The Issue Is Petitioner entitled to exemption from disqualification with regard to working in a position of special trust and responsibility related to children, disabled adults, and elderly persons?
Findings Of Fact Petitioner Renita Kenon is 20 years of age. Prior to her disqualification, she was employed in a position of special trust with the Leon Advocacy and Resource Center (LARC) where she worked with developmentally disabled clients. As a juvenile, Petitioner compiled an extensive history with law enforcement. A petit theft charge in juvenile court against Petitioner was disposed of non-judicially on April 17, 1997. A second offense of petit theft resulted in a disposition by the juvenile court through withholding adjudication of delinquency on October 5, 1997. A third offense for petit theft resulted in an adjudication of delinquency on March 11, 1998. On October 14, 1998, Petitioner pled nolo contendere to a charge of grand theft. An accompanying charge of resisting arrest without violence was dismissed by prosecutors as a part of the plea bargain effected by Petitioner. On February 11, 1999, Petitioner was again adjudicated delinquent for two additional counts of petit theft. Petitioner has never been charged with a crime as an adult. Her entire criminal history consists of offenses for theft. All the incidents were handled through the juvenile justice system. Petitioner's testimony was direct, candid, and creditable. She previously engaged in a life-style that is no longer compatible with her present involvement with work and community. Three years have elapsed since adjudication of Petitioner's last disqualifying event.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for exemption from disqualification to work in positions of special trust. DONE AND ENTERED this 8th day of April, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2002. COPIES FURNISHED: Renita Kenon 9338 Salem Road Quincy, Florida 32351 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949 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 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 Whether Petitioner's application for certification as a certified nursing assistant (CNA) should be approved or denied.
Findings Of Fact On or about October 15, 2013, Ms. Warren submitted to Respondent an application for certification as a CNA. On or about August 15, 2014, Respondent informed Ms. Warren that her Application was being denied for two reasons. The first reason offered for denial is that Ms. Warren violated sections 464.018(1)(a) and 456.072(1)(h), Florida Statutes (2014),1/ by checking the "no" box, instead of the "yes" box, when asked about her criminal history on the Application. The second reason offered for denial is that Ms. Warren is not eligible for licensure because she did not pass the criminal background screening required by section 400.215, Florida Statutes.2/ Criminal Background Screening On March 5, 2012, Ms. Warren entered a plea of nolo contendere to a single count of "resisting an officer with violence" in violation of section 843.01, Florida Statutes. The offense occurred during calendar year 2010. Section 843.01 provides, in part, that any person found to be in violation of this section "is guilty of a felony of the third degree." According to the Order of Probation for this charge, the court withheld adjudication, and Ms. Warren was placed on probation for a period of 30 days. On April 4, 2012, the Florida Department of Corrections sent Ms. Warren a notice of "Termination of Supervision" and noted therein that "[y]ou are hereby notified that you completed your term(s) of supervision on 4/4/12 . . . and are no longer under the supervision of the Department of Corrections." Section 464.203 provides, in part, that "[t]he board shall issue a certificate to practice as a CNA to any person who demonstrates a minimum competency to read and write and successfully passes the required background screening pursuant to s. 400.215." Section 400.215 provides, in part, that "[t]he agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e)," Florida Statutes. Section 408.809(1)(e) provides, in part, that individuals, like Ms. Warren, shall be subject to a level 2 background screening pursuant to chapter 435. Section 435.04(2), Florida Statutes, provides, in part, that "security background investigations under this section must ensure that no persons subject to the provisions of this section have . . . entered a plea of nolo contendere" to "[s]ection 843.01, relating to resisting arrest with violence." The preponderance of the evidence establishes that Ms. Warren failed her background screening test as a result of her plea of nolo contendere to the offense of resisting arrest with violence. Alleged Application Misrepresentation The Notice of Intent to Deny provides, in part, as follows: This matter came before the Board of Nursing at a duly-noticed public meeting on August 8, 2014, in Orlando, Florida. The applicant has applied for certification as a certified nursing assistant by examination. The applicant entered a plea of nolo contendere to a charge of resisting an officer with violence in 2012. The application includes the following question: Have you EVER been convicted of, or entered a plea of