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 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)
The Issue The issues in this case are: (1) whether Petitioner has been rehabilitated from her disqualifying offense(s); and, if so, whether the intended action to deny Petitioner's exemption request pursuant to section 435.07(3), Florida Statutes (2015),1/ would constitute an abuse of discretion by Respondent.
Findings Of Fact Based on the evidence adduced at the hearing, and the record as a whole, the following material Findings of Fact are made: Petitioner was a 52-year-old female who sought to qualify, pursuant to section 435.07, for employment in a position of trust as a direct service provider for physically or mentally disabled adults or children. This position requires the successful completion of a Level 2 background screening. See § 435.04, Fla. Stat. APD is the state agency responsible for licensing and regulating the employment of persons in positions of trust. Specifically, the mission of the Agency includes serving and protecting the vulnerable population, including children or adults with developmental disabilities. In conformance with the statute, Petitioner was screened by APD since she applied for a position of special trust as a direct service provider of APD. The screening revealed, and the parties stipulated at the hearing, that Petitioner was convicted of the following disqualifying offenses: Theft by Shoplifting--Felony--1987 Theft by Shoplifting--Felony--1987 Forgery (4 counts)--Felonies--1993 Theft by Shoplifting--Felony--1993 Battery-Family Violence--Misdemeanor-- 1996 Forgery--Felony--1998 The stipulation also included the fact that 17 years have elapsed since the last disqualifying offense was committed. The screening revealed, and the parties also stipulated at the hearing, that Petitioner was arrested or convicted of the following non-disqualifying offenses: Simple Battery--Misdemeanor--arrested-- dismissed--1987 Theft by Conversion--convicted--1993 Driving Under the Influence--convicted-- 1994 Criminal Trespass--Misdemeanor-- convicted--2000 The stipulation also included the fact that 15 years have elapsed since the last non-disqualifying arrest or conviction was committed. Rosita Martin At the time of the hearing, Petitioner was unemployed. She had last been employed at Martin's Group Home as a caregiver of vulnerable children who had disabilities or behavioral problems. Her duties included giving out medicines, assisting clients with bathing, and taking kids on outings and to church. She also helped to cook. She explained that most of her convictions occurred during a period of her life when she was in an abusive marriage and suffered from depression. She acknowledged that, during that time period, she was abusing drugs (cocaine) and alcohol. During that same period of time, she admitted that she had purchased and also possessed marijuana. She explained that her battery conviction in 1996 related to a domestic dispute with her husband. She called the police, and they took them both to jail. Although she said she was defending herself, she admitted that she had been convicted and found guilty of battery. Petitioner testified that she is a "good girl now." She attends church every Sunday and "left her problems with drugs." She got sick and tired and "told God to take it away from me and he did." Petitioner testified that she has not used any type of illegal drugs for 20 years. Her sister operates four group homes for children with disabilities. Petitioner worked at one of the homes, and her sister wrote her a letter of support in this case. The evidence was undisputed that she received "excellent" evaluations while at Martin Group Home. Currently, she lives with her daughter, and a granddaughter who is two years old. As a result of one of Petitioner's various felony convictions, she testified that she was ordered to attend in- house drug treatment at the Willingway Hospital in Statesboro, Georgia. Upon questioning by the undersigned, Petitioner stated that she was in rehabilitation at the hospital for "like 6 months" back in the 1990's.2/ The various letters of support and reference provided by Petitioner came from her relatives. These included her sister and father. The record reflects that Petitioner attended and successfully completed numerous training courses (e.g. medicine administration, CPR training, blood borne pathogens, HIV safeguards, etc.) that related to the caretaker work she performs.3/ Other than two certificates for domestic violence training in 2011 and 2012, the other training and educational completion certificates did not relate to treatment or counseling programs related to her drug use, alcohol use, psychological counseling, or financial training-–the personal issues she struggled with in her past when the disqualifying events took place. The evidence reflected that she had numerous and chronic driving violations, pertaining primarily to failing to pay road tolls. She claimed that all of these toll violations occurred when her daughter was driving her car.4/ On cross-examination, Petitioner conceded that she failed to provide a detailed version of the facts or a full explanation for each criminal offense listed on her exemption form.5/ Petitioner claimed that she was "new at this" and did not understand the details she was supposed to provide. For the criminal offenses involving theft of property, she claimed on the form, and testified, that there was "no harm" to the victim. Again, she claimed some confusion and stated that she thought that they were talking about harm in the "violent" sense. She was also cross-examined about the six-month drug treatment program that she testified she had attended at Willingway Hospital. She was asked why she did not provide that information to the Agency in the exemption form or provide the agency with a copy of a completion certificate. Inexplicably, she was unable to provide a satisfactory explanation during the hearing for why she did not disclose the drug treatment program on the exemption questionnaire. She claimed that since the court had ordered her into treatment, she did not think it was necessary to specifically list or describe it. She was asked why she was not able to provide a letter of recommendation from her church pastor. She did not provide an adequate explanation and simply stated that she attends church but is not a church member, that she just goes to church there every Sunday. She worked briefly at a company called Best Walks of Life. Her supervisor was her son, Mr. Walker. No details were provided concerning what she did there. She acknowledged that much of her criminal activity arose from or was related to problems with monetary or financial issues; yet, she conceded that she had not taken any financial courses or other classes to obtain financial or budgeting training or counseling. After working for her sister at Martin Group Home, she has not made any attempts to work in any other places or group homes since leaving. Darnisha Johnson Petitioner is her mother. The witness is 24 years old and lives with her daughter at her mother's house. She testified that her mother is "a great person today. She's great." She also stated that her mother is a "much better person" then when she was involved in criminal activity.6/ She also felt that her mother is not using any drugs now. She acknowledged that she has a car, but that it is in her mother's name. In the context of who pays the bills today and supports her financially, she characterized her mother's role as being her "support system." She also admitted that any failures to pay tolls while driving the vehicle registered in her mother's name were her responsibility. Molita Cunningham She is a friend of Petitioner's. She works as a certified nursing assistant and is certified as such with the State of Florida. She has known Petitioner for a little over three years and met her at a Family Dollar store. She wrote a letter of support for Petitioner. She was not aware of any facts to suggest that Petitioner was engaged in criminal activity, drug abuse, or abuse of her clients in any manner. She acknowledged she had a background similar to Petitioner's. She was "out there in the streets" and is a convicted felon. Other than being a general character witness, the witness offered no substantive evidence touching upon Petitioner's rehabilitation from the disqualifying offenses. Evelyn Alvarez Ms. Alvarez is employed with the Agency as the regional operations manager for the Southern Region.7/ She obtained a master's degree in public administration from Florida International University in 2000. APD serves individuals that have specific developmental disabilities. The disabilities include intellectual disabilities, autism, cerebral palsy, spina bifida, and the like. Her role in this case was to review the background information gathered by both the Department of Children and Families and APD on Petitioner. After her review, the package of information was sent to an exemption committee. That committee then independently reviewed the exemption package and made its own recommendation to the Director of APD. Before deciding on the exemption request, the Director reviewed both Ms. Alvarez's recommendation and the recommendation of the exemption committee. She correctly acknowledged that the applicant for an exemption from disqualification must prove rehabilitation by clear and convincing evidence. She also correctly noted that the Agency should consider the circumstances of the disqualifying offense(s), the nature of the harm caused to any victims involved, the history of the employee since the incident and any other evidence indicating that the employee will not present a danger to the vulnerable or disabled adults or children they serve. APD was