The Issue The issue is whether the Respondent, Department of Juvenile Justice is entitled to repayment for a salary overpayment made to Petitioner.
Findings Of Fact The Department is charged with planning, coordinating, and managing the delivery of all programs and services within the juvenile justice continuum. Mr. Young was an employee of the Department during times pertinent. The Department pays its personnel every two weeks. During pay periods ending January 1, 2004; January 29, 2004, February 12, 2004; and February 26, 2004, Mr. Young, perhaps believing he could be absent using leave from the sick leave pool, did not work and did not qualify for the salary payments he received. Because state salary warrants are paid by exception, he received payments even though he did not submit a time sheet. Subsequently the Department prepared time sheets for Mr. Young. He did not sign these time sheets. By November 3, 2005, the Department determined that five warrants had been issued inappropriately and that he owed the State of Florida $3,875.34. Subsequently, the Department reviewed the records, and after taking into consideration Mr. Young's annual leave and the federal tax paid on his behalf, determined that he owed $2,214.12. The Department, through personnel records, demonstrated that this money was paid in error and should be returned by Mr. Young. Nothing in the evidence indicated otherwise.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered stating that Charles D. Young, II, owes the State of Florida $2,214.12, and requiring the repayment of said sum forthwith. DONE AND ENTERED this 26th day of July, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 July, 2006. COPIES FURNISHED: Mary Linville Atkins, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Charles D. Young, II 5364 Young Lane Marianna, Florida 32448 Anthony Schembri, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact Mitchell is a highway construction contractor with its principal place of business located in Tallahassee, Florida. FDOT is the agency of the state of Florida which is responsible for the construction and maintenance of the roads designated as part of the State Highway System. On July 15, 1994, the parties entered into Contract No. 18,784 (contract) which required Mitchell to resurface the existing roadway, construct four (4) foot wide paved shoulders and perform other related work for $626,347.44 in State Project No. 59100-3512 (project) in Wakulla County, Florida. The contract incorporated by reference special provisions attached thereto and FDOT's Standard Specifications for Road and Bridge Construction (1991) (Standard Specifications). The contract required Mitchell to complete the project within 84 calendar days. Construction began on August 31, 1994, which was contract day one (1). In order to construct and pave the shoulders, Mitchell had to remove the top soil and stabilize the subgrade. After removing the top soil, Mitchell hauled borrow material to the project site. Mitchell spread the borrow along the roadside and mixed it with the existing sub-soil. Mitchell then attempted to attain a certain required density by compacting the shoulders. Mitchell hauled borrow to the project site from October 5, 1994, through October 8, 1994, and on October 13, 1994. Mitchell rolled the surface of the shoulders on October 18, and 20-22, 1994. The contractor was unable compact the subgrade to the required density. On or about October 22, 1994, FDOT refused to pay Mitchell for additional material to reestablish grade on the shoulders. From approximately October 24, 1994, through November 11, 1994, Mitchell remixed and compressed the subgrade soil in an unsuccessful attempt to stabilize the shoulders. From October 25, 1994, through November 7, 1994, Mitchell wrote at least four (4) letters to FDOT discussing the problems at the project site in achieving required density and stabilization of the subgrade on the shoulders. These letters are not a part of the record in this case. However, the hearing transcript from February 15, 1995, clearly shows Mitchell's position: (1) Plastic materials beneath the subgrade (unexpected conditions not contemplated under the contract) were causing a delay on the project and preventing Mitchell from achieving the required density and stabilization of the subgrade; (2) Mitchell would have to excavate the plastic material and haul in additional borrow to reestablish the grade of the shoulders before stabilization could be obtained; (3) Mitchell needed an extension of time in which to complete the project; and (4) Mitchell wanted FDOT to pay for the expenses (not covered under the contract) that Mitchell would incur in curing the problem. On or about November 11, 1994, Mitchell informed FDOT in writing that Mitchell was suspending work on the project. Mitchell suspended work without obtaining FDOT's approval as required by the contract. By letter dated November 14, 1994, FDOT responded to Mitchell's four (4) letters. FDOT's letter did not specifically deny each of Mitchell's requests but made it clear that Mitchell's claims were unsubstantiated. FDOT took the position that Mitchell created the problems with compaction by failing to follow FDOT procedures: (1) Prior to hauling in stabilizing material, Mitchell did not submit a sample of the existing on-site material so that a lime rock bearing ratio (LBR) could be established to determine how much, if any, stabilizing material would be needed to obtain the required LBR; (2) Mitchell did not submit samples or get FDOT's approval of the material used for stabilization before spreading and mixing it on the project site; (3) Mitchell did not sufficiently mix the material used for stabilization so that density could be obtained; (4) Soil samples of the material beneath the area being stabilized, to a depth of approximately three and one half feet, indicated that it was suitable for compaction; (5) The sources of borrow material used in attempting to stabilize the subgrade were not approved as required by the contract; (6) Mitchell added unapproved material, in excess of what was required, to the borrow material hauled to the project site. FDOT wrote this November 14, 1994, letter after investigating the problem and performing certain field and laboratory soil tests. On December 12, 1994, Stephen Benak, District Construction Engineer for FDOT, made a visit to the project site to conduct further investigation. Later that day the parties had a meeting. Mitchell again explained to FDOT that unexpected conditions at the job site were causing problems and preventing the contractor from obtaining density requirements on the subgrade. FDOT again informed Mitchell: (1) The unapproved borrow material that Mitchell previously hauled to the project site was unsuitable and causing the problem; and (2) Mitchell's proposal to under-cut (excavate and haul more borrow material) was a drastic cure and not compensable under the contract. Mitchell did not immediately return to work on the project. With credit for twenty-four (24) rain days, the contract performance time increased to 108 calendar days. Taking the rain days and intervening holidays into consideration, FDOT determined that the contract term expired on December 20, 1994. Mitchell did not return to work at the project site until December 23, 1994. By letter dated December 29, 1994, FDOT gave Mitchell notice of the agency's intent to declare Mitchell delinquent on the project and to suspend its Certificate of Qualification and that of all its subsidiaries. This letter states that Mitchell was making unsatisfactory progress on the contract because the contract time had expired and the work was not complete. The letter refers to section 8-8.2 of FDOT's Standard Specifications and Rule 14- 23, Florida Administrative Code. On January 12, 1995, Mitchell filed a Request for Formal Hearing without making an additional request for extension of contract time. This petition states: Mitchell Brothers has filed timely requests for extension of contract time due to the delays resulting from the lack of constructability