The Issue The issue presented for decision in this case is whether the Petitioner is eligible for an exemption from disqualification to work in a position of special trust pursuant to the terms of Section 435.07, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Since December 1997, Petitioner has been employed as a mental health technician at The Harbors, a mental health and behavioral facility in Pinellas County. Petitioner is disqualified from working in a position of special trust as a result of an adjudication regarding battery and improper exhibition of a dangerous weapon. In 1996, Petitioner pled nolo contendere to one count of battery on her spouse, a first degree misdemeanor under Section 784.03(1)(a), Florida Statutes, and to one count of improper exhibition of a dangerous weapon or firearm, a first degree misdemeanor under Section 790.10, Florida Statutes. Adjudication was withheld, and Petitioner received 12 months' probation on the battery charge, commencing August 21, 1996. George H. Seibert, a background screening specialist for the Department of Children and Family Services, testified that Petitioner’s disqualification was premised on her having committed an act of “domestic violence.” See Section 435.04(3)(b), Florida Statutes, authorizing disqualification for having "committed an act that constitutes domestic violence," without reference to having been formally charged with or convicted of "domestic violence." Petitioner testified that her disqualification has not to date affected her job status, but has resulted in her inability to care for children and for elderly or disabled patients. Unlike other mental health technicians, she is not allowed to care for certain patients, even on days when staff is short-handed and her help is needed. Petitioner is thus concerned that at some point her employer may decide to replace her with an employee who can be more flexibly assigned. Petitioner applied to Respondent for an exemption. A hearing was held by the Exemption Review Committee on December 16, 1997. The Exemption Review Committee recommended to the District Administrator that Petitioner be granted the requested exemption. After reviewing the record and the Exemption Review Committee’s recommendation, the District Administrator denied Petitioner’s request by letter dated February 18, 1998. In his letter, the District Administrator stated that the denial was due to the fact that Petitioner has not had sufficient opportunity to demonstrate rehabilitation, given the serious nature of the charges and her recent release from probation, and due to the fact that she falsified her Affidavit of Good Moral Character. Mr. Seibert testified that other factors considered by the District Administrator in denying the exemption were that Petitioner’s children were present during the incident, and the fact that Petitioner attempted serious bodily harm to her husband. Petitioner’s undisputed testimony was that the incident leading to her arrest was the only time in her life she had run afoul of the law. Petitioner forthrightly described the circumstances. One of her two children was in the hospital. She had just learned she was pregnant with her third child. Then, she found out that her husband had been having an affair with her sister. She chased him with a wooden club, which he managed to wrest away from her. She punched him, then went after him armed with a brick. When she couldn’t get to him, she threw bricks at his truck. According to the arrest report, no one was injured during the incident. Petitioner testified that she and her husband have reconciled and currently live together, with their three children. They have received marriage counseling. Petitioner completed her 12-month probation period without incident. Without excusing the actions of Petitioner or minimizing the seriousness of the charges against her, it is found that the District Administrator took insufficient notice of the circumstances surrounding the criminal incident, particularly that this was the only such incident in which Petitioner has ever been involved, that the victim was not a minor, that Petitioner's children were too young to suffer any lasting effects from their presence during the incident, and that no one was injured in the incident. Mr. Seibert testified that the District Administrator applies a policy that one year should pass after completion of probation before an applicant can be said to have had a sufficient opportunity to demonstrate rehabilitation. Respondent made no demonstration that there is a basis for this policy in statute or rule, or that Petitioner received notice of this policy prior to petitioning for exemption. However, even assuming the policy is valid, Petitioner’s probation had been completed for eleven months at the time of hearing in this matter, substantially complying with the District Administrator’s nonrule policy. The Affidavit of Good Moral Character, which Petitioner is alleged to have falsified, contains the following language: By signing this form, I am swearing that I have not been found guilty or entered a plea of guilty or nolo contendere (no contest), regardless of the adjudication, to any of the following charges under the provisions of the Florida Statutes or under any similar statute of another jurisdiction. I also attest that I do not have a delinquency record that is similar to any of these offenses. I understand I must acknowledge the existence of any criminal records relating to the following list regardless of whether or not those records have been sealed or expunged. I understand that I am also obligated to notify my employer of any possible disqualifying offenses that may occur while employed in a position subject to background screening under Chapter 435, Florida Statutes. The affidavit goes on to list the offenses found in Section 435.04(2), Florida Statutes. Respondent contends that Petitioner failed to disclose her adjudication for battery, a violation of Section 784.03, Florida Statutes. However, both Section 435.04(2)(h), Florida Statutes, and the Affidavit of Good Character itself limit the consideration of battery to situations in which the victim of the offense was a minor. The victim of Respondent’s battery was her husband. The court records entered into evidence by Respondent do not indicate the age of Petitioner’s husband. However, the arrest report does indicate that Petitioner was 22 years old at the time of her arrest, and had been married to her husband for two years at the time of the incident. The couple had two small children at the time of Petitioner’s arrest. It is presumed that the victim of Petitioner’s offense was an adult. Respondent presented no evidence that would lead to a finding that the victim was a minor. Petitioner was under no obligation to acknowledge criminal records regarding violations of Section 741.28, Florida Statutes, relating to domestic violence, because Petitioner was never charged with or convicted of a violation of that statute. Petitioner testified that she thought she was not required to acknowledge her battery adjudication because of her mistaken belief that “adjudication withheld” was tantamount to expungement of her record. Petitioner was mistaken as to the legal effect of her adjudication, but is credited with having no intent to falsify her Affidavit of Good Character. In any event, Petitioner’s motive is irrelevant because the plain language of the statute and the affidavit relieved Petitioner of any duty to report the battery. It is found that Petitioner did not falsify her Affidavit of Good Character.