concerned that Petitioner failed to follow directions and provide the details for each disqualifying criminal event.8/ Also, Ms. Alvarez was concerned that Petitioner's failure to acknowledge that someone was "harmed" by the theft or forgery crimes ignores that there were victims involved, and the response fails to show an acceptance of responsibility for the crime(s). Ms. Alvarez testified that the Agency has no idea what happened with each of the disqualifying events, or of any circumstances that were happening at the time that would allow APD to understand why Petitioner would commit the offenses, and that there was no acknowledgment of any harm to any victims. In the opinion of Ms. Alvarez, the training certificates provided by Petitioner were not persuasive evidence of rehabilitation. More specifically, they were only indicative of employment training and did not include anything in terms of addressing Petitioner's substance abuse issues, her inability to manage her finances, or her involvement in acts of domestic violence. In APD's opinion, the lack of any treatment or professional counseling for those issues militated against a finding of rehabilitation. Likewise, Petitioner did not describe her alleged six- month, in-house drug rehabilitation program in the exemption application, nor was there any certificate of completion of drug treatment provided. APD concluded that Petitioner used poor judgment during an incident when she invited her friend, Ms. Cunningham, to spend a day on the job at Martin Group Home with Petitioner's disabled and vulnerable children. APD felt that this was a breach of client confidentiality, HIPAA rights, and may have put some of the children at risk around a visitor who did not have a background check or clearance to be at the facility. There were no professional references or letters of support offered by Petitioner from past employers (other than from group homes involving her relative). Likewise, there were no letters attesting to her good moral character from her church or other faith-based relationships she may have established. Ms. Alvarez testified that the reason the Agency wants letters of reference from individuals who do not have a conflict of interest is to show her character. Examples of letters of reference would be from a pastor or from an organization where someone had volunteered. The letters provided by Petitioner, while useful, did not reflect an impartial view of her character.9/ The Agency determined that it had no basis of reference for the character of Petitioner due to her failure to provide more impartial references.10/ In Ms. Alvarez's opinion, after reviewing the completed application, Petitioner had not provided any evidence, and APD had no knowledge, to support a finding of rehabilitation. Furthermore, APD did not have any knowledge of any financial planning or budgeting courses that Petitioner may have taken to show rehabilitation in the area of her finances. APD considered it significant during its review that Petitioner had been charged with driving while license suspended ("DWLS") (a criminal traffic offense) in 2012 and again in 2013, less than two years before the application. (Both DWLS offenses were subsequently dismissed.) Respondent's Exhibit 9, Petitioner's Florida Comprehensive Case Information System driving record, reflects in excess of 20 failures to pay required highway tolls in a two-year period from 2012 to 2013.11/ Petitioner did not provide any explanation for her driver's license problems to the Agency at the time of her Exemption Application. The Agency had no knowledge of the facts and circumstances surrounding the DWLS citations. Ms. Alvarez testified that traffic offenses and driving habits are important considerations, since direct service providers are often required to transport persons with developmental disabilities In essence, APD concluded that Petitioner had fallen short of her burden of showing rehabilitation by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities confirm its previous intended denial and enter a final order denying Petitioner's application for an exemption from disqualification. DONE AND ENTERED this 27th day of July, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2016.
The Issue The issue in this case is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At issue in this case is a request by petitioner, W. D., for an exemption from disqualification from employment in a position of special trust, namely, working with developmentally disabled persons. Respondent, Department of Health and Rehabilitative Services (HRS), is the agency charged with the statutory responsibility of approving or denying such requests. When the relevant events herein occurred, petitioner was sharing an apartment with his fiance in Gainesville, Florida. As such, his fiance was a "family or household member" within the meaning of the law. On the evening of October 16, 1992, petitioner was arrested on charges of battery (domestic violence) against his fiance and battery against her girlfriend as a result of an altercation. After a trial was conducted in the Alachua County Court on February 9, 1993, the jury returned a verdict of guilty on both charges. Thereafter, petitioner was ordered to pay costs in the amount of $310.00 or in lieu thereof complete 50 hours of community service, and reimburse one of the victims for the cost of replacing her broken eye glasses. He was also placed on six months probation. On August 20, 1993, petitioner was discharged from probation after successfully complying with all general and special conditions of his probation. In 1995, petitioner secured employment with the Alachua County Association for Retarded Citizens (ARC) as a residential care technician. Because the job involved working with developmentally disabled persons, petitioner was required to undergo a background screening for disqualifying offenses. A background check by the Florida Department of Law Enforcement revealed petitioner's arrest and conviction on two counts of battery. Because the offense of battery against a "family or household member" constitutes domestic violence and is a disqualifying offense under the law, petitioner was notified by HRS that he was ineligible to continue employment with ARC. That advice prompted petitioner to request an exemption. After his request was denied by an HRS committee, petitioner initiated this proceeding. In order to obtain an exemption, a disqualified person must present (a) "clear and convincing evidence to support a reasonable belief that the person is of good character so as to justify an exemption," and (b) "sufficent evidence of rehabili-tation." In establishing rehabilitation, the circumstances surrounding the incident, the time period that has elaped since the incident, the nature of the harm occasioned to the victim, and the history of the person since the incident, are factors to be considered. In support of his request, petitioner first described the circumstances surrounding the incident. According to his account, which was not controverted, it was precipitated by the friend of his fiance, who was drinking that evening. After the argument began, the friend placed petitioner in a "bear hug." While breaking free, petitioner unintentionally knocked her down. She also broke her glasses during the altercation. There were no apparent injuries to the friend. Petitioner denied that his fiance suffered any serious injuries during the incident. However, the arrest report does indicate that his fiance suffered a cut on her elbow, "soreness" in her face, and her clothes "were pulled open and dissheveled (sic)." Even so, there is no indication that the fiance required medical treatment or suffered any permanent injury. Petitioner avers that this was the only incident of that nature during his nine year relationship with his fiance, and he asks that he not be punished indefinitely for this one mistake. Petitioner has no blemishes on his record since the incident occurred more than three years ago. A contention that he is now undergoing counseling was not disputed. As to petitioner's "history since the incident," except for a six-week stint with ARC, the record does not show his entire employment history since late 1992. However, petitioner did work for eighteen years with the Gainesville Regional Utilities, including some period of time after his 1992 arrest. Petitioner enjoys working with retarded children and desires to continue his employment with ARC. Letters received in evidence as petitioner's exhibit 1 corroborate his assertions that he did a good job during his brief tenure with ARC, he was considered a "reliable" employee, and he will be reemployed if his request for an exemption is granted. They also corroborate his contention that he is now a good citizen. Based on this unrefuted evidence, it is found that there is sufficient evidence to support a reasonable belief that petitioner is of good character so as to justify an exemption and that he will not be a danger to the safety or welfare of the children with whom he would work. Accordingly, his request should be granted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification from employment in a position of special trust, namely, working with the developmentally disabled. DONE AND ENTERED this 27th day of March, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 27th day of March, 1996. COPIES FURNISHED: Sandra R. Coulter, Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard E. Doran, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 W. D. (address of record) Lucy E. Goddard, Esquire 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601
The Issue Whether or not Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner and received by the Florida Commission on Human Relations on November 20, 2001.