and differing site conditions of the project. Therefore, the Department's issuance of the notice of delinquency is invalid. After receiving Mitchell's request for hearing, FDOT designated Tom Kinsella, Esquire, as counsel for the agency. By letter dated January 23, 1995, Mr. Kinsella referred Mitchell's request for a hearing to DOAH. The Hearing Officer issued a Notice of Hearing on January 27, 1995, setting this matter for hearing in DOAH Case No. 95-289 on February 8, 1995. In order to allow the parties sufficient time for discovery, the Hearing Officer subsequently rescheduled the case for hearing on February 15 and 16, 1995. The parties took depositions every day from February 2, 1995, to February 13, 1995. Bill Carpenter, FDOT's Project Engineer on the project at issue here, was the first deponent. Prior to Mr. Carpenter's deposition, Mr. Kinsella inquired as to whether there were any outstanding time requests. Mr. Carpenter assured Mr. Kinsella that FDOT had addressed and denied all outstanding time requests in FDOT's letter dated November 14, 1995. At the formal hearing in DOAH Case No. 95-289 on February 15, 1995, Mr. Benak testified on FDOT's behalf. On direct examination, Mr. Benak testified that Mitchell made no "proper" requests for contract time extensions. During cross-examination, Mitchell questioned Mr. Benak concerning Mitchell's letters written between October 25, 1994, and November 7, 1994. Initially, Mr. Benak testified that Mitchell's letters were not "formal" requests for extension of contract time. The Hearing Officer ruled that two of these letters contained preliminary requests for extension of contract time. Mr. Benak subsequently questioned whether Mitchell's letters were timely pursuant to section 8-7.3.2, Standard Specifications. Without resolving the issue of timeliness, Mr. Benak conceded that the delay was on-going and that the agency had never written to Mitchell requesting more specific information about the delay, i.e. all documentation of the delay and a request for the exact number of days justified to be added to the contract time. Therefore Mitchell was never required to submit a more formal request for contract time extensions. However, Mr. Benak never conceded that Mitchell's preliminary requests were pending at the time the agency issued its notice of intent to declare Mitchell delinquent or that the agency failed to follow its own procedures before issuing that notice. Mr. Benak maintained that the contract did not provide for extensions of contract time for delays due to the fault or negligence of the contractor. He testified that FDOT's letter dated November 14, 1994, effectively denied Mitchell's pending preliminary requests for time extensions and informed Mitchell that the delay was due to the contractor's fault or negligence. Accordingly, FDOT was not required to solicit further information from Mitchell before issuing the December 29, 1994, delinquency letter. As the hearing on February 15, 1995, progressed, it became apparent that the parties disputed a variety issues involving mixed question of fact and law. In ruling on an objection which is not at issue here, the Hearing Officer stated: * * It seems to me the more pertinent, you know, a much more pertinent area -- and we haven't addressed this in terms of the Department's procedures, that would start a request for extension of time, and it appears that the Department has never acted on that. And you've raised a very interesting matter, and that is under the rules, apparently if that process has been initiated, you can't go to delinquency, which means that this activity, this that they've tried to initiate, lacks the appropriate legal predicate. That's a good point. After the hearing in DOAH Case No. 95-289 recessed on February 15, 1995, Mr. Kinsella advised Mitchell's counsel that FDOT would withdraw the delinquency. Mr. Kinsella wanted to alert Mitchell that it was unnecessary for witnesses to attend the hearing the next day. When the hearing resumed on February 16, 1995, FDOT filed its Notice of Withdrawal of Notice of Delinquency and Motion for Relinquishment and Remand of Jurisdiction. The motion states, "The Department is now withdrawing it (sic) notice of intent to declare delinquincy without prejudice, it appearing that all of Mitchell Brothers, Inc., requests for additional time may not have been addressed by the Department." However, competent persuasive record evidence indicates that FDOT made this determination based on the Hearing Officer's prior rulings and statements during the hearing on February 15, 1995. Mr. Kinsella stated on the record: * * After the conclusion of the hearing yesterday on the basis of the matters that came up in terms of whether the preliminary requests for time extensions have been properly met by the Department and evaluated and addressed in the correspondence as pointed out by the Court, we went back and evaluated, and determined that we don't believe those have been fairly met and addressed by the Department, and that this delinquency was premature for that reason. Counsel for Mitchell did not object to the motion to relinquish jurisdiction but requested an opportunity to submit a proposed order. The Hearing Officer stated that Mitchell could file a motion to submit a proposed order and that FDOT would have an opportunity to respond to that motion. The Hearing Officer did not set a date certain for the filing of the posthearing motion but Mitchell's counsel stated that the motion would be filed in a very brief time, within a day or two. February 16, 1995, was a Thursday. The following Monday, February 20, 1995, Mitchell filed a Motion to Permit Submittal of Proposed Findings and for Entry of a Recommended Order, a proposed recommended order for the Hearing Officer's signature, and a Motion for Attorney's Fees. DOAH's Clerk docketed Mitchell's motion to submit proposed findings and the proposed recommended order in DOAH Case No. 95-289. The Clerk docketed Mitchell's motion for attorney's fees under DOAH Case No. 95-1096F. That same day, the Hearing Officer entered an Order Closing File which did not retain jurisdiction over any issue in DOAH Case No. 95-289. Subsequent relevant pleadings and procedures arising in the instant case between February 20, 1995, and June 14, 1995, are set forth above in the Preliminary Statement and incorporated herein. The record indicates that the parties were at an impasse when Mitchell suspended work on the project on or about November 11, 1994. After FDOT's November 14, 1994, letter and the meeting on December 12, 1994, the parties certainly were aware of each other's positions, and were deadlocked as to the reason for the delay in stabilizing the subgrade. The dispute between them involved multiple questions of fact and law which are not at issue here. FDOT's December 29, 1994, delinquency letter gave Mitchell what it was entitled to, i.e., a point-of-entry to challenge, in an administrative proceeding, FDOT's position that Mitchell created the conditions causing the delay in stabilizing the subgrade. FDOT had a reasonably clear legal justification for issuing that letter based on sections 8-7.3.2 and 8-8.2 of FDOT's Standard Specifications and Rule 14-23, Florida Administrative Code. The delinquency letter was not issued and subsequently filed with DOAH for an improper or frivolous purpose. As of February 15, 1995, the 165th calendar day of the project, Mitchell continued to work on the project which was only 36 percent complete and which FDOT had not conditionally accepted. Mitchell has incurred $44,408.50 in attorney's fees and $18,071.13 in cost in litigating DOAH Case No. 95-289 and DOAH Case No. 95-1096F. Mitchell is also obligated to pay $1,045.00 to Carolyn Raepple, Esquire, who testified concerning the reasonableness of the fees and costs that Mitchell incurred in DOAH Case Nos. 95-289 and 95-1096F. FDOT has presented no evidence to rebut the reasonableness of these fees and costs.
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 The issue is whether Petitioner falsified information on his application.