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Children and Family Services enter a Final Order granting Petitioner an exemption to work in a position of special trust. DONE AND ENTERED this 18th day of August, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1998. COPIES FURNISHED: Johanna Burkes, pro se 9702 Eldridge Road Spring Hill, Florida 34608 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building Two, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's application for licensure as a Class "D" Security Officer should be denied on the grounds set forth in the Department of State, Division of Licensing's (Department's) March 26, 1992, letter to Petitioner?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner is 56 years of age. He has had numerous brushes with the law, many of them alcohol-related, dating back to 1956, but he has never been convicted of a felony. In June of 1956, Petitioner attempted to purchase a beer in Sacramento, California. He was 19 years old at the time and, although in the military, under the legal drinking age. Petitioner was arrested and charged with a misdemeanor violation of California's alcoholic beverage control law. He received a ten-day suspended sentence. In November of 1956, when Petitioner was stationed on a military base in Amarillo, Texas, he and friend, without authorization, went into a room on the base where weapons were stored. They took possession of a .38 calibre firearm and started "playing with it." Petitioner was arrested and charged with the misdemeanor offenses of unlawful entry and wrongful appropriation. He received a bad conduct discharge, which was suspended. After attending a rehabilitation training program, he returned to active military service. In May of 1962, Petitioner was arrested for operating a motor vehicle under the influence of alcohol, a misdemeanor. He was subsequently convicted of the offense. His license was suspended for ten days and he was ordered to pay $25 in court costs. In the early part of 1964, Petitioner, along with several others, charged $700 worth of merchandise in a department store in Indianapolis, Indiana using credit card slips they had forged. Petitioner was arrested and charged with the felony offense of uttering a forged instrument. Adjudication of guilt on this charge was withheld and Petitioner was placed on three years probation. In October of 1968, while in Anderson Indiana, Petitioner was arrested and charged with theft by deception for having written checks in amounts that exceeded the balance of his checking account. The checks were actually written by Petitioner's estranged wife without his knowledge. The charge against Petitioner was dropped after restitution was made. In January of 1969, Petitioner was again arrested in Anderson, Indiana and charged with theft by deception for having written bad checks. These checks were written by Petitioner, but he did not realize at the time he wrote them that, because of his wife's check writing, he had insufficient funds in his account. Adjudication of guilt on this charge was withheld and Petitioner was placed on probation for a year. In February of 1970, Petitioner stayed in a Naples, Florida hotel for approximately three or four days. When he checked out, he did not have enough money to pay his bill. Petitioner was arrested and charged with the misdemeanor offense of defrauding an innkeeper. Less than a week later, Petitioner made restitution and the charge against him was dropped. The following month, while in Miami Beach, Florida, Petitioner was again unable to pay a hotel bill and, as a result, arrested and charged with defrauding an innkeeper. This charge was also dropped after Petitioner made restitution. In May of 1970, Petitioner was arrested and charged with breaking and entering a Naples, Florida restaurant with intent to commit grand larceny. The charge was unfounded and it was subsequently dropped. In January of 1971, Petitioner was driving a motor vehicle in Fort Myers, Florida that had an expired inspection sticker affixed to it. He was stopped by the police and a firearm belonging to a passenger was discovered in the vehicle. Petitioner was arrested and charged with unlawful possession of a firearm and driving a vehicle with an expired inspection sticker. The former charge was dropped. With respect to the latter charge, Petitioner was fined $30 or $35. In October of 1971, Petitioner was arrested in Naples, Florida and charged with writing a worthless check. The check was in the amount of $20 or $25. At the time he wrote the check, Petitioner was unaware that he did not have enough money in his account to cover the check. Petitioner subsequently made restitution and the charge was dropped. In February of 1976, in Lauderhill, Florida, Petitioner was arrested and again charged with writing a worthless check. The amount of this check was less than $50. Petitioner pled guilty to this misdemeanor offense and was fined $10. In addition to paying the fine, Petitioner made restitution. That same month, Petitioner was arrested in Sunrise, Florida and charged with battery on his wife. The charge was unfounded and it was subsequently dropped. In July of 1976, in Fort Lauderdale, Florida, Petitioner was arrested and charged with aggravated assault, assault and battery and petty larceny. All of these charges were unfounded; however, as a matter of convenience and pursuant to a plea agreement, Petitioner pled no contest to the assault and battery charge. Adjudication of guilt on this charge was withheld. Petitioner received a 90-day suspended sentence and a $352 fine, which was also suspended. The remaining charges against Petitioner were dropped. In December of 1977, Petitioner was again arrested in Fort Lauderdale, Florida. On this occasion, he was charged with two counts of writing worthless checks under $50. Petitioner subsequently made restitution and the charges were dropped. In February of 1980, in Jasper, Florida, Petitioner was arrested and charged with driving while intoxicated, speeding, driving without a valid drivers license and refusing to sign a summons. The latter charge was dropped. Petitioner pled guilty to the remaining charges and was adjudicated guilty on these charges by the trial court. For speeding and driving without a valid drivers license, he was fined. For driving while intoxicated, he was also fined and, in addition, his drivers license was suspended and he was ordered to attend DWI school. In May of 1985, in West Palm Beach, Florida, Petitioner was arrested on a Dade County, Florida warrant that had been issued in 1980, when he had been charged with two felony counts of writing worthless checks. The checks had actually been written by Petitioner's daughter. After his arrest, Petitioner made restitution and the charges against him were dropped. In November of 1985, Petitioner was arrested in West Palm Beach, Florida and charged with driving while intoxicated. He pled guilty to this misdemeanor charge. The trial court adjudicated Petitioner guilty and suspended his license for six months and ordered him to attend DWI school. Petitioner has not been in trouble with the law since. He is now a law-abiding citizen, who is better able to control is intake of alcohol. In filling out Section 5 of his application for licensure, which addressed the subject of criminal history, Petitioner did not intentionally make any misrepresentations or omit any required information. It was his understanding that he was required to disclose information relating only to felony convictions in this section of the application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Petitioner should not be denied licensure as a Class "D" Security Officer on the grounds cited in the Department's March 26, 1992, denial letter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1992.
The Issue The issue to be determined is whether Petitioner has established rehabilitation following a disqualifying offense in order to obtain an exemption pursuant to section 435.07, Florida Statutes (2017), in order to hold a position of trust.