Findings Of Fact Based on the testimony of Petitioner and the evidence he presented, the following findings of fact are made: Petitioner was employed by Respondent in approximately 1990. Then or shortly thereafter he became a houseman at the Respondent's Grand Floridian Resort Hotel. His assigned duties included some strenuous lifting and other strenuous physical activity. In 1995, Petitioner seriously injured his lower back and one hand in an off-the-job incident involving his jumping from the second story of his apartment to avoid a fire in the apartment. As a result, Respondent gave him a leave of absence for about five months from his employment. After returning to work, in early 1996 Petitioner incurred what he contended was a work-related injury to his lower back. A medical record introduced by Petitioner, casts doubt on the extent to which that injury contributed to the condition from which he thereafter suffered and which interfered with and ultimately ended his ability to work. Petitioner had major back surgery in 1996. He consequently received and took additional leave from work. Petitioner testified on several occasions that at no time after the 1995 injury was he able to perform the strenuous aspects of the assigned duties of his position, houseman. Based on Petitioner's testimony, this finding of fact is confirmed, i.e., Petitioner is unable to perform the assigned duties of a houseman. Petitioner was placed on light duty for a period of time. Petitioner was sent to a department of Respondent called "Re-Casting" in an effort to place him in duties he could perform. As a result of his initial contact with Re-Casting, he was transferred from the Grand Floridian Resort Hotel to the Contemporary Resort Hotel, but he was unable to perform his assigned duties and accordingly was transferred back to the Grand Floridian Resort Hotel. The transfer and return took place in March and April 1997. Petitioner subsequently returned to Re-Casting, and took a test to determine his qualifications for an open position as a cashier. Petitioner failed the test. Petitioner last worked for Respondent in May 1997. Petitioner has not held any employment since then, and he testified that he has not applied for employment since then. He admits that the reason for not having held any employment and not applying for it is his physical inability to work. Petitioner testified unequivocally that he has, since May 1997, been unable to do any kind of work. Based on Petitioner's testimony, this finding of fact is confirmed, i.e., that since May 1997, Petitioner has been unable to do any kind of work. Petitioner has applied for disability benefits with the Social Security Administration. His disability claim indicates a continuing disability on his part.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations find that Petitioner, Thelemaque Coleus, has failed to present a prima facie case of employment discrimination under the FCRA, and that, accordingly, the case is dismissed with prejudice. DONE AND ENTERED this 27th day of February, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 28th day of February, 2002. COPIES FURNISHED: Thelemaque Coleus Post Office Box 550776 Orlando, Florida 32855 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Charles Robinson Fawsett, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956 Christie Sutherland Walt Disney World Post Office Box 10000 Lake Buena Vista, Florida 32830 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Petitioner, Eugenia Mays, has demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with developmentally disabled persons; and, thus, whether Respondent’s intended action to deny Petitioner’s request for an exemption from employment disqualification is an abuse of discretion.