Findings Of Fact Michael James Quinn made application to the Department of State for licensure as an unarmed security guard in February of 1981, and for licensure as an armed security guard in May 1981. Quinn answered "no" to Question #13 on the applications, "Have you ever been arrested?" Quinn admitted, and his FBI record also revealed, that he was arrested on July 9, 1975, for possession of cocaine, sale of cocaine, possession of marijuana and aggravated assault. Quinn admitted, and his FBI record also revealed, that all of the charges were dismissed except that for possession of cocaine, to which adjudication was withheld, and he was placed on five years' probation. Quinn was advised by his attorney and his probation officers that upon satisfactory completion of his probation his record would be expunged. Quinn satisfactorily completed his five years' probation. Quinn was just over 18 years of age when he was arrested. During probation Quinn satisfactorily completed four years of college and received a Bachelor's degree in Criminal Justice. Quinn included with his initial application the affidavit of Lola A. Alston to his good character. Alston was Quinn's last probation officer. Quinn has had no arrests since July 9, 1975.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Petitioner's applications for unarmed and armed guard licenses be approved. DONE AND ENTERED this 22nd day of July 1981 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 22nd day of July 1981. COPIES FURNISHED: Mr. Michael J. Quinn 4601 Northwest Second Avenue, #801 Boca Raton, Florida 33431 James V. Antista, Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301
The Issue The issues are whether Petitioner has shown, by clear and convincing evidence, that he is rehabilitated from his disqualifying offense, and if so, whether Respondent's intended action to deny Petitioner's request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact Petitioner is a 32-year-old male who seeks to qualify for employment in a position of trust having direct contact with children or developmentally disabled persons served in programs regulated by the Agency. The Agency is the state agency responsible for regulating the employment of persons in positions of trust for which Petitioner seeks to qualify. In a letter dated February 20, 2015, the Agency's Director, Barbara Palmer, notified Petitioner that his request for exemption from disqualification from employment in a position of special trust was denied. The letter advised Petitioner that this decision was based upon "the serious nature of the offense(s), the lack of sufficient evidence of rehabilitation, and [his] failure to sustain [his] burden of demonstrating by clear and convincing evidence that [he] should not be disqualified." Resp. Ex. C. Before Director Palmer made her decision, Petitioner's request for an exemption was reviewed by a Department of Children and Families (DCF) screener who compiled a 120-page report entitled "Exemption Review" dated November 17, 2014. See Resp. Ex. B. The Exemption Review did not make a recommendation one way or the other, but simply compiled all relevant information that would assist the Director in making her decision. The report was first given to the Agency Regional Operations Manager in Orlando, who reviewed it and then made a preliminary recommendation to the Director. The Agency decision was triggered after Petitioner applied for a position of special trust on October 24, 2014. To qualify for the position, Petitioner was required to undergo a level 2 background screening performed by the DCF. The screening revealed that Petitioner had six disqualifying offenses between 1995 and 2005. Those offenses are listed below: May 17, 1995 -- burglary of a dwelling; Petitioner pled guilty and adjudication was withheld; April 10, 1997 -- robbery; Petitioner pled guilty and adjudication was withheld; May 9, 1997 -- robbery; Petitioner pled guilty, adjudication was withheld, and he was placed on probation; June 17, 1997 -- battery by detainee in a detention facility; Petitioner pled nolo contendere, was adjudicated delinquent, and placed on probation; January 18, 2001 -- possession of cocaine with intent to sell; Petitioner pled nolo contendere, was adjudicated guilty, placed on probation, and ordered to serve 86 days in the County Jail; and February 1, 2005 -- possession of cocaine; Petitioner pled guilty, was adjudicated guilty, placed on probation, and ordered to serve six months in the County Jail. Besides the disqualifying offenses, Petitioner has a number of arrests and/or convictions for non-disqualifying offenses beginning in 1995. Two offenses, disorderly conduct and trespass on a property or conveyance, occurred in July 2012, or seven years after his last disqualifying offense. For that offense, he pled nolo contendere and was adjudicated guilty. He was also ordered to serve one day in the County Jail and required to complete a four-hour anger management class. The Exemption Review shows that in May 2000, Petitioner earned his high school diploma. In June 2009, he earned an associate's degree in Network Administration from the TESST College of Technology in Baltimore, Maryland. In May 2014, he earned a bachelor's degree in psychology from Morgan State University located in the same city. The Exemption Review also shows: from January 2008 through September 2008, Petitioner worked as a cashier and sales consultant at a retail store; from May 2009 through January 2010, he worked as an activities coordinator; from June 2011 through August 2013, he worked as a youth counselor; from February 2014 through May 2014, he worked as a records and registration clerk at the university from which he received his degree; and from June 2014 through August 2014 he worked as a behavior technician. At hearing, he testified that he is currently employed by Quest Diagnostics in the Orlando area. Most of Petitioner's disqualifying offenses occurred at a very early age. For example, in May 1995, while in middle school and just before he turned 12 years of age, he committed his first disqualifying offense, burglary of a dwelling. When he was arrested for his last disqualifying offense in February 2005, possession of cocaine, he was 21 years old. Petitioner attributes his criminal conduct to immaturity, peer pressure, and what he characterized as "environmental exposure." He expressed remorse, he takes full responsibility for his actions, and he acknowledges he could have handled his life better. He is currently in a committed relationship, has a new-born child, and serves as a mentor in the community. In short, Petitioner says he has changed his life for the better. Besides two witnesses who spoke highly of his recent volunteer work with children, an Orlando City Commissioner submitted a letter of recommendation. If his application is approved, Petitioner has a pending job offer with Lodestone Academy in Orlando, which works with Agency clients. An Agency representative testified that the Agency's clients are at a heightened risk of abuse, neglect, and exploitation because of their developmental disabilities and inability to self-preserve. They often have severe deficits in their abilities to complete self-tasks and communicate their wants and needs. For this reason, the Agency undertakes a heightened scrutiny of individuals seeking an exemption. In explaining the Agency's rationale for denying the application, the Regional Operations Manager listed the following factors that weighed against a favorable disposition of Petitioner's request: the frequency of the criminal offenses; criminal behavior that has consumed one-half of his life; the limited time (three years) since his last arrest, albeit for a non-disqualifying offense; and Petitioner's lack of specificity and accountability in his Exemption Questionnaire and testimony regarding the disqualifying offenses. As to the last factor, Petitioner could recall very few facts regarding his early arrests, saying they occurred at a very young age. He also denied that there were any injuries to his victims. However, one offense involved battery on a detainee in a juvenile facility, and in another, he ripped two gold chains from a victim's neck.
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 application for an exemption from disqualification. DONE AND ENTERED this 17th day of June, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 June, 2015.
The Issue The issue is whether Petitioner is entitled to an exemption from disqualification for employment with Respondent due to Petitioner's plea of guilty to three felony counts of credit card fraud, one felony count of theft, and one misdemeanor count of theft.
