to abuse chemical substances.” She stated that her drug use was short-lived and that she ceased it permanently after the stabbing incident. Regarding whether there are any current stressors in her life, Petitioner wrote that she is "practising [sic] unhealthy habits." Again, Petitioner did not elaborate as to the nature of these unhealthy habits, but at the hearing she explained that she was referencing overeating and not exercising. Petitioner wrote that she is single and lives with her mother, and that her community activities include her family, women's group, church, art workshops, poetry and prose writing, and volunteering for the community development center when needed. The Exemption Questionnaire form asks for an applicant's prior three years' work history and an explanation of any job changes. Petitioner’s employment record indicated she had driven a school bus for several years. Petitioner provided the following explanation for changing jobs: "changed careers from transportation to medical industry to procure an immense financial gain. Have also decided to strive above and beyond my comfort zones to secure a position of my dreams." The Exemption Questionnaire form requires the applicant to list his or her educational history and any specialized training. Petitioner listed the following: Office Support Technology, specializing in Professional Leadership Development; Master Security Officer, specializing in Basic Supervisor, Leadership, & Advanced Manager; Patient Care Technician, specializing in Pharmacy Aide, EKG Aide and Unit Secretary/Coordinator; and Private Investigation, specializing in Legal Assistant & Fraud Insurance. Petitioner listed no specific institution for these certifications or specializations, but other documents submitted by Petitioner indicate that the Office Support Technology and Patient Care Technician courses were provided by Lake Technical College in 1996-97 and 1999, respectively; the Master Security Officer certification was provided by Barton MSO in 2003; and the Private Investigator diploma was received from City College in 2011. In response to the Exemption Questionnaire form’s requirement that the applicant document any history of counseling, Petitioner wrote that she received mental health counseling in 1988 and anger management counseling in 2007. Finally, under the heading “Remorse/accept responsibility,” the Exemption Questionnaire form requires the applicant to document any relevant information related to the acceptance of responsibility for his or her offenses. Petitioner wrote as follows: The harm done to my ex-husband caused me to feel very awful. Because of the forgiveness from my trespasses, the acceptance of the offense towards my ex-husband subsided day by day. Taking responsibility for my actions made me realize that I must become a better person and live a better life by improving myself so that I would someday become a productive citizen and asset to society and my family. Petitioner listed the following specific employment record: CareMinders Home Care, February 2015 to August 2015 (certified nurse assistant); Interim Healthcare, December 2014 to June 2015 (certified nurse assistant); Lake County School Board, October 2005 to August 2013 (school bus driver). In support of her exemption request, Petitioner also submitted a copy of a “Lake County Head Start Parent of the Year” award she received in 1999, a copy of an “International Poet of Merit” award she received in 2000, and reference letters from previous employers and longtime friends. Petitioner’s friends described her as hard-working, compassionate, respectful, and considerate. By letter dated September 26, 2016, the Director of the Agency informed Petitioner that her request for an exemption from disqualification had been denied “based on a Background Screening that was performed on 1/07/2016 . . . . The Agency considered all available information that led to your disqualification, as well as all information provided by you regarding your disqualification. The Agency has denied your request for an exemption because you have not submitted clear and convincing evidence of your rehabilitation.” The Director’s letter informed Petitioner of her right to request an administrative hearing to dispute the Agency’s proposed action. Petitioner timely filed a Request for Administrative Hearing. At the hearing, the Agency presented the testimony of Michael Sauvé, the Agency’s Deputy Regional Operations Manager for the Central Region. Mr. Sauvé testified that the Agency had reviewed all of the documentation submitted by Petitioner in response to the Exemption Questionnaire, as well as additional documents she submitted with her Request for Administrative Hearing. These additional documents included an exemption from disqualification, dated March 26, 2013, granted by the Department of Health, Board of Nursing; and a letter of disqualification from employment from the Agency for Health Care Administration, dated December 30, 2015. Mr. Sauvé testified that in reviewing exemption requests, the Agency 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 any