Findings Of Fact APD is the state agency responsible for licensing and regulating the employment of persons in positions of trust, and is charged with serving and protecting adults or children with developmental disabilities, sometimes referred to as vulnerable individuals.2/ Vulnerable populations served by APD may include individuals with developmental and intellectual disabilities, autism, cerebral palsy, spina bifida, Prader-Willi syndrome, and Down syndrome. Some of APD’s clients are incapable of expressing their needs or unable to express whether something is wrong. APD also has administrative jurisdiction to enforce the laws governing such licensees. Petitioner is a 55-year-old female seeking licensure from APD to serve as a direct care provider for Respondent’s clients. As part of the application process for employment as a direct service provider, Petitioner was subject to a routine pre- employment background screening pursuant to section 435.04, Florida Statutes. The screening revealed the existence of several disqualifying criminal incidents in Petitioner’s past. In 1987, 1990 and 1994, Petitioner was convicted of possession of cocaine, possession of cocaine with the intent to sell, and the sale of cocaine. Additionally, there were several non- disqualifying events in Petitioner’s background. On January 9, 2017, Petitioner executed her Request for Exemption, which was filed with the Department of Children and Families (DCF).3/ DCF conducts the initial screening of all applicants by making sure all the required documents are present and then it conducts the initial background investigation for APD. Background screening and local criminal records revealed a history of involvement with law enforcement. Petitioner admitted and took full responsibility for the offenses in both the paperwork she filed with APD and in her testimony at hearing. DCF then issued a “high level summary” to APD. Among the items submitted by Petitioner in support of her Request for Exemption were her employment history record, information regarding the final court dispositions of the arrest reports and/or charging affidavit; information regarding the completion of sanctions; her proof of rehabilitation; letters of recommendation; her personal history; an executed affidavit of good moral character; the non-disqualifying issues; and an updated local law result. Several letters were sent to Petitioner seeking additional information, and Petitioner responded to the best of her ability to each request for information. Once Ms. Jones received the DCF summary, she reviewed Petitioner’s documentation. She then checked the court and other systems for any additional charges that may not have been included by the Florida Department of Law Enforcement or the Federal Bureau of Investigation. Ms. Jones also verified that any court-ordered sanctions were completed. Ms. Jones had access to state and federal government databases, including a comprehensive case information system to ensure that all fines and fees were paid, and she checked the applicant’s “driving record through the DMV.” Additionally, she checked Petitioner’s “eligibilities through AHCA and Medicaid.” Ms. Jones then prepared a summary packet, which was provided to the ROM. The ROM must review the packet within a certain time frame and provide a recommendation to the State Office Committee (SOC). ROM Smith identified the factors that he considered when making his recommendation: the disqualifying offense(s); the circumstances surrounding the offense; any proof or some evidence of rehabilitation or counseling; any show of “some remorse and/or ownership of the charges that have been filed”; the possible consequences to “the health and safety of the individuals that” APD serves; and “any non-disqualifying offenses that may have been charged against the individual.” ROM Smith recommended denial of Petitioner’s exemption request. Upon receipt of the ROM’s recommendation, Ms. Jones then prepared a recommendation summary and presented that to the SOC. The SOC consists of APD’s chief of staff and a program administrator from the regional support unit. An APD attorney was present for legal advice. Ms. Jones identified the factors that APD’s SOC considers in making the recommendation for the denial of an exemption request as: “any arrests or criminal convictions after the original disqualifying offense; the employment history; training and education; professional references”; driving record; other agency exemptions or involvement with other agencies; and any inspections or exemptions of the other agencies. Ms. Jones averred that APD takes “into account those inspections or those exemptions.” Once the SOC made its recommendation, Ms. Jones took the two recommendations (the ROM’s and the SOC’s) to APD’s director who reviewed the material to make the final decision. Ms. Jones averred that “most of the time common sense is used” when APD approached the question of rehabilitation standards. That if the issue involved a drug-related offense, one would look for drug rehabilitation, and if that were missing, “that is a lack of responsibility on the applicant’s part.” A review of Petitioner’s application, and her uncontroverted testimony confirmed that she has been employed in several successful occupations since 1990. Petitioner’s first business, started in 1990, was Precise Nail and Beauty Salon (Salon). When the economy went down, Petitioner determined she needed a second job and that is when she started working for a home companion company in Bradenton. The Salon continues in operation today. Petitioner did research to begin her own home companion company and started Precise Home Companions (PHC). PHC is a non- medical operation, which is certified through the state to go into private homes and provide non-medical home care. This care includes preparing meals, doing laundry, making their beds, helping persons with their bills, taking them to and from doctors’ appointments, and whatever other activities they need. Petitioner successfully completed a Level 2 background screening and took the classes and/or training necessary for the license. Petitioner obtained the requisite insurance and continues to hold the appropriate bond for PHC. In setting up PHC, Petitioner was given access to conduct background screenings to hire more staff. Once the staff was on board, Petitioner had to ensure they had training and were tested for “TB.” Petitioner was responsible for making sure the six employees recorded their work hours in order for the payroll service to issue their pay. Petitioner recognized another area of need when a PHC client needed more attention than PHC could provide. Petitioner researched and opened an adult family care home. Petitioner’s adult family care home (AFCH) is licensed by the Agency for Health Care Administration (AHCA). AFCH is Petitioner’s responsibility and she maintains the requisite insurance and bond. AFCH is a home which provides room and board for up to five elderly clients, although only four were in residence on the hearing date. The clients may need assistance with their activities of daily living. AFCH also keeps the residents busy with various activities, outings and events. Disqualifying Offenses Petitioner testified that her “downfall,” as she refers to it, occurred in and before 1994. Between 1987 and 1994, Petitioner (when she was between 25 and 31 years of age) was convicted of possession of cocaine with intent to sell, sale of cocaine, and possession of cocaine, all disqualifying offenses. Petitioner steadfastly maintained that she has never used drugs, but possessed and sold them in order to support her children. No evidence was presented to establish that Petitioner ever used drugs. Petitioner admitted that it was her “decision to do wrong,” and she took full responsibility for those actions. However, Petitioner was clear that it was also her determination to change when she realized she had been wrong. Petitioner did change and for the past 23 years has not had a disqualifying offense. Petitioner changed her environment. She joined a church and became very active in it. She divorced her then- husband who she found to be using drugs. Petitioner recently married a man with a bachelor’s degree in rehabilitation counseling. Petitioner completed the sanctions imposed by the courts, and all fees and costs related to the disqualifying offenses were paid. For the past 23 years, Petitioner has not had any disqualifying offenses. Marvin Smith has known Petitioner for approximately ten years, having married Petitioner’s mother. Smith visits in Petitioner’s home once or twice a month, and does not think her residence is a “destructive environment.” Smith has attended