Findings Of Fact Petitioner was born on July 21, 1967. He was raised in Miami, where he earned his high school diploma in 1985. Petitioner's first employment after high school was as a child care worker. He was initially employed at the Elaine Gordon Treatment Center, for four years, and then the Southeast Florida State Hospital, for a year and a half. For the next three years, Petitioner worked as a senior patient clinical assistant at a facility operated by the University of Miami; in this job, Petitioner worked with adolescent sex offenders. His last job in the Miami area was as a supervisor at the Village for Behavioral Change, where Petitioner worked as a supervisor at a halfway house for delinquent youth; after a short time at this job, Petitioner decided to move to Tampa. Petitioner's first job in Tampa was as a counselor of adolescents at Tampa Crossroads, which provides alcohol and drug treatment. After a year at Tampa Crossroads, Petitioner became employed by the Pinellas Regional Juvenile Detention Center as a Detention Care Worker I. While working for Tampa Crossroads, Petitioner lived with his cousin and her brother. His cousin was employed by a company that distributed and collected credit cards. A few months after arriving in Tampa, Petitioner and his cousin developed a scheme to make fraudulent use of credit cards with which the cousin came into possession through her employment. For example, Petitioner and his cousin used the credit card of a recently deceased person, whose survivors had returned the card to the cousin's company. This seems to have been the full extent of the scheme; evidently, neither Petitioner nor his cousin gave much thought to escaping detection. Through the fraudulent use of credit cards supplied by his cousin, Petitioner bought furniture, car repairs and accessories, gasoline, meals, and home electronic equipment. Fraudulently charging as much as $17,000, Petitioner and his cousin were arrested after a couple of months. Petitioner expresses remorse for his actions. Without trying to avoid responsibility for his criminal behavior, Petitioner suggests that he was in a difficult period of his life because his first marriage had just failed and this was his first time away from Miami. But basically he admits he engaged in the fraud because he wanted things. In September 1995, a law enforcement officer employed by the Tampa Police Department filed an affidavit charging Petitioner as follows: two felony counts of "forgery," in violation of Section 831.01, Florida Statutes; two felony counts of "fraudulent use of credit card," in violation of Section 817.61(1), Florida Statutes; one felony count of "possession of two or more/dealing in credit cards," in violation of Section 817.60(6B)[sic], Florida Statutes; one felony count of "grand theft," in violation of Section 812.014, Florida Statutes; and one misdemeanor count of "petit theft," in violation of Section 812.014, Florida Statutes. Following his arrest on October 3, 1995, Petitioner pleaded guilty to two felony counts of "fraudulent use of a credit card," one felony count of "dealing credit cards of another," one felony count of "grand theft third degree," and one misdemeanor count of "petit theft." By Order of Probation entered February 29, 1996, the court withheld adjudication of guilt and placed Petitioner on probation for eight years: five years for the first three counts and three years, to run consecutively, for the fourth count. (The probation for the fifth count ran concurrently with the probation for the other counts.) The Order of Probation also ordered Petitioner to pay restitution in the total amount of $17,896.32 and court costs of $200, as well as perform 200 hours of community service. Evidently by separate order, the court required Petitioner to pay the restitution monthly in payments of $200. Thus, assuming no interest, Petitioner must pay restitution over 90 months, which means that he would complete restitution prior to the termination of probation, which is due to terminate February 28, 2004. Petitioner earns $25,000 annually from a janitorial service that he operates. Out of takehome pay of $661 every two weeks, Petitioner pays monthly child support of $260, monthly rent of $400, and monthly debt payments of $100. Petitioner owns no assets, except for a unliened 1996 Kia Sophia, which he bought, in damaged condition, for $1000. Petitioner has paid $162.50 every two weeks, so as to shorten the period required to pay the restitution. He also returned to the stores the stolen merchandise still in his possession. On October 2, 1996, Petitioner completed a State of Florida employment application and submitted it to Respondent for possible employment at Respondent's Pinellas Regional Juvenile Detention Center (JDC). In response to a written question asking if the applicant has ever pleaded no contest or guilty to a crime that is a felony or first-degree misdemeanor, Petitioner checked the box marked yes and explained: "I used a credit card belonging to another" in Tampa. In response to a written question asking if the applicant has ever had adjudication withheld to a crime that is a felony or first-degree misdemeanor, Petitioner checked the box marked yes and noted: "same as above." Respondent conducted the standard criminal screenings of job applicants, and nothing was uncovered, perhaps due to the fact that the offenses were relatively recent. Respondent offered Petitioner an Other Personnel Services (OPS) position, essentially as a detention care worker responsible for maintaining order in the JDC. Petitioner began working in November 1996. When a career service Detention Care Worker I position became available, Petitioner decided to seek the position, which imposed the same requirements as the job he was performing, but offered better benefits. Petitioner completed another State of Florida employment application, dated November 2, 1997, and submitted it to Respondent. He answered the above-cited questions in the identical way as he did 13 months earlier. This time, Petitioner also submitted a signed affidavit of good moral character. He indicated that he was not guilty of any of 30 cited statutory offenses, including "812 relating to theft, robbery and related crimes, if the offense was a felony." Performing another criminal screening, Respondent received information concerning the above-described arrests and probation. By letter dated February 18, 1999, Respondent informed Petitioner that he was no longer eligible for employment in a position of special trust or responsibility, such as his current position with Respondent. He was therefore to be terminated from his position immediately. Petitioner sought an exemption from disqualification. A committee of Respondent's employees at the JDC conducted a hearing and entered a recommendation on April 26, 1999, that Respondent grant an exemption. In part, the recommendation reasoned: [Petitioner] has been honest and forthright about his record since his first point of contact with our agency. . . . His record with us is unblemished and is highly recommended by his peers and his supervisors. [Respondent] has complied with his probation order up to this point. He has completed 200 service hours and has not missed a restitution payment. He is working two jobs in order to pay back the restitution sooner. . . . The delay between the adverse criminal screening and the letter terminating Petitioner's employment is partly attributed to a series of disqualification waivers that Petitioner received from Respondent's JDC employees. These waivers appear to have been for nonwaivable offenses and, except for their small value as evidence of Petitioner's value as an employee of Respondent at the JDC, they are not relevant and, in particular, do not establish an exemption by estoppel. In any event, Respondent's Inspector General overturned the recommendation and denied the request for an exemption. Any delay in the issuance of his ruling was immaterial and, again, does not provide the basis for some form of exemption by estoppel or default. However, the fact remains that Petitioner was a model employee at the JDC. He worked effectively with the juveniles incarcerated at the JDC and with his coworkers and supervisors. He was conscientious, dependable, loyal, competent, and professional in all of his dealings and even voluntarily assisted a coworker with her troubled son. When dealing with the juveniles, he always insisted upon compliance with the rules, but, whenever possible, exhibited kind-heartedness. While working at the JDC, Petitioner earned the trust and respect of all of those around him and never displayed bad moral character. The evidence provided by Petitioner's coworkers, supervisors, and friends also tend to establish his rehabilitation. Petitioner's probation officer testified that Petitioner is very compliant and cooperative. At the time of the hearing, he had completed all of his community service except for 1.5 hours, which may have arisen due to an accounting error. Petitioner has maintained fulltime employment and passed all drug screens, as required by the conditions of his probation. He has renewed his religious practices and is now active at his church. At the time of the hearing, Petitioner still owed $13,005.15 in restitution. Except for the fact that restitution is not complete, the probation officer testified that she would recommend termination of probation; she explained that she cannot recommend termination of probation as long as any conditions remain outstanding. Respondent's primary contention in support of denying the request for probation is that Petitioner has not completed his probation. Respondent argues that the completion of probation is a necessary precondition to rehabilitation. In determining whether a person seeking an exemption has completed rehabilitation, it is important to assess the extent of his compliance with the conditions of his probation. Obviously, the successful completion of probation is evidence of rehabilitation, and, if supported by the other evidence, the successful completion of probation may be an important factor in determining that a person has rehabilitated himself. On the other hand, the failure to complete probation does not necessarily preclude a determination of rehabilitation. All of the circumstances must be considered in determining whether a person has rehabilitated himself. The failing in predicating the rehabilitation determination on the successful completion of probation is revealed in comparing Petitioner's case with a hypothetical case of another detention care worker, who, but for three facts, is identically situated with Petitioner. The first distinguishing fact is that, after reducing the restitution to $13,000, the hypothetical detention care worker wins the lottery or receives a large inheritance. The second distinguishing fact is that, after receiving the proceeds, the hypothetical detention care worker pays off the remainder of his restitution. The third distinguishing fact is that his probation is then terminated. In the absent of statutory or regulatory authority, the rehabilitation determination cannot be governed by the continuation of probation, when probation likely has not been terminated due merely to the ongoing liability for restitution, without introducing an arbitrary element into the rehabilitation determination. In the present case, Petitioner is working two jobs and is shortening the period of repayment as much as he can; this is exactly what would be expected of the hypothetical detention care worker who enjoys a windfall, and this is all that we can expect, given other evidence of rehabilitation, of Petitioner. More generally, the record does not offer much detail as to the identity of the victims or the extent of the injury caused, except that it was obviously about $17,000. The circumstances surrounding the crimes are not particularly telling. Charging a camcorder and auto accessories does not conjure images of Jean Valjean stealing a loaf of bread to eat. On the other hand, five years have passed since the crimes, and, during that time, Petitioner has conducted himself in an exemplary fashion. Unusual in exemption cases is the fact that Petitioner has had an opportunity to demonstrate, following disqualifying crimes, his good moral character while performing the work for which he now seeks the exemption. Candidly disclosing his crimes, Petitioner, due to the failure of Respondent's personnel to follow up on the disclosures in the application and the failure of the criminal screening process, was able to obtain employment as a detention care worker. Later, seeking to gain the benefits of a career service position, Petitioner again disclosed his criminal background. Although it is true that he should have disclosed the grand theft on the affidavit filed at this time, his failure to do so is not indicative of an attempt to conceal. He had, again, revealed the credit card crimes on the application that he was filing for this career service position, as he had revealed the credit card crimes on his first application. It is illogical that he would try to conceal one count of grand theft while disclosing three counts of credit card fraud. More likely, as revealed by the two applications, he had reduced in his mind the various crimes to their most salient characteristic: credit card theft. His failure to detect the specific language in the affidavit requiring disclosure of the felony theft offense is reflective of Petitioner's linguistic skill, not his honesty. Petitioner has proved by clear and convincing evidence that he has rehabilitated himself and is of good moral character to justify the issuance of the exemption.