other evidence indicating that the applicant will not present a danger to a vulnerable population if the exemption is granted. Mr. Sauvé also stated that the Agency seeks consistency in the applicant's account of events in his or her Exemption Questionnaire, and considers the passage of time since the disqualifying incident, whether or not the applicant accepts responsibility for his or her actions, and whether the applicant expresses remorse for his or her prior criminal acts. Mr. Sauvé testified that the Agency noted marked inconsistencies between Petitioner's account of her disqualifying offense and the statements found in the police report. However, the police report of the incident consists of hearsay within hearsay, i.e., the responding officer’s narrative of events as told to him by the involved parties. The police report may not be relied upon in this tribunal for the truth of the matters asserted therein. It is of no use in establishing that Petitioner’s version of events is untruthful or minimizes the seriousness of the incident. In any event, the inconsistencies noted by the Agency were relatively minor critiques of Petitioner’s written narrative. For example, Petitioner stated in her Exemption Questionnaire that she ran outside as her husband chased her and hit her with his belt buckle and that she already had a Girl Scout knife in her hand. She offered no explanation as to how or why the knife came to be in her hand. Given that she freely admitted to stabbing her husband, Petitioner’s failure to detail exactly when she picked up the knife, as he hit her with a motorcycle chain and a belt buckle, seems of little importance. Mr. Sauvé testified that the Agency was also concerned that Petitioner appeared to minimize the seriousness of the incident when she wrote that her husband suffered “non-life threatening injuries with permanent scarring.” Mr. Sauvé contrasted Petitioner’s statement with the police report stating that the victim was “stabbed deep enough that he had to go to [the hospital] for treatment and then to have a specialist work on him due to the seriousness of the cut.” The cut was on the back of the victim’s shoulder and in no account was the incident described as “life threatening.” Petitioner’s description may have lacked detail but was more or less consistent with the police report. Mr. Sauvé testified that the Agency examined Petitioner’s driving record and found three speeding tickets. Such violations are a concern to the Agency because individuals who are granted exemptions could be called upon to transport clients. The Agency must be confident that these clients will be transported safely. More than her written statements, Petitioner’s testimony caused the undersigned to share the Agency’s concern about Petitioner minimizing her disqualifying offense. She seemed much more concerned with explaining the speeding tickets than in expanding upon her brief written statement regarding aggravated battery with a weapon. Petitioner simply read aloud her written statement about stabbing her husband, then launched into a detailed discussion of her speeding tickets. Also, Petitioner could not recall whether her driver’s license had ever been suspended. When confronted with documentation that it had, Petitioner stated that her license had never been suspended “for cause.” None of this testimony was helpful in establishing Petitioner’s unvarnished veracity or her appreciation of the seriousness of her disqualifying offense. Mr. Sauvé testified that the Agency had a concern with Petitioner’s statement that she had changed careers to the medical field to "procure an immense financial gain." Mr. Sauvé noted that it is not unreasonable for a person to seek a decent income, but that it is highly unusual and somewhat disconcerting for a person to enter the field of serving persons with disabilities with the idea of “immense financial gain.” Mr. Sauvé’s concern on this point was well taken. In another case, the undersigned might be inclined to find that the applicant had merely chosen an unartful way to express her hope of bettering her station in life, but Petitioner presents herself as the professional author of two books. She may be presumed to understand the form of the thoughts she puts to paper. Petitioner said nothing at the final hearing to allay the concern Mr. Suave expressed about her stated motivation for entering the field. Mr. Sauvé also discussed three DCF reports involving Petitioner in allegations of abuse. The first report, dated 1989, involved a verified finding of sexual battery against Petitioner's then-husband. According to the report, a relative told the investigator that the husband had a history as a sexual perpetrator. The report stated that Petitioner allowed access to her daughter and that the husband had fondled the child. The report stated that Petitioner had been made aware of what happened but chose to forgive the husband. She remained in the home with him, allowing continued access to the child. DCF cited Petitioner for failure to protect her child. The husband was subsequently arrested and charged with sexual