Findings Of Fact APD is the state agency that licenses and regulates the employment of persons in positions of trust with respect to the vulnerable population of developmentally disabled adults and children. In order to qualify for a position of trust, Petitioner was required to submit to a level 2 background screening pursuant to section 435.04. Petitioner submitted to a background screening, as required. The screening revealed that Petitioner was ineligible for employment in a position of trust. Specifically, Petitioner had three disqualifying events: (1) on or about November 9, 2005, he pled guilty to grand theft, a third-degree felony, for which adjudication was withheld; (2) on or about January 31, 2012, he pled guilty and guilt was found for grand theft, a third-degree felony; and (3) on or about January 31, 2012, he pled guilty to dealing in stolen property, a felony, for which adjudication was withheld. All three were felonies under sections 812.019 and 812.014, Florida Statutes. All three of the offenses listed above are offenses that would disqualify Petitioner from employment in a position of trust. In addition, also on January 31, 2012, Petitioner pled guilty to and adjudication was withheld to fraud-false statement- false information on Secondary Metals Recycler, a felony pursuant to section 538.23, Florida Statutes. This offense is not a disqualifying offense. On March 6, 2017, Petitioner filed a request for exemption with the Agency in order to seek employment at an entity called Miracles in Motion, which serves persons with disabilities. Petitioner's request for exemption application and accompanying materials were reviewed by APD's regional office, its State Exemption Review Committee, and APD's director. The regional office reviews all material compiled by the Department of Children and Families and APD, including arrest reports, court documents, information provided by the applicant, information provided by the Florida Safe Families Network, and any other information that may be available. The regional office sends its recommendation, in this case a recommendation to deny the application, to the State Exemption Review Committee, which also reviews all of the material compiled regarding the application. The State Exemption Review Committee makes an independent recommendation based on the materials provided. In this case, the recommendation was for denial of the exemption. Both recommendations, along with the entire application, were forwarded to the director of the Agency, who made a final determination to deny Petitioner's application. Ms. Danielle Jones, a management review specialist with APD, testified regarding the State Exemption Review Committee's process in reviewing the application. The Committee looks at the applicant's explanation of the disqualifying offenses, and in this case, had concerns that Petitioner was not forthcoming in his answers regarding his criminal history, and that his story appeared to change several times regarding those offenses. Ultimately, the regional office staff, the State Exemption Review Committee, and the director felt that Petitioner did not present adequate evidence of rehabilitation. Petitioner testified at hearing that he felt he has been rehabilitated since the day the offenses were committed, because he “knew in his heart” that he would not commit such an offense again. Since his disqualifying offenses, he has taken a course to become a certified nursing assistant (C.N.A.), but has not taken the C.N.A. examination because of his criminal history. He is currently working at a Wal-Mart. Petitioner presented the testimony of two former employers, who both testified in terms of his character. Both men appeared to hold Petitioner in high regard. Neither man was aware of his criminal history. Petitioner presented no persuasive evidence in terms of local volunteer efforts or community involvement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner's request for an exemption from disqualification. DONE AND ENTERED this 18th day of June, 2018, 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 18th day of June, 2018. COPIES FURNISHED: Terrence Johnson 715 Cristelle Jean Drive North Ruskin, Florida 33570 Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Gypsy Bailey, 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)
The Issue The issue in this case is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner on the basis of a handicap in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner is a female. She was employed by Respondent beginning in mid-August 2013. Her employment with Respondent ended in the first quarter of 2014. Respondent is an active limited liability company established and doing business pursuant to Florida law. Respondent provides case management services to Medicare and Medicaid recipients. Christine Cauffield, appearing on behalf of Respondent, is Respondent’s founder and CEO. Cauffield testified that Respondent never had more than 14 employees. The undersigned finds Cauffield’s testimony credible. Scott Eller is the founder and CEO of Community Assisted and Supported Living, Inc., a/k/a Renaissance Manor (CASL). CASL never employed Petitioner, and CASL did not share employees with Respondent. The two entities had a business agreement, but the companies are separate and independent of each other. At the final hearing, Respondent presented a Florida Department of Revenue Employer’s Quarterly Report covering each quarterly reporting period commencing on March 31, 2012, and ending September 30, 2014. Each report shows that Respondent employed fewer than 15 employees for each quarter covered by the report. These reports, supported by Cauffield’s testimony, constitute competent substantial evidence that Respondent employed fewer than 15 employees for each working day in each of the 52 calendar weeks in 2012, the year preceding the alleged discrimination; that Respondent employed fewer than 15 employees for each working day in each of the 52 calendar weeks in 2013; and that Respondent employed fewer than 15 employees for each working day in each of the first 40 calendar weeks in 2014.3/ Petitioner did not present any competent substantial evidence to counter or rebut this evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Request for Administrative Hearing. DONE AND ENTERED this 15th day of April, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 15th day of April, 2015.
The Issue On or about August 16, 1996, Petitioner, Betty Osborne, was notified by Respondent, the Department of Children and Family Services, that she was disqualified from employment in a position of special trust. The disqualification was based on the results of Petitioner's criminal screening. Petitioner challenged this eligibility status and requested an exemption from disqualification. On August 20, 1996, the Department's Exemption Review Committee met and, after reviewing the Petitioner's record, denied her request for an exemption from disqualification. Petitioner filed a timely request for formal hearing and this proceeding followed. At the final hearing, Petitioner testified on her own behalf and offered no exhibits into evidence. Respondent presented one witness, George H. Seibert, Background Screening Coordinator, Department of Children and Family Services. Respondent offered and had admitted into evidence five exhibits. The proceeding was recorded but not transcribed. Neither party filed proposed findings of fact or conclusions of law.
Findings Of Fact Petitioner applied for a license as a child care provider in 1993 in an effort to qualify to open her own day care facility. Based on a criminal screening of Respondent, the Department of Children and Family Services (Depatment), determined that Petitioner was disqualified from employment in a position of special trust or responsibility, and thus was ineligible to work or volunteer in child care programs. Pursuant to Petitioner's request for an exemption from disqualification, the Department convened the Exemption Review Committee (Committee) to consider the requested exemption. The Committee reviewed Petitioner's record relating to her August 19, 1993, plea of nolo contendere to one count of grand theft. On or about January 7, 1993, Petitioner was charged with grand theft. The incident giving rise to the denial of the request for exemption occurred during the course of Petitioner's employment as a supervisor with the Pinellas County Tax Collector's Office. The allegation was that Petitioner had misappropriated $20,000 or more collected by that office for fishing licenses for her personal use or with the intent to deprive the State of Florida of a right to the property or benefit therefrom. On or about August 19, 1993, Petitioner completed a Plea Form on which she indicated that she would plead nolo contendere to one count of grand theft. Paragraph Five of the Plea Form expressly stated that "No one has pressured or forced me to enter this plea.", and that "No one has promised me anything to get me to enter this plea. . . ." Nevertheless, the form noted that Petitioner had an understanding that as a result of the plea, she would serve fifteen (15) years probation; pay $300.00 in court costs; and pay $56,404.00 in restitution. Both Petitioner and her attorney signed the Plea Form. On or about August 19, 1993, an Order of Probation (Order) was entered noting that the "Defendant being present with counsel: entered a plea of nolo contendere to the offense of grand theft". The Order withheld an adjudication of guilt; placed Petitioner on fifteen (15) months of probation; and required payment of $300.00 in court costs and $56,404.00 in restitution. The amount of restitution was reduced to $27,501.00 by an order issued on January 26, 1994. As of August 20, 1996, the date of the Department Exemption Review and hearing, Petitioner had twelve years of probation remaining to be served. Also, as of that date, Petitioner had paid only $300.00 in restitution. If Petitioner had made restitution payments as scheduled, she would have paid $7,100.00 as of August 1996. At the time of this hearing, Petiitoner had made no additional restitution payments. At hearing, Petitioner presented no evidence of rehabilitation. Several letters of recommendation written by friends on Petitioner's behalf indicate that she is (1) active in her church; works well with children and others; and has a love for children. However, none of these letters reflect that Petitioner has worked in a responsible position or has been engaged in activities that demonstrate rehabilitation since she entered a plea of nolo contendere to grand theft.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, the Department of Children and Family Services, enter a Final Order denying Petitioner, Betty Osborne, an exemption from disqualification from employment in a position designated by law as one of trust or responsibility. DONE and ENTERED this 28th day of March, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1997. COPIES FURNISHED: Ms. Betty Osborne 4149 38th Street South St. Petersburg, Florida 33711 Kathleen Harvey, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 34648-1630 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran General Counsel Department of Children and Family Services Building Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Jose Rangel (Petitioner) has established by clear and convincing evidence that he is entitled to an exemption to work in a position of special trust; and, if so, whether Agency for Persons with Disabilities (Respondent) abused its discretion in denying the exemption.