guilty, nolo contendere or no contest to, a crime in any jurisdiction other than a minor traffic offense? You must include all misdemeanors and felonies, even if adjudication was withheld. The applicant answered the question NO. It is undisputed that Ms. Warren checked the "no" box in response to the question. It is also undisputed that Ms. Warren should have checked the "yes" box in response to the question given that on March 5, 2012, she entered a plea of nolo contendere to the felony charge of resisting an officer with violence. By correspondence dated August 15, 2014, the Board informed Ms. Warren that it was the Board's intent to deny her Application because she did not truthfully answer the question about her criminal background. In response to the Notice of Intent to Deny, Ms. Warren, by correspondence dated August 21, 2014, informed Respondent of the following: To the State of Florida Board of Nursing, I Ashley Warren made a mistake and checked off the wrong box. I was reading so fast and I was not aware of what I checked off in the box. I had checked off the wrong question. If possible, can I do another application because I would love to become a CNA, and I really hate I made [a] mistake in checking the wrong box. One of the sections of the Application submitted by Ms. Warren is titled, "Initial Licensure - Individual." This section asks multiple questions with subparts. Question 1 of this section directs that if the applicant "responded 'no,' skip to #2." Even though Ms. Warren answered "no" to the question, she, nevertheless, proceeded to answer questions 1.a., 1.b., 1.c., and 1.d. Question 3 of this section directs that if the applicant responds "[n]o, do not answer 3.a." Even though Ms. Warren answered "no" to question 3, she, nevertheless, proceeded to answer question 3.a. The same pattern was repeated with respect to question 4 wherein Ms. Warren answered "no" and then disregarded the directive not to answer questions 4.a. and 4.b. The multiple errors made by Ms. Warren when completing the Application support her contention that she was rushing while completing the Application. During the formal hearing, Ms. Warren testified as follows: Q: Okay. Now, you were arrested again in 2010? A: Yes. * * * Q: And you were charged with resisting an officer with violence? A: Yes. * * * Q: Did they put you in jail? A: Yes. Q: And you went to court on that charge? A: Yes. Q: Okay. I'm looking at page 20 of the exhibit, your Honor. You had an order withholding adjudication; is that correct? A: Yes. Q: And you pled nolo contendere or no contest to that charge? A: Yes. Q: Were you put on probation? A: I was put on PYT. Q: All right. What is PYT? A: It's something like a probation that you complete and it will be off your record. * * * Q: Okay. Now, on the application the question concerning criminal history says "have you ever been convicted of or entered a plea of guilty, nolo contendere or no contest to a crime in any jurisdiction other than a minor traffic offense." What about that don't you understand? A: I really don't understand none of it. * * * Q: Yes. You testified earlier that in your 2010 charge you pled nolo contendere or no contest to resisting an officer with violence. You said that was correct. Is that correct? A: Yes. Q: So did you understand what a nolo contendere plea was in 2010? A: No. Q: Did your lawyer advise you to plead nolo contendere? A: Yes. Q: Did your lawyer explain to you what that kind of plea meant? A: No. Q: Did the judge explain to you what that kind of plea meant? A: Yes. Q: Once it was explained to you, you decided to plea nolo contendere? A: I didn't understand the question when I was reading over it. Formal hearing Transcript, pp. 17–21. Additionally, Ms. Warren also testified as follows: Q: In responding to the criminal history question, if you didn't understand it, why didn't you just leave it blank? A: Because I didn't know if I would have sent it off and leave it blank if I would have got my license, but, at the same time, when I had went through the probation office and everything, they told me that everything was going to be off my record, that I completed all my terms and everything because it was my first time on having adult charge. So I really didn't understand none of that. So I'm going by their word. So I'm thinking if I don't have it on my record, I completed it, I can put "no" on the answer. It's not on my record. Formal hearing Transcript, pp. 24-25. Ms. Warren's testimony that she believed it was proper to answer "no" to the criminal background question on the Application is credible. The fact that Ms. Warren made multiple mistakes on her Application, coupled with her genuine belief that the charge of resisting an officer with violence was no longer on her record, indicates that Ms. Warren acted honestly and did not intend to misrepresent her criminal history when completing her Application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Board of Nursing, enter a final order denying Petitioner, Ashley Q. Warren's, Application for certification as a CNA due to her failure to pass the level 2 background screening. DONE AND ENTERED this 17th day of February, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 17th day of February, 2015.