battery. Petitioner testified that her actions should be viewed in light of the fact that she herself was an abuse victim. She stated that she took steps to protect her children as soon as she learned her husband was abusing them. Petitioner presented the testimony of her daughter, Candace Chatman, who stated that she was the child victim identified in the 1989 DCF report. Ms. Chatman testified that, contrary to the report, her mother did not know about the abuse when it was occurring. She stated that she was eight years old and was living with her grandmother at the time of the abuse, which she recalled occurring only once. Ms. Chatman stated that she did not tell her mother about the abuse; rather, she told another child at school about it. Ms. Chatman’s testimony was credible. The second DCF report, dated 1996, involved allegations that Petitioner hit her daughter in the head, resulting in migraine headaches. According to the report, the daughter stated that Petitioner "does hit her in the head" and once threw a bowl at her, hitting her in the face. DCF rendered findings of “some indicators” for the maltreatments of beatings, physical injury, and family violence that threatens a child, though the report assessed the risk as “low” because of the presence of family members to monitor the situation. Neither Petitioner nor Ms. Chatman directly addressed the 1996 report in their testimony. The hearsay report may not be relied upon for the truth of the matters asserted therein, but the undersigned is entitled to take notice of Petitioner’s silence as to the very serious allegation made in the report. Mr. Sauvé discussed the final DCF report, dated 2002. This incident pertained to an allegation involving Petitioner's sons, who were then aged 13 and 8. The older boy had been sexually abused by Petitioner’s spouse, and was now believed to be sexually “acting out” with his younger brother. The DCF report states that Petitioner denied any knowledge of an incident between the boys, and that Petitioner alternatively admitted and then denied having knowledge of the older boy’s prior molestation. Child services authorities advised Petitioner to separate the boys at any time they might be unsupervised. The younger child started going to his grandmother’s house after school, where he stayed until Petitioner picked him up on her way home from work. At the hearing, Petitioner testified that she had never seen the 2002 DCF report. She first denied that any abuse was occurring in her home in 2002, then stated that she had not been aware of anything untoward. Petitioner denied any knowledge that her older son had been molested by her husband. She testified that her admission to the authorities that molestation had occurred “was a way to get him counseling” because of the way he had been acting out in school. During cross-examination, Petitioner denied knowing why child services advised her to separate the boys. She stated that she did not ask why. The authorities simply told her that everything would be all right if she separated them and so she complied. Petitioner’s testimony as to the 2002 DCF report cannot be credited. This finding is not based on any contradiction between Petitioner’s testimony and the facts as stated in the hearsay DCF report; rather, it is based on the inherent lack of credibility in Petitioner’s statements. Especially problematic is her claim that she did not even ask the authorities why her sons should be kept apart. Petitioner’s unwillingness to admit any knowledge of, or even curiosity as to what the authorities alleged was happening in her home, raises serious concerns as to her character and judgment. Petitioner’s overall presentation tended to undermine her case. As noted above, she seemed unduly preoccupied with traffic tickets as opposed to the far more serious matters that concerned the Agency. Her testimony was rambling, discursive, and argumentative. The undersigned could not help but note that Ms. Chatman often interjected comments, sotto voce, in an effort to keep her mother on point during her testimony. As the hearing progressed, Petitioner became increasingly angry at the Agency for failing to recognize her “compassion.” Petitioner’s initial burden is to demonstrate, by clear and convincing evidence, that she is entitled to an exemption. The “clear and convincing” standard requires evidence sufficient “to convince the trier of fact without any hesitancy.” In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995), cert. denied, 516 U.S. 1051, 116 S. Ct. 719, 133 L. Ed. 2d 672 (1996). Petitioner’s presentation clearly failed to rise to this standard. Petitioner appears to have turned her life around somewhat after a history of abuse, but she failed to convince either the Agency or the undersigned that she is sufficiently rehabilitated to be trusted to work with persons who are vulnerable and highly susceptible to abuse, neglect, and exploitation due to their developmental disabilities. In light of all the evidence presented at the hearing, it cannot be found that the Agency abused its discretion in denying Petitioner's request for an exemption. Taken in its entirety, the evidence supports the Agency's determination that the evidence of Petitioner's rehabilitation was insufficient.