Findings Of Fact In connection with his desire to work for the Devereaux Florida Treatment Network, a service provider under the authority of Respondent, Petitioner sought an exemption to work in a position of special trust. As a direct service provider who has contact with persons who are challenged in one manner or another, Petitioner was subject to a background screening to assure he meets the requirements of persons working with those served by his potential employer. Petitioner’s background screening disclosed criminal offenses that required explanation and further comment from Petitioner. Petitioner’s criminal offense of Uttering a Forged Instrument, a violation of section 831.02, Florida Statutes (2016), is a disqualifying offense that requires an exemption. Should Respondent grant Petitioner an exemption, Petitioner would be allowed employment as a direct provider of services to clients served under the umbrella of Respondent’s provider network. As such, Respondent takes its responsibility to screen applicants for employment very seriously. Respondent’s clients are perhaps the most vulnerable of all individuals served within the framework of social services. By definition, Respondent’s clients are those who are intellectually disabled, autistic, have spina bifida, Prader- Willi syndrome, cerebral palsy, Down syndrome and/or Phelan- McDermid Syndrome. Without assistance from Respondent, typically, these clients would face institutionalization. Instead, Respondent attempts to provide services to persons meeting its criteria at the local level. Respondent’s clients are vulnerable to abuse, neglect, exploitation, and in many instances, cannot self-advocate for their best interests. Respondent’s obligation is to assure all persons working with its clients meet the highest standard of trust. In seeking to protect Respondent’s clients, the Florida Legislature designated certain criminal offenses as disqualifying so that persons who commit those acts may not work in positions of special trust. It is undisputed that uttering a forged instrument constitutes a disqualifying offense. On February 5, 2016, Petitioner submitted a Request for Exemption, Exemption Questionnaire, criminal records, character references, and other documents in an attempt to obtain the exemption from employment disqualification. Petitioner asserts that he is rehabilitated and entitled to an exemption. In August 2003 Petitioner committed the criminal offense of Uttering a Forged Instrument, a felony. In 2005, Petitioner pled guilty to the charge and adjudication was withheld. Petitioner was sentenced to two days’ jail time with credit for time served, was given probation, and was required to pay fines and court costs. This crime constitutes a disqualifying offense. Petitioner was also charged with non-disqualifying offenses in August 2003 contemporaneous with the disqualifying charge. Non-disqualifying charges include Driving Under the Influence (2nd Offense) and giving a false name. Petitioner’s third criminal charge of Possession of an Undersized Redfish would not be a disqualifying crime. Petitioner’s exemption questionnaire represented that all criminal matters were “satisfactory/closed”. Petitioner’s driving record demonstrates a series of moving violations that include: two driving under the influence charges; a failure to use designated lane; a failure to use due care; and a leaving the scene of a crash before police arrived. Petitioner falsified his Affidavit of Good Moral Character by indicating he had not been found guilty of or entered a plea of nolo contendere, regardless of adjudication, of the offenses listed. By falsely completing the form, Petitioner’s current character and trustworthiness are subject to question. Petitioner suggested the incorrect response was an oversight. Petitioner has been employed with Ricoh or Adecco as a customer service representative since March of 2012. This employment history is acceptable to demonstrate a stable work history. Petitioner and his wife also worked as licensed foster parents. Although the Department of Children and Families did not render findings confirming that he committed any improper act, Petitioner was the subject of an investigation for an alleged act of sexual abuse on a child. Petitioner maintains he is entitled to an exemption in this case because he does not drink anymore, is in a committed marriage, has demonstrated a stable work history, and is an active, respected member of his church. Petitioner does not believe his criminal acts would indicate any degree of harm to any victim. Respondent reviewed all of the information submitted by Petitioner and determined Petitioner did not demonstrate a sufficient level of rehabilitation to justify an exemption. Among Respondent’s concerns were Petitioner’s lack of detail in explaining his disqualifying offense and non-disqualifying offenses; Petitioner’s failure to acknowledge that using another person’s name and identification could have caused significant legal issues for that person; and Petitioner’s failure to acknowledge and comprehend the importance of truthfully completing his Affidavit of Good Moral Character. Over objection Petitioner’s three-page exhibit regarding an exemption issued by the Agency for Health Care Administration (AHCA) was admitted into evidence.1/ Petitioner erroneously believed that the exemption issued by AHCA would necessitate the issuance of the exemption in this case. After consideration of the exemption issued to Petitioner by AHCA, Respondent found that an exemption to work with Respondent’s clients is not warranted. Respondent’s clients are considered very vulnerable and all of the reasons previously considered weigh against the issuance of an exemption in this case.
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. DONE AND ENTERED this 30th day of December, 2016, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 30th day of December, 2016.
The Issue The central issue in this case is whether Respondent should be terminated from employment with the school district.
Findings Of Fact On January 4, 1994, Respondent completed an applicant security check form for employment with the Petitioner. The form specified a series of questions related to past or pending criminal charges to which Respondent was to check either a "yes" box or a "no" box. On each occasion, Respondent checked the "no" box. At the conclusion of the form is a certification as follows: I certify that the above responses are true, complete, and correct to the best of my knowledge and are made in good faith. I understand that any incompleteness or false information on this form may be just cause for a rejection of my application for employment or dismissal in the event I am employed by the School Board of Palm Beach County. Respondent did not disclose that in 1987 she was charged with aggravated assault and possession of a weapon. As a result of the charges, Respondent was sentenced to one year probation, required to pay a fine and court costs, and fifty hours of community service. When Mr. Lachance learned of the results of the background search (which differed from Respondent's application), he met with Respondent who admitted the criminal charges but who alleged that she had believed them to be resolved. The recommendation was then made to the Board to terminate Respondent's employment as a bus driver.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That School Board of Palm Beach County, Florida enter a final order dismissing the Respondent from her employment with the school district in accordance with the Board action of April 7, 1995. DONE AND ENTERED this 12th day of January, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2884 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 5 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Lee M. Rosenberg, Esq. School District of Palm Beach County Office of the General Counsel 3318 Forest Hill Boulevard Suite C-302 West Palm Beach, Florida 33406 Ms. Tina King 5030 Elcharo North West Palm Beach, Florida 33415 Dr. Bernard Shulman Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether Petitioner has demonstrated, by clear and convincing evidence, that he is rehabilitated from a disqualifying offense, and, if so, whether Respondent’s intended action to deny Petitioner’s application for an exemption from disqualification is an abuse of discretion.