Recommendation It is RECOMMENDED that the Department of Juvenile Justice enter a final order granting Petitioner an exemption from disqualification in employment. DONE AND ENTERED this 25th day of August, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 25th day of August, 2000. COPIES FURNISHED: 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 Manny Anon, Jr., Deputy General Counsel AFSCME Florida Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Lynne T. Winston, Attorney Chief of Investigations Office of Inspector General 2737 Centerview Drive, Suite 300 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 On or about December 15, 1987, Petitioner Patsy R. Stewart (“Stewart”) was found guilty on a felony charge of conspiring to traffic in cocaine. On or about July 24, 2002, in connection with an application for employment in a program for children or youths, Stewart executed an Affidavit of Good Moral Character in which she acknowledged the drug-related felony conviction in her criminal record.
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 Stewart an exemption from disqualification from working with children. DONE AND ENTERED this 10th day of October, 2003, in Tallahassee, Leon County, Florida. S 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 10th day of October, 2003. COPIES FURNISHED: Richard D. Davidson, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Patsy Rose Stewart 36 Southwest Avenue F Belle Glade, Florida 33430 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 issues are whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense, and if so, whether Respondent's intended action to deny Petitioner's request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact The Agency is the state agency responsible for regulating the employment of persons in positions of trust for which Petitioner seeks to qualify. Petitioner is a 38-year-old female who seeks to qualify for employment in a position of special trust with Success for All of Florida, Inc., a service provider regulated by the Agency. Because she wishes to work as a direct service provider, Petitioner was required to undergo a background screening. The results of that screening identified a history of criminal offenses, including a disqualifying offense in 2003. Accordingly, Petitioner filed a request for exemption from disqualification, which triggered the instant proceeding. In a letter dated July 27, 2015, the Agency's Director, Barbara Palmer, notified Petitioner that after reviewing all information that led to her disqualification, her exemption request was denied. The letter advised Petitioner that this decision was based upon Petitioner's failure to "submit clear and convincing evidence of [her] rehabilitation." Resp. Ex. C. Before Director Palmer made her decision, Petitioner's request for an exemption was reviewed by a Department of Children and Families screener who compiled a 34-page report entitled "Exemption Review" dated June 10, 2015. See Resp. Ex. B. The packet of information contains Petitioner’s Request for Exemption, Exemption Questionnaire, various criminal records, and two character references. The Exemption Review did not make a recommendation one way or the other, but simply compiled all relevant information that would assist the Director in making her decision. The report was first given to the Agency Regional Operations Manager in Orlando, who reviewed it and then made a preliminary recommendation to the Director. In 2003, Petitioner had a disqualifying offense, Grand Theft, a third-degree felony, which automatically disqualified her from employment in a position of special trust. Around the same time, she committed a second-degree misdemeanor, Trespassing in a Structure or Conveyance, a non-disqualifying offense. Both offenses occurred at a JC Penney store in Lakeland. Petitioner pled guilty to both offenses and was adjudicated guilty. For the felony conviction, she was placed on probation for 25 months, given credit for time served in jail, and ordered to pay various fines and costs. Petitioner was then 26 years old. Petitioner's account of her disqualifying offense differs in several respects from the account memorialized in the Lakeland Police Department reports and is inconsistent with her plea of guilty. In her Exemption Questionnaire, she stated that the criminal offense was actually committed by her younger sister and not her. She wrote that "I didn't tell on my sister because she was only 16 at the time so I took the charge for her." Resp. Ex. A, p. 3. This version of events was never presented to the court. At hearing, she also stated that she pled no contest to the crime, but court records indicate she pled guilty. In January 2004, while on probation for the Grand Theft charge, Petitioner violated her probation by committing a non- disqualifying offense and was sentenced to 60 days in jail. In November 2005, Petitioner violated her probation a second time by testing positive for cocaine during a probationary drug screening. The record is unclear if Petitioner served any jail time for this violation. In September 2012, or approximately three years ago, Petitioner committed the non-disqualifying offense of Use or Possession of Drug Paraphernalia, a first-degree misdemeanor. She pled nolo contendere, was adjudicated guilty, placed on probation for 12 months, and ordered to pay various fines and costs. At hearing, Petitioner blamed her cousin for the arrest and stated that she was unaware her purse contained drug paraphernalia (a straw and cocaine residue), as she had not used cocaine since 2005. In any event, she stated that her drug of choice was previously ecstasy and not cocaine, and admitted that she had used that drug while working at Success for All in Florida, Inc., from 2001 until around 2005. Between 2006 and 2014, Petitioner was employed as a warehouse worker by Publix. Along with five other workers, she was terminated by Publix in 2014 for improperly accepting damaged merchandise from a co-worker. There is no record of any employment since that time. Petitioner blamed her criminal arrests on stress in her life, mainly due to a lack of family support and raising two children as a single parent, and being just "plain stupid" while she was young. She expressed remorse for her mistakes and now wishes to help others as a direct service provider. Three witnesses testified on Petitioner's behalf. They described her as being a good worker, a caring individual, dependable, and very determined to improve her life. The Agency's rationale for denying the application is Petitioner's failure to take responsibility for her actions, that is, blaming her arrests on others, and a failure to provide a truthful and full account of the circumstances surrounding her disqualifying offense. The Agency also expressed concerns over Petitioner's lack of specificity regarding her criminal background, and the short period of time (three years) since her latest arrest, albeit for a non-disqualifying offense. Finally, the Agency noted that Petitioner has never had counseling, she lacks any specialized training, and there is no record of employment since being terminated by Publix more than a year ago.
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 application for an exemption from disqualification. DONE AND ENTERED this 7th day of December, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 7th day of December, 2015. COPIES FURNISHED: David M. De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) LaShae Thomas 3217 Julia Court Lakeland, Florida 33810-5510 Michael Sauve, Esquire Agency for Persons with Disabilities 400 West Robinson Street, Suite 430 Orlando, Florida 32801-1764 (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 issue to be determined is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2010), and Florida Administrative Code Rule 11B-27.0011(4)(a), and if so, what penalty should be imposed.