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying the request of Petitioner for exemption from employment disqualification. DONE AND ENTERED this 27th day of February, 2017, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 February, 2017. COPIES FURNISHED: Jeannette L. Estes, Esquire Agency for Persons with Disabilities Suite 422 200 North Kentucky Avenue Lakeland, Florida 33801 (eServed) Sonya Nicole Samuels 496 Goss Avenue Leesburg, Florida 34748 (eServed) Michele Lucas, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Petitioner should be given an exemption from employment disqualification pursuant to Section 435.07, Florida Statutes.
Findings Of Fact At the age of twenty-eight, Petitioner, Alexander Fonseca (Fonseca), was arrested for felony possession of marijuana on February 21, 1989. For this charge, adjudication was withheld, and Fonseca was credited for time served. Petitioner's other criminal history includes a 1983 arrest for misdemeanor possession of marijuana for which he was credited for time served; a 1988 arrest for driving with a suspended license for which adjudication was withheld; a 1988 arrest for driving with a suspended license for which he was found guilty; and a 1991 arrest for reckless driving for which adjudication was withheld. In April 1999, Fonseca sought employment as a Juvenile Probation Officer with the Department. In conjunction with his application for employment, Fonseca was required to submit to the Department's background screening process since he would be working with juveniles. Fonseca was told by a receptionist with the Department that if he had a criminal record he would not be hired. As part of the application and background screening process, Fonseca submitted a State of Florida application and an Affidavit of Good Moral Character. Fonseca failed to disclose on both of these documents his felony arrest for and adjudication withheld on felony possession of marijuana. The affidavit contained Fonseca's notarized signature dated April 27, 1999, attesting to the following statement: I attest that I have read the above carefully and state that my attestation here is true and correct that neither my adult nor juvenile record contains any of the listed offenses. I understand that it is my responsibility to obtain clarification on anything contained in this affidavit which I do not understand. I am aware that any omissions, falsifications, misstatements or misrepresentations may disqualify me from employment consideration and, if I am hired, may be grounds for termination at a later date. Fonseca did not disclose his criminal history because, based on what the receptionist told him, he did not believe that he would get the job if he revealed that he had a criminal history. His failure to disclose his criminal history was not an error or oversight. It was intentional. A Florida criminal history conducted by the Department revealed Fonseca's 1989 arrest for felony possession of marijuana. As a result, on May 6, 1999, Fonseca was determined to be disqualified and ineligible for a position in the Department working with juveniles. In a letter dated June 1, 1999, the Department advised Fonseca that he could request a desk review to pursue an exemption from employment disqualification. Fonseca was required to submit specified documentation, which he did. As Inspector General for the Department, Perry Turner makes the final departmental decision on exemption requests. In an interoffice memorandum dated July 29, 1999, Fonseca's exemption request was forwarded to Mr. Turner along with Fonseca's complete background screening file. In a desk review, Mr. Turner does not interview the applicant's seeking an exemption. Each applicant has an opportunity to submit to the Department documentation, which he desires the Department to consider in determining whether an exemption should be granted. In reaching his decision, Turner reviewed Fonseca's background screening file and the documentation submitted by Fonseca. On July 30, 1999, Turner denied Fonseca's request for an exemption. The denial was based upon the totality of the circumstances surrounding Fonseca's prior criminal history and his falsification of the notarized Affidavit of Good Moral Character. Mr. Turner notified Fonseca of the denial in a letter dated August 1, 1999. From his early teens until approximately ten years ago, Fonseca was heavily involved with drug and alcohol use and was chemically dependent. He sought help for his dependency and has been clean and sober since 1991. Fonseca is actively involved in the 12-Step Programs of Alcoholics Anonymous and Narcotics Anonymous. In 1992, Fonseca decided to go back to school. He graduated with a degree in criminal justice in 1998. Fonseca did not present any information to the Department concerning his addiction prior to the denial of his exemption request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Alexander Fonseca's application for an exemption from disqualification from employment pursuant to Section 435.07, Florida Statutes. DONE AND ENTERED this 27th day of April, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 April, 2000. COPIES FURNISHED: William G. "Bill" Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Alan K. Marcus, Esquire 7300 North Kendall Drive, Suite 540 Miami, Florida 33156 Lynne T. Winston, Esquire Department of Juvenile Justice Inspector General's Office 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue is whether Petitioner should be exempt from disqualification from employment in a position of trust, pursuant to section 435.07, Florida Statutes (2016).1/