Findings Of Fact Mr. Mack is a 36-year-old male who desires to return to work for Allshouse Supported Living Services, Inc. (Allshouse), as a direct service provider to APD clients with developmental disabilities. Allshouse provides community-based services to APD clients with developmental disabilities. Mr. Mack was employed by Allshouse from October 2009 through October 2014. When Mr. Mack began working for Allshouse, he was licensed by the Department of Health, Board of Nursing, as a certified nurse assistant (CNA), and he provided home health care to APD clients pursuant to his CNA license. More recently, Mr. Mack worked for Allshouse as a supported living coach. On October 23, 2014, Mr. Mack completed an affidavit of good moral character for Allshouse. The affidavit--an APD form-- identifies disqualifying offenses pursuant to the employment screening laws in chapter 435, Florida Statutes, and instructs employees to select one of three responses to sign: that the employee has no disqualifying offenses, and therefore, meets the good moral character standard; that the employee’s record “may contain one or more” disqualifying offenses; or that the employee is a licensed physician, licensed nurse, or other professional licensed by the Department of Health and that the employee will be providing services within the scope of his or her licensed practice. Mr. Mack signed the option acknowledging that his “record may contain one or more” of the enumerated disqualifying offenses. In 2014, Mr. Mack was no longer licensed as a CNA, and was working for Allshouse as a supported living coach.2/ Based on Mr. Mack’s disclosure, the Department of Children and Families (DCF) conducted a Level II background screening. Criminal history record checks were performed at the state, national, and local levels. These record checks would identify records related to any criminal offenses, whether disqualifying offenses or not. The results would show arrests that did not culminate in charged criminal offenses, as well as arrests leading to charges and the ultimate disposition of those charges. The screening results for Mr. Mack showed one criminal offense in the state records; the same criminal offense was also shown in the local law enforcement agency’s records. No other criminal history of any kind was reported. The records show that 13 years ago, on October 29, 2002, Mr. Mack was arrested and charged with grand theft, a third degree felony, pursuant to section 812.014(2)(c)1., Florida Statutes (2002). The case was disposed of on October 16, 2003, when the Circuit Court for the Sixth Judicial Circuit in Pinellas County accepted Mr. Mack’s guilty plea to the single charge. The court withheld adjudication, imposed a two-year term of probation, ordered payment of $750.00 as restitution, imposed a $50.00 fine, and assessed $400.00 in court costs. Mr. Mack’s 2002 offense to which he pled guilty is a disqualifying offense pursuant to section 435.04(2), Florida Statutes.3/ By letter dated October 30, 2014, DCF informed Mr. Mack that he was ineligible for continued employment with Allshouse because of the 2002 disqualifying offense. Mr. Mack was informed that he could seek an exemption from disqualification, which would be granted if clear and convincing evidence was presented to DCF “to support a reasonable belief that a person is of good moral character and that the individual does not present a danger to the safety or well being of children or the developmentally disabled.” DCF sent a similar letter on October 28, 2014, to inform Allshouse that Mr. Mack was not eligible for continued employment unless and until he applied for an exemption and proved his rehabilitation to DCF.4/ In response to these letters, Mr. Mack’s employment with Allshouse was immediately terminated. The Exemption Application, After Remaining Court Costs Were Paid Upon receipt of the DCF letter, Mr. Mack immediately took steps to apply for an exemption. On November 4, 2014, he sent a letter requesting the necessary forms and instructions to Sandra Wesley with the DCF background screening unit in Tampa. However, on November 24, 2014, Ms. Wesley responded that DCF had located court records indicating that Mr. Mack still owed some costs, fines, and/or fees imposed for his 2002 offense. Ms. Wesley informed Mr. Mack that he was not eligible to apply for an exemption until he paid the balance and provided proof of payment. At hearing, Mr. Mack credibly testified that he believed he had paid all court-ordered costs, fines, or fees that were due, because when the court granted a motion for early termination of his probation in late 2004, the court also entered an order waiving outstanding court costs and fees. Mr. Mack’s testimony was credible, and his belief that he had previously satisfied all court-imposed monetary conditions was reasonable. The court docket contains the following entry on October 14, 2004: “Outstanding cos [presumably, costs] fees waived $390.00.” Apparently, Mr. Mack owed more than $390.00 due to a separate assessment to pay fees to the public defender, so that “waived” may have really meant “partially waived.” Nonetheless, despite his reasonable belief that he had satisfied all monetary conditions more than a decade earlier, as soon as Mr. Mack was informed by DCF that he may still owe some court costs, fines, and/or fees, he went to the courthouse and paid the amount that he was told was still due. The court clerk issued a Satisfaction of Judgment–Fine/Cost, providing that the balance due for the court-imposed “fine and/or costs” in connection with the 2002 offense was “paid and satisfied in full on December 1, 2014.” Mr. Mack immediately provided proof of payment to Ms. Wesley. Ms. Wesley accepted the proof and mailed the exemption application forms and checklist to Mr. Mack for him to complete and return to her. Mr. Mack completed the exemption application forms and provided all additional information suggested by the instructions and checklist. While Mr. Mack provided all information called for by the Agency’s application forms, more evidence was presented at hearing bearing on the issue of whether Petitioner is rehabilitated from his disqualifying offense, such that Petitioner poses no danger to APD clients if he is allowed to return to work as a direct service provider. Evidence of Rehabilitation As described in the exemption statute, section 435.07, evidence of rehabilitation begins with consideration of the disqualifying offense itself: the circumstances surrounding the disqualifying offense, the time period that has elapsed since the offense; and the nature of the harm caused to the victim. Mr. Mack provided a detailed explanation of the circumstances surrounding his single 2002 disqualifying offense. He explained that he was approached by two men from his neighborhood, whom he knew by the nicknames they used. They propositioned him with an offer of a free cell phone, if they could use his address for delivery of a box of several cell phones. Mr. Mack agreed. At the time, he was 22 or 23 years old; the two men were older. Mr. Mack was young and naïve, focusing only on the chance to obtain a free cell phone, which was not easy to get or common among his peers at that time. After many weeks, a box containing five cell phones arrived at Mr. Mack’s address. He contacted the two men, who picked up the phones, leaving one for Mr. Mack as promised. For just over one month, Mr. Mack enjoyed the use of the cell phone and cellular service. Then, on October 29, 2002, a detective from the sheriff’s office appeared at his door with a phone company investigator. He let them in, answered all of their questions about the cell phone, and gave the cell phone to the detective. He was arrested and charged with theft of all five cell phones and the related cellular service, with a total value between $300.00 and $5,000.00. Based on the value range, the charge was grand theft, a third degree felony. At the time of his arrest, Mr. Mack was too ashamed to tell his family and ask for help. Instead, he accepted a public defender, and followed advice to put the incident behind him by pleading guilty. And Mr. Mack freely admits that he was