Findings Of Fact The Department?s Case Respondent is a certified corrections officer in the State of Florida, to whom Petitioner has issued certificate number 249713. On or about April 9, 2011, at approximately 2:00 a.m., Officer George Dodson of the Cottondale Police Department responded to a disturbance call at the Cottondale Villas at 3111 Willow Street in Cottondale, Florida. Officer Dodson found a group of people in the parking lot, including Respondent. There was a large amount of blood on the ground. Ms. Bradie had a cut on her hand that was wrapped in a cloth, and denied knowing how her hand was cut. Officer Dodson spoke to several people at the location, and the consensus was that Ms. Bradie had cut Mr. Marques White with a box cutter. None of the people with whom he spoke testified at hearing. No box cutters were found at the scene. Mr. White was not present at the scene. He returned at approximately 4:00 a.m., but was still bleeding and could not really speak. Officer Dodson did not take statements from anyone at the scene because, other than Ms. Bradie, all of them appeared to be intoxicated. He did recall Ms. Bradie saying she was struck in the face, but does not recall her face being swollen. The next day, Officer Dodson learned that Mr. White had returned to the hospital because of his injuries, which were serious. Pictures taken of Mr. White show a scar on his lip and arm, and a scar resulting from the performance of a tracheotomy. However, there is no evidence to indicate whether Mr. White had any of these scars prior to the incident, or that all of the injuries evidenced by the scars occurred as a result of Respondent?s actions. Officer Dodson was able to interview Mr. White on April 15, 2011, and a witness statement/affidavit was prepared on April 17, 2011. The statement of Mr. White is hearsay, and he did not testify. On April 15, 2011, Officer Johnson filed an affidavit/complaint and application for warrant against Ms. Bradie for aggravated battery. An information filed June 15, 2011, charged her with aggravated battery in violation of section 784.045(1)(a)1., Florida Statutes, a second-degree felony. A warrant for Ms. Bradie?s arrest was issued that same day. Ms. Bradie resigned her position at the Jackson Correctional Institution on June 27, 2011. Ms. Bradie entered a pretrial intervention program, and the charges against her were nolle prossed on February 25, 2013. Richard Johnson is an assistant warden at the Charlotte Correctional Institution. In April of 2011, he worked in the Inspector General?s Office at the Florida Department of Law Enforcement. Mr. Johnson investigated an administrative case against Respondent stemming from the April 2011 incident. He spoke to Mr. White, and recorded an interview with him. He did not speak with Ms. Bradie. In sum, Petitioner proved that on April 9, 2011, Respondent was present at an altercation at the Cottondale Villas. She had a cut on her hand, and there was a large amount of blood on the pavement. All of the other people present smelled of alcohol or admitted to drinking. Petitioner presented no testimony from anyone who was present during the altercation to describe the events leading to the charges against Respondent. Further, Petitioner presented no competent evidence regarding the item allegedly used to cut Mr. White, as there was no evidence regarding the discovery of any item found at the scene. Respondent?s Story Ms. Bradie testified on her own behalf. She is the only person who testified that was present during the altercation. She testified that she went to Cottondale Villas to pick up her child from her mother, who cared for the child while Ms. Bradie was at work. When she was leaving her mother?s apartment, she heard her brother, Lesidney, outside arguing with Marques White. According to Ms. Bradie, she put her baby in the car and told her brother to go inside, because Marques White was “not worth it.” This apparently angered Mr. White, who started arguing with her. Ms. Bradie?s mother came out of the apartment and tried to break up the argument. Mr. White swung around her mother in order to try to hit Lesidney, and continued arguing with both Ms. Bradie and her brother. A bystander, Marcus Bellamy, pulled Lesidney away from the argument. At that point, Marques White jumped on Ms. Bradie and started hitting her in the face. Ms. Bradie is five feet, one-inch tall. She testified that Mr. White had pushed her down to the ground. While she was close to the ground, she picked something up off the pavement and started swinging to try and get him off of her. While she believes she probably cut him in her effort to get free, she could not identify the object she picked up (which was never located) or say that all of his injuries were a result of her actions. There is no evidence that she deliberately tried to cut him at all, much less that she meant to cut his face. Ms. Bradie?s account of the events is the only evidence from a witness who was actually present at the scene, and her testimony was credible. The most persuasive and compelling testimony presented is that Ms. Bradie acted in self-defense. No evidence was present to rebut her testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 5th day of February, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 5th day of February, 2014. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ashley Bradie (Address of record) Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offenses; and, if so, whether Respondent's intended action to deny Petitioner's request for an exemption from employment disqualification would constitute an abuse of discretion.
Findings Of Fact APD serves clients with disabilities such as autism, intellectual disabilities, Downs Syndrome, and Prader-Willi Syndrome. APD's clients range from those needing total care to those who can live on their own with minimal assistance. The services APD provides to its clients include personal care, respite care, adult day training, supported living, and a wide variety of other services. The aforementioned services are provided by APD's vendors in individual homes, group homes, and supported living arrangements. Petitioner is seeking to work as a direct service provider in a group home for persons with developmental disabilities. Section 435.06(2), Florida Statutes, mandates that an employer may not hire someone for a position requiring contact with any "vulnerable person" until a completed background screening "demonstrates the absence of any grounds for the denial or termination of employment." The Department of Children and Families ("DCF") administers the background screening process for APD. APD's Action Petitioner's background screening identified three felony counts that are disqualifying criminal offenses, and all for resisting an officer with violence to his person. On November 14, 2016, DCF notified Petitioner that she was disqualified from employment due to her criminal history and specifically because of the three counts of resisting an officer with violence to his person from a November 26, 1975, Miami Dade incident. On or around December 1, 2016, Petitioner submitted a request for exemption, which included the exemption application and questionnaire to DCF. The instructions provided: "[f]or EACH criminal offense appearing on your record, please write your DETAILED version of the events and be specific. Attach extra pages as needed and please type or write legibly. When Petitioner filled out the questionnaire, she provided the following answers to each question on the exemption questionnaire: Question #1 asked for "disqualifying incident(s)." Petitioner responded "3 Counts of Resisting Arrest with Violence." In response to Question #2 "Non-disqualifying Offenses(s)," Petitioner again provided none of the details surrounding these offenses. She listed two non-disqualifying offenses, "Battery" and "Petit Theft" to which she had criminal dispositions. Question #3 asks, "What is the current status in the court system?" Petitioner responded, "N/A." In Response to Question #4 on her Exemption Questionnaire, regarding "the degree of harm to any victim or property (permanent or temporary), damages or injuries," Petitioner indicated "N/A." In answering Question #5, about whether there were "any stressors in [her] life at the time of the disqualifying incident," Petitioner again indicated "N/A." Question #6 asked whether there are any current stressors in her life, Petitioner responded: "[D]ivorced living at home with my 3 minor children. I am a spokes-person for the SEIU union. Fight for Fifteen. I feed the homeless in my community." As confirmed at hearing, Petitioner listed educational achievements and training as the following: Fla College of Business – Certified Nursing Assistant (1985) National School of Technology – Surgical Tech (1998) Food Service – Brevard C.C. Under Question #8 of the Exemption Questionnaire, in response to the question whether she had ever received any counseling, Petitioner indicated "N/A." Question #9 of the Exemption Questionnaire asks, "Have you ever used/misused drugs and alcohol? Please be specific and list the age at which you started and how you started." Petitioner again responded "N/A." Question #10 of the Exemption Questionnaire asks whether Petitioner was involved in any community activities. Petitioner responded, "I have volunteered with Senator Dwight Bullard, Fla. State Rep. McGhee, Mayor Woodard, Joe Garcia, etc." Question #11 asks the applicant to "Document any relevant information related