Findings Of Fact Based on the evidence presented at hearing, the following findings of fact are made: The Agency is the state entity which supports vulnerable persons with various developmental disabilities. The Agency contracts with direct service providers and is responsible for regulating the employment of persons serving in positions of trust with these providers. The ARC of Martin County, Inc. (the ARC), is a service provider for the Agency. Ms. Ford applied with the ARC to become an after-school counselor, a position of trust which requires completion of level 2 background screening. The Department of Children and Families conducts initial screening on behalf of the Agency. Background screening and local criminal records revealed a history of involvement with law enforcement, as Ms. Ford admitted in her exemption request paperwork and her testimony at hearing, summarized below. On September 30, 2011, Ms. Ford entered a plea of guilty to forgery, driving on a suspended license, and providing a false name to law enforcement, for events that took place on April 9, 2010. Forgery, a felony of the third degree, is a disqualifying offense for employment in a position of trust. She was ordered to pay court fees and costs, and was put on probation for a period of 18 months for that offense. In her responses in the Exemption Questionnaire, Ms. Ford gave few details as to the events surrounding the disqualifying offense itself. She stated only that she was a witness to an accident on March 20, 2011, almost a year after the forgery incident, and, after identifying herself to the police, was arrested on an outstanding warrant from Martin County for the forgery charge. Ms. Ford wrote in her own words:2/ The forgery was do to traffic when I was pulled over and I gave my sister name to the officer. The officer then allowed me to go to go. I didn't know I had a warrant for Martin County until the night of the crash. In response to inquiries concerning another arrest for driving with a suspended license and providing a false name to a law enforcement officer while being arrested or detained a couple of months later on May 9, 2011, Ms. Ford wrote: I was on my to work and I was running late so I then was doing over milage and I was pulled over and gave officer a other name, cause I didn't want to be late for work. At hearing, in response to inquiries concerning her arrest for shoplifting on January 22, 2013, Ms. Ford acknowledged shoplifting a medical device for her daughter from Wal-Mart. Ms. Ford completed all confinement, supervision, and nonmonetary conditions imposed by the court for her disqualifying offense by March 29, 2013. Mr. Gerry Driscoll is the regional operations manager for the Southeast Region of the Agency. He has served in his current position for three years and has been employed with the Agency for seventeen years. Mr. Driscoll credibly testified that the Agency has responsibility for a very vulnerable population, many of whom are unable to later tell others about the actions of their caregivers. This population is thus very susceptible to exploitation. Mr. Driscoll noted that the Agency must consider any prior criminal conduct or dishonesty very carefully. In her written submission to the Agency, Ms. Ford did not recognize that she caused any harm or injury to any victim. However, at hearing, she admitted that she caused injury to her sister when she provided and signed her sister's name to law enforcement after being detained or arrested on more than one occasion. Ms. Ford submitted three identically worded "form" character reference letters to the Agency, stating generally that she is a responsible, reliable, and honest person. The letters do not indicate the employment status or positions of the individuals signing the references. Ms. Ford further stated that she was remorseful. In her Exemption Questionnaire, Ms. Ford wrote: Yes my remorse is I accepting made bad choose in my life and I accept full responsibility for the actions that I made. I want to move forward and put the pass behind me so I can make a better future for me and my kids. Ms. Ford seems sincere in her desire to assist vulnerable persons and asks for a chance to work with them to demonstrate that she is rehabilitated. However, the statute requires that rehabilitation be shown first; only then may an exemption for disqualification be granted. While Ms. Ford stated that she is rehabilitated, she offered little evidence to clearly demonstrate