church with Petitioner, and sees her lifestyle as “moving in the right direction.” Further, in the ten years Smith has known Petitioner, he has never seen her act in a violent manner.4/ Marvina Johnson-Allen has known Petitioner for over 20 years, and has witnessed Petitioner caring for people in her church and home. Additionally, Johnson-Allen provided insight into the various successful businesses that Petitioner has started, and Petitioner’s volunteer work in the community. Kathy Barnes has known Petitioner for over ten years, having met her at Petitioner’s beauty salon. Barnes was not Petitioner’s employee, but as a customer, Barnes watched Petitioner work hard. In over ten years, Barnes has never seen Petitioner use drugs or alcohol. At one point Barnes had major surgery, and without being asked by Barnes, Petitioner supplied housekeepers to enable Barnes to recover from the surgery. Edward Gresham has known Petitioner for approximately three years, and is now Petitioner’s husband. Gresham works as a rehabilitation counselor in the health care field, and also works in the home that Petitioner operates. Gresham has successfully cleared a Level 2 background check. Further, he has observed Petitioner ensuring that residents are clothed in their own clothes, are fed, and receive their allowances. In the three years he has known Petitioner, Gresham has not seen Petitioner use alcohol or illegal drugs. Non-Disqualifying Offense APD focused on (in addition to the drug rehabilitation issue) Petitioner’s driving record, and her designation as a habitual driving offender. The basis for this focus was a concern that Petitioner might drive a client to an appointment. Petitioner recently completed a driver’s education course, from which she learned a great deal about her responsibilities as a driver. She paid the fines associated with the offender status, and she has a current, valid work driver’s license. Petitioner anticipates obtaining a completely clear driver’s license in June 2018. In denying the request for exemption, APD “considered all available information that led to [Petitioner’s] disqualification, as well as all information provided by” Petitioner regarding the disqualification. APD denied Petitioner’s request because she had “not submitted clear and convincing evidence of [her] rehabilitation.” Other Attributes of Significance Petitioner has worked consistently over a sustained period in a position in which she cares for multiple persons. By all accounts, Petitioner is a reliable, kind, caring and diligent worker, and her current continuous employment demonstrates that she can be trusted to work appropriately in situations involving vulnerable adults. Petitioner is licensed by AHCA. She holds an exemption from AHCA which has been appropriately renewed since its issuance. Petitioner is allowed to participate in the Medicaid program as a provider. Petitioner completed courses necessary to obtain the requisite licenses. Section 435.07, Florida Statutes, the controlling statute regarding the exemptions from disqualification, provides the following, in pertinent part: Exemptions from disqualification.—Unless otherwise provided by law, the provisions of this section apply to exemptions from disqualification for disqualifying offenses revealed pursuant to background screenings required under this chapter, regardless of whether those disqualifying offenses are listed in this chapter or other laws. (1)(a) The head of the appropriate agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: Felonies for which at least 3 years have elapsed since the applicant for the exemption has completed or been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony; * * * (b) A person applying for an exemption who was ordered to pay any amount for any fee, fine, fund, lien, civil judgment, application, costs of prosecution, trust, or restitution as part of the judgment and sentence for any disqualifying felony or misdemeanor must pay the court-ordered amount in full before he or she is eligible for the exemption. For the purposes of this subsection, the term “felonies” means both felonies prohibited under any of the statutes cited in this chapter or under similar statutes of other jurisdictions. * * * (3)(a) In order for the head of an agency to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth clear and convincing evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if employment or continued employment is allowed. The agency may consider as part of its deliberations of the employee’s rehabilitation the fact that the employee has, subsequent to the conviction for the disqualifying offense for which the exemption is being sought, been arrested for or convicted of another crime, even if that crime is not a disqualifying offense. The decision of the head of an agency regarding an exemption may be contested through the hearing procedures set forth in chapter 120. The standard of review by the administrative law judge is whether the agency’s intended action is an abuse of discretion. * * * (5) Exemptions granted by one agency shall be considered by subsequent agencies, but are not binding on the subsequent agency. Rehabilitation is not defined in statute or rule. Petitioner’s last disqualifying offenses occurred in 1994, approximately 23 years ago. At some point, the passage of time itself, without any disqualifying offenses, must be evidence of rehabilitation. While by no means dispositive, the passage of 23 years since the last disqualifying offense is substantial evidence of Petitioner’s rehabilitation. Petitioner’s forthright demeanor and her willingness to discuss her “downfall” and her determination to turn her life around are significant. Petitioner testified convincingly that she has turned her life around, and is not the same person that she was 23 plus years ago. Petitioner has successfully worked with elderly persons in a positive and helpful manner, and currently presents no danger to the vulnerable population served by Respondent. The concerns outlined by Respondent in its decision letter, without the benefit of the hearing testimony, were refuted by the credible testimony adduced at hearing. Common sense tells a huge story of Petitioner’s rehabilitated life. Petitioner meets the objective criteria for an exemption from disqualification as established by section 435.07(1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Agency for Persons with Disabilities granting Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 12th day of January, 2018, 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 12th day of January, 2018.
The Issue The issues in this matter are whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense; and, if so, whether Respondent’s denial of Petitioner’s request for an exemption from disqualification constitutes an abuse of discretion.
Findings Of Fact Petitioner seeks employment as a direct service provider for persons with developmental disabilities. Petitioner desires to work with Central Florida Group Homes, a residential service provider the Agency regulates. The Agency is the state agency responsible for regulating the employment of direct service providers. See §§ 110.1127(2)(c)1. and 393.0655(1), Fla. Stat. A “direct service provider” is a person who has direct contact with and provides services to Agency clients. See § 393.063(11), Fla. Stat. Agency clients are a vulnerable population consisting of those persons who are eligible for services and support for developmental disabilities. See § 393.063, Fla. Stat. Agency clients often have severe deficits in their ability to complete self-care tasks and communicate their needs and wants. Without Agency services, these clients would require institutionalization. Agency clients are at a heightened risk of abuse, exploitation, and neglect because of their developmental disabilities and inability to self-preserve. Consequently, employment as a direct service provider is regarded as a position of special trust. To qualify as a direct service provider, Petitioner must comply with the employment screening requirement established in chapter 435. See § 393.0655(1), Fla. Stat. The Agency relies on the Department of Children and Families, Background Screening Unit (the “Department”), to initially receive and screen requests for exemption from individuals seeking employment as direct service providers. On or around September 15, 2015, Petitioner submitted a Request for Exemption including an Exemption Questionnaire, various criminal records, character references, and other supporting documentation (the “Exemption Packet”) to the Department. The Department forwarded Petitioner’s Exemption Packet to the Agency for review. Petitioner's