guilty, insofar as he knowingly received the cell phone shipment and used the cellular service. He was oblivious to suspect circumstances, ignoring alarms sounding the classic warning that if a deal sounds too good to be true, it probably is. He expressed sincere remorse for his wrongdoing. As he said, he was young, naïve, and stupid. It is difficult to argue with that characterization. Petitioner’s explanation of the circumstances and his genuine remorse for his actions were credible and are credited.5/ With regard to the nature of harm to the victim, the Agency’s exemption application form frames the issue this way: “Degree of harm to any victim or property [permanent or temporary], damage or injuries.” This reasonably invites a response that differentiates between harm to persons and property damage, and between permanent and temporary injuries or damage. Mr. Mack’s application provided this response: “No property was damaged and no physical bodily harm took place.” This was a reasonable and accurate response. Consideration of the nature or degree of harm necessarily requires an assessment of the relative seriousness of the consequences. Considered that way, Mr. Mack’s criminal offense 13 years ago caused relatively inconsequential harm to any victim or property, which was remediable and remedied by court-ordered restitution. Mr. Mack deprived the cell phone companies of the value of his use of a cell phone for just over one month, when Mr. Mack gave the undamaged cell phone to the detective. To compensate for that temporary property loss, Mr. Mack paid restitution of $750.00. The relevant considerations as to the disqualifying offense itself provide strong evidence of Petitioner’s rehabilitation: the circumstances credibly explained by Petitioner; Petitioner’s sincere regret for his wrongdoing; the inconsequential degree of harm to any victim or property; and the substantial length of time--13 years--since the offense. Beyond the factors related to the disqualifying offense itself, evidence of rehabilitation may be in the form of the history of the applicant since the incident and any other evidence or circumstances indicating that the applicant will not present a danger if continued employment is allowed. Since 2002, as a young but maturing adult, Mr. Mack has worked hard to right his path, earn a living through meaningful work that goes beyond just earning a paycheck, and serve those in need by volunteering through his church and in the community. As confirmed by the criminal history record checks, Mr. Mack’s history since the disqualifying offense is notable by the absence of any criminal matters. Mr. Mack has not been arrested, much less charged or convicted, of a crime, whether disqualifying or otherwise. Mr. Mack’s pristine criminal history record since 2002 is proof that he learned his lesson from his one transgression. Mr. Mack provided evidence, in his application and at hearing, that not only has he avoided criminal incidents since 2002, but he has also worked hard to better himself and further his education and skills. He received his CNA license and an exemption from disqualification from the Department of Health, Board of Nursing, in 2009, allowing him to be employed in a position providing services within the scope of his CNA license. The exemption was issued to Mr. Mack pursuant to the same exemption statute as is at issue here, based on the same standard of clear and convincing proof of rehabilitation from the 2002 disqualifying offense. Since 2009, Petitioner has dedicated his work hours as well as significant personal time to providing care to developmentally disabled persons. He provided documentation of his relevant training and certifications since 2009, in such areas as professional crisis management, CPR and AED basic life support for healthcare providers, heartsaver first aid, supported living coaching, and HIPAA patient privacy and security. Petitioner holds an APD medication administration assistance validation certificate, issued on October 22, 2014. Mr. Mack has a secure, positive family base. He testified that he comes from a large, loving family that finds great strength from each other and from their strong faith. His grandparents are the “rock” of the family that they started when they married 70 years ago. They are both disabled, which is why Mr. Mack developed a passion for working with persons with disabilities. At hearing, Mr. Mack presented compelling testimony of witnesses who were able to attest to the exemplary care Mr. Mack provided to developmentally disabled APD clients as an Allshouse employee from October 2009 to October 2014. For the entire five-year period when Mr. Mack was an Allshouse employee, he was assigned to provide in-home care, first as a home health aide and then as a supported living coach, to Jean and Michael Murvine. The Murvines are a married couple. They are APD clients with developmental disabilities, who are able to live independently in their home as long as they can count on substantial in-home services. Michael is more independent than Jean; he is able to work at a Publix grocery store as long as he can count on a caretaker who will stay with Jean, because she requires supervision and assistance at all times. Among other conditions, Jean is diabetic and is recovering from stomach cancer and related surgery. She requires assistance and supervision of her blood sugar monitoring and insulin shots. At great effort, the Murvines came to the hearing so that each of them could voice their strong support for, and belief in, Mr. Mack, who was such a great caretaker for them until he was terminated. At times, their disabilities served to impede the clear expression of their words, but there was no impeding the strong emotion and conviction in their testimony. Michael Murvine emphasized that he is only able to work at Publix if he can rely on good care being provided to Jean. When Mr. Mack was her caretaker, Mr. Murvine knew his wife was well-taken care of: “She was safe with him.” Since Mr. Mack has left, however, Mr. Murvine is concerned about his wife’s safety. She has ended up in the hospital because Mr. Mack’s replacements have not been good; Mr. Murvine does not trust them like he trusted Mr. Mack. Mr. Mack “is so good, we want him back.” Jean Murvine confirmed the quality of care provided by Mr. Mack over the five-year period. She was firm in her conviction that Mr. Mack would never harm them, because he has their best interests at heart. When asked how her care had been since Mr. Mack had left work, her distress was evident; she got choked up, saying that it was different without him, and adding, simply, “We want him back.” As part of his job, Mr. Mack would often drive the Murvines to appointments. The Murvines both described how safe they always felt as passengers being transported by Mr. Mack, whom they described as a very careful driver. As Mr. Murvine put it, Mr. Mack is “a very safe driver, not one of those crazy drivers.” Mr. Mack gave of himself to the Murvines, going far beyond what was required of him as a direct service provider. He did things for the Murvines on his own personal time and/or using his own resources. He drove the Murvines from Largo to Brandon, east of Tampa, to visit Michael’s two brothers, one of whom is disabled and essentially homebound. Mr. Mack also drove the Murvines to Orlando so that Michael could attend a Publix awards banquet at which he was receiving an employee award. Mr. Mack volunteered his own time to do this. Michael Murvine’s brothers, Rick and Bud Murvine, also testified on Mr. Mack’s behalf, to add their perspectives on the extraordinary care provided by Mr. Mack to Michael and Jean, as well as Mr. Mack’s loving generosity, beyond just doing the job. Rick described Mr. Mack as “an amazing man,” who was very attentive and patient with Michael and Jean, and obviously cared for their safety. Rick has seen a marked contrast between how Michael and Jean have fared when Mr. Mack was caring for them and now, without Mr. Mack. He echoed Jean and Michael’s testimony that Mr. Mack was the only caretaker who took good care of them, and that the others who have replaced Mr. Mack have not