to the acceptance of responsibility for disqualifying and non-disqualifying offenses." Petitioner responded as follows: "Yes. I accept responsibility at the time of this offense I was 17 years of age and trying to fit in with my friends. I have learned when you know better you do better." The Exemption Questionnaire also requested Petitioner to provide her three prior years' work history. Petitioner provided detailed information about her 18-year work history in the health care field, which included care of the vulnerable community. Petitioner has worked in a hospital, nursing home, private home, and with both mental health and hospice patients. Petitioner's answer also outlines how she had performed some of the same job responsibilities as a direct service provider for the following employers: JR Ranch Group Home LLC: C.N.A 10/3/16 to present-Companion to individual bathing, feeding, dressing, grooming, etc. Nurse Plus Agency: C.N.A. 3/12/08 to 9/7/15- Working in private homes with hospice patients bathing, feeding grooming, shaving, R.O.M. T.C.C. vital signs, doctor's appointments, etc. Gramercy Park Nursing Home: C.N.A. 2/15/05 to 3/12/08-Working in skilled nursing facility doing patient care, vitals, charting, lifting, bathing, feeding, dressing, physical therapy, etc. Jackson M. Hospital: C.N.A. 1/7/98 to 5/8/2001-Working on HIV unit, patient care, R.O.M., bed making, bathing, feeding, dressing, shaving, oral care, transferring, lifting, etc. On December 15, 2016, DCF sent a letter to Petitioner requesting additional documentation to complete the exemption application. Petitioner was asked to "provide the arrest report (from arresting agency) and CERTIFIED court disposition JUDGMENT AND SENTENCE" for the following offenses appearing on [her] criminal history screening report: 05/20/2013 MIAMI-DADE POLICE DEPARTMENT, BW DRIVING WHILE LICENSE SUSPENDED 5/11/2002 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 5/11/2002 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 12/22/2001 MIAMI-DADE POLICE DEPARTMENT, COUNTY ORD VIOL 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, BATTERY 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATT-POL OFF 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, BATTERY 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 4/11/1994 MIAMI-DADE POLICE DEPARTMENT, AGG ASSLT - WEAPON 4/11/1994 MIAMI-DADE POLICE DEPARTMENT, AGG ASSAULT –WEAPON 01/14/1991 MIAMI-DADE POLICE DEPARTMENT, SHOPLIFTING 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, ASSAULT 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, DISORDERLY CONDUCT The DCF letter also instructed Petitioner that if she could not obtain the arrest report and/or court disposition, she might submit a notarized written "detailed statement on each arrest explaining why you were arrested. You must include the victim's age and relationship to you and the sentence you received (probation, jail, prison, etc)." Additionally, the letter requested proof of income, an affidavit of good moral character, two to five letters of recommendation, and a personal history explaining what happened with each arrest, current home life, education, training, family members, goals, and community involvement. The letter provided Petitioner a 30-day deadline and notified Petitioner "[n]o further action [would] be taken on [her] application for exemption until we receive the requested information." (emphasis added). On or about December 21, 2016, Petitioner complied with the DCF letter and provided 99 pages of documents including Florida Criminal History Record requested, certified police arrest reports, notarized printed dockets of her criminal offenses with court dispositions, notarized document from the Clerk of Circuit and County Court Harvey Ruvin listing all Petitioner's criminal charges and court dispositions available in Miami-Dade, certificate of parole, 2009 certificate of restoration of civil rights, taxes, nursing assistant certification, certificate of liability insurance, continuing education certificates, program certificates, June 13, 2015, White House Conference on Aging program listing Petitioner as a speaker at the White House, 2015 newspaper articles detailing Petitioner's substantive work in minimum pay raise advocacy nationwide for the Fight for Fifteen campaign, letters of recommendation, driving history records, ACHA exemption to work in the healthcare field as a Certified Nursing Assistant ("CNA"), and a personal statement. Petitioner's personal statement and testimony at hearing provided a comprehensive history of how she has been a caregiver since 1982 "working [i]n hospitals, nursing homes, mental health, hospice, private homes, SLF, etc." Petitioner's statement further detailed that she became a Certified Nursing Assistant in 1985 after the disqualifying offense incident and became a surgical technician in 1997. Petitioner also provided the requested following explanations for each of her arrests: 1.) 11/26/1975: I was arrested for (3) counts of resisting arrest with violence. At the time I was 17 years of age hanging with the wrong crowd. 2.) 11/07/1981: Was at a party drinking got in fight with boyfriend. No case action. 3.) 01/14/1991: In store buying groceries didn't realize there were a pair of socks in my buggy charged with petty theft no way I would have stolen a pair of one dollar socks. Judge was dumbfounded. 4.) 04/11/1994: Got into argument with my mother in which she was drinking she called police to say I had a gun. In which was not true. Office[r] ask me had I ever been to jail I stated yes he then said put your hands behind your back then placed me under arrest. My Mom was there next morning to bond me out. Case No Action. 5.) 09/28/1996: I was witness to a murder I told officer what I seen but didn't want to speak in front of people, also did not want to be labeled as a snitcher. I told the officer I would come to talk but I would not walk with him. I proceeded to walk away the officer grabbed me by the back of my hair, the officer and I proceeded to fight at that time other people got involved. The lead detective asked the officer why he did that. The lead detective promise me he would come to court with me in which he did case was dismissed. Case No Action. 6.) Boyfriend and I got into argument he was drinking and he wanted to drive I told him no he wouldn't give me my keys, so I proceeded to knock head lights out. Case No Action. 7.) 01/13/1998: Got in fight with boyfriend. Case No Action. Petitioner responded to the best of her ability to each of DCF's requests for information. DCF summarized Petitioner's 99 document submission in an Exemption Review Summary ("summary") and forwarded the application, questionnaire, and supporting documents to APD for review. The summary correctly identified Petitioner's 1975 acts of resisting an officer as the disqualifying offenses. The summary outlined twelve non-disqualifying offenses with which Petitioner was charged. However, the summary categorized one non-disqualifying offense as a driving charge and outlined an additional nine non-disqualifying offenses as dismissed or dropped, as Petitioner had reported in her personal statement when she said "no action" was taken. The summary only listed a 1991 shoplifting charge and a 2001 county ordinance violation for which Petitioner was prosecuted. On March 17, 2017, Agency Director Barbara Palmer advised Petitioner by letter that her request for an exemption from the disqualification has been denied. The basis for the denial was that Petitioner failed to submit clear and convincing evidence of her rehabilitation. On May 1, 2017, Petitioner requested to appeal APD's denial. Hearing At hearing, as well as in the exemption package, Petitioner took full responsibility for her disqualifying offenses. At hearing, Cunningham also showed remorse. In her personal statement she stated she "paid her debt to society . . . learned from [her] mistakes." Petitioner also credibly explained the circumstances at hearing for her 1975 disqualifying convictions and testified that she was 17 years old when she broke into the neighbor's empty house across the street and was hanging out there. When she was arrested they were handling her roughly. She was originally charged with burglary, larceny and resisting arrest. The burglary and larceny charges were dropped and she pled to three counts of resisting an officer with violence to his person. Petitioner was sentenced to a youth program but left it, was bound over as an adult, and was sentenced to prison where she served three and a half years. Petitioner successfully completed her parole on August 23, 1981, and her civil rights were restored on May 8, 2008. Petitioner testified to her other non-disqualifying offenses as she had detailed in her personal statement. She explained that the 1981 criminal charge was dropped and stemmed from a fight with her boyfriend while at a party where she had been drinking. In 1994, her mom, who was a drinker, was acting out and called the police on Petitioner. Her mother lied and told the police Petitioner had a gun, which she did not. The police asked Petitioner if she had been to jail previously and she answered yes and was arrested. Her mother came and got her out of jail the next morning and the case was dismissed. Petitioner verified that in 1996, she would not tell the police officer what she saw regarding a murder because she was going to the police station to report it privately. The officer grabbed her from behind, they fell to the ground, and