background screening revealed a criminal offense. In September 2005, Petitioner committed the disqualifying offense of Failure to Return Leased Property, a felony of the third degree in violation of section 812.155(3), Florida Statute (2005). Petitioner pled guilty to the crime. The court withheld adjudication. Petitioner was given a suspended jail sentence conditioned upon payment of fines and court costs. At the final hearing, the Agency also produced evidence of three “non-disqualifying offenses” Petitioner committed subsequent to her 2005 disqualifying offense. These non- disqualifying offenses include: an arrest for simple battery in June 2008 (a violation of section 784.03, Florida Statute (2008)); an arrest for criminal mischief in August 2008 (a violation of section 806.13, Florida Statute (2008)); and an arrest in Virginia in June 2010 for fraudulently attempting to sell a car without written consent of the owner (a violation of section 18-2.115, Code of Virginia, which is similar to section 818.01, Florida Statutes (2010), disposing of personal property under lien). In accordance with section 435.04(2), Petitioner’s guilty plea to a felony in violation of section 812.155(3) disqualified her from working as a direct service provider for persons with developmental disabilities. Consequently, in order to be employed in such a capacity, Petitioner submitted to the Agency her request for exemption from her disqualifying offense as provided in section 435.07. On February 4, 2016, the Agency issued a letter notifying Petitioner that it denied her Request for Exemption. The Agency denied Petitioner’s application because it did not believe she submitted clear and convincing evidence of her rehabilitation. At the final hearing, Petitioner testified on her own behalf. Petitioner stated that she has a passion for helping people with special needs. She believes her calling is to help people. Petitioner expressed her desire to open a group home for disabled individuals. Regarding her 2005 disqualifying offense, Petitioner testified that this crime involved furniture she had rented from a company called Color Tyme. Petitioner asserted that she paid the furniture off early. Color Tyme, however, never updated its computer system to credit her account. Petitioner explained that because of her busy work schedule, she had difficulty finding time to settle the dispute with the store. Before she could contact the store to discuss the account, a store manager had forwarded the matter to the state attorney for charges. According to Petitioner, she resolved the issue directly with Color Tyme, and the store did not want to press charges. However, the state attorney had already issued a warrant for her arrest. Therefore, it was too late to stop the criminal proceedings. Consequently, Petitioner pled guilty to the charge because she was afraid of jeopardizing her job, and the judge advised her the offense would not “show on her record or hinder [her] in the future.” At the final hearing, the Agency produced two previous requests for exemption that Petitioner submitted in 2006 and 2013. The Agency pointed out that Petitioner presented slightly varying accounts of the circumstances surrounding her failure to return leased property. In the 2006 application, Petitioner wrote that the situation was a “big misunderstanding.” Petitioner stated that she was behind in her payments due to a bad car accident. Petitioner contacted Color Tyme and made arrangements to pay the remaining amount due. However, by the time she presented her payment to Color Tyme, the store had already referred her account to the State Attorney's Office, and the arrest warrant had been issued. In her 2013 Request for Exemption, Petitioner wrote that she had already paid for the furniture in full prior to Color Tyme forwarding the matter to the state attorney. Regarding her non-disqualifying offenses, Petitioner explained that her 2008 arrest for battery resulted from an argument with her (future) husband, Leroy Youmans. At the time of the incident, Petitioner and Mr. Youmans were not married. However, she was pregnant with their first child, which made her more emotional. The argument escalated to the point where Petitioner asked Mr. Youmans to leave her home. The two briefly tussled over the keys to Petitioner’s car. Mr. Youmans prevailed and drove away. Petitioner pursued him in her other car. At some point, law enforcement corralled the two vehicles and confronted Petitioner and Mr. Youmans. The police report indicated that the officer observed “a lump on the left side of [Mr. Youmans’] forehead.” Petitioner was arrested and charged with simple battery. The State Attorney's Office, however, did not prosecute Petitioner because the victim (Mr. Youmans) did not wish to cooperate with the prosecution. At the final hearing, Petitioner disputed the police report’s statement that she had injured Mr. Youmans. Petitioner explained that Mr. Youmans might have been harmed at his work the night before when he was required to “take down” an individual. Alternatively, Petitioner expressed that her husband's head is “just shaped like that. . . . He just has a funny-shaped head. It looks like he has a lump on it.” At the final hearing, Mr. Youmans testified on Petitioner’s behalf. Mr. Youmans conceded that he and Petitioner had a heated exchange that night, and she was acting “wild.” However, he asserted that she did not cause the bump on his head. Mr. Youmans agreed with Petitioner that his head is naturally “lumpy.” On the other hand, he relayed that Petitioner did accidently scratch his face above his eyebrow with the car keys, which drew blood. Regarding her 2008 criminal mischief arrest, Petitioner stated that she was falsely accused of slashing a woman’s tires. Petitioner explained that she did not get along with the other woman. The woman, together with a co-worker, contacted the police and fabricated a story that Petitioner was seen vandalizing the woman's car. The witness identified Petitioner as the perpetrator in a photo line-up at the police station. Petitioner was arrested and charged with criminal mischief. Petitioner denied any involvement. She asserted that she was not present when the car was damaged, and the woman and the witness were lying. The State Attorney did not proceed with prosecution due to “witness problems.” Regarding the 2010 arrest in Virginia for fraudulent sale of a vehicle, Petitioner explained that when she was living in Virginia, she purchased a car at a “buy here, pay here” car dealership. Several months later, she decided to move back to Florida and take the car with her. Following her move, Petitioner fell behind on her payments, and the dealership was upset that she had taken the car out of the state. A warrant was issued for her arrest for allegedly attempting to sell a vehicle without the lienholder’s consent. She stated that she contacted the dealership and made arrangements to return the car to Virginia and then turn herself in. Petitioner was arrested, but the charges were subsequently dropped. In expressing that she has rehabilitated from her disqualifying offense, Petitioner represented that she takes full responsibility for her past and is trying to move forward. Petitioner asserted that her crime did not harm or injure any victims, and she has never abused anyone in her care. Furthermore, she has had no involvement with law enforcement since 2010. Petitioner also testified that there are no current stressors in her life. Petitioner has not voluntarily sought counselling because no court has ordered her to obtain counselling, and she does not feel like she needs it. Instead, she relies on her family and her faith for guidance and support. Petitioner and her husband participate in ongoing pastoral counseling. In addition, as a wife and a mother, she feels responsible for being a positive role model. Petitioner has had a stable work history since her disqualifying offense. Mr. Youmans also proclaimed that Petitioner has grown since her criminal offenses. He declared that Petitioner’s true character is not what is reflected in the criminal paperwork. Petitioner is very trustworthy, and her heart is pure. Petitioner provided two letters of reference attesting to her good character. The letters were written by persons who have known Petitioner for several years. The letters described Petitioner as dedicated, dependable, hardworking, and kind. At the final hearing, the Agency presented the testimony of Michael Sauvé, Deputy Regional Operations Manager for the Central Region. Mr. Sauvé oversees all services to persons with developmental disabilities in his jurisdiction. Mr. Sauvé’s responsibilities include reviewing all requests