provided the same quality of care or dedication. Rick Murvine has no doubt as to Mr. Mack’s good moral character. He trusts Mr. Mack so completely that he would give Mr. Mack the keys to his house. It is so clear to him that Mr. Mack presents no danger to developmentally disabled persons, he finds it a travesty that this proceeding is needed to answer that question. Bud Murvine also spoke highly of the exceptional care he has seen Mr. Mack give to Jean and Michael. He knows from his observations that Mr. Mack poses no danger to developmentally disabled persons. Bud has absolutely no doubt as to Mr. Mack’s good moral character; he would trust him with his life. Mr. Mack has given selflessly to the Murvine family, and in so doing, has shown his good moral character and the positive contributions he has to offer developmentally disabled persons. Bud Murvine offered a touching story demonstrating how Mr. Mack has given of himself, beyond just doing the job, to enrich the lives of this disabled couple. Mr. Mack orchestrated a celebration in a park for Jean and Michael Murvine to renew their wedding vows. Mr. Mack drove the Murvines to the area, set up decorations at the park, helped Jean and Michael dress up, and brought them to the park where they renewed their vows before family and friends. Bud Murvine concluded, with emotion, that what Mr. Mack did for them that day “was really cool.” Mr. Mack’s exceptional care of the Murvines was echoed by Charlene Clark, a physical therapy assistant who works with developmentally disabled adults and elderly persons. Over a four-year period, Ms. Clark got to know Mr. Mack and observe him while they were both providing services to the Murvine couple. Ms. Clark was effusive in describing the “incredible care” she observed Mr. Mack providing to the Murvines. Ms. Clark found Mr. Mack to be very knowledgeable about the Murvines’ care needs and very concerned about their welfare. She described Mr. Mack as a very encouraging and positive caregiver, which “is so rare.” She was adamant in expressing her view that he would never harm the Murvines or other developmentally disabled clients. Instead, it was “just the opposite.” The only harm she has observed comes from the Murvines no longer having Mr. Mack as their caretaker. Ms. Clark offered compelling, credible testimony regarding the harmful trickle-down effects of Mr. Mack becoming ineligible to continue working for Allshouse assigned to the Murvines. She has observed a noticeable decline, both physically and emotionally, by both Murvines since Mr. Mack is no longer their caretaker. Ms. Clark described the revolving door of replacement caretakers, none of whom are as good as Mr. Mack was with the Murvines. Ms. Clark was also effusive in describing Mr. Mack’s good moral character. She described Mr. Mack as generous of spirit, loving, caring, honest, reliable, and trustworthy. She has no doubts about his good moral character, “not one.” She trusts him so completely that she would trust him to care for her six-year-old grandchild. As a direct care provider herself, Ms. Clark understands the background screening process and the need for this exemption proceeding. She wrote a letter of support for his application, but her testimony added a great deal of texture, detail, and heart that do not come through on paper. She strongly believes that discontinuing Mr. Mack’s service to APD clients with developmental disabilities is a great loss to clients he served and could serve, if allowed, and that the developmentally disabled APD clients deserve better. In addition to Mr. Mack’s exemplary service to developmentally disabled persons while working as an Allshouse employee, Mr. Mack has shown his dedication to serving needy persons of all kinds and putting their needs before his own. Information was provided in his application regarding his community volunteer work. At hearing, he elaborated and updated the application information. Mr. Mack contributes many hours each week to a variety of volunteer activities, both at his church where he helps feed homeless persons and works with youth, and also at the Union Academy Cultural Center of Tarpon Springs where he assists with after-school programs for children and feeding the elderly. He is currently working with other individuals to set up a meals-on- wheels-type program for homeless people who cannot take advantage of traditional meals-on-wheels programs, because they have no home to receive meal deliveries. Mr. Mack’s dedication to helping needy persons of all kinds, and particularly those who are dependent and in need of support because of disabilities, was confirmed by Nathaniel Crawford, Jr., Mr. Mack’s uncle and the only family member to testify. A very articulate gentleman, Mr. Crawford retired from the air force, and is now a college instructor and a pastor at Oak Hill Church of God in Christ (Oak Hill). He has observed Mr. Mack’s contributions at Oak Hill, where Mr. Mack serves as a choir director and assists with a variety of church activities and programs. Mr. Crawford has observed Mr. Mack gravitating towards young, adult, and elderly persons with disabilities to assist them and has seen that he is very qualified and very caring. Mr. Crawford described Mr. Mack’s dedication to caring for developmentally disabled persons as “his ministry.” Mr. Crawford strongly believes from his observations that Mr. Mack presents no danger to these vulnerable people. Mr. Crawford was very emphatic, and credibly so, that he was saying these things not because Mr. Mack is his nephew, but because he observes the strong need for more persons like Mr. Mack dedicated to these human services, and feels strongly that it is a great loss to the developmentally disabled population to be deprived of Mr. Mack’s extraordinary care. More generally, Mr. Crawford attested to Mr. Mack’s good moral character, describing him as a fine young man who is unselfish and very giving of his time and resources. The only problem Mr. Crawford identified is that sometimes Mr. Mack is too nice--he is very caring and sacrifices for others instead of for himself. Mr. Crawford trusts Mr. Mack completely; he would trust him with his property and with the church’s property. The Agency’s Review and Stated Concerns In reviewing exemption applications, the Agency has limited resources to conduct investigations. The Agency did not interview Mr. Mack, any APD clients for whom he provided care while employed at Allshouse, or other caregivers who had observed Mr. Mack while he was providing services. The Agency employs DCF to conduct a fact-finding investigation and issue an Exemption Fact Finding report, which is used by APD in its review of the exemption request. The DCF Exemption Fact Finding report corroborates the testimony at hearing. First, the report confirmed that the only criminal offense of any kind--disqualifying or non-disqualifying--in Mr. Mack’s background was the 2002 offense discussed above. With regard to the “degree of harm to any victim, any permanent or temporary damage or injuries” the DCF fact-finding report found: “No permanent damage or temporary damage[.]” With regard to whether Mr. Mack had shown “[r]emorse [and had] accept[ed] responsibility for [his] actions,” the DCF report responded: “Yes.” After the DCF investigation and report, Mr. Mack’s exemption request file went to the Agency’s Suncoast regional office for review and recommendation. The operations manager, Jeff Smith, recommended denial because of a few concerns. Mr. Smith did not testify at hearing; however, he is the only member of the “review team” named in the APD Exemption Review Report-Routing Sheet, and his summary on that sheet is the only indication of the rationale for the Agency’s initial action. Mr. Smith expressed concern with whether Mr. Mack was responsible, apparently inferring a lack of responsibility from the fact that DCF found some unpaid court costs, fines, or fees still due in 2014. Mr. Smith did not have the benefit of Mr. Mack’s hearing testimony, which refutes any such inference. As found above, Mr. Mack reasonably believed he did not owe any additional costs, fines, or fees. He reasonably believed that he had