that. She completed a home health aide course in 2012, but has not participated in other counseling or coursework since the disqualifying offense. Ms. Ford's recent work history includes employment as an administrative assistant with Florida Community Health Centers, Inc., from October 8, 2014, to October 5, 2015, and employment as a mental health technician with Sandy Pines Residential Treatment Center from July 18, 2008, to January 7, 2014. Passage of time is a factor to be considered in determining rehabilitation, and the last disqualifying offense was over five years ago. However, Ms. Ford's history since her disqualifying offense includes more to reflect incidents and does not contain sufficient positive indications of rehabilitation. Ms. Ford failed to prove by clear and convincing evidence that she is rehabilitated and that she will not present a danger if she is exempted from her disqualification from employment in a position of trust.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Ms. Jennifer Ford's application for exemption from disqualification. DONE AND ENTERED this 11th day of October, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 October, 2016.
The Issue The issue is whether Petitioner’s request for exemption from disqualification should be granted.
Findings Of Fact Respondent is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers. Petitioner is seeking employment with Always Promoting Independence, LLC, and Supporting Independence/Honor Health Care Management, both service providers are regulated by Respondent. Petitioner wants to work as a direct service provider, which requires background screening. The results of Petitioner’s background screening revealed a history of criminal offenses. Respondent relies on the Department of Children and Families Background Screening Unit (“Department”) to initially receive exemption from disqualification requests and to compile documents related to such requests. On February 8, 2016, Petitioner submitted a Request for Exemption, Exemption Questionnaire (“Questionnaire”), various criminal records, character references, and other various documents (the “Exemption Packet”), to the Department seeking to demonstrate support for the granting of an exemption from employment disqualification. The Department subsequently forwarded the Exemption Packet to the Agency for review. To begin its exemption review, Respondent considered Petitioner’s disqualifying offense. In May 1991, Petitioner committed the disqualifying offense of “Fraudulent Use of Credit Card” (six counts). Petitioner pled nolo contendere to the disqualifying offense and adjudication was withheld. She was sentenced to 24 months’ probation and payment of fines and court costs. She completed her term of probation early. In its continued exemption review, Respondent considered the following non-disqualifying offenses, which Petitioner obtained subsequent to her May 1991 disqualifying offense: an arrest for “Aggravated Assault with a Firearm” in August 1997 (a violation of section 784.021, Florida Statutes); an arrest for “Driving While License Suspended with Knowledge” in October 2007 (a violation of section 322.34(2), Florida Statutes); an arrest for “Driving While License Suspended with Knowledge” in September 2008 (another violation of section 322.34(2)); an arrest for “Possession of Cannabis” in March 2012 (a violation of section 893.13(6)(b), Florida Statutes); and a conviction for “Possession of Drug Paraphernalia” in March 2012 (a violation of section 893.147(1)). Petitioner received notification by letters dated September 22, 2015, and January 12, 2016, from the Department, Respondent’s background screening entity, of her disqualification from employment due to criminal history. The specific disqualifying offense listed in both letters was “Fraud-Illegal Use of Credit Cards,” a violation of section 817.61, Florida Statutes. Petitioner provided details of the circumstances surrounding the disqualifying offense. In short, Petitioner indicated she gave three “associates” a ride to the mall in exchange for their promise to buy her a new pair of shoes. She left the Champs sports store with her shoes, expecting one of her companions to pay for them. She was in her car when her companions ran from the store with a security guard in pursuit. They told her to start the car which she refused because she believed she had not done anything wrong. Unfortunately for her, one of her companions had attempted to pay for her new shoes with a stolen credit card. She and her companions were arrested and charged with credit card fraud. Petitioner provided documentation of the charge, the disposition after her no contest plea, and the fact that her probation was terminated early. Petitioner provided explanations for all but one of the non-disqualifying offenses that ranged from the gun charge being at the end of a “bad relationship” (her then-girlfriend falsely accused her); to she was pulled over for a broken taillight, then charged with driving with a suspended license (she claimed she paid her tickets and the license was reinstated, although