for exemption from disqualifying offenses submitted in his region. Mr. Sauvé personally reviewed Petitioner’s Request for Exemption. Mr. Sauvé described the Agency's process for reviewing exemption requests. The Agency examines the disqualifying offense, the circumstances surrounding the offense, the nature of the harm caused to any victim, the applicant’s history since the incident, and the passage of time since the disqualifying incident. In addition, the Agency considers whether the applicant accepts responsibility for the criminal offense, whether the applicant expresses remorse, and any other evidence indicating that the applicant will not present a danger if employment is allowed. Mr. Sauvé explained that many tasks direct service providers offer Agency clients involve financial, medical, and social necessities. Most Agency clients do not have a voice. Consequently, direct service providers must not exhibit a propensity toward anger and must be extremely aware of their responsibilities. Therefore, the Agency must ensure that direct service providers are detail-oriented and trustworthy. When considering a request for an exemption, the Agency weighs the benefit of the prospective employee against the risk of endangerment to its clients. Regarding Petitioner’s application, Mr. Sauvé testified that the Agency distrusted Petitioner's expression of remorse. Mr. Sauvé also opined that Petitioner’s acceptance of responsibility for her criminal history did not appear genuine as she minimized any wrongdoing and redirected the blame elsewhere. In addition to Petitioner’s 2015 Exemption Packet, the Agency reviewed Petitioner’s statements from her prior request for exemptions submitted to the Agency in 2006 and 2013. As detailed above, the Agency noted several inconsistencies in Petitioner's multiple descriptions of the circumstances surrounding her failure to return the leased property. Specifically, Mr. Sauvé commented that while Petitioner’s accounts in 2013 and 2015 appear somewhat similar, the 2006 account (the account most contemporaneous to the event) differed from both. In 2006, Petitioner wrote that she had not paid for the furniture prior to the time the store referred the matter to the State Attorney. She also indicated that a car accident and her temporary unemployment caused her to fall behind in her payments. Further, Petitioner explained that the payment issue was a “big misunderstanding.” In 2013 and 2015, Petitioner indicated that the store’s mistake caused the dispute. Consequently, Mr. Sauvé was concerned with whether Petitioner was being fully truthful. Mr. Sauvé also commented that just because Florida and Virginia authorities decided not to prosecute Petitioner for her three non-disqualifying offenses did not mean that Petitioner was innocent of the alleged crimes. Petitioner's repeated run-ins with law enforcement reflected a pattern of poor judgment and a propensity toward angry reactions. Further, the inconsistencies in Petitioner’s descriptions of the circumstances surrounding the criminal offenses were troubling. To grant an exemption request, the Agency must consider all factors that might place Agency clients at risk. In Petitioner’s case, Mr. Sauvé questioned Petitioner’s character, honesty, trustworthiness, and fitness to provide services to the vulnerable individuals for which the Agency is responsible. In addition to the criminal offense information, the Agency also examined Petitioner’s driving record. Mr. Sauvé advised that a direct service provider will often be tasked to transport clients. Mr. Sauvé noted that Petitioner's driving record reflects a number of moving and non-moving violations since the disqualifying offense. He commented that this record also shows a pattern of questionable judgment by Petitioner. Upon careful consideration of the evidence in the record, the undersigned finds that Petitioner has not demonstrated, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense. While Petitioner has not been convicted of any crimes since 2005, her repeated encounters with law enforcement and the justice system raise serious concerns, and some hesitancy, in finding that she has sufficiently established that she should be employed in a position of special trust with persons with developmental disabilities. Despite the fact that Petitioner’s disqualifying and non-disqualifying offenses did not involve abuse or harm to another person, they do demonstrate a failure to exercise good judgment and responsibility that cannot be discounted. Therefore, based on the evidence set forth, Petitioner has not met her burden of demonstrating that she has rehabilitated from her past disqualifying offense or proven that the Agency should grant her request for exemption from disqualification under sections 393.0655 and 435.07.
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 denying Petitioner's request for an exemption from disqualification from employment. DONE AND ENTERED this 18th day of August, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 August, 2016.
The Issue Whether Petitioner has shown, by clear and convincing evidence, that he is rehabilitated from his 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 Respondent is the state agency charged under chapter 393 with regulating the employment of persons who seek to become employed working in positions of trust with persons with disabilities. Petitioner is seeking to start and operate a group home, Sunshine Loving Care, for persons with developmental disabilities. Petitioner plans to serve as an administrator for Sunshine Loving Care and performs work as a direct service provider. Petitioner is required to have a background screening before becoming a provider of services. The Department of Children and Families ("DCF") administers the background screening process for APD. Petitioner's background screening identified two criminal convictions: a burglary and larceny stemming from the same June 2, 1995, incident. On June 24, 2016, DCF notified Petitioner that he was disqualified from employment due to his criminal history and specifically because of the two disqualifying offenses, burglary and larceny. On or around November 14, 2016, Petitioner submitted a request for exemption and supporting documentation ("exemption package") to Respondent. On March 17, 2017, Agency Director Barbara Palmer advised Petitioner by letter that his request for an exemption from the disqualifying offenses was denied. The basis for the denial was that Petitioner failed to submit clear and convincing evidence of his rehabilitation. On or about April 10, 2017, Petitioner requested to appeal APD's denial. At the hearing, as well as in the exemption package considered by APD, Petitioner took full responsibility for the incident regarding his disqualifying offenses. At hearing, Petitioner credibly explained the circumstances under which he committed the offenses. On or about June 2, 1995, as General Manager of a U-Haul self-storage facility, a customer did not pay his storage unit fee and the items in the unit went up for auction. Before the auction date, two of Petitioner's employees asked for the unit's items. Petitioner gave the employees authority to take the items. Then, Petitioner and the two employees took the items from the unit for their personal use. On the day of the auction, the unit owner showed up to pay the outstanding bill and contacted the police when he learned his items had been taken. When questioned by police, Petitioner immediately took responsibility for taking the items with his two employees, confessed, and helped facilitate returning the items. Petitioner provided the same account of the incident in his personal statement portion of the exemption package and stated: While working at U-Haul as the General Manager, a customer did not pay for his storage unit and it went up for auction. After several failed attempts to contact the customer, on June 2, 1995, I authorized two of my employees to empty his storage bin. His personal effects were taken with my authorization; he then returned the day of the auction and wanted to pay for his unit. He asked [where] his stuff was and I told him we had them. He said it was theft and he reported it. The police came and asked for the things. I told them that I authorized the employees to take the items but we will return all of it. Nevertheless, we were all arrested and charged. I received 2 year probation and was ordered to pay restitution. After a year and a half, I was finished paying the restitution and my probation was then terminated early. Petitioner's full admission of his involvement at hearing coincides with his personal history statement above from his exemption package because