Findings Of Fact By Administrative Complaint filed May 28, 1986, Petitioner, Department of Insurance and Treasurer (Department) charged that Respondent, Theodore Riley (Riley), while employed as an adjuster by United States Fidelity and Guaranty Group, (USF&G), did wrongfully obtain the sum of $400 from a workmens compensation claimant to assure that USF&G would not contest the claim (Count I). The complaint further alleged that on September 16, 1985, Riley entered a plea of nolo contendere to an information charging a violation of Section 812.014, Florida Statutes, a felony of the second degree and a crime involving moral turpitude, and that the court withheld adjudication and placed Riley on 18 months probation (Count II). The Department concluded that such conduct demonstrated, inter alia, a lack of fitness or trustworthiness to engage in the business of insurance; fraudulent or dishonest practices in the conduct of business under the license or permit; and, a plea of nolo contendere to a felony involving moral turpitude. Section 626.611(7),(9) and (14), Florida Statutes. At hearing, Riley entered a plea of no contest to Count II of the Administrative Complaint in exchange for the Department's dismissal of Count I of the Administrative Complaint and the Department's agreement that the penalty imposed would be limited to a suspension of his eligibility for licensure for a period of two (2) years. While not conditioning his agreement to a two year suspension, Riley did request that the Department consider crediting the time he has been on probation against the two year suspension. The evidence shows that Riley was arrested and charged with the subject offense in March 1985, that he entered a plea of nolo contendere, that adjudication of guilt was withheld, and that he was placed on probation for 18 months commencing September 16, 1985. As a special condition of probation, Riley was ordered not to apply for an adjuster's license during the term of his probationary period. Consistent with the terms of his probation, Riley has not renewed his adjusters' license. The Department's records reflect that Riley's license was last due for renewal, but not renewed, on April 1, 1985.
The Issue Is Petitioner entitled to exemption from disqualification by law with regard to working in a position of special trust and responsibility related to children, disabled adults, and elderly persons?
Findings Of Fact Petitioner is disqualified from working in a position of special trust because of: a 1991 conviction of grand theft auto; a 1980 conviction of battery; two counts in 1993 of uttering a forged instrument, one count of petty theft and one count of trespassing after warning. Respondent's testimony was direct, candid, and creditable. He previously engaged in a life-style that is no longer compatible with his present involvement with church and community. His testimony was well corroborated by the testimony of eight other witnesses and numerous exhibits. As established by clear and convincing evidence at the final hearing, Respondent is rehabilitated and unlikely again to engage in criminal conduct or present a threat to children, disabled adults, or elderly persons, if employed in a position of special trust. The various criminal offenses for which Petitioner has been convicted, were all committed more than three years prior to his disqualification notice from Respondent for which Petitioner now seeks exemption. Section 435.07, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Petitioner's request for exemption from disqualification to work with children in positions of special trust. DONE AND ENTERED this 10th day of June, 1999, in Tallahassee, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1999. COPIES FURNISHED: Karlier Robinson 1018 Martin Street Blountstown, Florida 32424 John R. Perry, 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
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint with leave to file an amended administrative complaint alleging post-licensure misconduct only, within twenty days of the order of dismissal. DONE and ENTERED this 13th day of March, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1984. COPIES FURNISHED: Dean Bunch, Esquire P. O. Drawer 1170 Tallahassee, Florida 32302 Dennis S. Valente, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent, William E. Ford, Jr., was certified by the Criminal Justice Standards and Training Commission on May 20, 1976, and was issued Certificate Number 02-16845. After Harry L. Harper, a felony prosecutor in the office of the State Attorney for the Fourteenth Judicial Circuit, had known respondent, who worked as a deputy in the Bay County Sheriff's office, for about a year, it fell to him to draw and sign the information charging respondent and his wife Barbara with conspiracy to deliver cocaine. The jury who heard the case found respondent Ford guilty of conspiracy to deliver cocaine. On April 18, 1986, after the jury returned its verdict, the Honorable Don T. Sirmons entered an order withholding adjudication of guilt and placing respondent on probation on conditions which included 60 days in jail. State v. Ford No. 85- 1938 AG (14th Cir.1986). Petitioner's Exhibit No. 1.