no records were provided on this point); to she was pulled over for having too dark a window tint in her car and cannabis was found (she testified it was not hers), but, since no one confessed to ownership, all were cited for possession; and finally to no explanation at all for the 2007 driving with a suspended license charge. Petitioner accepted little responsibility for her criminal offenses and concluded with the statement that she has no current involvement with any court system; she stated she is in “good standing.” Petitioner indicated on her Questionnaire that there was no harm to any victim or property, including damage or injury, in her past. Petitioner indicated on her Questionnaire that there were no stressors in her life at the time of the disqualifying offense. Regarding current stressors in her life, Petitioner testified she is unable to provide for her family and she is eager to obtain and keep steady employment. Petitioner listed her educational achievements as a diploma from Clearwater High School (1988), an Associate in Arts degree from Tampa Tech in computer engineering (1991), and an Associate in Science (“A.S.”) degree from St. Petersburg College in human services (2014). Petitioner indicated on her Questionnaire that she has received no counseling for any reason. Petitioner indicated on her Questionnaire that she has no history of alcohol and drug abuse. Petitioner indicated on her Questionnaire that she is involved with a community organization known as “Parents that Care.” As to expressing remorse or accepting responsibility for her actions, Petitioner testified she completed her probation early and that she no longer surrounds herself with negative influences and people. Petitioner’s recent work history has been stable. Her work history since 2009 indicates she has worked for two groups providing direct support/in-home support staff: Supporting Independence/Honor Health Care Management (2012-present) and Peaceful Dreams, Inc. (2009-2012). In addition to the criminal records submitted, Petitioner also offered affidavits of good moral character, written personal statements, IRS W-2 Forms, a copy of her A.S. degree from St. Petersburg College, and three letters of reference attesting to her character. The letters were written by people who have known Petitioner for many years and who believe her to be hard-working, reliable, and caring. Petitioner also submitted a copy of an exemption from disqualification she had received from the Agency for Health Care Administration (“AHCA”) dated May 27, 2014. Jeffrey Smith, regional operations manager for the Suncoast Region, testified that the Agency reviewed all the provided documentation provided by Petitioner, the information provided on the Exemption Questionnaire, the various records documenting Petitioner’s criminal history, her educational record, her character references, and her exemption from AHCA. Following a review of all the documentation included in the Exemption Packet, Agency Director Barbara Palmer advised Petitioner by a letter dated May 27, 2016, that her request for an exemption from her disqualifying offense was denied. The basis for the denial was that Petitioner failed to provide clear and convincing evidence of her rehabilitation. Mr. Smith testified the Agency considered all the documentation submitted by Petitioner in her Exemption Packet, as well as the additional documents provided prior to and at the hearing. He did not find that the documentation negated or refuted the official records of the disqualifying and non- disqualifying offenses. Further, the fact that the non-disqualifying offenses related to Petitioner’s driving is relevant to the position for which she seeks an exemption from disqualification. A direct service provider is often called upon to transport individuals entrusted to her care. Petitioner’s statement that her license was reinstated and that she received no more driving citations after the offenses described above was refuted by Mr. Smith, based upon subsequent driving records regarding Petitioner. Mr. Smith also noted two additional reports from the Department in which Petitioner was named the alleged perpetrator. One report showed some indicators of child abuse (cuts/punctures/bites/excessive corporal punishment), and the other report involved allegations of exploitation of a vulnerable adult, specifically, one with a developmental disability, but resulted in no official findings of exploitation. The Agency’s clients are a vulnerable population, consisting of individuals whose developmental disabilities are defined as intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid syndrome. Without the Agency’s services, these clients would require institutionalization. Petitioner testified passionately that she enjoys working with individuals with disabilities. Working in this field inspired her to return to school to earn a degree in human services. She testified that working with persons with disabilities is her long-term goal. She admitted she made some “foolish mistakes” when she was younger, but that she now accepts responsibility for