paid all court-imposed monetary amounts that had not been waived more than a decade ago. When told otherwise by DCF, he immediately paid the remaining balance. As credibly explained by Mr. Mack, this misunderstanding does not call into question whether Mr. Mack is responsible. In contrast, the hearing testimony of six witnesses speaking on Mr. Mack’s behalf provided direct and persuasive evidence establishing beyond any doubt that Mr. Mack is very responsible. Mr. Smith also considered Mr. Mack’s record of non- criminal traffic infractions. Based on the record of traffic infractions, Mr. Smith expressed concern for the safety of APD clients who would be transported by Mr. Mack if he is allowed to work as a supported living coach. Mr. Mack was not asked to address civil traffic infractions in his application, so his first chance to address the Agency’s concern was at the hearing. Mr. Mack admittedly has a good number of civil traffic infractions on his driving record. However, none of the infractions involve a charged criminal violation.6/ None of the infractions involve injuries (or worse) to passengers or others. None of the infractions involve drugs or alcohol use, such as DUI; Mr. Mack does not use drugs, and only occasionally drinks alcohol socially. The Agency’s generalized safety concern based solely on the paper record of past traffic infractions was refuted by the specific, credible, and persuasive testimony of Mr. Mack and of actual APD clients with developmental disabilities who were regularly transported by Mr. Mack over a five-year period. Mr. Mack credibly testified that he has never been stopped for a moving violation of any kind when he was driving with a passenger in the vehicle with him. Mr. Mack has never been cited for a traffic infraction while transporting an APD client (or any other passenger). None of the traffic infractions in Mr. Mack’s record posed a safety risk to any passenger. And none of the traffic infractions in Mr. Mack’s record posed a safety risk to an APD client. To the contrary, the Murvines both testified convincingly that they found Mr. Mack to be a very safe, careful driver, and they always felt very safe with Mr. Mack when he was transporting them, which he did regularly and without adverse incident. Mr. Mack acknowledged his past record of traffic infractions, which he regrets. He has made a concerted effort to eliminate the traffic infractions that he used to occasionally commit when driving alone. The evidence shows that his efforts have paid off, as he has not been found to have committed any traffic infraction in over three years. The clear, convincing, and credible testimony of Mr. Mack and of the APD clients whom he actually transported is credited. This testimony provides specific, persuasive, direct evidence that Mr. Mack does not pose a safety risk when transporting APD clients, which is far more persuasive than the general inference drawn from Mr. Mack’s paper record of traffic infractions. The more persuasive, direct evidence establishes that Mr. Mack has always driven cautiously, carefully, safely, and without adverse incident when transporting APD clients with developmental disabilities, and he does not pose a safety risk to those APD clients whom he might transport in the future. Besides the two concerns expressed in Mr. Smith’s summary, no other rationale was offered for the Agency’s initial action. The Agency’s two witnesses did not participate in the formulation of that initial decision. Ms. Mott testified that Jeff Smith is her supervisor, and he conducted a review to formulate his recommendation; she has no personal knowledge of how he conducted his review. Ms. McDaniel testified that she received the file from the regional office, and her role was to present the application and related documents to an exemption committee in Tallahassee, but not to formulate a recommendation or offer an opinion. She did not identify the exemption committee members involved with Mr. Mack’s application, and none are identified on the Routing Sheet. No committee member testified. There is no documentation of an exemption committee or of its recommendation. Ms. McDaniel testified that the entire file was provided to APD Director Palmer with two draft letters: one stating that the request is approved, and one stating that the request is denied. The director signed the latter. No evidence was offered to prove that in formulating its intended action, the Agency considered the exemption from disqualification issued to Mr. Mack in 2009 by the Department of Health based on the same 2002 disqualifying offense. Ultimate Findings of Fact Mr. Mack has proven by clear and convincing evidence that he is rehabilitated from the single disqualifying offense he committed in 2002. The undersigned finds that Petitioner presents no danger to the vulnerable population served by the Agency. The credible hearing testimony summarized above overwhelmingly established that Mr. Mack poses no danger to APD clients, including children and persons with developmental disabilities, if he is allowed to resume employment as a direct service provider. The few concerns expressed by the Agency in formulating its intended action, without the benefit of the hearing testimony, 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 the Agency for Persons with Disabilities enter a final order granting Petitioner’s application for an exemption from disqualification from employment. DONE AND ENTERED this 11th day of September, 2015, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 September, 2015.
The Issue Whether Respondent should take final action to deny Petitioner's application for a real estate sales associate license on the ground that Petitioner was found guilty, in the State of Georgia, of the crime of theft by taking.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On June 12, 2006, Petitioner was working as a clerk at a UPS store in Cherokee County, Georgia, when he "gave in to temptation" (as he described it at hearing) and stole $500.00 in cash from an envelope given to him by a customer for shipment to the customer's former wife in Kansas. When the customer's former wife received an empty envelope, she notified the customer, who, in turn, called the police. On June 16, 2006, the police went to the UPS store to investigate the matter. When questioned by the police during their visit to the store, Respondent admitted to stealing the $500.00. He was thereupon placed under arrest and, thereafter, criminally charged. On October 16, 2007, in Cherokee County, Georgia, State Court, Petitioner was found guilty of the misdemeanor crime of theft by taking and sentenced to 12 months' probation. Among the conditions of his probation was that he provide "proof of repay[ment]" of the $500.00 he had stolen. Petitioner has not been arrested again, and he has returned to its rightful owner the $500.00 he had stolen and has otherwise completed his probation. The record evidence, however, does not reveal how long ago Petitioner's probation was completed; nor, more importantly, does it shed any light on what Respondent has done with his life (other than completing his probation and not getting arrested) since the theft which led to his being placed on probation, or what his present reputation is for honesty, trustworthiness, and fair dealing. The record evidence, therefore, is insufficient to establish that there is reason to believe that, notwithstanding his commission of the aforementioned theft, it is not likely he would act dishonestly or in any other manner endangering the public were he to be granted the real estate sales associate license he seeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 5th day of December, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 5th day of December, 2011. COPIES FURNISHED: Kevin Vaughn, Jr. 931 Village Boulevard, Apartment 905-203 West Palm Beach, Florida 33409 Tom Barnhart, Esquire Special Counsel Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Roger P. Enzor, Chair, Florida Real Estate Commission 400 West Robinson Street, N801 Orlando, Florida 32801 Layne Smith, General Counsel, Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