Findings Of Fact Petitioner Victor Rudolph Cobham made application for filing for examination as a Life and Health Agent on February 12, 1987, (hereafter, "application"). Question 8 of that application and Petitioner's answers thereto read as follows: Have you ever been charged with a felony? Yes If YES, give date(s): Dec. 16, 1983 What was the crime? Possession of cocaine & cannabis Where and when were you charged? Dade County, Dec. 16, 1983 Did you plead guilty or nolo contendere? Nolo Contendere on Appeal Were you convicted? Yes - Conviction reversed by 3rd District Court of Appeal Was adjudication withheld? See attachments to application Please provide a brief description of the nature of the offense charged. See attachments to application If there has been more than one felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required. In response to the above question 8 Petitioner listed no other charges, convictions, or pleas, however he had, in fact, been charged on at least three other occasions. Petitioner was charged by an August 3, 1978 Information with possession of a controlled substance (cocaine), possession of cannabis in a felony amount, and possession or sale of a controlled substance implement (paraphernalia) in Case No. 78-7960 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. All of these charges were felony charges. Petitioner plead guilty to all charges. Adjudication of guilt was withheld. Petitioner was also charged by a September 18, 1978 Information with failure to redeliver a hired vehicle (rental car) in Case No. 78-10543 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, which charge constitutes a felony. Petitioner pled guilty. Adjudication was withheld. In 1967, Petitioner was also charged with passing a worthless bank check but the charges were dropped because the check was paid. Whether this was a felony or misdemeanor charge is not clear. On March 31, 1987, the Insurance Commissioner denied Petitioner's application to sit for the insurance agent's examination due to this failure to divulge in his responses to question 8 of his application the facts contained in findings of fact 4-6, supra. Petitioner's position was that he had subconsciously omitted the information on the two 1978 charges due to the lapse of time and that since these charges did not result in any "convictions" no fraud was committed by him in failing to disclose them in response to question 8 of the application. He further asserted that because the Third District Court of Appeal reversed his conviction in the 1983 case, he had a "clean record." He offered no specific explanation for failing to reveal the 1967 charges except that with respect to all charges, he also asserted that he had assumed the agency would do an extensive background check as a result of his admission concerning the 1983 charge and would therefore discover all the charges prior to 1983 as well. Having weighed the credibility of Petitioner's testimony; the undersigned finds that Petitioner committed a material misstatement, misrepresentation, and fraud upon his application and that his reasons for his misstatement, misrepresentation and fraud are neither logical nor credible as mitigation therefor. Petitioner was previously a licensed insurance agent but has allowed his licensure to lapse. He has worked in insurance in one way or another for most of his adulthood. He is now an articulate 56 year old man who has completed two years of college. By education, training, and experience, Petitioner knows the difference between a charge and a conviction. Question 8 on the application requested that he list and explain all charges, not just convictions. It asked for types of pleas entered and whether adjudication had been withheld, thereby giving Petitioner every opportunity to explain the status of his record. Petitioner is knowledgeable about the various nuances of the judicial dispositions of each of the charges brought against him, and his failure to reveal them on his application can only be construed as deliberate misstatement, misrepresentation, and fraud.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department of Insurance and Treasurer enter a final order denying Petitioner's application for filing for examination as a Life and Health Agent. DONE and RECOMMENDED this 10th day of September, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 10th day of September, 1987. COPIES FURNISHED: William Gunter Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Angelo A. Ali, Esquire 400 Roberts Building 26 West Flagler Street Miami, Florida 33130 Lealand L. McCharen, Esquire Department of Insurance and Treasurer Larson Building Tallahassee, Florida 32399-0300 =================================================================
Findings Of Fact Petitioner is disqualified from working in a position of special trust because of a 1980 conviction of Grand Theft and Aggravated Assault; a 1981 Grand Larceny conviction; a 1986 Stolen Property conviction; a 1989 possession of cocaine charge; and a 1991 Grand Larceny conviction. Petitioner's testimony was direct, candid, and creditable. She previously engaged in a life-style that is no longer compatible with her present involvement with church and community. A 1976 diagnosis of lupus and subsequent marital problems led to her depression and her prior illicit activities. She has since reformed and is a credit to the community. Her testimony was well corroborated by the testimony of seven other witnesses. As established by clear and convincing evidence at the final hearing, Petitioner is rehabilitated and unlikely again to engage in criminal conduct or present a threat to children, disabled adults, or elderly persons, if employed in a position of special trust. The various criminal offenses for which Petitioner has been convicted, were all committed more than three years prior to her disqualification notice from Respondent for which Petitioner now seeks exemption. Section 435.07, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Petitioner's request for exemption from disqualification to work with children in positions of special trust. DONE AND ENTERED this 30th day of November, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1999. COPIES FURNISHED: Carolyn Grimes 626 St. Clair Street Jacksonville, Florida 32254 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 33299-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 33299-0700
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.