she was arrested for Battery on an Officer. The next day the lead detective came to court and testified on Petitioner's behalf that the officer's behavior was inappropriate and Petitioner was released and the charges were dropped. Petitioner also explained that she received another arrest because her boyfriend was drunk and took her car keys and was going to drive. Petitioner testified she could not stop him so she knocked the headlights and windows out of her car to prevent him from driving and ultimately the charges were dropped. Petitioner confirmed at hearing that at least nine of the criminal charges she obtained were either dismissed or dropped and she had not been arrested in over 10 years. Petitioner's credible detailed testimony during the hearing was information that APD did not have the benefit of having while reviewing her application. Petitioner affirmed that she had a July 1999 public assistance fraud case on which adjudication was withheld for her trading food stamps to pay her light bill. DCF failed to ask Petitioner about the case in the request letter with the list of other charges. Petitioner admitted that the public assistance fraud case was the only case in which Petitioner had to make restitution. She paid back the total amount of food stamps she sold and then her food stamps were reinstated. Evelyn Alvarez ("Alvarez"), APD Regional Operations Manager for the Southern Region, made an independent review of Petitioner's Request for Exemption, Petitioner's Exemption Questionnaire, and documentation submitted on December 21, 2016. Among the factors identified by Alvarez as a basis for the recommendation of denial of the exemption was the perception that Petitioner's application was incomplete. Alvarez determined Petitioner did not take responsibility for her arrests or show any remorse. Alvarez testified that APD needs to be able to rely on the answers provided by the applicant in the Exemption Questionnaire to get the information needed to decide whether to grant an exemption. Although she relied on other information gathered as well, what the applicant stated in the Exemption Questionnaire is very important. Alvarez explained that she considered both Petitioner's disqualifying and non-disqualifying offenses, the circumstances surrounding those offenses, the nature of the harm caused to the victim, the history of the applicant since the disqualifying incident, and finally, any other evidence indicating whether the applicant will present a danger to vulnerable APD clients if employment is allowed. Alvarez also testified that she looked for consistency in the applicant's account of events in her Exemption Questionnaire, whether or not the applicant accepted responsibility for her actions and whether the applicant expressed remorse for her prior criminal acts. Alvarez concluded that there were inconsistencies between Petitioner's account of her disqualifying and non-disqualifying offenses compared with those found in the police reports. Alvarez further testified she was concerned that Petitioner had numerous traffic citations. Alvarez explained the citations concerned her because individuals who are granted exemptions would potentially be in positions to transport clients and an applicant that maintains a good driving record demonstrates an ability to ensure the health and safety of clients being served. At hearing, Petitioner testified that her driving record "was not the best." The summary detailed that the 2008 infractions included failure to pay required tolls, improper left, and lack of proof of insurance. Petitioner also had other driving offenses, such as a DWLS and Driver License in 2007 and a safety belt violation in 2006. After her review, Alvarez decided that Petitioner had exhibited a continuing pattern of criminal offenses over an extended period of time, many of which were violent and involved fights, and she concluded Petitioner had not demonstrated rehabilitation. At hearing, Tom Rice ("Rice"), APD Program Administrator for Regional Supports/Licensing, testified that an individual's good character and trustworthiness is important for individuals who provide direct care for APD because service providers 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. Rice explained that APD's clients are susceptible to abuse because they are reliant on others to assist with intimate tasks, such as getting dressed, going to the bathroom, feeding, medicine, and funds. Direct service providers need to care and keep clients safe. Rice verified that Petitioner was eligible to work in an APD group home as a CNA. Rice also testified that APD was concerned with Petitioner's failure to disclose details in her accounts regarding her criminal offenses because it calls into question her trustworthiness. He further testified such factors demonstrate a pattern of poor judgment and decision-making and provide cause for APD to question Petitioner's fitness for providing services to the vulnerable individuals for which it is responsible and that is why Petitioner was denied. Findings of Ultimate Fact Upon careful consideration of the entire record, the undersigned finds that Petitioner has demonstrated by clear and convincing evidence that she is rehabilitated from her disqualifying offenses of resisting an officer with violence to his person and that she will not present a danger to disabled or otherwise vulnerable persons with whom she would have contact if employment in a group home were allowed. Petitioner has shown she is a responsible individual by successfully holding jobs in the health field for approximately 18 years. Her employment has been in positions where she cared for vulnerable persons and no evidence was presented that Petitioner was a danger while doing so. Instead, Petitioner's exemption package mirrors her credible testimony of her previous employment serving as a companion, bathing, feeding, dressing, grooming, taking vital signs, transporting patients to doctor's appointments, and working in a private home, which are personal care services that some direct service providers also supply. Petitioner was honest and forthright about her past and supplied 99 pages detailing her past to comply with DCF's request to complete her application. Petitioner testified convincingly that she has turned her life around. Petitioner's only disqualifying offenses occurred over 40 years ago. Even though she was arrested at least twelve times since then, nine of the charges were dismissed and Petitioner's last criminal arrest was 2002. Petitioner also obtained three certificates after her disqualifying offenses. Petitioner received licensure as a CNA and she has been successfully practicing under her license with an ACHA exemption in the health care field. Some of Petitioner's work has even been with vulnerable adults in both a hospital and nursing home. The undersigned further finds that denial of Petitioner's exemption request would constitute an abuse of discretion. As discussed above, it appears Respondent relied heavily on the initial application submitted, hearsay in the police reports, and traffic infractions, and failed to adequately consider the 99 pages and nine dismissed charges Petitioner provided regarding her rehabilitation. In doing so, Respondent failed to properly evaluate Petitioner's disqualifying offenses having occurred over 40 years ago and the last non-disqualifying criminal arrest being at least 15 years ago and the majority of the charges being dismissed. The evidence also indicates that Petitioner has performed successfully in a healthcare work setting, including some care of vulnerable individuals. Additionally, Petitioner has gone above and beyond to contribute in the community. She volunteers with the homeless and also volunteers with legislators and a mayor, and advocated nationally for a minimum wage increase in the Fight for Fifteen campaign, serving as the spokes-person. In 2015, the White House also extended an invitation to Petitioner to speak because of her advocacy, and Petitioner passed the background check and screening that the secret service conducted. As Petitioner testified at hearing, had she been any type of threat or been dangerous or violent based on her previous arrests, she would not have passed the high security screening and been allowed in the White House to speak. Petitioner also testified she does not have anything to hide. She demonstrated, by credible and very compelling evidence, that she made wrong decisions and took the initiative to turn her life around. For these reasons, it is determined that no reasonable individual, upon fully considering the record in this proceeding could find that Petitioner is not rehabilitated. The concerns expressed by Respondent in formulating its intended action, without the benefit of hearing testimony, particularly with those regarding her untruthfulness and lack of remorse for her actions, were effectively refuted by the credible testimony at hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order granting Petitioner, Molita Cunningham's, request for an exemption from disqualification from employment. DONE AND ENTERED this 13th day of September, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 13th day of September, 2017. COPIES FURNISHED: Kurt Eric Ahrendt, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Molita Cunningham 12437 Southwest 220th Street Miami, Florida 33170 (eServed) Jada Williams, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 335E 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)