he admits it was him three times specifically stating "we had them," "we will return all of it" and "we were all arrested and charged." Petitioner's exemption package and testimony at hearing also detail he was 22 years old at the time when he committed the disqualifying offenses. Petitioner was terminated from his employment at U-Haul for his actions. He did not challenge the charges. Instead, on September 26, 1995, Petitioner pled no contest to the criminal charges, adjudication of the guilt was withheld, and Petitioner was sentenced to two years of probation with an order to make restitution. He successfully completed his probation early and he paid restitution in full. Petitioner already has experience working, without incident, around and with persons who are or may be considered vulnerable. After Petitioner pled to the charges, he was unable to obtain employment. Eventually, Petitioner started working as a caregiver for several families. He cared for an elderly father for 16 months until he passed and subsequently went to care for another father for a second family for over a year. Petitioner provided compelling letters of recommendation in his exemption package and at hearing from one family attesting to how he took "excellent care of [the father]" and further attesting to his work ethic, reliability, punctuality, gentleness, and trustworthiness. The Doobay letter also stated the father looked forward to Petitioner's presence every day because he motivated the father to get out the house and mingle with others. Another reference letter in the exemption package further detailed how Petitioner successfully cared for a wheelchair-bound male, took him to his medical appointments, and continuously demonstrated patience, calmness when assisting and was loyal, full of life, caring, and a delight to be around. Additionally, for approximately the last 12 years, Petitioner has assisted Ramcharan who is wheelchair-bound. At hearing, Ramcharan testified that Petitioner picks him up to go to the temple, the movies, shopping and other activities and is very loving, understanding, cares for people and is "capable of taking care of [the] disabled." Petitioner has also made substantial efforts to become well-educated so that he can become gainfully employed. He provided evidence in his exemption package of obtaining an AA degree in criminal justice and business administration. He also obtained his real estate license about 18 years ago. In Petitioner's exemption package and at hearing, Petitioner demonstrated how he has given back to his community. He actively works at the Christy House, a place for abused women and children. Specifically, he has been helping renovate by painting, cabinetry, building a bench, and attempting to create a butterfly garden. Petitioner also cooks and feeds the homeless. Petitioner has shown that he a responsible individual by successfully holding jobs for over 14 years. His exemption package mirrors his testimony at hearing detailing his employment. Most recently, Petitioner has been employed as an Operations Manager Supervisor for FedEx Freight since 2013. He also works as a real estate agent for Keller Williams handling commercial real estate transactions with deals ranging from $500,000 to $1,000,000. Prior to FedEx, he maintained steady employment at management levels in the following roles: Store Manager for Advance Auto Parts from 2003-2006; Sales Manager over a 56-million-dollar store for Lowes Home Improvement from 2006- 2009; and Sales Manager and Area Supervisor over three stores and one warehouse for Uniselect Auto Parts from 2010-2013. Over the last 15 years, Petitioner has received 17 traffic citations and he provided the detailed documentation for each citation to APD as part of Petitioner's exemption package. Fourteen citations were dismissed or closed without prosecution as evidenced by the disposition paperwork in Petitioner's exemption package. At hearing, Respondent presented the testimony of Gerry Driscoll ("Driscoll"). Driscoll explained APD's process for reviewing exemption requests and about the vulnerability of the disabled clients APD serves. Driscoll further testified about the importance of ensuring those who work with the clients are competent to provide services because APD's clients can easily be taken advantage of since providers have access to both their living environment and funds. Driscoll testified regarding Petitioner's submittal of his exemption application package and Respondent's review of that package. Driscoll testified that Petitioner was denied an exemption because he does not feel that Petitioner provided a detailed account of the criminal offenses as compared to the police reports; but, instead, he determined Petitioner blamed others for the stolen items in his home and vehicle. Driscoll also testified Petitioner's exemption package was a problem because Petitioner's report of events did not match the police reports and he felt Petitioner minimized the incidents. Additionally, Driscoll was concerned about Petitioner's 17 traffic citations since the administrator position Petitioner seeks to get includes transportation of vulnerable individuals. Driscoll determined that Petitioner's traffic record shows a disregard of the law, which is part of the reason Petitioner was denied. At hearing, Thomas Rice ("Rice") confirmed that APD was primarily concerned with Petitioner's exemption package and determined that Petitioner was not rehabilitated because Petitioner did not admit to a more direct role with the stolen merchandise. Rice testified that Petitioner's exemption package was troubling, and it lacked honesty and trustworthiness based on the police reports; and, therefore, APD concluded that rehabilitation was not sufficiently demonstrated. Findings of Ultimate Fact Upon careful consideration of the entire record, it is determined that Petitioner has demonstrated by clear and convincing evidence that he is rehabilitated from his disqualifying offenses of burglary and larceny and that he will not present a danger to disabled or otherwise vulnerable persons with whom he would have contact if employment is allowed. It has been over 23 years since Petitioner committed the disqualifying offenses as a young adult. Petitioner was not convicted of the disqualifying offenses. Instead, adjudication was withheld, and Petitioner has had no further criminal arrests or convictions subsequent to his disqualifying offenses. Petitioner was honest and forthright about his past and expressed his remorse in his exemption package by stating "I made a mistake [that ruined my life]." Petitioner has worked reliably over a sustained period in a position in which he cared for vulnerable persons. By all accounts, Petitioner was a reliable, kind, caring, and diligent employee. This experience shows that Petitioner can be trusted to behave appropriately in situations involving vulnerable persons, such as the disabled. Petitioner's completion of his AA degree, licensure as a real estate agent making million-dollar monthly sale totals, and an almost 14-year history of employment in management is further evidence of appropriate behavior and moving his life forward. The undersigned further finds that denial of Petitioner's exemption request would constitute an abuse of discretion. As discussed above, it appears that Respondent relied heavily on the hearsay in the police reports and 17 charged traffic citations in making its decision to deny his exemption request and failed to adequately consider the information Petitioner provided regarding his rehabilitation. In doing so, Respondent failed to recognize Petitioner's admissions of his wrongdoing by using "we" three times in the exemption package personal statement. Respondent also failed to properly evaluate Petitioner having only three traffic infractions, not 17, because 14 were closed or dismissed. The evidence also indicates that Petitioner has and continues to perform well and safely in a work setting involving interaction with vulnerable individuals. Petitioner demonstrated, by credible and very compelling evidence, that he made a wrong decision and took the initiative to turn his 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.
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's request for an exemption from disqualification from employment. DONE AND ENTERED this 31st day of July, 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 31st day of July, 2017. COPIES FURNISHED: Kurt Eric Ahrendt, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Matthew M. Fischer, Esquire Chapman Law Group 4000 Hollywood Boulevard, Suite 555-S Hollywood, Florida 33021 (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)