her actions. She also testified that she believed her exemption should be granted because another agency, AHCA, had granted her an exemption from disqualification. Respondent countered with the fact that this vulnerable population requires being able to rely on the direct care provider’s good character and trustworthiness. Individuals entrusted with the care of the disabled are often called upon to make decisions of a financial, medical, and social nature. The Agency must weigh the benefit against the risk when considering granting an exemption. Petitioner’s history shows poor judgment on her part, and she provided testimony that was inconsistent with the documentation of her criminal history and the report and allegations of abuse or neglect from the Department. Petitioner admitted to use of a credit card of a vulnerable adult, which showed poor judgment on her part. Additionally, the close proximity of Petitioner’s most recent arrest (2012) to her request for exemption demonstrates her issues with the law are not limited to the distant past. Finally, Respondent, pursuant to section 435.07(5), Florida Statutes, considered the exemption given Petitioner by AHCA. The exemption from AHCA, however, is neither binding on the Agency nor does such exemption follow the same criteria or involve the same service population as the exemption sought from Respondent. The granting of an exemption from employment disqualification would allow Petitioner to be employed as a direct service provider to Agency clients. The undersigned appreciates Mr. Smith’s thoughtful and comprehensive assessment of Petitioner’s criminal history and fitness to hold a position of trust, and finds his testimony at hearing and reasons for recommending the denial to be credible and reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 19th day of October, 2016, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 19th day of October, 2016. COPIES FURNISHED: Rosemary Brinson 1010 Eldridge Street Clearwater, Florida 33755 Jeannette L. Estes, Esquire Agency for Persons with Disabilities 200 North Kentucky Avenue, Suite 422 Lakeland, Florida 33801 (eServed) Lori Oakley, Acting Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint and, if so, what penalty should be imposed. More specifically the issue is whether a federal misdemeanor can be construed as a felony for purposes of Section 943.13(4), Florida Statutes.
Findings Of Fact Based upon the stipulation filed by the parties, the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact: The Respondent was certified as a law enforcement officer by the Commission on March 31, 1985, and was issued certificate no. 12-85-002-01. On January 31, 1986, the Respondent entered a plea of guilty to the offense of forgery of a United States Treasury check, a violation of Title 18 USC Section 510(b)-(c) and (2), in the United States District Court, in and for the Southern District of Florida, case no. 85-8098-Cr-PAINE. The acts which gave rise to the criminal charge against Respondent had occurred prior to Respondent's certification. The Superseding Information charged that Respondent, along with two other named defendants, had falsely made and forged an endorsement on a check made payable to another. This alleged forgery occurred on or about April 31, 1984, at Fort Pierce, St. Lucie County, Florida. Respondent had been employed as a police officer by the Fort Pierce police department for approximately seven months when the warrant for his arrest was issued. He subsequently resigned his position. Respondent was adjudged guilty of the charge set forth in paragraph 2, and was placed on probation for a period of one (1) year. Respondent was also required to make restitution to First Citizens Federal Savings and Loan Association of Fort Pierce in the amount of $179.71. Respondent was not required to serve a sentence of confinement. Respondent completed his probation and made restitution as required. The original charge against Respondent had been a felony, however, during the course of negotiations the charge was reduced to a misdemeanor. Respondent refused to plead guilty to the felony charge and testified he would have continued to fight a felony conviction. Respondent pled guilty to the federal misdemeanor on the belief that it would not affect his certification. Petitioner offered no evidence to establish the facts underlying the alleged criminal offense, i.e., that Respondent did, in fact, forge an endorsement on a check payable to another.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order revoking the Respondent's law enforcement certificate, no. 12-85-002-01. DONE and RECOMMENDED this 28th day of October, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1988. COPIES FURNISHED: Diamond R. Horne 101 C Seaway Drive Fort Pierce, Florida 34950 Joseph S. White Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Department of Law Enforcement Criminal Justice standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey Executive Director Department of Law Enforcement Criminal Justice standard and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
